Emily Hobhouse covers a recent High Court ruling that considered whether asylum-seeker survivors of trafficking should be entitled to extra childcare support
The Modern Slavery Act Guidance (MSA), created under s.49(1) of the Modern Slavery Act, implements the obligations of the United Kingdom as a signatory under the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT). There is a duty under ECAT to reduce the vulnerability of victims so that they are not re-trafficked.1 As part of this commitment, the UK supports survivors of trafficking with payments and services that go beyond the regular receipt of other mainstream support (for example, Universal Credit or Asylum Support). Victims of trafficking also receive psychological, medical and legal counselling as part of their recovery and reintegration into society.
A key provision within the MSA guidance is the Victim Care Contract (VCC). The VCC allows survivors of trafficking to claim money to help care for dependent children. This is a payment of £39.60 a week to cover the cost of childcare when a survivor of trafficking is attending counselling or other support services.2 However, within Annex F, para 15.38, there is an exception, namely that those in receipt of Asylum Support, are not entitled to this Victim Care Contract payment for dependent children.3
Therefore, under this guidance, there is a discrepancy between the financial support provided to survivors of trafficking and modern slavery, depending on the survivor’s immigration status. The recent case R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin) considered whether this was discriminatory under the European Convention on Human Rights (ECHR).
Facts of the case
The two claimants are survivors of sexual trafficking and are also asylum seekers. As part of their recovery as survivors of trafficking, they undertake counselling appointments where specific details about their trafficking are discussed. Due to receiving Asylum Support, the claimants were unable to access childcare support for their dependent children through the Victim Care Contract. This meant that the claimants’ children would often be brought along to such appointments. The negative psychological effects of this on the child and mother were strongly evidenced by the claimants’ legal team.4
Breach of Article 14 ECHR
The claimants challenged the policy as being in contravention of Article 14 of the ECHR, which prohibits discrimination, for two reasons. Firstly, because the policy directly discriminated against asylum-seeker survivors of trafficking. This is because there is a difference in treatment between asylum-seeker victims of trafficking with dependent children, who do not receive the VCC payment, and non-asylum-seeker survivors of trafficking with dependent children who do receive the VCC payment.
Secondly, because the policy indirectly discriminated against women, as women are much more likely to have a dependent child and to be single parents than men. By being denied the VCC payment, women asylum-seeker survivors of trafficking are much more likely to be burdened to pay the cost of childcare through their asylum support than male asylum seeker survivors of trafficking. In 2012, the Salvation Army found that 24% of women survivors of trafficking had dependent children compared with 3% of men. From these statistics, the women were usually single parents whereas men were often accompanied by their female partners.5
The Defence
The Defence admitted that there was a difference in treatment between survivors of trafficking and their asylum seeker counterparts. However, they characterised the VCC payment as a “windfall” for those survivors of trafficking rather than a shortfall for those who did not receive it. They submitted that this is an incredibly complex issue that stems down to the allocation of public funds and that it is a matter for the “state’s considerable margin of appreciation”, adding that the ECHR is not a guarantee of administrative perfection.6
Judgment
The High Court found that by denying the VCC payment to asylum-seeker victims of trafficking, there was undeniable direct and indirect discrimination. The Court thus declared a breach of Article 14 ECHR. The intention of the Home Secretary, who claimed it was a mistake, was immaterial to the fact that differential treatment exists without any reasonable foundation, and thus must be corrected.
Mr Justice Kerr was unimpressed by the latter assertion of the Defence that the ECHR was not a guarantee of administrative perfection, stating that it seemed “little more than an institutional shrug of the shoulders”.7 He affirmed the continued existence of the ECHR in UK law and thus applied it accordingly, underlining the fact that it is the court’s duty to apply the law that exists.
Commentary
An assertion of the court’s constitutional duty
In his judgment, Mr Justice Kerr was forceful in stating that the ECHR is still very much a part of UK law and it is therefore the court’s duty to have regard to the Convention. It is arguable that the Home Secretary’s arguments of the institutional incompetence of the courts on such matters appeared a little lazy, and this was recognised by Mr Justice Kerr who said that the Home Secretary’s calls for the court to not “tinker” with the MSA guidance, although good-natured, were constitutionally wrong. As Parliament decided that Article 14 should be part of the law, not the Home Secretary, it is the courts’ duty to enforce the ECHR.
Recognition of the vulnerability of victims of trafficking
The Defence argued that the offending paragraph in the MSA guidance should remain in place until the government gets around to wholesale reform, including individualised assessments to childcare support. This was rejected by Mr Justice Kerr as the court could not rely on such a promise to provide swift action in the face of the incredible vulnerability of the claimants.
