High Court declares trafficking policy unlawful for preventing effective access to victims to be correctly identified in breach of UK’s trafficking obligations

Friday 15 November 2019

Today, the High Court handed down an important judgment, declaring that the Home Office Victims of Modern Slavery: Competent Authority Guidance unlawful for erecting barriers to identification of victims of trafficking in breach of the UK’s obligation to protect victims of trafficking.

Shu Shin Luh of Garden Court Chambers’ Public Law Team, was instructed by Frances Lipman of Deighton Pierce Glynn Solicitors for the Claimant.

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The Claimant, DS, is a victim of sexual exploitation and human trafficking. In 2018 the Home Office rejected her claim to have been trafficked. Her lawyers obtained new significant expert evidence in support of her claim and asked the Home Office to reconsider the negative decision. The Home Office refused to consider this request, relying on a policy, which stated that only a First Responder or NRM support provider can make a reconsideration request on behalf of the victim. The Home Office refused to even look at the evidence on this basis. It was only after a court challenge was launched and the Court granted DS permission to proceed with her case to trial that the Home Office agreed to look at her individual decision again, and finally accept that she is a victim of trafficking.

The Home Office, however, refused to amend its policy and argued that victims should not be able to make a direct request to the decision-maker to reconsider a negative trafficking decision. DS pursued the challenge to the Home Office policy as being unlawful for preventing victims of trafficking from being identified correctly, contrary to common law, the Human Rights Act 1998 and in breach of the UK’s trafficking obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.

DPG gathered a compelling body of evidence from First Responders, NRM support providers and other NGOs who work with victims, including Unseen, Human Trafficking Foundation, the Snowdrop project and Anti-Slavery International. This evidence demonstrated that the Home Office policy did not work in practice; different First Responders and NRM support providers approached reconsideration requests differently. They were not funded to help victims to pursue challenges to negative decisions. They were not provided with the necessary training. This meant that whether victims got help with challenging a negative decision through a reconsideration request depended on who they were being supported by. As a whole the policy impaired victims’ right to an effective remedy, which is a fundamental constitutional right.
The case was heard in Bristol on 11 October 2019. In his judgment, handed down today, Mr. Justice Kerr held that the policy as operated did not give effect to the UK’s obligations to protect victims of trafficking because it did not ensure that victims were properly identified.

The Home Office has agreed to publish a note on the judgment, which it will circulate to its decision makers. This means that although individual victims of trafficking who have received negative decisions will still be able to make a request for a reconsideration through a First Responder or Support provider, but if they get help from someone else to challenge a negative trafficking decision, their request will not be ignored.
Frances Lipman of DPG said about the judgment: 

“This is a fantastic result for the many vulnerable victims of trafficking who have faced outright rejection of their attempts to get the Competent Authority to reconsider their claims, purely on the basis that they did not put in the request via a First Responder or support provider, rather than on the actual merits of their case. The Judge has clearly found that this policy is unlawful, arbitrary and unnecessarily rigid and is an abdication of the state’s obligation to identify victims of trafficking in line with the European Convention against Trafficking. This result means that many more victims and potential victims of trafficking will be able to secure a review of their decision from the Home Office, regardless of who makes the request”

Shu Shin and DPG would like to thank all the organisations who provided evidence that made this case possible.

The approved order is available here

The full judgment is available here.

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