England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2016

Sir Stephen Silber :

Introduction

1. The United Kingdom Government considers that human trafficking is a form of modern slavery, because the essence of it is that its victims are coerced or deceived into situations where they are exploited. The United Kingdom has opted into the EU's Trafficking Directive 2011/36 ("the Directive"), which requires the United Kingdom authorities to set up a regime for providing support for those who have been recognised as victims of trafficking. The Home Office and the Ministry of Justice have jointly funded a national support service for adult victims of trafficking in England and Wales under a victim care contract, which provides vulnerable victims of trafficking with care and support. This case is not concerned with the issue of whether particular individuals should be recognised as victims of trafficking, but instead it raises questions concerning the support that such victims should continue to receive after a conclusive grounds decision has been made that they are actually victims of trafficking.
2. The present application is principally concerned with the issue of whether there has been a failure by the Secretary of State for the Home Department ("SSHD")^[1] and by the Secretary of State for Work and Pensions ("SSWP")^[2] to put in place a comprehensive support regime for recognised victims of human trafficking in accordance with the United Kingdom's obligations, in particular after the conclusion of the 45-day recovery and reflection period in which those victims are entitled to assistance and support. The relief sought is principally concerned with the nature and legality of the regime in force and more particularly if the regime is compatible with EU law and public international law. The Claimants' case is brought with the assistance of evidence from Ms Phillipa Roberts, who is the Legal Director of Hope for Justice ("HFJ"), which is described as an "anti-trafficking charity" and which assists victims of trafficking. The Defendants' case is supported by evidence from Ms Helen Sayeed of the Asylum, Strategy and Trafficking Team at the Home Office.

The Support Regime for Victims of Trafficking

3. To understand the submissions, it is necessary to explain the support regime in place in the United Kingdom for the victims of trafficking and which is explained in the SSHD's Victims of Modern Slavery: Competent Authority Guidance (July 2015) ("the Guidance"). As this claim relates to those who are conclusively found to be the victims of trafficking, I will only describe the four-stage procedure applicable to those victims and I will not explain the procedure in relation to those who are not found to be the victims of trafficking.
4. The first step under the support regime is the identification of potential victims of trafficking so that they can then be referred to the National Referral Mechanism ("NRM"), which is a victim identification and support process. The second stage of the NRM is to make what is called "a reasonable grounds decision" which is a decision as to whether there are reasonable grounds for believing that the person referred may be a victim of trafficking. If such a decision is arrived at in respect of that person, there is then the third stage of the NRM is that the person concerned is given a minimum of a 45-day recovery and reflection period^[3] whilst the appropriate body makes a substantive conclusive grounds decision on the trafficking claim. As I will explain, support to meet the immediate and ongoing needs of the potential victim is provided during that period and this usually comprises the provision of accommodation and cash payments. The fourth stage of the NRM is the "conclusive grounds decision" which is a substantive decision that there is sufficient information to find that the person concerned is a victim of trafficking. This decision should be taken after a minimum of 45 calendar days, and if it is not made within that period of 45 days, then, as I will explain, the support provided may be extended for a further period. The challenge in this case centres on the nature of the duty to provide material support beyond the end of the 45-day period recovery and reflection period.
5. The support provided is given by a national support service for adult victims of trafficking under a victim care contract, which is jointly funded by the Home Office and the Ministry of Justice. The victim care contract is delivered in England and Wales by the Salvation Army, which supports victims whilst they remain in the NRM. Everybody who receives a positive conclusive grounds decision at the end of the recovery and reflection period is then entitled under the contract with the Salvation Army to a further support period of 14 days. The Defendants' case is that the Home Office considers on a case-by-case basis whether to grant extensions of support to those periods for those with positive conclusive grounds decisions, like the Claimants in this action.
6. The case for the Claimants is that the present system lacks the capacity to react appropriately to the needs of victims with the result that gaps in the provision of necessary support are inherently likely and they cannot be explained as mere aberrant decisions in individual cases. In particular it is contended that there is no requirement in the Guidance or in the contract with the Salvation Army requiring routine assessments of need in individual cases after the 45-day recovery and reflection period and no criteria as to when support is to be provided pending a decision on an application for Discretionary Leave to Remain ("DLR") which is the way in which the United Kingdom gives support and assistance to trafficking victims in accordance with its international obligations. The case for the Defendants is that there is discretionary power to extend the 45-day period and to grant discretionary extensions of this period to support them. The Claimants' case is that this is inadequate, as the discretionary power to extend the 45-day period is subject to highly restrictive conditions and the discretionary extensions are based on an unstructured discretion exercisable only on a request made by the Salvation Army. It is said that support often expires before a solution is reached.
7. A person who is accepted as a victim of trafficking may be granted DLR, but he or she is not automatically entitled to that leave as a direct result of conclusively being accepted as a victim of trafficking. To obtain DLR, a victim of trafficking must meet certain specified criteria, such as that in their cases there are particularly compelling circumstances which justify a grant of DLR. Nationals of the European Economic Area ("EEA") who are accepted as being victims of trafficking retain their ability to exercise free movement rights in accordance with EU Regulations. There might be some circumstances in which an EEA national who was a trafficking victim is unable to exercise their free movement rights, and in those circumstances, the Home Office would consider any request for DLR in line with its published policy. A person granted DLR is entitled to all mainstream benefits. There is evidence that the 14-day extra support period is insufficient time for victims to apply for DLR and to receive a response to their applications as such applications often take a very much longer period to process.

The Claimants

8. The background of each Claimant is not in dispute. They are all nationals of the EEA and they have all been conclusively recognised as victims of trafficking. At the time when they were so recognised as trafficking victims, the Claimants qualified for and were granted income-related Jobseeker's Allowance ("JSA"), but their entitlement to this benefit ceased in 2014 following changes to the Immigration (EEA) Regulations 2006 (SI/2006/1003) (" the EEA regulations") came into effect. This set a time limit on the right of EEA nationals to reside in the United Kingdom as a job seeker unless they could show compelling evidence of a genuine prospect of work ("the GPOW test"). Since 2014, EEA nationals will be unable to obtain JSA until they have been in the country for 3 months.
9. The Claimants, Antanas Galdikas ("AG") and Rimantas Tamosatis ("RT") have applied for DLR in the United Kingdom and if their applications were to be granted, they would become entitled to claim their benefits. No decision has been made on RT's application, which was made on 3 July 2015. On 15 December 2015, the Home Office wrote to RT's representatives to request further information relating to RT's circumstances and his case remains under active consideration.
10. AG's application, which was made on 20 July 2015, was rejected as "void" on 3 February 2016 by United Kingdom Visas and Immigration because he is an EU National and therefore he does not need a visa. The SSHD accepts that this was an error and, on 15 February 2016, the Home Office wrote to him stating that it would reopen his application and it invited him to resubmit his application. This was duly received on 23 February 2016 and I believe that it is still under active consideration. AG and RT are not involved in a criminal investigation relating to those who trafficked them although there remains the possibility of a new international investigation by Kent Police and the Lithuanian authorities or domestically by or with the National Crime Agency.
11. The other Claimants are male twins called Edgaras Subatkis and Edvianas Subatkis, who had co-operated with the police. The SSHD's Guidance requires the investigating police force to make a request for DLR for these Claimants and I will return in paragraphs 70 to 77 to consider the fairness and validity of this requirement. On 18 November 2015, the Claimant's solicitors wrote to the police asking them to make the request urgently, but the police replied that "this process was no longer required". The Guidance states that victims of trafficking and their legal representatives should not make applications directly to the Home Office where the victim is helping the police with their enquiries. These Claimants were due to give evidence in a criminal trial which took place on 11 January 2016, but they did not do so as the defendants in that trial pleaded guilty. They fear reprisals from the contacts and family of their traffickers if they are returned to Lithuania. Mrs Sayeed has explained that these Claimants have remained in the United Kingdom receiving local authority support. The Home Office wrote to these Claimants on 2 March 2016 to say that they could not find any record of any DLR application on their behalf. As criminal proceedings have finished, the Claimants will have to apply for DLR on one of the other bases, either the need to be present for a civil claim or their own personal circumstances. The letter of 2 March 2016 included a link to an application form for leave on that basis. The evidence of Edgaras Subatkiss shows that they are highly likely to pursue this application.
12. All the Claimants have therefore been unable to claim state benefits, even though they have no other means of support. The Defendants contend that they are not obliged to offer any support to these particular Claimants after the conclusion of the 45-day recovery and reflection period. So the Defendants have not offered them any support. Pending the outcome of the present claims, the Claimants are all currently receiving support from their local authorities, who are the Second and Third Interested Parties in these claims, but they, like the other Interested Party, have taken no part in the proceedings.
13. At present, there is a regime in which those who are recognised as victims of trafficking are entitled to a 45-day reflection and recovery period. This application raises the issue of whether those victims are entitled to assistance and support after that period and if so, in what circumstances. This issue entails considering the inter-relationship, enforceability and the construction of:

(a) The Council of Europe Convention on Action Against Trafficking in Human Beings ("ECAT") which has been ratified in the United Kingdom but which has not been incorporated into domestic law and in particular Article 12^[4] of it;

(b) The Directive and in particular Article 11(2)^[5] of it; and

(c) The Guidance, which sets out how the SSHD has sought to comply with any obligations she might have under ECAT and the Directive.

14. There is a substantial dispute between the parties on the effect of the Directive and ECAT on the rights of the victims of trafficking to relief after the 45-day recovery and reflection period has expired and whether the Defendants have complied with their obligations under them. All counsel have stated that they do not seek a reference of this dispute to the Luxembourg Court.
15. The Claimants' experiences are said to be examples of cases where recognised victims of trafficking cannot obtain the support they need and to which they contend that they are entitled under Article 11 of the Directive and under Article 12 of ECAT. They are said to form part of a more general class who cannot obtain mainstream benefits as they do not qualify for them or have ceased to qualify for them by reference to the EEA regulations, but who are still awaiting a decision as to whether or not to grant them DLR. If they were to be granted DLR, they would then re-qualify for mainstream benefits. If these trafficking victims do not continue to receive this support or support from the local authorities, they are liable to be destitute and are said to be vulnerable to exploitation, including being re-trafficked.

