All potential trafficking victims must be assessed for support, the High court has ruled following a challenge to a new policy introduced by the Government in January this year.
At an urgent hearing on July 26, the High Court ruled in favour of the claimants, whom are instructed by Maria Thomas, of Duncan Lewis Solicitors, stating that all potential trafficking victims must be assessed for support.
The claimants welcome the interim judgment of Mr Justice Swift, which follows a challenge to a new policy introduced by the government in January this year which provides the framework for disqualifying potential trafficking victims from receiving modern slavery-specific support under the Modern Slavery Victim Care Contract, pursuant to s.63(1) of the Nationality and Borders Act 2022. The effect of disqualification and debarring from support is that no risk assessment is completed. This risk assessment would otherwise function to assess the individual’s risk of being re-trafficked and allow for appropriate measures to be put in place to mitigate any such risk.
The effect of disqualification and debarring from support is that no risk assessment is completed. This risk assessment would otherwise function to assess the individual’s risk of being re-trafficked and allow for appropriate measures to be put in place to mitigate any such risk.
The court order applies to all trafficking victims and was reported in the Guardian this week.
Maria Thomas, a solicitor in Duncan Lewis’ public law team, represented two trafficking victims to whom support was denied under this policy.
Chris Buttler KC argued on behalf of the claimants that this policy would expose victims of trafficking to re-trafficking by criminal gangs, and lead to breaches of Article 4 of the European Convention on Human Rights (which prohibits slavery, servitude, and forced labour) in most cases. The claimants sought an order requiring the Home Secretary to comply with her Article 4 duties, pending a full hearing on the lawfulness of the policy later this year.
Mr Justice Swift granted an order preventing the Home Secretary from making a disqualification decision without taking into account an assessment which considers whether a risk exists that an individual may be re-trafficked, and if so what support is required to mitigate this risk. In so doing, Mr Justice Swift remarked that this would not unduly burden the Home Secretary and would provide a practical safeguard against any potential breaches of Article 4. The order is generic, and thus applies to all victims of trafficking – not just to the two claimants who brought this case before the High Court.
Maria Thomas, told The Guardian that trafficking victims will be afforded greater protection as a result of this court order, “Including British youngsters exploited by county lines gangs and victims of forced prostitution.”
The Home Secretary revealed in pre-action correspondence that since the policy came into force in January, only one of 253 referrals had not resulted in a disqualification decision. As of 3 July 2023, 131 referrals for a decision under this policy remained outstanding – a number we would expect to have increased substantially since that date.
Mr Justice Swift additionally granted the claimants permission to proceed to a judicial review challenging the lawfulness of the policy itself, which is to be heard before the High Court in October or November of this year.
Duncan Lewis’ public law and immigration teams represent a number of additional victims who have either received a disqualification decision under this policy, or been notified that their case has been referred for a disqualification decision to be considered. This judgment will have substantial impacts for all of these clients and for all other individuals within this cohort.
The team at Duncan Lewis Solicitors was Maria Thomas, Manini Menon, Hanna Kit, Elisabeth Jennings, and Anna Bregstein
Instructed Counsel were Chris Buttler KC, Katy Sheridan, and Rosalind Comyn of Matrix Chambers, and Marlena Valles of Blackstone Chambers.
The article by The Guardian can be read in full here
About the Instructing Solicitor
Maria Thomas, a finalist for the 'Lawyer of the Year, Public Law' award at the Legal Aid Lawyer of the Year (LALY) Awards 2021 and recognised as a ‘legal aid star’ by Senior Counsel at Matrix Chambers, is a solicitor and supervisor within the Public Law and Immigration departments at Duncan Lewis Solicitors. Maria has extensive experience representing trafficking survivors, in particular victims of forced criminality and those caught up in county line trafficking.
Maria works under the supervision of director Toufique Hossain. Toufique is recognised by both The Legal 500 and Chambers UK legal directories as a leading figure in the area of immigration and public law. Toufique litigates in the Administrative Court, Court of Appeal, and the Supreme Court.
Duncan Lewis is recognised nationally for its Pro Bono activities UK-wide with recent award wins and commendations at both the 2021 and 2020 Law Works Pro Bono Awards.
For advice and support on an immigration of public law matter, contact Toufique via email at ToufiqueH@duncanlewis.com or via telephone on 020 3114 1128.