JB (Ghana), R (on the application of) v The Secretary of State for the Home Department

There are separate financial support regimes for asylum seekers and victims or potential victims of modern slavery. Some individuals, including JB, the Respondent to this appeal, are both asylum seekers and victims of modern slavery. The appeal concerns the period from 24 March – 28 August 2020 during which the relationship between the two support regimes, and the financial entitlement of JB and others in the same position as him, was governed by paragraph 15.37 of a Home Office document entitled “Modern Slavery Act 2015 – Statutory Guidance for England and Wales” (“the MSAG”).

JB is a national of Ghana, who (on his case) arrived in the United Kingdom in March 2011. In November 2019, he was arrested as an illegal entrant and taken into immigration detention. He claimed asylum on 12 December 2019.

While in immigration detention JB was referred to the National Referral Mechanism (“NRM”) for victims of trafficking. On 17 December 2019 the Single Competent Authority within the Home Office made a positive “reasonable grounds” decision with respect to JB, and he thus became entitled to support as a “potential victim of trafficking” (“PVoT”). There has been no final “conclusive grounds” decision on his status.

From 23 December 2019 to 25 March 2020, JB lived in accommodation provided by a friend. He received £35 per week and the assistance of a support worker.

In March 2020 JB’s friend was no longer able to accommodate him. JB therefore applied for asylum support under section 95 of the Immigration and Asylum Act 1999. He was granted temporary support under section 98, and provided with temporary asylum accommodation at a hotel in Birmingham, on a full-board basis, from 25 March 2020. He continued to receive payments of £35 per week. On 31 March 2020 he was granted support pursuant to section 95.

On 14 August 2020, JB issued a claim for judicial review. He sought additional (and backdated) payments, increasing his financial support to £65 per week, on the basis that he had been entitled to that amount under the terms of the MSAG issued by the Home Secretary in March 2020. The guidance was amended on 28 August 2020. By amended grounds filed on 3 September 2020 JB limited his challenge to a claim for back-payments of the difference between the sums previously paid to him and the £65 per week he claimed to be entitled to under the MSAG before its amendment.

We enquired how many people were in the same position as JB, and were told that the answer is thought to be at most 63. With such a small cohort of claimants the costs of this appeal might be thought disproportionate to the amount directly at stake. The Secretary of State was concerned, however, that following the judge’s decision in this case, some claims have been issued (though at present they are stayed) challenging the amendment to the MSAG in August 2020: that challenge has far greater financial implications.

The European Convention on Action against Trafficking in Human Beings 2005 (“ECAT”) is the principal international measure designed to combat human trafficking. It is concerned, inter alia, with the treatment of those in respect of whom there are reasonable grounds to believe that they are victims of human trafficking and the support to be provided to them by Contracting States.

The United Kingdom signed the Convention in March 2007 and ratified it on 17 December 2008. It has not been incorporated into UK law. While individuals cannot enforce its provisions directly, insofar as the Secretary of State has adopted parts of the Convention as her own policy in guidance, her officials must follow that guidance unless there is good reason not to do so: R (EM) v SSHD [2018] EWCA Civ 1070 at §19.

Article 12 of ECAT provides as follows:

Analogous provision was made under Article 11 of the EU Anti-Trafficking Directive (Directive 2011/36/EU), prior to the UK’s withdrawal from the European Union at the end of the transition period. The scope of this duty was examined by the Court of Appeal in the EM case. Peter Jackson LJ held at [65] as follows:

The NRM provides the machinery for determining whether someone is a potential or confirmed victim of trafficking and for ensuring they receive the appropriate support. Support is delivered to Potential Victims in England by the Salvation Army as prime contractor (and by its subcontracted support providers) pursuant to the Victim Care Contract (“VCC”) made between the Home Office and the Salvation Army in 2015. Schedule 2 to the VCC provided that, upon entry into the NRM of an individual assessed as being a Potential Victim, an initial risk assessment and needs-based assessment was to be undertaken, to ascertain the immediate welfare needs of the Potential Victim and their dependents. Accommodation was generally provided on a self-catered accommodation basis or, in exceptional circumstances, where individuals were found not capable of preparing their own food due to disability, debilitating illness or ongoing treatment, on a catered basis.