The Issues

16. Mr. Martin Westgate QC, Counsel for the Claimants, contends that the Defendants are under a duty to provide material support to recognised victims of trafficking beyond the 45-day reflection and recovery period even where there are no criminal proceedings. This duty arises, according to Mr. Westgate, where, after an individual assessment, it is necessary to do so in order to enable the victims, first, to exercise effectively their rights under ECAT and the Directive (including the right to claim compensation); second, to recover and to escape from the influence of their traffickers; and third, to support them pending their applications for DLR and during criminal proceedings against those alleged to have been involved in trafficking them.
17. Mr. Westgate stresses the need for the Defendants to provide such support where mainstream benefits are unavailable, as otherwise there will be what he calls a "support gap" during which the victims of trafficking are liable to be destitute and to be vulnerable to exploitation or to be re-trafficked. The contents and duration of the duty in any case will depend on individual assessments carried out at appropriate intervals of the needs of the person concerned. If the victim has recovered or does not need or can obtain support elsewhere, then following an assessment it may be determined that the support duty may no longer be owed.
18. In order to show the existence of such a duty to support, Mr. Westgate contends that the component parts of Article 11 of the Directive, and in particular, Article 11(2), and Article 12 ECAT, impose a duty of support on the Defendants to all victims (irrespective of whether they are involved in criminal proceedings) referred to in Article 11(5) (content of measures) starting from a reasonable grounds finding and ending if support is no longer necessary as a result of an individual needs assessment, which has to take place on an informed and consensual basis. The Claimants' case is that the Defendants' present approach set out in the Guidance does not comply with its requirements to provide support:

(a) after the 45-day recovery and reflection period and where criminal proceedings are pending;

(b) (i) where despite the fact that there are no criminal proceedings or criminal proceedings have come to an end, (ii) to enable the victim to claim compensation; and (iii) because of the personal needs and circumstances (psychological, physical, social or safety needs);

(c) where applications for DLR are pending or cannot be made; or

(d) on the basis of an individual needs assessment.

19. Mr. Westgate contends that the Guidance is shown to be defective as it fails to recognise the duty under Article 11(2) of the Directive and Article 12 ECAT to provide support following the 45-day recovery and reflection period.
20. Mr. David Blundell, Counsel for the Defendants, submits that the support obligations on the Defendants in Article 11 of the Directive are closely linked to and are dependent on the existence of criminal proceedings, but that these obligations only continue for "an appropriate period after the conclusion of criminal proceedings" where necessary. The case for the Defendants is that access to support after the 45-day recovery and reflection period is actually provided as the SSHD can grant DLR where a person has no other right to remain and that access to support can also be granted where necessary pending a decision on DLR. Another feature of the Defendants' case is that the Directive does not deal with the issue of rights of residence of trafficking victims and it is not concerned with establishing a right of residence for trafficking victims.
21. The answer to these disputes entails resolving a fundamental dispute as to whether, as Mr. Westgate contends is the position, Article 11(2) of the Directive^[6] imposes a separate and an additional duty to provide support, which is separate from and additional to the duty in Article 11(1). Mr. Blundell submits that Article 11(2) does not contain a separate or additional duty from Article 11(1), but that Article 11(2) merely sets out the starting date for the operation of Article 11(1).
22. Another area of dispute is that Mr. Westgate also contends that the Claimants can rely on ECAT and in particular on Article 12^[7] of it, but the response of Mr. Blundell is that ECAT has not been incorporated in English law and it cannot be relied on by the Claimants. Mr. Westgate's riposte is that it does not matter that it has not been incorporated because the Court should still enforce the Defendants' obligations under ECAT, even though it has not been incorporated into English law, for three reasons .
23. First, the Defendants seek to rely on an alleged concession made by Mr. James Eadie QC, counsel for the Secretary of State in the case of R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin) [2014] 1 WLR 1959 at paragraph 55 (" the Atamewan concession")^[8] .
24. The second reason why Mr. Westgate contends that the Claimants can bring a claim based on ECAT is that the English courts have assumed that ECAT (or at least Article 12) is part of English law. His final reason is that the Secretary of State's policy in the Guidance is to adopt Article 12 of ECAT in relation to the issues with which this application is concerned and so this policy should be enforced unless there are good reasons (of which there are none) not to do so. The response of the Defendants is that the provisions of ECAT as an unincorporated treaty are not enforceable because of what was said by Lord Oliver in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] AC 418^[9] and the Guidance does not in any event implement it or incorporate it into English law as policy. Mr. Blundell also says that the Atamewan concession does not bind this court, because it was not the subject of a decision by a court even though it has been relied on in other cases without argument.
25. Foskett J granted permission. I am grateful for the admirable oral and written submissions in this case from both legal teams in dealing with this wide-ranging application.

Two Preliminary Points

26. In order to resolve the outstanding matters, there are two important preliminary matters to stress. First, the Defendants have discretion as to how the provisions in the Directive are to be implemented in order to reach the result to be achieved. Article 288 of TFEU states that:

"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

27. So my task when considering whether the Defendants have complied with the Directive is to determine if the Defendants have achieved the result sought to be achieved and not to decide if the result could be achieved by another preferable manner.
28. Second, as I have explained, the Claimants are seeking to challenge various aspects of the Defendants' policy on the basis that it is vitiated by a justiciable public law error. The fall-back position of the Claimants is that the support regime creates an unacceptable risk of unfairness and so should be quashed. The threshold that has to be reached before making quashing orders was considered by the Court of Appeal in R (Tabbakh) v Staffordshire Probation Trust [2014] 1 WLR 4620 at paragraphs 38 and 45, when it observed that a policy could only be struck down if it was "inherently unfair". That case also established that if a policy is not in itself "inherently unfair", then in the words of Richards LJ, giving the only reasoned judgement of the Court of Appeal at paragraph 38, "the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness". Lord Dyson M.R. followed this approach in Lord Chancellor v Detention Action [2015] 1 WLR 5341 at paragraph 27, where he explained when giving the only reasoned judgement of the Court of Appeal that:

"I would accept Mr. Eadie's summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals."

The Issues

29. The issues to be determined on this application are:

(a) Whether Article 11(2) of the Directive specifies an obligation on Member States which is additional to and separate from the obligation in Article 11(1) and not linked to criminal proceedings as contended for by the Claimants ("Issue 1: The Article 11(2) Issue)";

(b) Whether the Claimants can rely on the provisions in ECAT and in particular Article 12 even though ECAT has not been incorporated into English law ("Issue 2: The ECAT/Article 12 Issue)";

(c) Whether the SSHD has misdirected herself as to the period for which the support duty continues and, in particular, whether it extends to individuals who have been recognised as victims of trafficking for whom such support is necessary ("Issue 3: The Period of Support Issue");

(d) Whether the Defendants have failed to ensure the existence of a comprehensive or lawful system for the provision of support for victims of trafficking ("Issue 4: The Post Recovery and Reflection System of Support Issue");

(e) Whether the Defendants have failed to carry out individual assessments in the Claimants' cases ("Issue 5: The Claimants' Assessment Issue"); and

(f) Whether the SSWP can restrict access to benefits on the basis that the Claimant does not satisfy the GPOW test and whether the GPOW test should be disapplied "Issue 6: The Access to Benefits Restriction Issue").

Issue 1: The Article 11(2) Issue

(i) Introduction

30. This issue seeks to resolve the dispute of whether there is merely one obligation in Article 11, which is set out in Article 11(1), or whether there is in addition to the obligation in Article 11(1) a separate obligation in Article 11(2) of the Directive. Article 11 provides that:

"1. Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, and in this Directive.

2. Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.

3. Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim's willingness to cooperate in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC or similar national rules.

4. Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organizations.

5. The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims' subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate.

6. The information referred to in paragraph 5 shall cover, where relevant, information on a reflection and recovery period pursuant to Directive 2004/81/EC, and information on the possibility of granting international protection pursuant to Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted(1) and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (2) or pursuant to other international instruments or other similar national rules.

7. Member States shall attend to victims with special needs, where those needs derive, in particular, from whether they are pregnant, their health, a disability, a mental or psychological disorder they have, or a serious form of psychological, physical or sexual violence they have suffered."

(ii) Submissions

31. The case for the Claimants is that although the existence of criminal proceedings is required for a claim under Article 11(1), there is no such requirement for the other provisions in Article 11 and in particular Article 11(2), because it is a free-standing provision separate from Article 11(1).
32. Mr. Blundell explains that Article 11(2) does not impose a separate duty on the Defendants, but instead it specifies when the obligation in Article 11(1) arises, namely "as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any offences [concerning trafficking in human beings or inciting, aiding and abetting or attempting to commit such an offence]". He submits that this provision is necessary because Article 11(1) merely states that the obligation to support arises "before" the criminal proceedings, but that it does not specify a starting point and that explains the need for and the role of Article 11(2). In other words, the case for the Defendants is that Articles 11(1) and (2) complement each other.

