R (MD & Anor) v Secretary of State for the Home Department

Administrative Court: Kerr J,  [2021] EWHC 1370 (Admin), [2021] PTSR 1680, 24 May 2021 (This case has been reversed on appeal – see post)

The claimants were single mothers from Albania who had been victims of sex trafficking who had sought asylum in the UK. Prior to the grant of their refugee status they had been denied financial support under the provisions of the Modern Slavery Victim Care Contract in respect of their dependent children because they were asylum seekers in receipt of asylum support. They would not have been so excluded had they not been in receipt of asylum support but had been in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work). The High Court ruled that the claimants’ treatment amounted to discrimination on grounds of sex contrary to Article 14 ECHR read with Article 8 and A1P1. Noting that the different treatment was the result of mistake rather than intention, the Judge ruled that the margin of appreciation available to protect the making of a judgment did not so readily protect against incompetence in its execution, remarking that “a margin of appreciation is not the same thing as a licence to err”. Kerr J was notably critical of the defendant, referring to her evidence being “not of progress towards reform but of corporate amnesia and repeated requests for more time” and submissions made on her behalf as “constitutionally wrong and unfair to the court”. He awarded the claimants under s8(3) HRA, seeing “real force” in the submission that their treatment had been “egregious”.

The Defendant, having been denied a sixth adjournment to obtain the relevant evidence, had conceded that the difference in treatment existed and suggested that it was the product of an error and of historical accident by which money paid to trafficking victims in receipt of mainstream benefits in respect of their dependent children was meant to be, but had not been, deducted from those benefits. She argued that this did not amount to discrimination against the claimants but to an unmerited windfall for a class of persons in an arbitrarily advantaged group who ought not to be receiving the windfall and asked that the Court grant no relief on the basis of the (§9) “double negative proposition that as between asylum seeking victims of trafficking and non-asylum seeking victims of trafficking, she ‘does not admit that there is no justification for the difference of treatment involved'”.

Kerr J addressed the Article 14 claim “on the basis that the Secretary of State did not intend to treat asylum seeking victims of trafficking with dependent children less favourably as a class than those on mainstream benefits and not seeking asylum [but] …  has done so and continues to do so” (§87). He stated at §88 that “Whatever the nature and quality of the error made, its effect is not in doubt: the claimants are in a less good financial position than those in the position of XY and others. One can argue forensically over whether the difference of treatment should be characterised as an exclusionary rule or whether it is merely missing out on an unjustified windfall enjoyed by others. On either view, it is a difference of treatment”. He was satisfied that, subject to justification, the claimants were being discriminated against contrary to Article 14, further that the exclusionary rule indirectly discriminated on grounds of sex because it impacted adversely on lone parent asylum seeking victims of trafficking, most of whom are women (§90).

Kerr J noted at §98 that “It is the difference in treatment that must be justified, not the measure which causes it”, going on to refer to the “relatively low” “manifestly without reasonable foundation” threshold (note that this has been displaced by the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428, see associated blog). He accepted at §100 that the saving of public funds could be a legitimate aim (albeit one which was not achieved in light of the mistaken “windfall” received by asylum seekers in receipt of mainstream benefits) but at §§101-102 declared himself “unimpressed by the argument that the ECHR is not a guarantee of administrative perfection and that the court should on the facts here readily defer to the state’s margin of appreciation in matters of judgment in the field of social and economic policy… The margin of appreciation available to protect the making of that judgment in the first place does not so readily protect against incompetence in executing the judgment. A margin of appreciation is not the same thing as a licence to err”.

103. To say that the ECHR is not a guarantee of administrative perfection seems to me little more than an institutional shrug of the shoulders, along the lines that “these things happen”; or “it’s just one of those things” or some other such commonplace pronouncement…

104. I think the Secretary of State’s real submission is that the mistake is pardonable and the court should indulge the executive and excuse it by allowing a defence of justification. In considering that invitation, the court has to look at the impact of the error on its victims who, it should not be forgotten, are persons who by definition have been trafficked and to whom the ECAT obligations are owed to protect them and help them recover from bad experiences…”

Kerr J distinguished R (Harrison) v. Secretary of State for Justice [2020] EWHC 2096 (Admin), [2020] HRLR 18 and  (Steinfeld) v. Secretary of State for International Development [2017] EWCA Civ 81,  [2017] 4 All ER 47 in which differential treatment resulted from changing societal attitudes, as distinct from mistakes.

115… The Secretary of State advances as a legitimate aim the pursuit of wholesale reform including individualised assessments for asylum seeker victims of trafficking with dependent children. Leaving the discrimination in place until the government gets round to reforming benefit entitlements for all affected categories is said to be a proportionate means of achieving that aim.

116. I do not find that reasoning convincing as a justification for the difference in treatment. The victims of the discrimination, the claimants and others like them, are very vulnerable people. They are unlikely to have the means to pay for child care. There is some free child care available and patchy “hit and miss” discretionary funding. I accept that, for what it is worth, that is relevant to justification.

117. But it does not persuade me that the present situation should continue for what could be a long time. The evidence of progress towards the anticipated wholesale reform is sparse. The claimants are offered “jam tomorrow” with no clear pathway forward. There is no convincing timescale for the wholesale reform. The evidence for the Secretary of State is not of progress towards reform but of corporate amnesia and repeated requests for more time…

118. In oral argument, Mr Tam warned the court: “don’t tinker”. The tone was good natured and not disrespectful but the submission was constitutionally wrong and unfair to the court. It was not the court that decided article 14 should be part of English law; nor how much money victims of trafficking (with or without children and whether or not seeking asylum) should receive. The court is bound to apply the law and did not make the law.

119. For those reasons, I do not accept that the Secretary of State has shown a reasonable foundation for the difference in treatment. On the contrary, the necessary reasonable foundation is in my judgment manifestly absent”.

Kerr J went on at §133 to make an award of damages under s8(3) on the basis that this was “necessary to afford just satisfaction to the person in whose favour it is made” (§125). Notwithstanding the fact that the claimants had (§126) “received the amount of support the government intended them to receive” and that they were not deliberately targeted, Kerr J accepted that there was “real force” in the submission that their treatment had been “egregious” (§127). They were victims of trafficking, “by definition part of a group of vulnerable persons whom the state has a duty to protect and assist” who had “not been … in a real sense, been deprived of an entitlement because they are asylum seekers as well as being victims of trafficking” (§128), and the respondent had “taken a deliberate decision not to make good, by way of arrears, the amounts of money that would have been paid to these victims of trafficking if they had not also been asylum seekers”, instead “unsuccessfully [seeking] to justify in court doing nothing to remedy the discrimination until after an unspecified amount of time has elapsed to enable the proposed wholesale reform to be carried out” (§130-131). At §134 he awarded the claimants the difference in what they had received and what they would have received had they not been discriminated against, together with “a relatively modest award of non-financial loss to compensate them for the distress caused by the discrimination”.

 

Claimant: Chris Buttler and Ayesha Christie, instructed by Simpson Millar LLP and Deighton Pierce Glynn Ltd

Defendant: Robin Tam QC and Jack Anderson, instructed by Government Legal Department

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