Schedule 2 to the MSVCC set out figures for subsistence payments in cash, in accordance with the following table:

As part of a reform package announced in October 2017, the Home Office proposed to align subsistence rates provided to Potential Victims to those received by asylum seekers. In K & AM [2018] EWHC 2951 (Admin) [2019] WLR 92 Mostyn J considered the scope of “subsistence needs” as provided for under Article 11 of the Trafficking Directive, and Article 13 of the Reception Directive. He observed at §29:

Mostyn J, whose decision in the case of K & AM was not appealed, had been critical of the failure of the Secretary of State to publish guidance for the provision of support to victims and potential victims of trafficking as she was required to do by s 49(1)(b) of the Modern Slavery Act 2015. As already noted, that statutory guidance was published on 24 March 2020. Although this was the day after the Prime Minister had announced the first national lockdown in response to the COVID-19 pandemic, the document had plainly been drafted before any lockdown was anticipated.

Financial support within the guidance was provided for at §15.35 to 15.36 (emphasis added):

Paragraph 15.37 provided:

In R (MD) v SSHD [2022] EWCA 336 Underhill LJ said at [24]:

At [27] he continued:

He noted at paragraph [31] that:-

At [33] Underhill LJ said that paragraphs 15.37-38 of the Statutory Guidance issued in March 2020:-

Amendments were made to the statutory guidance with effect from 28 August 2020 as the result of a policy review. As amended, paragraph 15.38 (previously paragraph 15.37) provided:

The rates specified for those receiving outreach support in other accommodation have been periodically adjusted, most recently on 21 February 2022, and currently provide for a payment of £ 40.85 per week.

Provision for subsistence support provided to asylum seekers (including, but not limited to, those who are also Potential Victims of trafficking) is made pursuant to Part VI of the Immigration and Asylum Act 1999.

Section 95 provides, so far as material:

By s.96, support may be provided under s.95, inter alia, by the provision of accommodation adequate for the needs of the supported person (s.96(1)) and by the provision of what appear to the Secretary of State to be essential living needs to a supported person.

Temporary support is provided for by s.98, pending determination of eligibility under s.95.

These provisions are underpinned by the Asylum Support Regulations 2000 (SI 2000/704) made under ss 95-98 of the 1999 Act. Regulation 10(5) reads:

The rate of weekly support payments made under the asylum support regime has been subject to detailed judicial consideration. In R (SG) v SSHD [2016] EWHC 2639 (Admin); [2017] 1 WLR 4567, Flaux J (as he then was) held at [7]-[8]:

The services to be made available by providers of asylum accommodation are set out in Schedule 2 to the Secretary of State’s Asylum Accommodation and Support Services Contract. For initial accommodation, Clause 2.3 sets out the Secretary of State’s preference for this to be provided on a full board basis. The service requirements include, by paragraph 4.1.4, the provision of food, including breakfast, lunch and evening meals with a choice of at least one hot and one cold selection, as well as a vegetarian option. Personal toiletries and feminine hygiene products must be provided. By paragraph 4.1.5 vouchers and/or cash payments are to be provided, where the contractor is not otherwise able to meet the Service Requirements.

In R (JM) v SSHD [2021] EWHC 2514, Farbey J considered a challenge to the level of support received by asylum seekers accommodated in hotels as part of their overall asylum support during certain periods of the Covid 19 pandemic. She summarised the position prior to the pandemic at [32]-[34]. A person would be housed in initial accommodation while supported temporarily under s.98; typically on a full board basis in a hostel, and without the asylum seeker receiving a cash payment for their essential living needs. Once the asylum seeker has been found eligible for support under s.95, longer-term accommodation from the stock of “dispersal accommodation” was sourced by the Home Office’s accommodation providers. Such dispersal accommodation was generally self-catering in flats and houses, and essential living needs met in cash through the operation of an electronic “Aspen card”. Pre-pandemic, an individual could typically be expected to live in initial accommodation for only a short time. Even before the pandemic, some individuals remained in initial accommodation for longer periods, typically because they had complex needs, and some such individuals received support to cover their other “essential living needs” in the form of in-kind provision, cash or vouchers, or a mixture of both.

