‘A brutal form of organised crime’: Home Office and ‘subsistence’
In K & Anor, R v Secretary of State for the Home Department  EWHC 2951 (Admin) (8 November 2018), Mostyn J, sitting in the Administrative Court, dealt with a case concerning modern slavery and the extent to which the UK Home Office complied with internationally agreed obligations for the UK ‘to provide support and assistance to victims of trafficking’ (); and to which the Home Office actions breach the European Convention 1950 rights of the victims not to be discriminated against.
In so doing, Mostyn J exposed the ways in which the Home Office deals with victims of modern slavery, including (as more fully explained below):
- No statutory guidance was issued by the Home Secretary as to financial support for victims of trafficking; though Modern Slavery Act s 49(1) says this ‘must’ be done; though internal staff guidance was provided.
- The contract between certain victims to reduce their subsistence was changed by the Home Secretary unlawfully and unilaterally; on a ‘false basis’ and without proper reasons being provided.
- The term ‘subsistence’ was unfairly treated and in a repressive way.
The complexity of the scheme operated by the Home Office must be born in mind in what follows. It cannot be easy to wade through it for an experienced adviser. How much more so much more so for the victims themselves? Does this unfairness in itself amount to unfairness?
Financial support for the victims of the ‘malignant practice’ of modern slavery
On 1 March 2018 the weekly cash amount payable to those entitled to payments was cut by 42% from £65 to £37.75. The claimants in K said the cut was unlawful. Mostyn J showed why this was indeed so and sturdily criticised the Home Office’s meagre financial support for victims. Mostyn J characterised modern slavery as ‘a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor’ (). Modern Slavery Act 2015 is Parliament’s recognition of this, the explanatory note to which includes:
‘Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. [It] takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life.’
Mostyn J listed from the explanatory note in the Act the international instruments on trafficking to which the UK was committed. These include obligations to provide financial assistance for victims. The first step to such assistance was Modern Slavery Act 2015 s 49(1). This imposed on the Home Secretary a duty to issue guidance in relation to identifying and supporting victims (see ). No such guidance had been issued under s 49(1); though internal Home Office guidance had been issued to staff which told them, said Mostyn J:
 … Under this guidance the claimants, as potential victims of trafficking, are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance. These benefits or services are provided by means of a contract entered into between the Home Secretary and the Salvation Army….
Two points are confirmed here: that the Home Office accepts the entitlement of victims to certain ‘subsistence payments’; and that these will be administered for the Home Office by the Salvation Army. These payments are provided by a contract (‘the Contract’) between the Home Secretary and the Salvation Army (as explained by Mostyn J at  and ). Clause 37 – not an insignificant document to be read and understood (or deemed to be so, no doubt) by the victim – enables the Contract to be varied by the Salvation Army by notice; and only ‘in emergency’ by the Home Office.
Illegal reduction of rates by Home Office
The case arose from the fact that the Contract specified rates of payment to different categories of victims (known by the Home Office as ‘service users’). As Mostyn J pointed out (at ), the proposed payment ‘is non-means-tested. The victim of trafficking gets these sums irrespective of whether he or she is receiving, for example, voluntary payments from a kindly relative’. The Home Office however, decided that it wanted to reduce rates under the Contract and did so, with effect from 1 March 2018, by means of a ‘Contract Change Notice’ (CCN) sent by email to the Salvation Army as follows:
 … The email stated: ‘please find attached a revised CCN on the immediate changes to subsistence rates … we’d like to get this implemented as soon as possible’. The attached draft deleted the third class of victim [ie the ‘service user accommodated [and receiving] subsistence payments] referred to above and stated instead “when a service user is receiving financial support from the asylum support system, under the Asylum Support Regulations 2000, they are not entitled to receive any additional income above the level set in regulation (sic)”. This in turn was followed by further revised Contract Change Notices on 1 and 16 February 2018. The latter became the final version.
