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Home Office reconsideration policy for victims of traffickiing unlawful, High Court judge rules

The High Court has ruled as unlawful a Home Office policy of allowing victims of trafficking seeking a reconsideration of a negative decision to approach it only through specified organisations.

The case arose when law firm Deighton Pierce Glynn (DPG) was asked to act for DS, an Albanian woman whose claim to have been trafficked for sexual exploitation was rejected by the Home Office.

It said it would deal with applications only from bodies designated in a list of ‘first responders’ or from ‘support providers’ contracted by government to provide care for victims.

Applications would not be considered from lawyers, friends, relations or anyone else.

The Home Office has now agreed to change its policy as a result of the case,

DPG said it obtained new significant expert evidence in support of DS’s claim but the Home Office refused to even look at this since it came from a law firm.

It found that different ‘first responders’ and ‘support providers’ approached reconsideration requests differently and whether victims got help with challenging a negative decision “was dependent on which organisation provided them with support”.

Kerr J said in DS, R (on the application of) v Secretary of State for the Home Department [2019] EWHC 3046 that the essence of the challenge “is that the state is responsible under international law instruments for identifying and assisting victims of trafficking and may not delegate important aspects of that duty to non-state bodies.

“It is said that a rigid policy, not on its face admitting of any exceptions, is leading the [Home Secretary] to close her eyes and mind to relevant evidence that individuals are victims of trafficking after being wrongly identified as non-victims.”

The Home Office contended the policy was reasonable and lawful and “a legitimate means of performing the state's duty in a manner that is efficient, swift and effective”.

Kerr J said: “In my judgment, this policy does entail an abdication of the state's responsibility to perform the identification duty, in cases where a negative decision needs reconsidering in the light of relevant new material and the request for reconsideration is made directly to the single competent authority, not by a first responder or support provider but by a victim or victim's friend or relative or representative.”

He said a victim’s ability to bring judicial review or persuade a first responder to take a case on “might then turn on the happenstance that an enterprising lawyer is able, or unable, to obtain help from a sympathetic first responder or support organisation.

“These dismal thoughts lend force to the proposition that the real vice lies in the policy itself. There is also force in [the] argument that the restrictive nature of the policy impairs the effectiveness of the victim's remedy of reconsideration as a safeguard against breach of the duty to identify victims of human trafficking; and that the reconsideration policy operates arbitrarily, inconsistently and without transparency.”

He noted the government “is already committed to reviewing the policy”.

Mark Smulian

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