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Trafficking victims wrongly denied financial support in lockdown


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Potential victims of trafficking awaiting asylum support decisions during the first lockdown were wrongly denied the full payments to which they were entitled. So held the High Court in R (on the application of PM) v Secretary of State for the Home Department [2023] EWHC 1551.

The Claimant, PM, is an asylum seeker. In 2019, she received a positive reasonable grounds decision recognising her as a potential victim of modern slavery. This entitled her to weekly payments of £35. In May 2020, she became destitute and applied for asylum support under section 95 of the Immigration and Asylum Act 1999. While that application was outstanding, she was given temporary support under section 98 and moved into fully catered initial accommodation in a hotel. She spent several months there because of a shortage of accommodation caused by the Covid-19 pandemic. Her trafficking support continued until 6 July 2020, when the Secretary of State unexpectedly ceased such payments to people in initial accommodation. It was then reintroduced from 28 August 2020 at the lower rate of £25.40 based on new, amended, guidance.

In her judicial review claim, PM argued that she should actually have been paid £65 a week. She relied on the Court of Appeal’s judgment in R (on the application of JB (Ghana)) v Secretary of State for the Home Department [2022] EWCA Civ 1392. In that case, the Court held that potential victims who had been granted section 95 support but were still in catered hotel accommodation because of Covid-19 were entitled to a total of £65 a week. This was the effect of guidance published on 24 March 2020. It did not distinguish between catered and self-catering accommodation even though people in the former did not have to buy their own food.

PM submitted that the wording of the guidance cited in JB (Ghana) applied equally to people on section 98 support. Mrs Justice Steyn agreed, and rejected the Secretary of State’s arguments to the contrary based on the meaning of ‘accommodation’ and ‘financial support’ in the guidance. Some of those arguments, she pointed out, essentially repeated points that the Court of Appeal had rejected in JB (Ghana).

PM also challenged the amended guidance that reduced trafficking support payments to £25.40 per week. There was, she argued, a duty to consult those affected and make inquiries as to the impact before withdrawing an established benefit from them. The Secretary of State responded that no duty arose. She highlighted that this was only interim guidance pending a full review.

Again, Steyn J agreed with PM. She held that the Secretary of State had breached her legal obligation to take reasonable steps to acquaint herself with the relevant information before amending the Guidance (the ‘Tamesideduty’). This was a ‘very substantial reduction’ on the amount previously received, and an intention to review the position ‘could not rationally justify a premature decision’. The purpose of trafficking support was to assist victims in their recovery, and information should have been sought on how the change would impact this aim. The Secretary of State’s failure to do so meant that the amended Guidance was unlawful.

This judgment will only make a difference to a limited cohort of people – those who, like PM, were in initial accommodation under section 98 after being recognised as potential victims of trafficking. They will be entitled to back payments to make up the arrears that they are owed. Notably, Steyn J found (at paragraph 138) that the 6 July 2020 decision to cease trafficking support was itself unlawful. This should therefore be reflected in the back payments. The amounts involved may appear small to some, but will be significant to the vulnerable victims of trafficking affected.

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Deborah Revill

Deborah Revill

Deborah Revill is a specialist immigration barrister at One Pump Court. She works in all areas of immigration law, with a particular interest in Article 8 cases involving Appendix FM, s117B(6), and deportation.