(iii) Discussion

33. The parties regard this dispute as being very important, although it seems that many of the actual provisions in the Guidance are based on a wider duty being owed to trafficking victims than is set out in Article 11(1).
34. I have come to the conclusion that I cannot accept the Defendants' analysis that Article 11(2) is not a freestanding provision independent of Article 11(1) or that there is any requirement for there to be criminal proceedings in order to trigger liability in Article 11(2), for seven reasons which individually and cumulatively lead me to that conclusion. I will now set them out in no order of importance.
35. First, Articles 11(1) and 11(2) are in my opinion regarded in the Directive as containing separate duties to support a trafficked victim, as is shown by the fact that Article 11(5) refers to "the assistance and support measures referred to in paragraphs 1 and 2" (emphasis added).
36. The references to each of these provisions as separate "assistance and support measures" shows, first, that they are regarded as being different and separate provisions and, second, that contrary to the Defendants' case, Article 11(2) is not merely explanatory of Article 11(1). If Article 11(2) was to be regarded solely as explanatory of the time when liability under Article 11(1) arises (as Mr. Blundell contends is the case), there would then have been no need for Article 11(2) to be mentioned in Article 11(5).
37. Second, the heading of Article 11 ("Assistance and support for victims of trafficking in human beings") shows that it was not limited to those involved in criminal proceedings, not least because of the way in which its heading contrasts with the heading of the following Article (Article 12), which is headed "Assistance to victims of trafficking in criminal investigations and proceedings". The heading to an Article in the Directive has been held by the Court of Appeal to be a valuable aid to construing its scope in R (Gudanaviciene) v The Director of Legal Aid Casework [2014] EWCA Civ 1622; [2015] 1 WLR 2247 at paragraph 103. In that case, the issue was whether Article 12(2) of the Directive created a right to legal aid in relation to a NRM referral, i.e. before any reasonable grounds decision was made. The Court of Appeal held that it did not for a number of reasons, including that the heading of the Article showed that it was concerned essentially with criminal investigations and proceedings. By parity of reasoning, in this case, the heading of Article 11 is supportive of the Claimants' case as it does not refer to any form of criminal proceedings and so Article 11(2) should not be so limited.
38. Third, there are many obligations imposed on Member States in Article 11 but only one of them is expressly linked to criminal proceedings, namely Article 11(1). There is no reason why the other provisions should be so linked, especially as there is nothing expressly stating that they should be so connected and there is no reason why such a connection should be implied. In other words, if the draftsman of the Directive wanted to ensure that only the obligation in Article 11(1) and not the other obligation in Article 11 (such as that contained in Article 11(2)) was to be linked to criminal proceedings, he or she would have used precisely the wording which he or she did actually use.
39. Fourth, in Gudanaviciene, when giving the judgment of the Court of Appeal, the Master of the Rolls explained at paragraph 105 that he accepted an interpretation of the Directive which "accords with the provision of [ECAT] to which the Directive is intended in part to give effect". It is noteworthy that in ECAT, there is no provision limiting the support obligation to criminal proceedings and this supports Mr. Westgate's submissions.
40. Fifth, there are provisions in the Recitals to the Directive which show that the obligation of Member States to give support and assistance should not be linked to criminal proceedings. As Mr. Blundell explained, it is well established that a recital to a EU Directive "has no binding legal force and cannot be relied on as a ground for derogating from the actual provisions of the act in question" (Case C-162/97 Nilsson [1998] ECR 1-7477 at paragraph 54). Nevertheless, the Court of Justice has explained in Case 215/88 Casa Fleischhandels-GmbH v Bundesanstalt fur landwirtshafliche Marktordnung [1989] ECR1-2789 at paragraph 13 that:

"Whilst a recital in the preamble to a regulation may cast light on the interpretation to be given to a legal rule, it cannot itself constitute such a rule."

41. In this case, there are recitals stating that "assistance and support should be available to [victims of trafficking in human beings] before, during and for an appropriate time after criminal proceedings" (Recital 18) which are supportive and explanatory of Article 11(1). There are also other provisions in the Recitals, such as in Recital 21, which refer to the general obligation to provide support "on a consensual and informed basis" without any express provision limiting this obligation to where there is a connection with criminal proceedings. This to my mind casts light on the approach to Article 11(2) and is supportive of it being regarded as a separate obligation imposed on Member States independent of Article 11(1).
42. Sixth, there is no logical reason why Article 11(2) should be linked to criminal proceedings, as it would be as effective and useful as constituting an independent obligation to provide support irrespective of whether there were or had been criminal proceedings in being or whether there were any in prospect.
43. Seventh, the background to the Directive shows that it was not intended that it would discriminate between those victims of trafficking who had been connected with criminal proceedings, and those victims of trafficking who had not been so connected. Article 4 ECHR contains the right to freedom from slavery and forced labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, it was held that trafficking fell within its scope and that it imposed a duty to protect victims. There is no suggestion that there should be different benefits for those victims of trafficking involved in criminal proceedings and those victims who had not been so involved. Frequently, it might be fortuitous or a coincidence if a victim of trafficking was or might be involved in criminal proceedings; that might depend, for example, on whether the trafficker had fled or had died. There is no logical or other reason why the absence of criminal proceedings could or should deprive a trafficked person of relief or why those victims of trafficking should be deprived of benefits simply because for some reason criminal proceedings could not take place.
44. I therefore conclude that Article 11(2) is a discrete obligation and when read with other parts of Article 11 (and in particular Article 11(4)), it means that in the post-45 day recovery and reflection period, the United Kingdom is obliged to provide a trafficked person with assistance and support^[10] . I should add that I have heard no submissions on when the Article 11(2) duty comes to an end and I make no findings in relation to it. In addition, I should add that my view is that the Directive does not create any independent right of residence; such a right is contained in the Trafficking Residence Directive, but the United Kingdom has not opted into that Directive, which does not apply in this country. I will return to consider if the Guidance and the policy of the Defendants fails to achieve the results required of Article 11(2) when considering the Claimants' criticisms in paragraph 67ff below.

Issue 2: The Article 12 ECAT Issue

(i) Introduction

45. This issue raises the question of whether the Claimants can rely on the provisions of ECAT, and in particular Article 12 of it, even though it has not been incorporated into English law. Article 12 provides that:

"1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:

a standard of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;

b access to emergency medical treatment;

c translation and interpretation services, when appropriate;

d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;

e assistance to enable there rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;

f access to education for children.

2. Each Party shall take due account of the victim's safety and protection needs.

3. In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.

4. Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.

5. Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims.

6. Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.

7. For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care."

(ii) The Dispute

46. Mr. Blundell contends that the Claimants cannot rely on any provision in ECAT because it has not been incorporated into English law on the basis of statements in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry[1990] AC 418 by Lord Oliver that:

"(a) (M)unicipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law;

(b) a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations."

47. Mr. Westgate's response is that provisions in ECAT can be relied on, first, because of the Atamewan concession; second, because the Courts in other cases have assumed that ECAT (or at least Article 12) is part of English law; and third, because the statements in Rayner's case do not preclude the Claimants from relying on the Guidance which adopts ECAT or parts of it, as in so doing "the court is not enforcing [ECAT] but requiring the SSHD to abide by her current policy unless there are good reasons to depart from it."^[11] I will consider each of these points in turn.

(iii) The Atamewan Concession

48. While making submissions in the Divisional Court in Atemewan, Mr. James Eadie QC, Counsel for the Secretary of State, submitted that:

"55…. in relation to the NRM decision that the key question was whether the policy set out in the Guidance (particularly in relation to "historic" trafficking cases) was sufficient to comply with the UK's international obligations under CAT. He accepted, at least in this court, that although CAT had not been transposed into domestic law by legislation and so did not have "direct effect", insofar as the Guidance purported to give effect to the terms of CAT and failed to do so, that would be a justiciable error of law."

49. Mr. Westgate seeks to rely on the Atamewan concession, but Mr. Blundell contends, correctly in my opinion, that the Court merely assumed the concession to be correct, with the consequence that this statement is not binding on me in the light of the decision of Sir Nicholas Browne-Wilkinson V-C in Re Hetherington [1990] Ch 1 when he explained (with emphasis added) at page 10g that:

"In my judgment the authorities therefore clearly establish that even where a decision of a point of law in a particular case was essential to an earlier decision of a superior court, but that court merely assumed the correctness of law on a particular issue, a judge in a later case is not bound to hold that the law is decided in that sense."

50. That approach echoes statements to the same effect in Barrs v Bethell [1982] Ch 294. 308 and in Ashville Investments Limited v Elmer Contractors Ltd [1989] QB 488,494. I agree that this reasoning shows that this Court is not bound by the Atamewan concession, as the Divisional Court certainly did not consider if it was correct, let alone decide that it was. A second reason why I reach that conclusion that I am not bound by the Atamewan concession is that Mr. Eadie's concession was stated to be "at least in this Court", which I understand to be a reference to the court hearing the Atemewan case. I should add that although I was one of the judges hearing that case, I have no independent recollection of how the concession came to be given more than two years ago. This means that I am not bound by the Atamewan concession.
51. Furthermore, the mere fact that the Atamewan concession was followed without argument in other cases does not mean that those cases can be regarded as authority for a proposition that ECAT was part of English law, essentially for the reasons explained in Re Hetherington and in the last paragraph.
52. Mr. Westgate seeks to obtain assistance for his contention that I am bound by the Atamewan concession from the approach of Mr. Philip Mott QC, sitting as a Deputy High Court Judge, R (FM) v Secretary of State[2015] EWHC 844 (Admin) at paragraph 11, which is based on the Atamewan concession and which apparently assumed that ECAT was part of English law. That approach cannot be regarded as authority for a proposition that ECAT was part of English law, essentially for the same reasons which I have just explained and which have led me to the conclusion that I am not bound by the Atamewan concession to hold that ECAT was part of English law.

(iv) The other judgments said to show that the Defendants are obliged to comply with Article 12 of ECAT

53. (A). The Claimants rely on a number of other cases to show that the Defendants were, and are, obliged to comply with Article 12 of ECAT. They first rely on the decision of the Court of Appeal in R (AA) Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 23 in which there was a challenge to the finding that there were no reasonable grounds for believing that AA was a victim of trafficking. The Court set out the provisions of ECAT and explained at paragraph 40 that the "government policies for complying with [ECAT] are found, at least in part, in the Guidance…". It seems that this was the approach of the Court, but it was not adopted by the Court after hearing opposing legal submissions.

