Beyond the end of the line: home secretary can and will support victims of trafficking post-exit from the NRM
Marc Bloomfield
In R (FH by his litigation friend the Official Solicitor) v Secretary of State for the Home Department (SSHD) CO/5658/2017, the SSHD agreed to provide FH with financial support for several months post-exit from the National Referral Mechanism (NRM) for the identification and support of victims of trafficking, and following a decision to grant him discretionary leave to remain (DLR).
This marks a departure from the SSHD’s previous position in this case (and others that we know of) that recognised victims of trafficking could not be supported post-exit from the NRM on the basis that there is no policy or provision allowing for it. The SSHD pointed instead to duties of the local authority. This had also been her position in R (Galdikas and others) v Secretary of State for the Home Department and others (Rev 1) [2016] EWHC 942 (Admin), in an attempt to defeat applications for interim relief for three EU nationals who had historically exited the NRM, though the point was never ruled upon as the case settled.
The consent order in this case records the fact that the SSHD can and will provide support to victims who have historically exited the NRM. It is hoped that the order can be used to encourage her to comply with her support duties towards recognised victims who otherwise face a support gap on exiting the NRM.
FH was an EEA national who was acutely vulnerable, with diagnoses of schizophrenia and dependence syndrome. It also transpired that he was so unwell that he lacked litigation capacity. The Home Office, on 6 May 2016, made a positive conclusive grounds decision that FH was a victim of trafficking but refused him DLR. The decisions were not served on him until 24 May 2017 and he was exited from the NRM shortly after. The refusal of DLR was challenged by way of judicial review (JR/7108/2017).
FH was evicted from his safe house and not provided with ‘move-on’ support of any kind. There was no transition to other accommodation and services that he needed. As a result, he became homeless and took up accommodation with an abusive partner. Following the intervention of his lawyers, he was accommodated by Birmingham City Council (the interested party in the case), initially by the social services department and then by the housing department. He was not provided with any financial support.
FH asked the Home Office for financial support or to allow him to re-enter the NRM to get it. The SSHD replied stating that there was no type of financial support available from the Home Office, and no provision or policy to allow him to re-enter the NRM. She also stated: ‘There is no financial support available from the Home Office whilst he is awaiting a discretionary leave decision. If your client is granted discretionary leave, your client will have recourse to public funds.’
On 21 September 2017, the SSHD granted FH 12 months’ DLR. The Government Legal Department assured him that the consent order from the DLR proceedings would be sufficient to access mainstream benefits. This turned out to be far from the case and FH was refused jobseeker’s allowance on 10 November 2017. The Department for Work and Pensions said this was because the Home Office had been contacted and stated that FH had ‘no status’ in the UK and so was not entitled to benefits. FH would have to wait until he received his biometric residence permit (BRP) confirming his grant of DLR, but the process for getting it was delayed and subject to administrative error by the Home Office.
FH became destitute. In light of his vulnerability, mental health problems and the increased risks of retrafficking, this placed him in danger. He had no money to eat or for basic necessities and so was forced to survive on food parcels provided by the organisation Hope for Justice as part of its wider support to FH. His solicitors made a further request to the SSHD for financial support. This was ignored and a letter before claim was sent.
FH lodged judicial review proceedings challenging the SSHD’s refusal to provide financial support pending receipt of a BRP on the grounds that it breached her duty to protect and support victims according to their individual needs, found in article 11 of the EU Trafficking Directive (Directive 2011/36/EU), the EU Charter of Fundamental Rights, Human Rights Act 1998 s6 (as a breach of articles 3, 4 and 8 of the European Convention on Human Rights), and the Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report. It was also said that the SSHD breached her public law duties and her practice as to the exercise of discretionary powers to provide support to victims at the end of the NRM, as confirmed in Galdikas.
Interim relief was sought and granted by Elisabeth Laing J, ordering the SSHD to forthwith provide FH with £65 per week (understood to be the NRM rate). She offered, shortly after, to provide him with £65 per week pending receipt of his BRP. As a result, the case settled without having to go to a hearing.
It is clear from this case that the SSHD is able to provide financial support to recognised victims of trafficking several months after exiting the NRM, and beyond what she would otherwise consider to be the end of the line.

About the author(s)

Description: Fiona Couzens
Fiona Couzens is a solicitor at Simpson Millar.
Description: Catherine Meredith
Catherine Meredith is a barrister at Doughty Street Chambers.