‘Subsistence’ and modern slavery — David Burrows

19 November 2018 by Guest Contributor

In a week when Professor Philip Alston has so firmly – and publicly – emphasised the failures of the British government to appreciate the depth of poverty in the United Kingdom, it is instructive to have a view from the High Court as to a meaning of ‘subsistence’ in another, important, context, namely modern slavery.

In K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951 Mostyn J was concerned with subsistence payments for victims of modern slavery. The case concerned whether the Home Office’s cut to payments made under this country’s internationally agreed obligations to provide support to victims of trafficking constituted a breach of the rights of the victims. The court gave judgment for the claimants, finding that the cut was unlawful.

The Facts

On 1 March 2018 the weekly cash amount payable to those entitled to payments was cut by 42% from £65 to £37.75. In K & AM, the claimants, said the cut was unlawful. Mostyn J agreed and criticised the Home Office’s meagre financial support for victims. Modern slavery, he said, was

a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor.

The Modern Slavery Act 2015 is Parliament’s recognition of this. The explanatory notes to the Act emphasise that Parliament takes the view that:

Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain.

This can take a number of forms, including sexual exploitation, forced labour and domestic servitude.

The 2015 Act requires the Home Office to issue guidance on identifying and supporting victims and the assistance to be provided to them. Three years later this has still not been done. However, internal Home Office guidance had been issued to staff which, said Mostyn J,

[9] … 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 …

Thus the Home Office accepts the entitlement of victims to certain ‘subsistence payments’ to be administered by the Salvation Army. Payments are provided by a contract (‘the Contract’) between the Home Secretary and the Salvation Army. 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 Contract specified rates of payment to different categories of victims (known by the Home Office as ‘service users’). 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 decided unilaterally that it wanted to reduce the Contract rates. It did so, with effect from 1 March 2018, by email sent to the Salvation Army:

[19] … ‘Please find attached a revised [Contract Change Notice] 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 change was accepted ‘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 reduction: ‘[21] … was a very substantial cut imposed unilaterally by the Home Office.

Thus, ‘the decision was taken on a false basis and cannot stand’. It was

a partial implementation of a policy which had been announced on 26 October 2017 … not done in a procedurally correct or fair way…. In public law terms [it was] irrational and perverse, as well as being outside the tightly confined variation power within the Contract

‘Subsistence’ in context

What the Government had done was to set up a ‘machinery for determining whether someone is a potential or actual victim of trafficking’. 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 explained:

[25] … ‘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.

‘Subsistence’ in this context means ‘a more expansive view of “subsistence” than the minimum sum needed to stave off destitution’. He continued:

[30] 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 Article 14 ECHR

Mostyn J concluded his judgment by dealing with human rights issues at [33]-[41]. ‘Discrimination’, he said, ‘happens when like cases are treated unalike or when unalike cases are treated alike’. He continued:

[34] … 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 Articles of the ECHR.

Mostyn J explained this by reference to Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 where Lady Hale (for the majority) said that Article 14

[16] … 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 [36]).

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 it was held that Articles 4 (prohibition of slavery and forced labour) and Article 1 of the First Protocol (A1P1) (peaceful enjoyment of possessions) both applied. So, said the judge:

[37] … 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 [2018] EWCA Civ 2098 ‘children from Calais “jungle”’. In this case, no reasons were given to K since the Home Secretary made no decision at all.

In no sense, said Mostyn J, could the Home Secretary’s discrimination against those affected by modern slavery be objectively justified. 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.

The decision to implement the contract on grounds of discrimination against those affected was also quashed with effect from 1 March 2018

Whilst this post is being read, it must be recalled how complex the scheme is for the Home Office’s staff and advisers. How much more complex must the scheme be for the victims themselves? One question that presents itself is whether this complexity is unfair and whether that in itself could to illegality.

David Burrows is a solicitor advocate, trainer and writer.

This article is an edited version of a piece which was first published on DB Family Law, which can be found here.

For further reading, Free Movement also covered this case here.