AM, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, born in Eritrea in 2001, experienced forced labour and exploitation in multiple countries before arriving in the United Kingdom on 17 April 2018 as an unaccompanied asylum-seeking child. Upon arrival, the Appellant was accommodated by the London Borough of Camden and then transferred to the London Borough of Barnet under the pan-London rota system. Camden had noted potential trafficking concerns, and the Appellant was referred to the National Referral Mechanism (NRM) as a child victim of trafficking (CVOT) on 23 April 2018. Despite a positive "reasonable grounds" decision by the Secretary of State for the Home Department (SSHD) on 27 April 2018 recognizing the Appellant as a CVOT, Barnet did not appear to have been properly informed or to have acted on this status.

Throughout the Appellant’s time in care, Barnet provided generic support typical for looked after children but did not specifically address trafficking-related recovery needs. The Appellant struggled financially and emotionally, with limited engagement in counselling and therapeutic services, partly due to mistrust of Barnet’s staff. Upon reaching adulthood on 14 May 2019, the Appellant’s continued participation in the NRM required consent, which was not clearly obtained until December 2019. The SSHD agreed to backdated payments for support from December 2019 onwards but refused payments for periods when the Appellant was a child or had not consented to remain in the NRM as an adult.

The Appellant initiated judicial review proceedings challenging the decisions of the SSHD and Barnet concerning the provision of trafficking-related support and backdated payments. The SSHD disputes liability for support during the Appellant’s minority, attributing responsibility to Barnet, and contests the requirement of backdated payments absent consent. Barnet contends it was not aware of the Appellant’s CVOT status until March 2019 and asserts that it provided appropriate care and support.

Legal Issues Presented

1. Whether the SSHD breached Articles 12 and/or 13 of the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and/or Article 4 of the European Convention on Human Rights (ECHR) by failing to ensure consistent provision of trafficking-related recovery support to child victims of trafficking.
2. Whether the differential treatment between adult victims of trafficking (AVOTs) and CVOTs in the provision of recovery support constitutes unlawful discrimination under Article 14 of the ECHR.
3. Whether Barnet breached its duties under ECAT and relevant statutory provisions by failing to identify, assess, and provide trafficking-related recovery support to the Appellant as a CVOT.
4. Whether Barnet failed to comply with statutory duties under the Children Act 1989 and associated regulations in relation to the Appellant’s care and pathway planning.
5. Whether Barnet breached duties under the Children Act 2004 and the Children and Social Work Act 2017 by failing to safeguard and promote the welfare of the Appellant as a CVOT.
6. Whether the SSHD was entitled to require the Appellant’s consent to remain in the NRM upon reaching adulthood and the implications of this on backdated payments.
7. Issues of timeliness and standing concerning the judicial review claims.

Arguments of the Parties

Appellant's Arguments

• The SSHD failed to discharge its obligations under ECAT and domestic law to ensure child victims receive consistent and adequate trafficking-related recovery support.
• The distinction in support between AVOTs and CVOTs is discriminatory and unjustified under Article 14 ECHR.
• Barnet failed to identify the Appellant as a CVOT in a timely manner, neglected to assess his trafficking-related needs, and did not provide appropriate support or pathway planning reflecting his victim status.
• The SSHD unlawfully required consent for the Appellant to remain in the NRM upon reaching adulthood, which affected entitlement to backdated payments.
• The Appellant suffered detriment from inadequate support, including financial hardship and lack of access to suitable counselling and therapeutic services.
• The Appellant has standing to challenge the SSHD’s and Barnet’s conduct in relation to CVOTs under their care but not for CVOTs outside local authority care.

Secretary of State for the Home Department's Arguments

• The SSHD’s obligations under ECAT allow broad discretion in determining measures to assist victims and may lawfully differentiate between adults and children.
• The statutory and regulatory framework under the Children Act 1989 and related guidance provides an appropriate mechanism for addressing the needs of CVOTs through local authorities.
• The SSHD is not responsible for providing direct support to CVOTs; that responsibility lies with local authorities such as Barnet.
• The requirement for consent to remain in the NRM upon adulthood is lawful and necessary to address issues such as consent to medical treatment.
• The SSHD disputes the Appellant’s standing to challenge arrangements for CVOTs not in local authority care.

