R (JB) (Ghana) v Secretary of State for the Home Department

The Court of Appeal dismissed the Secretary of State's appeal and upheld the decision below that paragraph 15.37 of the Modern Slavery Act 2015 – Statutory Guidance for England and Wales (March 2020 version) required that a person who was both a potential victim of trafficking and an asylum seeker should receive a total of £65 per week, made up of asylum support plus a top-up from the Victim Care Contract, for the period in issue. The court applied ordinary objective principles of policy interpretation (as in Raissi, McFarland and related authorities) and concluded that the plain words of paragraph 15.37 make no distinction between in‑kind (full‑board) and self‑catered accommodation or require an offset for meals provided in catered accommodation. The Secretary of State's contextual and 'reading‑in' arguments and reliance on an alleged drafting error were rejected.

Background and parties. JB, a Ghanaian national and asylum claimant, received a ‘reasonable grounds’ National Referral Mechanism decision as a potential victim of trafficking in December 2019. He was provided full‑board asylum accommodation and cash payments at various times. He applied for judicial review seeking back‑dated additional payments to increase his total financial support to £65 per week for the period 31 March–28 August 2020, relying on paragraph 15.37 of the Modern Slavery statutory guidance (MSAG, March 2020 version). The Secretary of State appealed the High Court decision that had found in JB's favour.

Nature of the claim and procedural history. The claim sought additional (and backdated) payments under the MSAG. Permission was granted below and the substantive judicial review was heard by Deputy Judge Peter Marquand in the Administrative Court (CO/2864/2020). The Secretary of State appealed to the Court of Appeal.

Issues considered. (i) The correct interpretation of paragraph 15.37 of the March 2020 MSAG and whether it required a top‑up to a total of £65 per week for a person who was both a potential victim of modern slavery and an asylum seeker; (ii) whether in‑kind provision of essential living needs (full‑board accommodation provided under section 95/98 IAA) meant the individual was not "receiving financial support" for purposes of paragraph 15.37; (iii) whether a contextual or purposive reading, or the correction of an alleged drafting error, could displace the plain meaning of paragraph 15.37.

Court's reasoning. The court emphasised objective interpretation of policy documents as read by a reasonable reader and noted established authorities on policy construction. Paragraph 15.37 unambiguously provided that where a potential victim is also an asylum seeker receiving asylum support under sections 95, 98 or section 4 of the Immigration and Asylum Act 1999, the individual would receive £65 per week in total, consisting of asylum support and a VCC top‑up. The paragraph made no distinction for in‑kind or full‑board provision nor any deduction for meals. Context (including pre‑pandemic practice that people typically spent only a short time in full‑board initial accommodation) might explain why the drafters did not address the scenario, but did not alter the plain meaning. Attempts to read words into the policy or to characterise the issue as an obvious drafting error were rejected: the judge was not required to substitute what the Secretary of State might have intended or would have drafted with hindsight. The court therefore dismissed the appeal.

Other points. The judgment notes the European Convention on Action against Trafficking (Article 12) and the Victim Care Contract arrangements, and records that the guidance was amended on 28 August 2020; the lawfulness of that amendment was not in issue on this appeal.

Appeal dismissed. The Court held that paragraph 15.37 of the March 2020 Modern Slavery statutory guidance, read objectively in context, required that a potential victim who was also an asylum seeker receiving asylum support should receive a total of £65 per week made up of asylum support and a VCC top‑up; the paragraph made no distinction for in‑kind (full‑board) accommodation and there was no lawful basis to read words into or correct the policy to produce a different result.

Appeal from the Administrative Court (CO/2864/2020) where the substantive judicial review was heard by Peter Marquand sitting as a deputy judge of the High Court. Permission to apply for judicial review was granted by Lane J on 14 October 2020. The present decision is [2022] EWCA Civ 1392 (Court of Appeal, 25 October 2022).