(B). Instead the Court had merely assumed this approach to be correct as was explained by Mr. Philip Mott QC, sitting as a Deputy High Court Judge, in R(Y) v Secretary of State for Home Department [2012] EWCA 1075 (Admin) at paragraph 43, who observed that the AA case "proceeded on the assumption (though in that case it seems not to have been challenged in argument) that the domestic Guidance had adopted the Convention, and therefore the Court could look directly at the Convention in deciding whether the Defendant had followed her published policy". So AA does not constitute binding authority for the proposition that the domestic Guidance had adopted ECAT for the reasons explained in Re Hetherington. In addition, the Court of Appeal did not identify "the government policies for complying with [ECAT]" found in the Guidance, but it would seem that they must have related to the process for identifying victims of trafficking, which was the issue in that case, but which is not the issue on the present application.

54. The Claimants also seek to derive assistance from R (HAM) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin) in which the issue was also whether the claimant was a victim of trafficking. It appears from paragraph 55 of the judgment in that case that it was common ground that it would have been an error of law for the competent authority to depart from the Guidance and the claim was based on a failure to follow the Guidance. The Deputy High Court Judge, Ms Helen Mountfield QC, explained that had it proved necessary (which was not the case) that, in interpreting the Defendant's policy, she "would have been prepared to interpret it on an assumption that the [United Kingdom] intends to comply wherever possible with its international commitments". This was dictum which is not binding on me as I, unlike the learned Deputy High Court Judge, have heard detailed submissions on this issue; in any event ECAT was not incorporated into English law.
55. The next case on which the Claimants rely is the decision in R (Mutesi) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) in which Laing J assumed at paragraph 6, without argument, that the Secretary of State had given effect to ECAT through Guidance noted and that the Directive existed. This statement does not bind me. In the case of Y (supra), Mr. Philip Mott QC, sitting as a Deputy High Court Judge, accepted that "Everything in both the Guidance and the Supplementary Guidance points to the Defendant adopting the Convention and purporting to apply it domestically". This was again a statement made without the benefit of argument.
56. Finally, the Claimants also sought to rely on R (FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) in which it seemed to be assumed that ECAT was part of English law without it having been argued.
57. None of these cases provides support for the proposition that there is judicial authority for the proposition that ECAT (and in particular Article 12) is now part of English law.

(v) Has ECAT (and in particular Article 12) been adopted as being the SSHD's present policy in the Guidance so that she should be bound to abide by it unless there are good reasons for departing from it?

58. Mr. Blundell contends that the basic approach is that as ECAT has not been incorporated into English law, the Claimants cannot rely on it in accordance with the approach explained in the Rayner case and that his approach was adopted by the Supreme Court in R(JS) v Secretary of State for Work and Pensions [2015] 1 WLR 1449 by Lord Reed who explained that:

"90. It is firmly established that U.K. courts have no jurisdiction to interpret or apply unincorporated international treaties. … As was made clear in … Corner House … it is therefore inappropriate for the courts to purport to decide whether or not the executive has correctly understood an unincorporated treaty obligation."

Also Lord Carnwath observed that:

"115. It is of course trite law that, in this country at least, an international treaty has no direct effect unless and until incorporated by statute, but that it may be taken into account as an aid to interpretation in cases of ambiguity."

59. (A). According to Mr. Blundell, the only exceptions to the Rayner principle (which is set out in paragraph 46 above) arises where there is legislation adopting a treaty or where it is incorporated in a contract of which Ecuador v Occidental Exploration and Production Co [2006] QB 432 is an example. He contends that an error by a Minister as to the effect and meaning of an unincorporated Treaty cannot give rise to a successful challenge, as was explained in R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756 and in R (JS) v Secretary of State [2015] 1 WLR 1449 [90-91], [115] and [134]. I agree, and before I was intending to circulate a draft of this judgment, I noted that Cranston J had reached a similar decision in the very recent case of R (BG) v Secretary of State [2016] EWCA 786 (Admin) and I drew the attention of Counsel to it and to the learned Judge's statement that:

"65. The Trafficking Convention is an international treaty which has not been incorporated by legislation into UK law. Although an unincorporated treaty may assist in interpreting UK legal instruments, it imposes no legal duties on the Executive nor does it confer rights on individuals: JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418, 499–500; Ahmed v. Her Majesty's Treasury (Justice intervening) Nos 1 and 2), [2010] 2AC 534[109]; R (Public Law Project) v. Lord Chancellor [2015] EWCA 1193,[2016] 2 WLR 995 [27]. The Trafficking Convention has been given effect through the Secretary of State's policies but cannot be invoked as a source of free-standing rights and duties."

(B). I asked them if they wished to make any further submissions in the light of this case. Mr. Blundell said that it supported the Defendants' case while Mr. Westgate says that this decision does not affect their argument. I respectfully agree with Cranston J first, that ECAT, as an unincorporated treaty, imposes no duties on the Executive nor does it confer rights on individuals, and second that ECAT can be given effect through the SSHD's policies rather than as a source of freestanding rights and duties.

60. The Claimants also submit that they can rely on ECAT because the policy of the SSHD was that the Guidance was intended to give effect to ECAT, or at least to Article 12 of it, in relation to the issues with which this application is concerned, and in consequence the Defendants were obliged to abide by its policy in the absence of good reasons to depart from it (see Mandalia v Secretary of State [2015] 1 WLR 4546, 4555-6 paragraph 29. Mr. Westgate contends that, expressed in this way, this claim does not offend the principles set out in Rayner's case because the Claimants are not seeking to enforce ECAT, but instead are requiring the SSHD to abide by her current policy unless there are good reasons to depart from it. He also contended that this submission is consistent with and is supported by the approach of Lord Dyson JSC in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245 that:

"26…a decision-maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so…" and that

" 35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a la26..wful exercise of the discretion conferred by the statute…."

61. It is important to bear in mind that the policy, which it is said by the Claimants that the SSHD should have followed, was derived from the Guidance which had in turn adopted aspects of ECAT. Assuming for a moment that the Government adopts a policy based wholly or partially on an unimplemented treaty, I do not see any good reason why this approach cannot apply just because the policy replicates what appears in the unimplemented treaty. In other words, Lord Dyson's principle could apply to a policy which is identical to that in an unimplemented treaty, which has a different source from the unimplemented treaty, namely the practice which the Executive has propounded in, for example, formal Guidance. Indeed, this approach is supported by the comments of Cranston J in R (BG) v Secretary of State set out in paragraph 59 A above. That raises the next question, which is whether the policy of SSHD has been to incorporate or to adopt as its policy the entire ECAT or Article 12 of it and, if so, for what purposes. That is the issue to which I now turn, and that entails considering the four matters on which the Claimants rely, starting with two matters which it is suggested by the Claimants show that the SSHD would comply with the entire ECAT.
62. First, it is said in the helpful "Summary of Principal Propositions relied on by the Claimants" that the repeated reference to obligations arising under ECAT "gives the overall message that within the scope of matters covered by the Guidance, [SSHD] will comply with [ECAT]". I do not agree, as in the section of the Guidance dealing with the Guidance's purposes, it is stated that "This guidance …is based on [ECAT]" and it then proceeds to state (with emphasis added) that "as part of implementing the Convention, the Government created the [NRM]". Significantly, it did not state that the whole of ECAT was being implemented or being accepted as policy.
63. Second, the Claimants attach particular significance to comments made by Ms Helen Sayeed, a Home Office official, in a witness statement in which she states, at paragraph 26, that the United Kingdom has implemented "key obligations of [ECAT]" (emphasis added), but crucially she does not state that all the obligations of ECAT have been implemented or accepted as their policy. Indeed, other parts of Mrs Sayeed's witness statement refer to the United Kingdom having "implemented many of its Convention obligations in NRM, through published guidance" (emphasis added). I cannot accept that these statements show that all parts of ECAT have been implemented or accepted as policy by the SSHD.
64. Third, the Claimants attach importance to an earlier edition and other editions of the Guidance, which are said to show that the Guidance was based on ECAT, but that does not show that the SSHD will comply with every part of ECAT.
65. Fourth, Mr. Westgate contends that there is evidence that ECAT was being implemented or being accepted as policy in the Guidance itself, which does refer to ECAT frequently. I have already just referred to Section 3, which has the title "Purpose of Guidance" in which it is explained that the Guidance is "based on the Convention" and it is stated (with emphasis added) that "as part of implementing the Convention, the Government created the [NRM]". This did not state that the whole of ECAT was being implemented or accepted as policy. The other relevant provisions are set out in:

(i) Section 5, which has the title "Summary of key steps in the [NRM] process" and relates to how alleged victims of trafficking should be treated and how their claims should be handled. There is a passage which states that following a positive conclusive grounds decision in relevant cases, the Home Office will make a further decision on whether an individual qualifies for a grant of DLR "in line with [ECAT] and the U.K. Government's commitment to extend this provision to victim of slavery, servitude and forced and compulsory labour across the U.K". This shows that the policy of SSHD on the question of whether a victim of trafficking is entitled to DLR, the ECAT principles apply;

(ii) Section 7.3, which has the title "Ensuring victims can access secure accommodation and support". There is a provision stating that "potential victims who are not housed in specialist accommodation (including those housed by asylum support) must still be offered outreach support to make sure their entitlements are met under Article 12 [of ECAT]. The support providers listed above can again advise on these arrangements". It is to be noted that this provision not only expressly refers to "potential victims" but also it is to be found in Section 7, which has the heading "Referrals to the NRM". It therefore deals with claims before the trafficking claims have been resolved and not in the period with which this claim is concerned, namely the period after the elapse of 45-day period after the trafficking claim has been accepted;

(iii) Section 12, which has the title "The two stage NRM consideration process". It is stated that ECAT "stipulates a 2 stage process for identifying victims of trafficking", but this deals with the pre-consideration process which is concerned with a much earlier stage than the period with which this claim is concerned;

