Duncan Lewis is launching a challenge against the Home Office for refusing to make decisions on whether to grant discretionary leave to victims of trafficking with outstanding asylum claims, and for limiting support for victims of trafficking to 45 days after a final decision is made that they are victims of trafficking. The challenge is being led by public law director, Ahmed Aydeed, and concerns a number of vulnerable clients that have instructed us. Solicitor Heather Malunga and caseworkers Karen Staunton and Harvey Slade are also assisting with this challenge. Chris Buttler of Matrix and Miranda Butler of Garden Court chambers are instructed as Counsel.
What are these failings?
Support and assistance
Victims of trafficking are entitled to tailored support and assistance, which can include safe house accommodation, a support worker to help access support and with attendance of legal and medical appointments, help to access counselling, and £65/week in weekly subsistence.
However, the Home Office, are limiting the support for victims of trafficking to 45 days after a positive conclusive grounds decision in their trafficking claim, as required by Home Office policy. If the client is an asylum seeker, they will then need to rely on a grant of section 95 asylum support, which would provide the client with accommodation and £37.75/week. If the client is not an asylum seeker, and has no leave to remain, they will potentially not receive any support.
The UK is required, under the Trafficking Convention and Directive, to provide support and assistance to victims of trafficking. In PK(Ghana) and H, the Home Office accepted that this duty extends after a positive conclusive grounds decision has been made until the victim leaves the jurisdiction of the UK. Further in K and AM it has been recognised that asylum support is not enough to meet these obligations. The cessation of the client’s trafficking support, and proposed replacement with s95 asylum support, is therefore a clear breach of the trafficking convention and directive, and K and AM. There is further no assessment of clients’ needs as victims of trafficking, as required by Article 11 Trafficking Directive, prior to the transfer to s95 support.
Discretionary leave to remain
The Home Office have unlawfully refused to consider whether to grant our clients discretionary leave as victims of trafficking while their asylum claims remain outstanding. We submit that the Home Office policy putting a blanket ban on considering whether to grant discretionary leave to victims of trafficking while their asylum claims remain outstanding is unlawful.
In several of our clients’ case, the delay in making a decision on whether to grant them discretionary leave, leaving them in limbo regarding their immigration status while their asylum claims are determined, is having a detrimental impact on their recovery from their mental health conditions. This clearly breaches the UK’s obligations under Article 12 of the Trafficking Convention to provide the support and assistance required by the particular trafficking victim. Article 11 of the Trafficking Directive further makes it clear that the obligation to provide support and assistance requires an individual assessment of a particular victim’s needs.
What we are challenging?
We are bringing a judicial review challenge to the Home Offices’ unlawful decisions and unlawful policy in breach of: the Trafficking Convention, the Trafficking Directive, Articles 4, 14 and Protocol 1 of the European Convention on Human Rights, as well case law which is not being adhered to.
In some cases we have had to make interim relief applications to ensure that the required support is not stopped pending the outcome of the challenge.
What happens next?
The public law team in Birmingham will be continuing to progress the challenge and intend to issue in several other cases, as we are seeing these issues affecting many clients.
Duncan Lewis Public Law Solicitors
The Duncan Lewis Public Law department continues to be recommended by Legal 500 with the 2019 edition reporting its 'strong presence in this area of the law, making a particularly dominant contribution in immigration, asylum and prison law.'
The Public law team has experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court. A particular focus is the team’s work handling cases of the deprivation of British citizenship and deportation threats, with a niche specialism in challenging the treatment of immigration detainees and other marginalised communities.
To contact a specialist member of the public law team, call 033 3772 0409.