Barnet's Arguments

• Barnet was unaware of the Appellant’s CVOT status until March 2019 and therefore could not have acted earlier on trafficking-specific needs.
• Upon becoming aware, Barnet provided all statutory financial allowances and support appropriate for a looked after child, including efforts to arrange counselling despite the Appellant’s reluctance to engage.
• Care and pathway plans were prepared with regard to the Appellant’s welfare, and any failure to acknowledge trafficking status in documentation did not materially affect the support provided.
• Barnet denies liability for additional financial payments related to trafficking recovery needs, asserting that such needs overlap with general care provisions.
• The Appellant’s failure to engage with support services limits any claim that Barnet’s conduct caused detriment.
• In the alternative, Barnet relies on section 31(2A) of the Senior Courts Act 1981 to argue that relief should be refused as the outcome would not have been substantially different.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wilson v The First County Trust [2004] 1 AC 816	Ministerial statements in Parliament can be used as background to explain Government policy and decisions.	Supported interpretation of statutory guidance and policy objectives under the Modern Slavery Act 2015.
K and AM v Secretary of State for the Home Department [2018] EWHC 2951	Financial support to adult victims of trafficking is to discharge duty to meet trafficking-related recovery needs, distinct from general asylum support.	Appellant relied on this to argue entitlement to recovery-related financial payments.
R(MD) v Secretary of State for the Home Department [2022] EWCA Civ 366	Material assistance under ECAT likely requires some financial support; errors in policy can be corrected.	Court noted and addressed errors in adult victim support policies; relevant to recovery rate payments.
EM v Secretary of State for the Home Department [2018] EWCA 1070	Provision of psychological support need not be bespoke or specifically targeted to trafficking consequences if broader welfare needs are met.	Supported SSHD’s argument that article 12 does not demand bespoke assistance specifically for trafficking effects.
R(G) v Barnet LBC [2002] AC 208	Section 17 of the Children Act 1989 imposes a duty to safeguard and promote welfare, including an implied duty to assess needs diligently.	Used to support that local authorities have legal obligations to assess and meet the needs of children in care, including CVOTs.
R(O) v London Borough of Lambeth [2016] EWHC 937 (Admin)	Local authority’s duty to assess children’s needs requires a sufficiently diligent inquiry.	Supported the court’s conclusion that Barnet had a duty to inquire into the Appellant’s trafficking-related needs.
R(A) v Secretary of State for the Home Department [2021] UKSC 37	Systems challenges must show inherent unfairness in the system, not just individual aberrations.	Informed the court’s approach to the Appellant’s challenge to the SSHD’s arrangements for CVOTs.
Rantsev v Cyprus and Russia (2010) 51 EHRR 1	States have operational duties under Article 4 ECHR to protect victims of trafficking without requiring victim request.	Court distinguished facts from Appellant’s case; consent requirement was lawful and not incompatible with Article 4.
R v Lichfield District Council [2001] EWCA Civ 304	Courts may consider timeliness of judicial review applications.	Supported the court’s discretion to consider and extend time for the Appellant’s claims.
R (Bokrosova) v London Borough of Lambeth [2016] PTSR 355	Principles on extending time for judicial review and standing.	Referenced in relation to timeliness and extension of time for the Appellant’s claims.

Court's Reasoning and Analysis

The court began by addressing procedural matters of timeliness and standing, extending time to allow the Appellant to challenge decisions dating back to 2018 and confirming standing for challenges related to CVOTs under local authority care but not for CVOTs outside that category.

On the substantive issues, the court found that the SSHD’s obligations under Article 12 of ECAT grant the State broad discretion in adopting measures to assist victims and do not mandate uniform or bespoke financial support for CVOTs equivalent to that provided to AVOTs. The statutory framework under the Children Act 1989 and related regulations, complemented by statutory guidance (including the Modern Slavery Act Guidance Annex G), was held to constitute appropriate measures for meeting the needs of CVOTs under local authority care.

The court rejected the Appellant’s claim that the SSHD unlawfully required consent to continue in the NRM after reaching adulthood, concluding that the SSHD was entitled to require consent, implemented via an opt-out system, and that no evidence showed the Appellant had opted out. This entitled the Appellant to backdated payments only from the date consent was effectively acknowledged.

Regarding Barnet, the court found that Barnet ought to have identified the Appellant’s CVOT status earlier, particularly given the referral documents and its duties as a First Responder under ECAT and the NRM. Barnet’s failure to make inquiries and to refer the Appellant appropriately was Wednesbury unreasonable. Although Barnet provided general care and support, the lack of specific recognition and assessment of trafficking-related needs constituted a breach of statutory duties under the Children Act 1989 and associated regulations.

The court considered Barnet’s argument under section 31(2A) of the Senior Courts Act 1981, which requires refusal of relief if the outcome would not have differed. It concluded that the Appellant likely would have engaged with support and benefited from knowing his status earlier, so relief was not barred.

In relation to discrimination under Article 14 ECHR, the court held that children and adults occupy materially different positions and that the differential treatment in support provision did not constitute unlawful discrimination.

Holding and Implications

The court’s final decision is as follows:

Ground 1: The claim against the SSHD for failure to provide consistent trafficking-related recovery support to CVOTs under local authority care is dismissed except that the Appellant is entitled to backdated payments from 14 May 2019 to 17 December 2019, reflecting the period after reaching adulthood and prior to consent being formally recorded.

Ground 2: The claim of unlawful discrimination under Article 14 ECHR fails.

Grounds 3, 4 and 5: The claims against Barnet succeed. Barnet failed to identify the Appellant’s CVOT status in a timely manner, did not properly assess or provide trafficking-related recovery support, and breached statutory duties under the Children Act 1989, Children Act 2004, and Children and Social Work Act 2017.

Timeliness and Standing: The court granted an extension of time for the judicial review claims and held the Appellant has standing to challenge the treatment of CVOTs under local authority care but not for CVOTs outside that category.

Implications: The decision confirms that the statutory framework under the Children Act 1989 and related guidance is an appropriate mechanism for meeting the needs of CVOTs in local authority care. It clarifies the lawfulness of the SSHD’s consent requirement for adults remaining in the NRM. The ruling highlights Barnet’s operational failings in this case but does not establish a precedent requiring uniform financial recovery payments for child victims equivalent to adult victims. No broader systemic illegality by the SSHD was found, and the judgment emphasizes the distinction in treatment between children and adults under ECAT and domestic law.