(iv) Section 13, which has the title "Actions for Home Office and UKHTC if the reasonable grounds decision is positive". It is provided that the Home Office must provide the potential victim with support if they want it for a minimum of 45 days during a recovery and reflection period. It is then stated that this period "triggers certain rights and measures under [the Convention] and in no circumstances should the Competent Authority [i.e. the Home Office and the National Crime Agency] deny an identified victim these rights where the victim indicates they want them". This does not either incorporate or adopt as policy the entire ECAT or the relevant provisions in Article 12;

(v) Section 19, which has the title "Next steps for the Competent Authority if the conclusive grounds decision is positive". There is a sub-section entitled "When is Discretionary Leave to Remain relevant?" which deals with applications for DLR by those accepted as victims of trafficking who are not thereby automatically entitled to DLR. It is stated that in respect of applications for DLR by those victims of trafficking, "each case should be considered on its individual merits and in full compliance with UK's obligation under [the Directive] and [ECAT]". ECAT has been ratified by the United Kingdom and it has not been argued or shown that this does not mean that Article 12 is not applicable. This shows that Government policy is that ECAT applies to consideration of those applications;

(vi) Section 19, where there is also a sub-section entitled "Personal Circumstances" which provided that "when the Home Office makes a positive conclusive grounds decision, it may be appropriate to grant a modern slavery discretionary leave to remain in the UK if their personal circumstances are compelling in line with Article 14 [of ECAT]. This must be considered in line with the discretionary leave policy". In addition, there is provision in that Section which refers to Article 15 of ECAT and it then states that "it may be appropriate to grant [such a person DLR] if they need to stay in the UK on the grounds that they are pursuing a claim for compensation against their traffickers". This provision does not incorporate or adopt as policy either the entire ECAT or Article 12; and

(vii) The same Section, where there is a sub-section entitled "Victims who are helping police with their enquiries", in which it is stated that "In line with the [ECAT], the Home Office may grant a period of discretionary leave where a victim of human trafficking or modern slavery has agreed to cooperate with police enquiries". Again, this does not show that the Convention or Article 12 has been incorporated into English law, and in any event, it only deals with victims who are helping the police with their inquiries.

Conclusions on Issue 2

66. I reject the contention that the Claimants can rely on ECAT, which has not been incorporated into English law either because of the Atamewan concession or because the Courts in other cases have assumed that ECAT (or at least Article 12) to be part of English law. The statements in Rayners' case do not, however, preclude the Claimants from relying on the Guidance which specifically adopts ECAT or parts of it where it has been accepted as the policy of the SSHD in the Guidance. I do not consider that the material in paragraph 65, whether considered individually or cumulatively shows that the whole of ECAT or of Article 12 has been incorporated for all purposes into English law as being the SSHD's policy. Nevertheless, as I have explained in sub-paragraph 65 (i), (ii), (v) and (vii), the Guidance stated that the SSHD would act in accordance with Article 12 of ECAT. In particular, I accept that the policy of SSHD was that she would apply the approach in ECAT to deal with applications for DLR from those who had been recognised as victims of trafficking in the matters set out in paragraph 65 (v) and to the limited extent specified in paragraph 65(vi). Mrs Sayeed explains in her witness statement that if the competent authorities have reasonable grounds to believe a person has been a victim of trafficking, they must take various steps, including to ensure that the person receives the assistance provided for in Article 12(1) and (2) of ECAT and this must continue through the period of recovery and reflection. This is policy which the SSHD must follow unless there is good reason not to do so.^[12]. I will now consider if this policy has been followed in the light of the contentions of the Claimants.

Issue 3: The Period of Support Issue and Issue 4: The Post Recovery and Reflection System of Support Issue

67. It is convenient to deal with these issues together. Issue 3 is whether the SSHD has misdirected herself as to the period for which the support duty continues and whether it extends to individuals who have been recognised as victims of trafficking for whom such support is necessary. Issue 4 is whether the Defendants have failed to ensure the existence of a comprehensive or lawful system for the provision of support for victims of trafficking not limited to the recovery and reflection period. As I have explained, the case for the Claimants is that the Guidance is defective, as the SSHD has failed to recognise any duty to provide support after the 45-day recovery and reflection period, while the case for the Defendants is that the SSHD can, and does, grant DLR and discretionary extensions of NRM where necessary pending a decision on the DLR application. The Directive does not require DLR but merely the provision of support, which is provided in the United Kingdom by DLR, which enables the recipient to have access to mainstream benefits.
68. Mr. Westgate has submitted that there are four areas in which the Defendants have failed to make adequate provision in their Guidance for the appropriate level of support. A recurring theme of the Claimants' submissions was in the words of their skeleton argument that "the Defendants have misunderstood the extent of the support duty and/or they have failed to make adequate provision in the Guidance" for those conclusively found to have been trafficked.
69. In order to decide if this is correct or if the Defendants have complied with their support duty, it is worthwhile bearing in mind six matters. First, the Guidance states in the section entitled "Actions for Home Office and UKHTC if the conclusive grounds decision is positive" that "a person who is accepted as a victim of trafficking will not be granted DLR solely as a result of that decision unless they meet the relevant criteria." Second, it is necessary to consider the Defendants' policy to decide what those criteria are as well as if, and for how long, further support is to be given. Third, in order to resolve that issue, it is necessary to consider not only the terms of the Guidance, but also the practices adopted by the Defendant as a failure to take account of these practices would ignore the true workings of the regime. Fourth, the issue to be resolved on the Claimants' challenge to the regime is whether the Defendants' regime achieves the aim of producing the results set out in Articles 11 of the Directive and 12 of ECAT as explained in Article 288 of TFEU (see paragraph 26 above). Fifth, the mere fact that the Defendants' support regime has not or may not have been correctly applied in, for example, the cases relied on by Ms Roberts, does not then mean that the regime does not achieve the aim of producing the results set out in those Articles. Sixth, if the support regime does achieve the aim of producing the results set out in those Articles and there are aberrant decisions, the correct target of challenging such aberrant decisions is not the Guidance but instead the individual aberrant decisions as Richards LJ explained in the passage quoted in paragraph 28 above.

(i) Where support is needed after the 45-day recovery and reflection period and where criminal proceedings are pending

70. Mr. Westgate complains that although the Defendants appear to recognise a duty to provide support where criminal proceedings are pending after the expiry of the 45-day recovery and reflection period, the Guidance does not provide for it. Article 11(1) of the Directive requires the Member State "to ensure that assistance and support are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings". As I have explained, Article 11(2) also requires the provision of assistance and there are provisions in Article 11(3), which state that the obligations to take measures to ensure assistance and support are "not made conditional on the victim's willingness to cooperate in the criminal investigation, prosecution or trial".
71. Mr. Westgate observes correctly in my opinion that criminal proceedings are likely to last longer than the 45-day recovery and reflection period, while the Guidance only deals with the provision of assistance by reference to the provisions relating to the grant of DLR where the victim is involved in criminal proceedings. There are four significant features of the circumstances in which DLR can be granted. First, it has to be requested by the police, as the Guidance states that where victims of trafficking or modern slavery have agreed to cooperate with the police, the Home Office may grant DLR, but that:

"the police must make a request for them to be granted leave to remain .. this may be extended where necessary, for example where a criminal prosecution takes longer than expected and the police have confirmed or requested an extension." (emphasis added)

72. Second, the Guidance states that the request for DLR "should be made by the investigating police force rather than the victim or their legal representatives". It proceeds to stipulate that the legal representatives "should not make an application for leave to remain". The Guidance states that these provisions apply to EEA nationals who are unable to exercise free movement rights, but that there may also be circumstances in which the victim is unable to exercise free movement rights, in which case any request for DLR should be considered in line with the Guidance. Mrs Sayeed explains in her witness statement that the reason why only the police can make the request is that "only those investigating crime can give definitive information that the victim requires leave to assist the police with their enquiries". Even so, this does not explain why the victim or his or her representative cannot under any circumstances instigate the process, especially as the police might not be aware of their power to make the request for DLR, as I will explain.
73. Third, there is no obligation on the police to make a request for DLR for somebody assisting them. Mrs Sayeed refers in her witness statement to the College of Policing's published Authorised Professional Practice on Modern Slavery (National Guidance for the Police Service), which states (with emphasis added) that:

"Where a person is found conclusively to be a victim and has agreed to assist the police with formal enquiries in the UK, the police may make a formal request for them to be granted a period of [DLR] to remain on this basis."

74. Fourth, it seems not merely are the police not under an obligation to apply for DLR, but this important power is not known to all or perhaps many of them. Mrs Sayeed has explained that she remains "firmly of the view that, in general, the police are aware of the ability to apply for [DLR] on behalf of victims who are assisting them with their inquiries" (emphasis added). Significantly, she does not say that all police know or are aware of the opportunity to apply for DLR or that even those who are aware of it appreciate their obligation to do so.
75. There is, on the one hand, evidence that a number of police forces have made requests for DLR on behalf of trafficking victims who have helped the police, and, on the other hand, there is evidence about others who have helped the police, who have failed to request DLR. The Subatkis twins, who are the Third and Fourth Claimants, assisted the police, who for reasons which I do not know did not request DLR on their behalf. In consequence, they did not receive DLR or indeed any benefits from the Defendants.
76. My task is to ascertain whether this regime achieves the results which Article 11 of the Directive and Article 12 of ECAT requires to be achieved. I have come to the conclusion that even after taking account of the right of the Government to decide on "the choice of the form and method" to satisfy the provisions of Article 11 of the Directive and Article 12 of ECAT as well as Mr. Blundell's submissions, the present policy of not allowing the victims or their legal representatives to request DLR on the grounds of agreeing to assist the police with their enquiries means that the desired result in Article 11 is not achieved in the light of the four factors to which I have just referred.
77. I should also consider the fall-back position of the Claimants, which is that ithe support regime for dealing with those who have been trafficked and who have helped the police is "inherently unfair", as set out in the Detention Action case Applying that approach in that case, there is more than a possibility that the regime does not have, in the Master of the Rolls' words, "the capacity to react appropriately to ensure fairness" in the) absence of a right on the part of the trafficked victim or his or her legal representatives to apply for DLR. I have concluded that the Claimants' case on this aspect of the policy reaches the high threshold of showing unfairness as well as failing to comply with the Article 11 and 12 requirements.