The Secretary of State’s long-standing policy was that the provision of essential living needs at hotels and initial accommodation centres was the responsibility of the accommodation provider. It was only if the provider was unable to meet those needs directly that they should do so by an additional cash or voucher allowance.

The factual matrix changed following the decision, taken on 27 March 2020, that in view of the pandemic, the requirement for asylum seekers to leave s.95 accommodation would be suspended for 3 months. In consequence, the Secretary of State was left to source additional accommodation for asylum seekers coming into the support system on an urgent and ever-increasing basis. This was achieved, largely, by accommodating those entrants in hotels.

The Secretary of State periodically issues guidance to the Salvation Army and subcontractors on the interpretation of the Policy. A ‘Frequently Asked Questions’ document entitled “FAQs about subsistence” was first sent by the Head of the Victim Care Contract at the Home Office to the Salvation Army on 29 January 2020 “to be cascaded to support providers in order to address common questions”, and again on 6 April 2020. Question 2 and the answer to it are relevant:

Thus it appears that at the time the March 2020 guidance document was issued the Head of the Victim Care Contract at the Home Office understood paragraph 15.37 to apply to all asylum seekers in receipt of cash asylum support, regardless of whether they were accommodated in full-board or self-catered accommodation.

The Claimant applied for judicial review of the Home Secretary’s failure to pay him £65 per week in respect of the period from 31 March – 28 August 2020. Permission was granted by Lane J on 14 October 2020. The substantive hearing came before Peter Marquand sitting as a Deputy Judge of the High Court. In the discussion section of his judgment he said:-

Ms Giovannetti KC submits that the key legal principles applicable to the interpretation of a policy document are well established:

In R (Raissi) v SSHD [2008] QB 836, the Court was interpreting a compensation scheme. Hooper LJ considered that ascertaining the intention of the policy maker involved consideration of the following questions:

It was, he considered, “quite wrong” to approach “in a legalistic manner” the construction of the Home Secretary’s statement concerning the compensation of those who had spent a period in custody resulting from a serious default on the part of a police officer or of some other public authority.

Even in the context of statutory construction, it has, moreover, long been established that the role of the courts is not confined to resolving ambiguities in statutory language, but extends to correcting obvious drafting errors: Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586 and see also, closer to the present context, the approach of Mostyn J to the table in the MSVCC set out above.

The effect of the decision below is that between March and August 2020 a group of people such as JB, a Potential Victim who was provided with full-board accommodation under the Immigration and Asylum Act 1999, was entitled to almost twice as much by way of financial support as a Potential Victim whose full-board accommodation was provided under the Modern Slavery Victim Care Contract.

Ms Giovannetti submitted that on a correct interpretation of the March 2020 MSAG, the level of financial payments was intended to turn upon the nature of the accommodation provided (i.e. whether it was self-catering or full-board), not on the regime under which it is provided (whether it was provided under the 1999 Act or the MSVCC).

She argued that in construing paragraphs 15.36 and 15.37 of the MSAG, as it stood prior to 28 August 2020, the judge erred in law, since “neither paragraph provides in terms for the payment of £65 per week by way of financial support to individuals whose essential living needs are met in fully catered accommodation provided pursuant to s.95 IAA”. The submission, accepted by the judge, that the rate payable to Potential Victims in catered accommodation can be derived from “the plain words” of the guidance, is mistaken. The guidance does not provide in terms as to how such in-kind assistance is to be accounted for. Nor can the guidance within the MSVCC Table and paragraphs 15.36 and 15.37 sensibly be construed without regard to the context and policy, or to the intention of the Secretary of State, which can be assumed to include making fair and equitable provision for the different cohorts affected. No good reason has been identified for the difference in treatment created by the judge’s construction. It effectively doubles the support provided to Potential Victims in initial, fully catered, accommodation provided under the 1999 Act.

