Challenge to Home Office policy concerning victims of trafficking: Interim relief and permission to bring judicial review

In an action brought by two victims of modern slavery, the High Court yesterday (17 April 2019) continued interim relief barring the government from automatically ending support to any victim of trafficking 45 days from receipt of a positive Conclusive Grounds decision. The Judge accepted that the automatic cessation of support after 45 days carried a serious risk of irreparable harm to victims, many of whom have undergone experiences akin to the claimants, LP (trafficked and repeatedly raped) and NN (trafficked, held in slave conditions and badly beaten).

The High Court also granted permission to judicially review the three aspects of the defendant’s policy concerning victims of modern slavery:

1. A challenge to the 45 day rule, by which the Home Office automatically ceases support to trafficking victims 45 days from a Conclusive Grounds decision. The claimants contend that support should be provided pursuant to the Trafficking Convention and Directive, unless and until a victim leaves the jurisdiction;
2. A challenge to the defendant’s policy regarding extensions of support to victims of trafficking beyond 45 days. The claimants contend that the failure to publish criteria applicable to such decisions is unlawful and that the restrictive unpublished criteria unlawfully fail to give effect to the UK’s obligations under the Trafficking Convention; and
3. A challenge to the scheduling rule, by which the Home Office defers a decision on whether a victim of trafficking is entitled to discretionary leave to remain pending a decision on whether to grant them asylum (a process often associated with prolonged delay and the attendant anxiety of an insecure immigration status). The claimants contend that the scheduling rule is incompatible with the Trafficking Convention, breaches ECHR, art 14 and contravenes the Equality Act 2010, s 19 by indirectly discriminating against non-EU nationals.

The decision on interim relief has broader significance for the availability generic interim relief in public law proceedings i.e. benefitting a wider class of persons similarly situated to claimants. The High Court rejected the defendant’s arguments that (a) the Senior Courts Act 1981, s 31(2A) statutorily barred such relief and (b) that save in very restrictive circumstances, the grant of relief on behalf of persons unknown was unavailable in judicial review proceedings.

The case has been widely reported including by Guardian and the Sun.

Miranda Butler is a member of the Garden Court Chambers Public Law team.