(ii) Cases where support is required to enable the victim to claim compensation

78. The Claimants contend that the Defendants have failed to make adequate provision in their Guidance where support is required to enable trafficking victim to claim compensation. This submission fails to appreciate two matters. First, Article 15 of ECAT (which is mentioned in the Guidance) provides for the right of victims of modern slavery to compensation from traffickers. Second, the Guidance proceeds to explain that it may be appropriate to grant victims of modern slavery, who have been trafficked, DLR to stay in the United Kingdom on the grounds that they are pursuing a claim for compensation against the traffickers. The Guidance states that:

"The fact that someone is seeking compensation through the civil courts does not in itself merit victim status or a residence permit. When determining whether to grant a residence permit the Home Office must consider:

-the type of compensation being sought

-the grounds of the claim

-how credible the claim is

-the likely length of the claim, and

-whether the person needs to be physically in the UK for the duration of their claim – in some instances it may be more appropriate to facilitate return to the UK nearer to the hearing date or to arrange videos conferencing facilities."

79. I consider that where support is required to enable the victim to claim compensation, the regime achieves the result which Article 11 requires to be achieved in providing appropriate support.

(iii) Cases where support is required (a) despite the fact that there are no criminal proceedings or criminal proceedings have come to an end; (b) because of the personal needs and circumstances (psychological, physical, social or safety needs; and (c) where an application for DLR is pending or cannot be made

80. The case for the Claimants is that the SSHD was obliged to put in place a comprehensive framework of protection for victims of trafficking by providing measures to provide assistance and support based on an assessment of their needs which is not limited to the 45-day recovery and reflection period, but which extends to providing victims of trafficking such support as is necessary. They rely on a large number of objections.
81. Mr. Westgate contends that the Defendants have failed to make adequate provisions in their Guidance for this group of victims of trafficking in the post-support NRM stage, because the circumstances in which DLR might be granted are so limited, with the consequence that they do not provide the support required under Article 12 of ECAT or under Article 11(2) of the Directive. Mr. Westgate also complains that the Guidance fails to provide adequate support pending a decision after the trafficked victim has sought DLR or other lawful residence under the Citizens Directive or any other basis. He contends that the support duty is also not satisfied by the discretionary remedies in the form of the possibility of temporarily extending the NRM or by providing an extension of support for 14 days. He submits that the present regime lacks "the capacity to react appropriately to the needs of victims with the result that gaps in the provision of necessary support are inherently likely and cannot be explained as aberrant decisions in individual cases".
82. Ms Roberts makes many criticisms of the support regime and she also gives helpful examples of cases studies in the exhibit to her witness statements where various victims of trafficking have not obtained the support to which they were apparently entitled under the regime in force. Mrs Sayeed seeks to answer these criticisms. It is important to appreciate that under the regime under challenge, the support provided to victims of trafficking is, first, the extension of the 45-day recovery and reflection period; second, the extension of the 14-day support period; third, DLR, which gives the recipient the right to remain in this country. I will deal with them in that order.

The extension of the 45-day recovery and reflection period

83. As Mrs Sayeed explains, this period can be extended in the period after the time when a reasonable grounds decision is made in his or her favour, and during this extended period, the trafficking victim is entitled to full support. The Guidance provides that there is an obligation to review the progress of the trafficking victim on day 30 of the 45-day recovery period in order to "monitor progress on the case [and] check it is on target for a conclusive decision". This duty has to be considered in the light of the duty of the Competent Authority [i.e. the Home Office and the National Crime Agency] of "gathering information to make the conclusive decision" from "the support provider, first responder [the Salvation Army], investigating police force where relevant … and local authority (in the case of children)". The purpose of those inquiries is to decide if an extension of the 45-day recovery and reflection period "is warranted". It is explained that likely reasons will include "serious health issues, serious mental health or psychological issues (including post traumatic stress disorder) requiring longer period of recovery and reflection and high levels of victim intimidation". This answers the complaint of the Claimants that inadequate support is provided because of the personal needs and circumstances (psychological, physical, social or safety needs) of the trafficking victim. Another reason why this period can be, and is, extended is, as Mrs Sayeed explains, where DLR is being sought and a decision has not been made on the application in the 45-day recovery and reflection period, which I suspect is a common occurrence.

Extension of 14-day support period

84. It must be remembered that those victims with positive reasonable grounds decisions are entitled to support and it will be provided to those who request it. The Defendants' case is that after a person is conclusively accepted as a victim of trafficking, he or she is entitled under the contract between the Home Office and the Salvation Army, which provides victims with care and support, to an extra support period of 14 days during which they will be assisted to either return home or to receive mainstream support where they are entitled to stay in the United Kingdom. The Home Office does grant extensions to this 14-day extra support period for those with a conclusive grounds decision based on individual circumstances, which vary from case to case. Case sensitive decisions are made. Mrs Sayeed explains that common grounds for granting an extension are to allow a victim to obtain identity documents, or while an application for DLR is outstanding, or because they are waiting for suitable accommodation to move to. She explains that the extension lengths are designed to encourage support providers to chase outstanding issues in a timely manner and to ensure that the victims awaiting accommodation are not made homeless. Further extensions can be, and are, granted.
85. Mrs Sayeed in her second witness statement has given examples of recent extension requests and grants for EEA Nationals for second and third extensions. She notes that the Modern Slavery Unit have confirmed that the majority of extensions are granted to EEA nationals. Mrs Sayeed explains that extensions are granted to ensure that victims are not placed in difficulties while their transition out of NRM is being managed. She does not accept that there is a "support gap". She states that extensions of support are considered and granted "precisely to ensure that, in appropriate cases, victims are not placed in difficulties when their transition out of the NRM is managed; for example by providing support whilst awaiting the result of an application for [DLR]", or perhaps to allow a victim to obtain identity documents. What is clear is that there is a system in place to deal with and to grant extension applications. The Guidance refers to entitlements under Article 12 ECAT and Article 11 of the Directive being met, I stress that it is stated in the Guidance in respect of applications for DLR that "each case should be considered "on its individual merits and in full compliance with the UK's obligations under…the Directive" which would include Article 11(2) and this would ensure that extensions of the support to trafficking victims would then be granted.
86. Ms Roberts complains of a number of matters as she:-

i) Criticises the lack of support after the conclusive grounds decision has been made; she refers with examples to the fact that the trafficking victims are only given 14 days to leave their accommodation and that extensions are generally granted for 14 days or less. Mrs Sayeed's response is that in the six-month period ending on 8 March 2016, 33 extensions were sought from the Modern Slavery Unit relating to DLR purposes and 32 were granted.

ii) Is concerned that many of the extensions granted of 14 days are too short, but Mrs Sayeed explains that the Home Office remains of the view that granting short extensions is the most appropriate way of achieving a swift resolution, particularly as the time-limited additional support means that all involved are encouraged to move as quickly as possible to resolve outstanding issues. Mrs Sayeed also reports that the Modern Slavery Unit has confirmed that short extensions "really do assist in resolving issues more swiftly than might otherwise be the case". I see no reason to doubt the sense of this or the evidence of Mrs Sayeed that although extensions are usually for 14 days, extensions for different periods can be, and are, granted.

iii) Is critical of the support after NRM, but Mrs Sayeed explains that organisations like the Salvation Army are very experienced in working with victims and they know how to assist them in supporting the victims and in applying for support. She adds that the reason why the Salvation Army was selected was because it could provide such support.

iv) Is dissatisfied that the Guidance is "entirely silent as to any enquiry which needs to be made of individual need for accommodation or support and how such individual need is to be assessed at the conclusive grounds stage". Mrs Sayeed explains that those bodies carrying out the assessments are well aware as to how to assess them and also that it might be necessary to do so at the conclusive grounds decision stage. She explains that in the six-month period to 2 March 2016, the Modern Slavery Unit received 80 first time requests for an extension beyond the 14 days and of those requests, 33 of them related to extensions for DLR purposes of which all but one was granted.

87. I have no reason to doubt any of the evidence of Mrs Sayeed and it makes good sense. So I am unable to accept Ms Roberts' complaints.