The context of the policy considered by the judge was an unusual one: at the time the Secretary of State issued the MSAG the drafter of the Guidance “would plainly have believed” that those such as JB, who were in fully catered asylum support accommodation, fell outside the terms of paragraph 15.37. The class of persons, such as JB, who were residing in fully catered asylum support accommodation were not “receiving financial support” under the IA 1999 at the relevant time.

Accordingly, neither the MSVCC nor the MSAG addresses payments to be made to the cohort of Potential Victims in full board asylum accommodation. Likewise, neither makes express reference to the treatment of in-kind subsistence received for the purposes of the calculation of the financial payment made under the MSVCC. The practice, pre-pandemic, of moving those assessed as eligible for s 95 asylum support to self-catered accommodation within a short time frame, is consistent with this framework. The practice at the time was summarised by Mostyn J in K&AM (supra) at paragraph 14:

In the present case, as in K&AM, the rate of payment stipulated for those in fully catered accommodation provided under the MSVCC is a key part of the relevant context and informs the intended level of support for others in fully catered accommodation.

Accommodation under both the MSVCC and the IA 1999 is made available on the basis of an assessment of urgent need/destitution, leaving the individual reliant upon “in kind” or financial support subsistence support to meet their essential needs. It cannot sensibly be inferred that policy maker intended that one cohort should receive almost double the level of financial support provided to the other. But that is the result of the judge’s interpretation.

The submission, accepted by the judge, that the MSAG “clearly and unequivocally” provided for what is, essentially, a duplicate payment in respect of essential living needs whilst individuals remained in initial, full board, accommodation is mistaken. The MSAG simply made no express provision for those in catered accommodation provided under s.95 IAA.

In ascertaining the intention of the Secretary of State, as promulgator of the policy, the following factors are of material assistance:

For completeness, the judge’s reliance upon standard responses to questions 1-3 given within an FAQ document sent to the Salvation Army by the Secretary of State’s Head of Victim Care Contract was similarly mistaken. The document confirmed that account should not be taken of extraneous benefits and income from work when calculating VCC recovery payments for those in catered MSVCC accommodation. The inclusion, within each answer, of the phrase “unless they are receiving support from the asylum support system, in which case their financial support should be £65pw minus the NASS payment” is, in context, the consequence of an obvious mistake. This is apparent most clearly from the response to question 2: “Subsistence for catered accommodation clients” (i.e. those in VCC accommodation): by the terms of the VCC, this cohort is unambiguously accorded a VCC subsistence payment of £35.00, rather than £65.00.

The correct approach is to “interpret the document in accordance with the presumed intent of the maker” (see Re McFarland and Raissi, supra, at §121). In that regard:

Insofar as the plain words of the policy did not give effect to the intention of the promulgator, it is open to the Court to read in words, following the approach in Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586.

The judge acknowledged that the Secretary of State’s interpretation, by which Potential Victims in full-board accommodation all receive the same amount, irrespective of the route by which that accommodation is provided, “might seem fair”. His response was not that on closer examination it was not fair. Rather, it was that “There is no reason to "second guess" what was stated in paragraph 15.37 [of the MSAG]”. But that is predicated upon the MSAG clearly providing that those in accommodation under the 1999 Act should receive payments at a higher level than those in accommodation provided under the MSVCC. As explained above – it did not.

Rather, the intention of the promulgator of the policy stands to be interpreted by reference to the factual background against which it was drafted, namely the Home Office’s practice, pre-pandemic, in respect of asylum support, by which:

The Secretary of State’s sole ground of appeal is that the judge “erred in law by interpreting the words of the policy without due regard for the policy’s purpose and context”. In her skeleton argument, the Secretary of State also contends that the judge erred by not having regard to the “assumed… intention” and “belief” of the Secretary of State at the time of issuing the policy. These contentions are wrong.

