Galdikas & Ors, R (on the application of) v Secretary of State for the Home Department & Ors (Rev 1)

Article 11(2) of Directive 2011/36 imposes a freestanding obligation to provide assistance and support to a person reasonably believed to be a trafficking victim. The obligation is separate from Article 11(1) and is not dependent on criminal proceedings. It continues after the 45-day recovery and reflection period where necessary, but it creates no independent right of residence.

A support regime may lawfully use discretionary leave and extensions of support to achieve the required result. However, guidance is unlawful where it prevents trafficking victims or their representatives from requesting discretionary leave while assisting the police. Unincorporated treaty provisions create no freestanding domestic rights, although adopted policy must be followed unless there is good reason to depart from it.

The four claimants were recognised victims of human trafficking and challenged the support regime operated by the Secretary of State for the Home Department and the Secretary of State for Work and Pensions. They contended that support after the 45-day recovery and reflection period was inadequate, particularly while applications for discretionary leave remained pending, where criminal proceedings were absent or completed, and where mainstream benefits were unavailable.

The principal issues concerned Article 11 of Directive 2011/36, Article 12 of the Council of Europe Convention on Action Against Trafficking in Human Beings, the lawfulness of the Competent Authority Guidance, individual needs assessments, and access to benefits. The central question was whether the regime achieved the results required by the Directive and the relevant policy commitments.

1. Article 11(2). Article 11(2) of Directive 2011/36 creates a separate, freestanding support obligation. Article 11(5), the heading of Article 11, the structure of the Directive, its recitals and the wider protection of trafficking victims all supported that construction. The obligation is not linked to criminal proceedings. It requires assistance and support meeting the minimum standards in Article 11(5), including subsistence, safe accommodation, material assistance and necessary medical and psychological assistance.
2. The obligation applies after the 45-day recovery and reflection period where support remains necessary. The Directive leaves the United Kingdom a choice of form and method, provided that the required result is achieved. It does not create an independent right of residence.
3. Unlawful guidance. The Guidance provided that a request for discretionary leave for a victim assisting the police should be made by the investigating police force, and that the victim or representatives should not apply. Since the police were not obliged to make a request and might not know of the power, the regime lacked the capacity to secure the required support. That part of the Guidance was unlawful and inherently unfair.
4. Other support arrangements. Extensions of the recovery and reflection period, extensions to the further 14-day support period, and discretionary leave could in principle provide the assistance required after the 45-day period. The regime was not inherently unfair in relation to compensation claims, personal needs, pending applications for discretionary leave, or cases without criminal proceedings. Individual failures could be challenged separately.
5. ECAT. The unincorporated Convention created no freestanding domestic rights or duties. However, the Guidance adopted Article 12, or parts of it, for specified purposes. The Secretary of State was required to follow that policy unless there was good reason to depart from it.
6. The challenge concerning individual assessments was premature because the claimants’ cases were being assessed. The court declined to determine the issue concerning the genuine prospect of work test for benefits, as it had not been fully argued and might prove academic.
7. The judicial review claim was allowed to the extent identified above. Applications for discretionary leave from trafficking victims assisting the police were to be accepted from the victims and their representatives pending remedial action. The defendants were ordered to pay 50 per cent of the claimants’ costs, and consideration of the claim for specific support was adjourned.

This was a first-instance judicial review in the Administrative Court. No earlier decision in the same proceedings is stated in the judgment.