DLR

88. Mr. Westgate criticises the wholly unstructured way in which applications for DLR are dealt with and he referred to the experiences of Ms Roberts, who has given examples of problems with these applications. She explains that many of the victims with whom HFJ has been involved had never intended to claim from the welfare state, but that even after the 45-day recovery and reflection period, many of them are not ready for work because of their experience. It is also pointed out that in addition, the majority of them had and have poor English language skills and that they need time to improve their language skills if they are not to be forced to work illegally and to be subjected to further exploitation. As I have explained, the Defendants provide support through the grant of DLR and the Guidance states in the section entitled "Actions for Home Office and UKHTC if the conclusive grounds decision is positive" that "a person who is accepted as a victim of trafficking will not be granted DLR solely as a result of that decision unless they meet the relevant criteria. To obtain DLR, there must be compelling reasons to allow them to remain in the U.K. for a longer period based on their individual circumstances where they do not qualify for other leave such as asylum or humanitarian protection". In addition there are also the provisions relating to the grant of DLR to which I have referred, where he or she needs to stay in the United Kingdom to pursue a claim for compensation against the traffickers and needs to assist the police with their enquiries.
89. The Guidance provides that as part of the reasonable grounds decision letter, potential victims of trafficking will be asked if they would like to be considered for DLR in the event of a positive conclusive grounds decision under the NRM. If they indicate that they would like to be considered, their applications will then be considered under the criteria relating to their personal circumstances, helping police with enquiries and pursuing compensation detailed in the Guidance, when a positive conclusive grounds decision is issued. No forms would have to be completed or a fee paid for an initial application for DLR. Furthermore, a person who has claimed asylum will automatically be considered for DLR if they are not granted asylum or humanitarian protection. A person who has been conclusively identified as a victim of trafficking will be considered for DLR in any case depending on its particular circumstances.
90. There is a further dispute between Ms Roberts and Mrs Sayeed as to how the victims of trafficking are informed of the possibility of applying for DLR. As I have explained, the Guidance notes that potential victims of trafficking are being asked, as part of the reasonable grounds decision, if they would like to be considered for DLR in the event of a positive conclusive grounds decision. Ms Roberts says that she has found no evidence of this happening in practice. This is disputed by Mrs Sayeed, who explains that the U.K. Visas and Immigration Competent Authority in Leeds have confirmed to her that they have been asking potential victims to request DLR in decision letters sent to them, but that in practice victims "have not really engaged with this by making requests" for DLR. Mrs Sayeed has said that the Leeds Competent Authority has proceeded to consider DLR automatically where it has made a conclusive grounds decision, regardless of the lack of request for DLR. I must accept the account of Mrs Sayeed in accordance with the approach of Woolf J (as he then was) in R v Oxfordshire Local Valuation Panel ex parte Oxford City Council (1981) 79 LGR 432, 440^[13].
91. Ms Roberts is critical of the information provided to victims explaining their rights and the extent to which victims are signposted for legal advice. There is another dispute about this, as Mrs Sayeed says that the support providers give victims the support they need. She explains that the needs of the victims vary and so a British victim would not need signposting to immigration advice. A further criticism made by Ms Roberts is that the Guidance has been misunderstood, as DLR applications were refused from an EEA national and she refers to the case of the Claimant AG. Mrs Sayeed accepts that his case was dealt with incorrectly and that the Defendant's policy was not properly understood. She is satisfied that the process is now understood by those who have to make the relevant decisions. Mrs Sayeed adds that what occurred at the stakeholder meeting which she attended did not lead her to conclude that the organizations in this field were confused. Ms Roberts complains about the fees payable but Mrs Sayeed has explained that new fee regulations on this came into effect on 18 March 2015.
92. Ms Roberts contends that there is no right of appeal against a refusal of DLR under s82 of the Nationality Immigration and Asylum Act 2002 and she relies on the decision in R(FM) v Secretary of State for Home Department [2015] EWHC 844 (Admin). Mrs Sayeed points out that subsequently, on 6 April 2015, a new provision amending s82 came into force and it gave a right of appeal listed with the refusal of a protection claim, a human rights claim or the revocation of protection status. So if someone makes such a claim as part of an application for DLR, there will be a right of appeal against its refusal. The Claimants contend that this is very unlikely to apply to EEA nationals.
93. A further complaint of Ms Roberts is that the Guidance "prioritises" free movement rights over DLR but, with respect, that is not correct. If a victim is an EEA national exercising free movement rights, DLR is not needed, as the victim has an independent right to remain in the United Kingdom.
94. The Claimants contend that "the Directive and ECAT do not limit the provision of support to people who have positively been granted leave to remain or enjoy some other right to reside". Insofar as it appears to be suggested that the applicants for DLR should have the right to remain in the UK, this case fails to appreciate that the Directive does not create a right of residence for trafficking victims. That right of residence is contained in the Trafficking Residence Directive, but the United Kingdom has not opted into that Directive and so it does not apply in this country. If a victim of trafficking has no right to remain in the United Kingdom, he is liable to removal and can be removed. In addition, it must not be forgotten that the SSHD has a policy that entitles her to expect that those without a right to remain in the United Kingdom should be expected to leave (R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161).

Conclusion

95. Mr. Westgate complains that the support regime is defective as it fails to recognise any duty to provide support after the 45-day recovery and reflection period because the provision of support after that period is discretionary. Indeed as I have explained in paragraph 65(v) above, the Guidance when dealing with applications for DLR states that "each case should be considered on its individual merits and in full compliance with [the Directive]…". The Directive includes Article 11(2). This shows the support regime aims to comply with the duties envisaged by Article 11 of the Directive and this is recognition of the support duty. Turning to the next issue which is whether the intended result of Article 11 is achieved, there is nothing in the Guidance, which seeks to limit or eliminate the duty to support, but it provides assistance on showing the ways that the duty can be satisfied. Consistent with that, the Defendants' policy seeks to show if support is necessary, what support can be provided (for example by DLR or obtaining extensions) and how it should be provided (for example by lengths of extensions). None of this indicates in any way that the support duty in Article 11 of the Directive is undermined or that the Defendants will not achieve the result sought to be achieved.
96. The next criticism of Mr. Westgate is that the Defendants consider that after the recovery and reflection period, a right of support can only arise where a decision has been made that the victim is lawfully present or they have been granted DLR. There is no reason why DLR cannot be applied for after the recovery and reflection period at a time when the victim has no right of support and has no right to be in the United Kingdom. Indeed, the Defendants have indicated that they will consider an application for DLR from the Third and Fourth Claimants who have no right to remain in the United Kingdom. In addition, there is much support that can be given even where the victim has not been granted DLR in the form of extensions to the recovery and reflection periods and to the additional 14-day period. So I cannot accept that criticism,
97. Mr. Westgate also contends that DLR fails to implement the duty to provide support after the NRM as it is only "contemplated in the narrowest of discretionary circumstances". He points out that it is said that there must be "particularly compelling circumstances" or "compelling factors based on their individual circumstances". There is nothing in those words to dilute or to undermine the obligations in Article 11 of the Directive or Article 12 of ECAT or to make it less likely that they will achieve the desired result of these provisions. After all, nothing has been put forward to show that "particularly compelling circumstances" or "compelling factors based on their individual circumstances" would not cover all the circumstances for triggering the requirement of support under Article 11(2) of the Directive or Article 12 of ECAT. The same reasoning applies to the complaint that DLR is not automatically considered at the conclusive grounds stage but only where "appropriate" "where an individual has requested leave". Indeed, to my mind the fact that a trafficking victim has no means of support or assistance in this country would in my opinion, constitute "particularly compelling circumstances" or "compelling factors based on their individual circumstances" for providing mainstream support. I have no reason to believe that all "particularly compelling circumstances" or "compelling factors based on their individual circumstances" of a trafficking victim would not in those circumstances trigger a duty on the part of the Defendants to give Article 11(2) assistance and support.
98. Having considered all the Claimants' points as well as the evidence and the case studies of Ms Roberts, I conclude that the power to grant DLR and time extensions to support means that the trafficking victims receive the necessary assistance, and support achieves the results desired in Article 11 of the Directive and Article 12 of ECAT in the three categories of cases which I am considering^[14]. In respect of the fallback position of the Claimant, there is nothing inherently unfair in the regime, and the regime has the capacity to react appropriately to ensure fairness. Of course if the Defendants fail to apply the regime correctly, the individual concerned would be entitled to bring a claim for judicial review against the appropriate Defendant

(iv) Individual Needs Assessment

99. The case for the Claimants is that the Defendants did not accept any obligation to carry out individual regular assessments or any assessments at the end of the recovery and assessment period, or after criminal proceedings, to ascertain if further support is needed for the trafficking victim. Mr. Westgate contends that the individual and regular assessments were necessary to determine what measures were "necessary" to ascertain the needs of the trafficking victims in the light of the requirements in Article 11 that "Member States shall take the necessary measure to ensure assistance and support". Mr. Westgate points out that there are only provisions in the arrangements made by the Home Office with the service provider, the Salvation Army, that it shall first, conduct "an initial needs based assessment of the [purported trafficked victim] within three hours of [that person's] referral to [the service provider]" and, second, "conduct a Face-to-Face Detailed Needs Based Assessment of [the trafficked victim] within 48 hours of a Positive [reasonable grounds] decision that there are such grounds that the person concerned has been trafficked".
100. Mr. Blundell points out correctly that there is no express provision in the Directive or in ECAT which expressly requires a process of formalised assessment after the end of the 45-day recovery and reflection period or at the end of criminal proceedings. Mrs Sayeed explains that it is not surprising that the means of assessments at the conclusive grounds stage are not covered in the Guidance, as the Guidance is directed to the Competent Authorities [i.e. the Home Office and the National Crime Agency] and not to the support providers who would undertake the needs assessment. I note that the obligation in Recital 18 of the Directive^[15] is merely for assessments to be carried out according to national procedure, without any specific requirement for what is envisaged or what is needed.
101. There obviously have to be assessments on a number of occasions. First, when victims request DLR, it is implicit that there would have to be an assessment in order to see if they are entitled to it because, for example, there are compelling personal circumstances or other grounds for obtaining DLR. Second, there has to be an assessment made before deciding if the 14-day post-conclusive decision period should be extended. Third, there are provisions (see part 24.5 of the Guidance) which require the Competent Authority when granting an extension to minute "a summary of progress of the victim since the last review including reference to any mental health issues or compassionate circumstances", "a brief action plan setting out what steps will be taken in the next period to progress the claim" and "a recommendation clearly setting out the argument for…extending the recovery and reflection period further". Fourth, similarly, when refusing an extension, the Competent Authority must, among other things, "send a letter to the individual…explaining the reasons for the refusal". These requirements show that what was implicit in the decision-making concerning applications for extensions was the need for an assessment. Fifth, Mrs Sayeed explains that if the needs of victims change whilst in the NRM support, then the support provider would be aware of it and would respond accordingly to provide the appropriate support provisions. I have no reason not to accept this evidence.
102. Sixth, as I have explained, there are monitoring provisions in Part 24 of the Guidance, which provide that there is an obligation to review the progress of the trafficking victim on day 30 of the 45-day recovery period in order to "monitor progress on the case [and] check it is on target for a conclusive decision". This duty has to be considered in the light of the duty of the Competent Authority [i.e. the Home Office and the National Crime Agency] of "gathering information to make the conclusive decision" from "the support provider, first responder [the Salvation Army], investigating police force where relevant...and local authority (in the case of children)". The purpose of those inquiries is to decide if an extension of the 45-day recovery and reflection period "is warranted". These investigations would have required assessments especially as it is explained that likely reasons will include "serious health issues, serious mental health or psychological issues (including post traumatic stress disorder) requiring longer period of recovery and reflection and high levels of victim intimidation".
103. Ms Roberts contends that assessments are required as Article 11(7) of the Directive provides for measures to be provided "based on an assessment of individual circumstances and need". That is not correct, as the only obligation is for Member States to "attend to victims with special needs". In any event, the matters set out in that Article would be considered in the monitoring and assessing processes to which I have referred.