First, the Secretary of State’s reliance on Re McFarland [2004] 1 WLR 1289 (which was not a point taken before the judge at the substantive hearing) is misplaced. The Secretary of State relies on the judgment of Lord Bingham to claim that a policy must be interpreted according to the “presumed intent of the maker” and that “it is inherently unlikely” that the Secretary of State intended to provide victims in catered asylum accommodation with higher payments than those in catered trafficking accommodation. This is a misinterpretation of Re McFarland:

Thus, in the present case, the question is not whether it is “inherently unlikely” that the Secretary of State intended to provide victims housed in catered asylum accommodation with trafficking support at a rate of £65/week minus their asylum cash support, when she made different provision for victims housed in catered trafficking accommodation. The Court should not “read in words… [to] give effect to the intention of the promulgator” as suggested in the Secretary of State’s skeleton. It is irrelevant that the Secretary of State, at the time of issuing the Policy, if she had thought about it, “would plainly have believed those such as JB, who were in fully catered asylum support accommodation, fell outside the terms of §15.37”. Rather the question is: what would an objective reader have understood the words of paragraph 15.37 to have meant when the Policy was promulgated on 24 March 2020?

It appears that the Secretary of State no longer pursues the argument advanced in the High Court that the words “financial support under section 95” in paragraph 15.37 should be construed as meaning “those in receipt of the payment set out at Regulation 10(2)” of the 2000 Regulations. Such an argument is hopeless; as the judge correctly found, since “[t]his is not the natural and ordinary meaning of that phrase” [Judgment §29].

Instead, the Secretary of State now contends in her skeleton argument that persons “such as JB, who were residing in fully catered asylum support accommodation were not ‘receiving financial support’ under the IA 1999 at the relevant time”, and thus paragraph 15.37 should not be interpreted as applying to them. This is wrong as a matter of fact and of construction:

Second, there is no basis upon which to read words into the policy, as the Secretary of State now suggests (but did not argue below). The Secretary of State’s reliance on the Court’s power to correct “obvious drafting errors” is misplaced:

Third, the Secretary of State’s general contention that the judge “erred in law by interpreting the words of the policy without due regard for the policy’s purpose and context” is unsustainable. The judge plainly had regard to the language of paragraph 15.37 of the Policy within the context and purpose of the Policy as a whole [Judgment §25]. He took into account the situation of (non-asylum seeking) victims in catered trafficking accommodation, who received £35 per week. But he also had regard to the fact that the sums received by victims in similar circumstances can vary considerably due to the impact of other benefits [Judgment §31]. Having taken full account of the relevant context, and correctly applied the principles applicable to the interpretation of administrative policy, there is no error of law in the judge’s conclusion that the disparities in the level of trafficking support provided to victims of trafficking relied on by the Secretary of State did not provide a “reason to ‘second guess’ what was stated in paragraph 15.37” [Judgment §31].

JB does not dispute that the proper construction of paragraph 15.37 of version 1.01 of the Policy left victims of trafficking housed in catered asylum accommodation better off than victims housed in self-catered asylum accommodation. It might be thought that it was sensible for the Secretary of State to equalise their treatment on 28 August 2020, in version 1.02 of the Policy. However, it is a feature of the Secretary of State’s Policy (which is not based on financial need, and does not take account of any sources of income save for asylum support) that certain groups do better than others. An example is that victims housed in self-catered trafficking accommodation who are in receipt of mainstream benefits of £94.15 per week receive a further £65 per week in trafficking support, whereas victims accommodated by a charity or a friend, who do not receive any state benefits or other financial support, receive just £39.60 per week in trafficking support.

It is not the Court’s task to assess the merits of version 1.01 of the Policy, or to redraft the policy in an attempt to improve it. Constitutionally, that is the Secretary of State’s function. As set out above, the Court’s task is to construe the Policy, according to its natural and ordinary meaning. This is what the judge did, and there is no error of law in his judgment.

In my view the judge was right for the reasons he gave. Paragraph 15.36 of the March 2020 Guidance does draw a distinction between catered and self-catered VCC accommodation and, if the matter ended there, the Claimant would not have been entitled to payments of £65 per week. But the matter did not end there, because of the inclusion in the document of paragraph 15.37. This states in categorical terms that if a potential victim of trafficking is also an asylum seeker and receiving asylum support, a further payment is to be made to him to make a total (including the asylum support) of £65 per week. Nothing is said about any offset for the value of meals provided in catered accommodation; nor is any distinction made between claimants who are in catered accommodation and those who are in self-catered accommodation. It would not have been difficult to draft a paragraph making such a distinction, and an amended scheme was introduced five months later.

