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

This appeal concerned whether the Home Office unlawfully discriminated, contrary to article 14 ECHR read with the Human Rights Act 1998 s6(1), by withholding payments under the Victim Care Contract/Modern Slavery Victim Care Contract (VoT support) for dependent children of victims of trafficking who were in receipt of asylum support. The court analysed the interaction between VoT support, asylum-seeker support (Immigration and Asylum Act 1999 Part VI and the Asylum Support Regulations 2000 regs 10 and 10A) and mainstream benefits, and considered whether the so-called "Exclusionary Rule" amounted to direct or indirect discrimination.

The Court of Appeal held that although there was an admitted formal difference of treatment, in substance the Claimants did not suffer pecuniary loss because amounts equivalent to the VoT dependent child support were provided through the asylum support regime. On that basis the court applied the Van Raalte/Wilkinson line of authority and concluded that damages were not necessary to afford just satisfaction. The court also found errors in the judge's approach to the indirect (sex) discrimination claim and upheld the Secretary of State's justification defence in that respect.

This appeal arose from two judicial-review claims by Albanian single mothers who had been recognised as victims of trafficking and who, while receiving potential-victim support under the Victim Care Contract / Modern Slavery Victim Care Contract (VoT support), also claimed asylum and were in receipt of asylum-seeker support. The High Court (Kerr J, [2021] EWHC 1370 (Admin)) had found unlawful discrimination under article 14 ECHR and awarded declaratory relief and damages; the Secretary of State appealed only against part of the basis for discrimination and the award of damages.

Background and nature of the claims:

• The relevant financial regimes were: asylum-seeker support under Part VI of the Immigration and Asylum Act 1999 and the Asylum Support Regulations 2000 (notably regs 10 and 10A, furnishing essential living needs payments and child-related supplements); and VoT support provided under a contractual programme (the VCC/MSVCC) and set out in the statutory Guidance under Modern Slavery Act 2015 s49(1) (Annex F).
• VoT payments for dependent children were paid automatically on reasonable-grounds recognition; where a recipient also received asylum support the guidance provided for a top-up for adults and for no VoT payment in respect of dependents (the "Exclusionary Rule").
• The Claimants said that the Exclusionary Rule discriminated against asylum-seeking victims of trafficking: they relied on direct discrimination (by reference to asylum-seeker status) and indirect sex discrimination (because lone-parent victims are predominantly women and the payments affected their ability to attend trafficking-related appointments).

Issues framed by the courts:

1. Whether the differential treatment amounted to unlawful discrimination under article 14 (direct and/or indirect) and, if so, whether it was justified.
2. Whether damages under s8 of the Human Rights Act 1998 were appropriate and necessary to afford just satisfaction.
3. Factual question examined by both courts whether the superior payments to some victims (those with entitlement to mainstream benefits) were an unintended anomaly or a lawful policy choice.

Court of Appeal reasoning and outcome on those issues:

• The court accepted that the Secretary of State had not disputed the formal differential treatment but analysed carefully that two distinct disadvantages had been conflated in the High Court: (a) non-payment of VoT dependent child support and (b) comparatively greater total income for victims who had access to mainstream benefits. These are different comparisons producing different remedies.
• On the evidence the court accepted that the amounts withheld under the VoT scheme for dependent children were, in substance, provided by the asylum support regime for those claimants: the differential was therefore nominal rather than causing pecuniary loss (the judge had accepted that some double payment to group 3 was an anomalous "windfall"). Under the Van Raalte/Wilkinson line an award of damages is not necessary where the comparator's more favourable position is an unjustifiable anomaly and the claimant would not have been better off had the State acted differently.
• The court concluded that damages for financial loss and for non-pecuniary distress were not necessary because there was no actual loss arising from the specific withholding of VoT dependent child support; and it found error in the judge's approach to indirect discrimination and accepted that the Secretary of State could justify a uniform flat-rate child payment policy.

The court therefore allowed the appeal, set aside the elements of the High Court's order awarding damages and removed the part of the declaration finding unlawful indirect sex discrimination in the operative terms.

Appeal allowed. The court accepted that the differential treatment was formally admitted but that the Claimants did not suffer pecuniary loss because equivalent sums for dependent children were provided through the asylum support regime; applying the Van Raalte/Wilkinson principle, damages were unnecessary. The High Court's award of damages and part of its declaration on indirect sex discrimination were set aside because the judge conflated distinct disadvantages and erred in his reasoning on the indirect-discrimination and remedy issues.

On appeal from the High Court (Administrative Court) Mr Justice Kerr, [2021] EWHC 1370 (Admin). Appeal heard in the Court of Appeal (Civil Division), judgment [2022] EWCA Civ 336 (16 March 2022).