Conclusion on Issues 3 and 4

104. I have explained in paragraph 76 and 77 above my conclusions in respect of the situation where support is needed after the 45-day recovery and reflection period and where criminal proceedings are pending. With the exception of that issue, I have reached the conclusion that none of the other points made by the Claimants, whether considered individually or cumulatively, shows that the practice adopted by the Defendants fails to achieve the results required by Article 11 of the Directive and Article 12 of ECAT.

Issue 5: The Claimants' Assessment Issue

105. This issue overlaps with the last issue. Mr. Westgate contends that the Defendants have failed to carry out individual assessments of the needs of the Claimants to determine whether or not they need support and assistance, and if so, what. The Defendants point out that the Claimants did receive social security benefits while the applications of AG and RT for DLR were under consideration. Mr. Westgate contends that this response misses the point as the Defendants have failed to accept that they may have been under a duty to provide support during the periods when victims could not access social security benefits. He submits that the Defendants had a duty to assess the needs of each Claimant for support once their entitlement to JSA and housing benefits had been terminated.
106. Mr. Westgate points out that AG and RT are both still suffering from the effects of being victims of trafficking. He refers to the evidence that AG suffers from depression of "moderate severity". Dr Chisholm explains concerning AG in a report of 17 April 2015 that :

"as a result of his depressive disorder, he cannot concentrate at college. This means he cannot learn English, which would help him gain employment"

107. RT suffers from "mild functional impairment …due to his adverse experience of working at Houghtons". Both RT and AG are claiming compensation. The Subatkis twins are said to be vulnerable and they needed support to act effectively as witnesses at the trial in January 2016 and thereafter because of their personal circumstances.
108. I have explained that all of the Claimants' cases are currently being assessed and hopefully they will be completed speedily. In those circumstances, it is premature to grant the relief sought, which is a mandatory injunction that the SSHD "assess the Claimants' needs for support and assistance as victims of trafficking and to provide such support as is found to be necessary", especially as I have no reason to believe that they will not do so. Indeed, in the Order prepared by Counsel after the draft of this judgment was circulated, neither side, correctly in my opinion, sought an Order dealing with this issue.

Issue 6: The Access to Benefits Restriction Issue

109. This issue concerns the questions of, first, whether the SSWP can restrict access to benefits to victims of trafficking on the basis that the Claimants do not satisfy the GPOW test and, second, whether the GPOW test should be disapplied in their cases. This important issue was the subject of short written submissions in the respective skeleton arguments of the parties, but it was not developed in oral argument by either party at the hearing. When I subsequently wrote to Counsel asking how I should deal with this issue in the judgment to be handed down, the Defendants stated that I should give my decision on it. The Claimants disagreed, as they explained that their position at the hearing was that this issue belonged more to submissions relating to remedies and that it could only be addressed once substantive issues relating to the scope of the duty have been resolved. I agree and I am very conscious that I would have been assisted greatly by detailed oral submissions on this issue. In addition, might turn out to be academic if the Claimants are not otherwise entitled to support. I therefore will not deal with it.

The Order

110. Counsel have made helpful written submissions on costs. They both agree that the Defendants should be ordered to pay a proportion of the Claimant' costs, but there is a dispute about what proportion it should be. The Claimants say that a fair and proportionate order for costs should be that the Defendant should pay 60% of the Claimants' costs. The Defendants say that they should only have to pay 25% of the Claimants' costs. I have considered with care the rival submissions and I have considered the extent to which each party has succeeded. I have concluded that the Defendants should pay 50% of the Claimants' costs.
111. In the draft Order produced after the draft of this judgment had been circulated but before the time fixed for the hand down of this judgment, the Claimants and the Defendants each sought for the first time an additional Order which had not been the subject of the application before me earlier and which therefore had not been the subject of any submissions. Neither of these Orders was agreed to,
112. The Order, which was sought by the Defendants but which was only agreed to in part by the Claimants, stated that:

"The support duty under Article 11(2) does not create any independent right of residence or independent basis for the grant of DLR, and ceases to apply after expiry of the 45-day reflection and recovery period in cases where a victim does not have a right of residence in the United Kingdom."

113. The Claimants were content to agree that the support duty under Article 11(2) does not create any independent right of residence, which is a view with which I agree. There is a dispute relating to the correctness of the remainder of the Order, and this can only be resolved after oral submissions. The Defendants have not sought an oral hearing for this and I will make no further order in relation to it.
114. The Order, which is sought by the Claimant but which is not agreed to by the Claimants, stated that:

"The Defendant shall, pursuant to Article 11(2) of the Trafficking Directive and pending determination of any application for [DLR] made or to be made by the Claimants, provide support to the Claimants, namely provision of their existing accommodation, subsistence of £65 per week and access to outlook. Such support is to be paid from and under the NRM system."

115. This Order is strongly opposed and it clearly requires oral submissions and a very speedy hearing for which I will give directions.

Conclusions

116. I conclude in respect of the issues raised on this application that:

(1) Article 11 (2) of Directive 2011/36:

i) Sets out an obligation separate from Article 11(1) of the Trafficking Directive 2011/36 so as to provide a free-standing duty of support which is not linked to criminal proceedings;

ii) Imposes an obligation on the UK to provide a trafficked person with assistance and support as defined in Article 11(5) of the Directive, in the post 45-day reflection and recovery period; and

iii) Does not create an independent right of residence.

(2) The Victims of Modern Slavery: Competent Authority Guidance (v.2.0) under the heading Victims who are helping police with their enquiries at pps 67-68 (under Section 19.2) is unlawful in that it does not allow victims or their legal representatives to request Discretionary Leave to Remain (DLR) on the grounds of agreeing to assist the police with their enquiries.

(3) Applications for DLR have to be considered in compliance with the Trafficking Directive 2011/36 and Article 12 and other provisions of the European Convention on Against Trafficking in Human Beings.

(4) For the purposes of the preceding paragraph, consideration of an application for DLR in compliance with the Trafficking Directive 2011/36 includes consideration of the duty to provide support under Article 11(2) of that Directive, including where necessary, support pending determination of an application for DLR.

117. It is also appropriate to make orders that

(1) The anonymity Order is lifted in the Subatkis claim CO/5652/2015.

(2) The Claimants' claim for judicial review is allowed to the extent identified in the Paragraph 116 above.

(3) Pending any remedial action taken by the First Defendant to remedy the deficiency in the Guidance identified at para 2 of the Declaration above, applications for DLR from victims of trafficking on the basis that they are helping police with their enquiries be accepted from such victims and their representatives.

(4) The Defendants shall pay 50 % of the Claimants' costs.

(5) There shall be a detailed assessment of the Claimants' publicly funded costs pursuant to the provisions of the Community Legal Services (Costs) Regulations.

(6) Adjourn the claim set out in paragraph 114 above for further consideration.

Note 1   The support duty is owed by the United Kingdom Government and the Home Office has assumed primary responsibility for compliance with it and has issued guidance.    [Back]

Note 2   The scheme for support of victims of trafficking relies on mainstream benefits for which the SSWP is responsible.    [Back]

Note 3   The minimum 45-day period was agreed following a consultation process.    [Back]

Note 4   Article 12 is set out in paragraph 45 below.    [Back]

Note 5   Article 11 is set out in paragraph 30 below.    [Back]

Note 6   This is set out in paragraph 30 below.    [Back]

Note 7   This is set out in paragraph 45 below.    [Back]

Note 8   See paragraph 8 below for its full terms.    [Back]

Note 9   This is set out in paragraph 46 below.    [Back]

Note 10   Article 11(5) provides that this is provided “on a consensual and informed basis, which would include ensuring at least standards of living capable of ensuring the victim’s subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information and translation and interpretation services where appropriate.”     [Back]

Note 11    Paragraph 5 of” Summary of Principal Propositions relied on by the Claimants etc” dated 9 March 2016    [Back]

Note 12    This is different from a claim that the mere existence of ECAT gave rise to a legitimate expectation that the Government would observe the terms of ECAT. I need not consider this as it would not assist the Claimant to obtain a more favourable decision than the claim based on the Guidance and existing policy which I have just accepted. In addition, there have been no oral submissions on this issue on which the law is not clear especially in the light of the fact that the Guidance states which parts of ECAT form part of the SSHD’s policy on different issues. By inference, some part of the ECAT do not form part of the SSHD’s policy on other issues    [Back]

Note 13    He observed that “In so far as there is a conflict between [the accounts] of what occurred…, this court, only having the affidavits before it, cannot resolve that dispute. The position is well established that as the [claimants] have the onus of proof upon them to establish their case, in those circumstances the proper course to adopt is to act on the evidence given on behalf of the [defendants] …in so far as it is impossible from the internal evidence to come to any conclusion as to which account is the more credible.”     [Back]

Note 14    Where support is required (a) despite the fact that there are no criminal proceedings or criminal proceedings have come to an end; (b) because of the personal needs and circumstances (psychological, physical, social or safety needs; and (c) where an application for DLR is pending or cannot be made.    [Back]

Note 15    “…The practical implications of such measures should, on the basis of an individual assessment carried out in accordance with national procedure, take account of the circumstances, cultural context and needs of the person concerned.”     [Back]