It seems to me a reasonable inference that the reason why paragraph 15.37 in the March 2020 version reads as it does is because (as noted by Farbey J in the JM case) the practice before the onset of the pandemic was that people in JB’s position would typically spend only a short time (we were told 4-6 weeks was a common period) in catered accommodation before being moved on. Although the document was issued on 24 March 2020, it had been drafted before the onset of the pandemic and the beginning of the series of lockdowns which we all remember. But that is not a reason to change the plain and obvious meaning of paragraph 15.37.

I do not consider that there is any merit in the Secretary of State’s argument that since JB was not in fact “receiving financial support” (in the sense of cash payments) under the 1999 Act for a period beginning on 24 March 2020 that placed him outside paragraph 15.37. I accept the submissions of Mr Buttler that, firstly, most asylum seekers, even if housed in full board initial accommodation, had been receiving some cash support as well; and that JB should have been, as was subsequently recognised. It would have created a very curious anomaly if someone receiving very modest cash payments towards essential living needs was entitled to be “topped up” to £65 per week, whereas someone receiving no such payments was not.

It is well established that in construing a policy document a court should not subject the wording to the kind of fine analysis which might be applied to a statute or a contract: see Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 per Lord Reed. But the document must still be interpreted objectively. As Lord Steyn said in Re McFarland [2004] 1 WLR 1289 at [24], although such documents need not be construed as though they were legislation, and it "seems sensible that a broad and wholly untechnical approach should prevail", nevertheless:-

The principle set out in cases such as Raissi and Mahad is that documents of this kind should mean what they say, and should be interpreted as they would be read by a reasonable claimant or support worker or advisor. Some of Ms Giovannetti’s arguments, though expressed with her usual persuasiveness, seemed to me to come close to asking us to interpret the document in accordance with what the drafter would have written if he or she had thought about it more carefully, or even if he or she had been able to foresee the appalling problems which the pandemic would bring.

I am entirely unable to accept the argument that paragraph 15.37 contained an obvious error within the terms of Inco Europe Ltd vs First Choice Distribution [2000] 1 WLR 586. In the well-known passage in the speech of Lord Nicholls of Birkenhead at [592] he said:-

He continued at [592E]:

In the present case it is not obvious what the substance of para 15.37 would have been if the drafter had not made what Ms Giovannetti submits is an obvious error. Moreover, it is far from obvious that the drafter did not intend a claimant in JB’s position to receive a top-up to bring his total payments to £65 per week. The construction of para 15.37 which the judge found to be correct is consistent with the terms of the Victim Care Contract between the Home Office and the Salvation Army; and also with the answer given to question 2 in the FAQs document first issued by the Home Office in January 2020 and re-issued soon after the promulgation of the guidance on 6 April 2020. It is impossibly ambitious for the Secretary of State to contend that there was an obvious mistake of the Inco type in all three documents. As Mr Buttler put it, pithily and correctly, a flaw in the design of a policy is not the same as a drafting error.

In MD this court was concerned with alleged discrimination arising out of a much more striking anomaly than the one in the present case. A particular group of claimants were receiving two cash payments in respect of the same needs. It was not suggested by anyone in that case that that anomaly could be ignored or the relevant regulations rewritten. As Underhill LJ said at [67] “making rules in these complex interlocking areas, particularly where different departments are involved, must be far from straightforward”.

The lawfulness of the amendment to the guidance made in August 2020 is not in issue before us; and Mr Buttler did not seek on behalf of JB to challenge it or to argue that his client should have received £65 per week after the date of the amendment. I will only say that as at present advised I can see no reason why the Secretary of State should have been precluded from making the amendment which she did.

For these reasons I would dismiss the appeal.

I agree.

I also agree.