Judgment handed down regarding support for victims of trafficking

The Administrative Court has handed down judgment in R (PM) v SSHD [2023] EWHC 1551 (Admin), in which the Court:

• Held that the Home Secretary was obliged to pay victims of trafficking in initial asylum accommodation financial support of £65 per week pursuant to her guidance in force until 28 August 2020;
• Found that the Home Secretary’s decision in July 2020 to stop all financial payments to victims of trafficking was unlawful; and
• Held that the Home Secretary’s amended guidance, which reintroduced financial support at a lower rate than previously, was unlawful due to a failure to consult.

PM is a victim of modern trafficking. In 2019 she was identified as a potential victim of trafficking and provided £35 per week. In May 2020, having claimed asylum, she was granted support under s. 98 of the Immigration and Asylum Act 1999 (‘IAA 1999’) and placed in hotel accommodation, also known as ‘initial accommodation’.

On 6 July 2020, without warning, the Home Secretary stopped all trafficking payments to victims of trafficking in initial accommodation. PM challenged that decision by way of urgent judicial review proceedings and obtained interim relief for her financial support to be reinstated.

On 28 August 2020 the Home Secretary issued amended guidance which provided that victims of trafficking in asylum accommodation would receive £25.40 per week. The Claimant challenged guidance and the level of support it provided for.

At trial, PM’s case was that:

1. On a proper interpretation of the guidance in force until 28 August 2020, she should have been paid £65 per week;
2. The amended guidance was unlawful because:
   1. It was introduced without consultation;
   2. The financial support provided failed to meet recovery needs; and
   3. The financial support package unlawfully discriminated against victims of trafficking in initial accommodation.
3. The Home Secretary failed to meet victims’ essential living needs in initial accommodation.

Steyn J allowed the claim on Grounds 1 and 2(a). On Ground 1, she applied R (JB) v Secretary of State for the Home Department [2021] EWHC 3417, in which the Court of Appeal held that the policy required victims of trafficking supported under s. 95 IAA 1999 to receive £65 per week. The wording of the guidance included individuals in PM’s position and there was no basis for treating them differently to those supported under s. 95.

On Ground 2(a), the Judge found that the Home Secretary breached her Tameside duty of reasonable enquiry by failing to undertake any consultation prior to issuing the amended guidance. Steyn J explained “the urgency of the need to reinstate trafficking support was not capable of justifying making a substantial de facto reduction in trafficking support without taking any steps to inquire as to the impact that would have on those affected, or to identify, assess and evaluate the recovery needs that trafficking support payments should assist in meeting” (§169).

Steyn J found that the decision to stop support in July 2020 “was unlawful and […] absolutely indefensible”. The Judge dismissed the other grounds.

The effect of this judgment is that victims of trafficking who were housed in initial accommodation from April 2020 – 27 August 2020 should be entitled to backpayments of underpaid trafficking support. They backpayments should also be made for any losses incurred as a result of the cessation decision of 6 July 2020.

Miranda Butler represented PM (led by Samantha Knights KC of Matrix Chambers). They were instructed by Liz Barratt and Amy O’Shea of Bindmans LLP. PM was initially represented by Heather Malunga of IAS Solicitors.

The judgment may be accessed here.