This change ‘was duly signed by the Salvation Army; of course, they really had no option but to do so’ () said Mostyn J. He continued: ‘the procedure was not compliant, in any respect, with Schedule 6 of the Contract’. The Home Office decision under review followed: ‘From 1 March 2018 the cash provided to the claimants was cut by £27.25, or 42%’ (). And the result: ‘ … This was a very substantial cut imposed unilaterally by the Home Office’; though it seems that in [their counsel’s] skeleton argument the Home Office tried to palm off the decision as ‘taken independently by [the Salvation Army], without instruction or direction from the [Home Office]. Manifestly, the decision was taken by the Home Office…’.
Thus, ‘the decision was taken on a false basis and cannot stand’. The decision ‘was a partial implementation of a policy which had been announced on 26 October 2017’. However it was:
 … not done in a procedurally correct or fair way, and was dressed up as a rectification of a mistake. In public law terms the decision can be characterised as irrational and perverse, as well as being outside the tightly confined variation power within the contract.
‘Subsistence’ and its meaning in the context of victims of trafficking
Mostyn J explained that what the Government had done was to set up a ‘machinery for determining whether someone is a potential or actual victim of trafficking’ (at ). This is regulated by internal guidance. Claimants ‘are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance’. So what was the meaning of ‘subsistence’ in the trafficking Directives? Mostyn J replied:
 … ‘Subsistence’ when used in [Directives] is a heavily nuanced concept capable of different meanings in different contexts. It does not necessarily mean… that subsistence is that minimal sum necessary to stave off destitution.
So, he said, ‘subsistence’ in this context meant ‘a more expansive view of “subsistence” than the minimum sum needed to stave off destitution’ (at ). He continued:
 It follows that I do not agree that there is, to quote the author of the Ministerial Briefing of 24 October 2017 (see para 18 above), ‘no clear justification to explain why the state gives potential victims of modern slavery substantially more subsistence than people in asylum accommodation’. On the contrary, I think there are very good reasons why there should be….
Discrimination and European Convention 1950 Art 14
Mostyn J concluded his judgment by dealing with human rights issues (at -). ‘Discrimination’, he said, ‘happens when like cases are treated unalike or when unalike cases are treated alike’ (at ). He continued by holding that ‘ … Both kinds of discrimination were caused in this case by the contract change of 1 March 2018’. For discrimination to be justiciable, however, the facts of a case must come within one or more of other European Convention 1950 Articles.
Mostyn J explained this by reference to Re McLaughlin  UKSC 48,  1 WLR 4250 where Lady Hale (for the majority) said that Art 14 ‘ … does not presuppose that there has been a breach of one of the substantive Convention rights, for otherwise it would add nothing to their protection, but it is necessary that the facts fall “within the ambit” of one or more of’ the substantive rights (see eg Inze v Austria (1988) 10 EHRR 394, at ). So in McLaughlin, said Lady Hale, ‘it is clear that the denial of a contributory social security benefit falls within the ambit of the protection of property in A1P1: see Willis v United Kingdom (2002) 35 EHRR 21,…’.
In K Arts 4 (prohibition of slavery and forced labour) and Protocol 1 Art 1 (peaceful enjoyment of possessions) both applied. So, said the judge:
 … I am in no doubt Article 4 does indeed carry with it the positive obligations to provide appropriate support and assistance to the victims of the conduct which is referred to there. I am in no doubt at all that Article 1 of the First Protocol is engaged. The claimants had a pecuniary entitlement under the contract which was abruptly abated. I cannot see how this does not fall squarely within Article 1 of the First Protocol.
Home Office decision-making and lack of reasons
In K there had been no reasons given for the change of rates of payment to victims (for a recent example of the necessity for reasons, there in the case of child asylum seekers affected by a decision, see R (Help Refugees Ltd) v The Secretary of State for Home Department & Anor  EWCA Civ 2098 ‘children from Calais “jungle”’. No reasons were given to K since the Home Secretary made no decision at all (see ).
In no sense, said Mostyn J, could the Home Secretary’s discrimination against those affected by modern slavery be ‘objectively justified’ (at 40]). That position was reinforced by the fact that the Home Office, late in the day, had conceded the point by agreeing to amend the contract: ‘the Home Secretary has sold the pass on the question of discrimination’ (at ).
The decision to implement the contract on grounds of discrimination against those affected was also quashed with effect from 1 March 2018 ().