NN v Secretary of State for the Home Department

Factual and Procedural Background

The Claimants are victims of modern slavery and human trafficking who have been officially recognised as such by the Defendant through Conclusive Grounds decisions dated in early 2019. The first Claimant, originally from Albania, was trafficked to the UK, held captive, and subjected to repeated sexual assault, resulting in pregnancy and the birth of a child. The second Claimant, originally from Vietnam, was trafficked to the UK and forced to work on a cannabis farm, suffered physical abuse when attempting to escape, was prosecuted and imprisoned, and has since been diagnosed with PTSD and depression. The second Claimant's asylum claim is pending, while the first Claimant's asylum claim was refused and is under appeal.

The Claimants initiated judicial review proceedings challenging aspects of the Defendant’s policy regarding victims of trafficking. The policies concern the provision of support under international and EU law, specifically the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and Directive 2011/36/EU, and the determination of leave to remain under ECAT. The Claimants sought interim relief to maintain their current levels of support pending the outcome of their claims. The court heard oral applications for interim relief, granted the relief, and issued directions for the continuation of the proceedings.

Legal Issues Presented

1. Whether the Defendant’s policy restricting support to 45 days after a positive Conclusive Grounds decision is lawful under ECAT and the Directive.
2. Whether the Defendant’s policy defers determination of leave to remain under ECAT for victims who have claimed asylum (the scheduling rule), and whether this deferral is lawful.
3. Whether the withdrawal of support after 45 days without individual assessment is lawful.
4. Whether the scheduling rule constitutes unlawful discrimination under Article 14 of the European Convention on Human Rights.

Arguments of the Parties

Appellants' Arguments

• The 45-day rule limiting support after a positive Conclusive Grounds decision is incompatible with ECAT and the Directive because the support duty continues until the individual leaves the UK, as conceded by the Defendant in prior case law.
• The support duty requires provision of payments beyond basic asylum support (NASS), as established in previous judgments.
• The 45-day rule is a blanket policy applied without individual needs assessment, rendering it unlawful.
• The scheduling rule deferring ECAT leave decisions for asylum claimants causes significant delay, financial disadvantage, and psychological harm, and fails to account for victims’ personal situations.
• The scheduling rule is discriminatory in breach of Article 14 of the European Convention on Human Rights.

Defendant's Arguments

• The Defendant acknowledged the concession in prior case law concerning the support duty but indicated it wished to reconsider maintaining that concession.
• The Defendant submitted that extensions of the 45-day support period can be requested and considered under contract arrangements with support providers, but provided no evidence detailing the criteria or process for such extensions.
• The Defendant opposed the grant of interim relief but did not file evidence or written submissions prior to the hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the American Cyanamid test, adapted for public law, to determine whether interim relief was appropriate. The court found that the Claimants had good arguable cases on the grounds of challenge, particularly noting the Defendant’s concession in prior case law regarding the ongoing support duty and the existence of permission granted in similar cases challenging the scheduling rule.

In balancing the convenience and prejudice, the court considered evidence of irremediable harm to the Claimants if support were reduced. This included expert witness statements describing the adverse effects on the Claimants’ mental health, access to medical services, and wellbeing of the first Claimant’s child. The court acknowledged the Defendant’s argument about the possibility of requesting extensions to support but found the absence of evidence on the criteria and process for such extensions unsatisfactory.

The court accepted that while there would be financial consequences for the Defendant, the potential harm to the Claimants, both recognised as victims of serious trafficking and mistreatment, outweighed these concerns. Consequently, the court granted interim relief maintaining the Claimants’ current support levels pending further order.

Regarding the request for interim relief for all similarly situated persons, the court deferred a final decision to allow the Defendant to file evidence addressing the wider implications, setting a timetable for submissions and a further hearing.

Holding and Implications

The court GRANTED INTERIM RELIEF to maintain the Claimants’ existing levels of support under the support duty pending the resolution of their judicial review claims.

The court ordered that interim relief also apply to all persons similarly situated until a further hearing, with directions for the Defendant to file evidence and the Claimants to respond within specified timeframes. This decision directly protects the Claimants and similarly situated individuals from premature withdrawal of support but does not establish a definitive ruling on the lawfulness of the Defendant’s policies, leaving substantive determination for the full hearing.