The vulnerability of survivors of trafficking has been consistently recognised as an incredibly important factor in the decision-making process of the courts. In 2018, a High Court case reversed cuts of up to 40% in benefits for asylum seekers who were victims of trafficking, due to the incredible detrimental effect these cuts would have on their recovery.8 The argument by the representatives of the claimants underlined that the key to defeating modern slavery is to reduce the vulnerability of victims so that they can escape the influence of their traffickers9, a sentiment that was echoed in this judgment.
Future developments
Support for survivors of modern slavery has dramatically increased since the UK became a signatory of the ECAT in 2009, and the passing of the Modern Slavery Act 2015 and other legislation, including the Criminal Injuries Compensation Scheme (CICS). Nonetheless there are still huge barriers blocking the financial support that should be available to survivors of trafficking.
Barriers to support are compounded by policies which are often too narrow to encompass the incredibly complex lives and experiences of survivors of modern slavery. Certain restrictive provisions end up excluding many survivors of trafficking from the support they arguably are entitled to. For example, the CICS allows survivors of trafficking to receive compensation from their traffickers for the injuries sustained during trafficking. However, to access this compensation, a survivor must show that they have suffered a crime of violence or been threatened with violence. This is particularly burdensome for survivors of trafficking in domestic servitude who typically do not suffer from crimes of physical violence.10
Another barrier to redress through the CICS is that survivors are not entitled to compensation if they have an unspent conviction. This policy is currently the subject of a Supreme Court case, awaiting judgment, as it excludes the huge amounts of survivors who are trafficked to the UK to work in illegal trades, for example in cannabis farms, from obtaining compensation.11
What policy changes can we expect from the outcome of this case?
While the court awarded compensation to the victims, it also gave the government discretion on how to change the discriminatory nature of the VCC policy. A potential eventuality is that the government could end up dropping the VCC payments completely to remove the discrimination instead of providing the extra estimated £5 million required to allow asylum-seeker survivors of trafficking with dependent children to access the VCC.12 A more beneficial outcome for the appellants and all survivors of trafficking with dependent children would be for the UK government to stay true to its pledges under ECAT and work to fulfil its support duty. This will allow survivors to recover successfully and reduce the risk of them being re-trafficked. Childcare support for asylum seeker survivors of trafficking is a step in the right direction.
If you are interested to find out more about human slavery/trafficking in the UK, here are some useful links:
- ATLEU: https://atleu.org.uk/
- Anti-Slavery international: https://www.antislavery.org
- Online YLAL event: Access to justice for victims of trafficking (2 parts): http://www.younglegalaidlawyers.org/meeting-minutes
- https://www.survivoralliance.org/survivors-overview
- https://www.helenbamber.org/
[1] Article 12 “Assistance to victims”, European Convention against on Action against Trafficking in Human Beings
[2] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin [18]
[3] “Potential victims or victims of modern slavery receiving NRM [National Referral Mechanism] support who are receiving asylum support will not receive any financial support through the VCC [Victim Care Contract] in respect of any dependents, or pregnancy payments as these will be met through the asylum support system.”
[4] Silvia Nicolaou Garcia from Simpson Millar’s Public Law team: “not possible or safe to conduct an effective psychological assessment with a child present” and “children are negatively affected when they accompany their parents to interviews where their parents’ trafficking is discussed”, quoted Taylor, D ‘Home Office must compensate trafficked women for lack of childcare, court rules – The Guardian’ https://www.theguardian.com/uk-news/2021/may/24/home-office-must-compensate-trafficked-women-for-lack-of-childcare-court-rules accessed Tuesday 15th June
[5] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin [51]
[6] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin) [40], [46], [52]
[7] ibid [54]
[8] K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951
[9] Anti-Slavery International ‘High court reverses cuts to victim support’ https://www.antislavery.org/high-court-reverses-cuts-to-victim-support/ accessed 15th June
[10] ATLEU, Survivors of Trafficking and the Criminal Injuries Compensation Scheme, November 2021, p.12 https://drive.google.com/file/d/1l7OUqUgyMnSYy6FsndAdPlLfJkgq5pFp/view accessed 24th June
[11] A&B v CICS UKSC 2019/0055 https://www.supremecourt.uk/cases/uksc-2019-0055.html accessed 15th June
[12] A. Schymyck, ‘Home Office Accidently Discriminates against trafficking victims with kids’ https://www.freemovement.org.uk/home-office-accidentally-discriminates-against-trafficking-victims-with-kids/ accessed 15th June
Image credit: A photo of shackled hands © sammisreachers/Global Panorama/Flickr
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