R (MD and EH) v Secretary of State for the Home Department

The claimants, two Albanian single mothers conclusively found to be victims of trafficking and recognised as refugees, challenged the Secretary of State’s policy and practice which results in asylum-seeking victims of trafficking with dependent children receiving lower weekly support than non-asylum-seeking victims of trafficking with dependent children. The complaint was that the difference of treatment violated article 14 of the European Convention on Human Rights, read with article 4 and Article 1 of Protocol No. 1, and was irrational.

The court accepted that the difference of treatment exists as a result of the Modern Slavery Act Guidance and Annex F (paragraph 15.38/15.39) which excludes victims receiving asylum support from receiving VCC dependent child payments. The Secretary of State explained that the disparity arose from an historical error and that, as policy, payments for "trafficking needs" were intended for adults and not to duplicate child subsistence met through asylum or mainstream benefits. The Secretary of State relied on resource-allocation considerations and the prospect of wholesale reform with "individualised" assessments.

The court held that the disparity produced indirect discrimination against lone-parent asylum-seeking victims of trafficking (a group predominantly women) and also constituted direct differential treatment on the ground of "other status". Although the underlying policy judgment to avoid double payment is rational, the court found the State had failed to justify the difference of treatment caused by its mistaken implementation; that justification was manifestly absent. The court rejected deference in circumstances of administrative error and vulnerability of the claimants.

Remedy: the court granted a declaration that the difference of treatment violated article 14 and directed that the claimants are entitled to damages to be quantified in the county court if not agreed (back payments equivalent to what they would have received but for the discrimination, plus modest non-pecuniary damages).

This is a first-instance judicial review in which two asylum-seeking women, both conclusively identified as victims of human trafficking and with dependent children, sought relief for differential treatment under the Modern Slavery Act Guidance (MSA Guidance) and associated Victim Care Contract (VCC). The claimants contended that asylum-seeking trafficking victims with dependent children do not receive VCC dependent child payments (because their child subsistence is covered by asylum support) whereas non-asylum-seeking trafficking victims in receipt of mainstream benefits have received such dependent payments, producing a weekly shortfall.

Nature of the claim: declaration of breach of article 14 ECHR (read with article 4 and A1P1) and damages for just satisfaction; alternatively irrationality at common law.

Background and facts:

• The MSA Guidance (made under section 49(1) of the Modern Slavery Act 2015) provides financial support to victims of trafficking; Annex F contains an exception excluding those on asylum support from VCC dependent payments (paragraph 15.38/15.39).
• Asylum support includes payments for dependent children; the VCC provides additional fixed payments described by the parties as intended to meet "trafficking needs" for recovery and reintegration (adult payment ~£25.40/week; dependent child dependent rates ~£39.60/week with further age-related supplements for some categories).
• The Secretary of State accepted the factual disparity and explained it arose from historical accident/administrative error resulting in some non-asylum claimants effectively receiving a windfall; she asserted a policy intention to avoid double payment and said reform towards "individualised" assessments is planned.

Issues framed:

• Whether the difference of treatment between asylum-seeking victims of trafficking with dependent children and non-asylum-seeking counterparts is discriminatory contrary to article 14; whether it is objectively justified (not "manifestly without reasonable foundation").
• Whether the exclusionary rule has a disparate adverse impact on lone parents (predominantly women) amounting to indirect discrimination under article 14.
• Whether the exclusionary rule is irrational at common law.

Court’s reasoning and conclusions:

1. The court accepted the factual existence of the difference of treatment and found the Secretary of State’s present explanation plausible though based on limited documentary evidence. The court treated the disparity as caused by administrative error in implementation rather than a per se irrational policy.
2. The court rejected characterising the matter solely as the claimants missing out on a windfall enjoyed by others; it concluded the exclusionary rule produces indirect discrimination against predominantly female lone parents and also constitutes direct differential treatment on ground of "other status".
3. The Secretary of State’s reliance on cost-saving and a margin of appreciation and on pending wholesale reform did not justify maintaining the discriminatory outcome caused by the error; the threshold for justification (not manifestly without reasonable foundation) was not met given the vulnerability of victims and absence of a clear, imminent reform timetable.
4. The policy judgment avoiding double payment is rational; the failure to implement it properly, however, cannot be remedied by tolerating the discrimination.

Remedy: the court granted a declaration of breach of article 14 and directed that the claimants are entitled to damages. Pursuant to section 8(3) of the Human Rights Act 1998 the judge was satisfied damages were necessary to afford just satisfaction and directed quantum to be assessed in the county court if not agreed; awards to include back payments (equivalent to what they would have received) and modest compensation for non-pecuniary loss.

The claim is allowed. The court held that the difference of treatment between asylum-seeking victims of trafficking with dependent children and non-asylum-seeking victims in receipt of mainstream benefits breaches article 14 ECHR. Although the underlying policy to avoid double payment is rational, the discriminatory effect caused by administrative error was not justified and was "manifestly without reasonable foundation". A declaration of violation was granted and damages were ordered to be assessed (back payments plus modest non-pecuniary compensation).