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Asylum seekers who were also potential victims of modern slavery were eligible for support funding under both regimes according to Modern Slavery Act 2015 Guidance

Published:

Re: The King on the application of JB (Ghana) v Secretary of State for the Home Department [2022] EWCA Civ 1392

The Court of Appeal unanimously dismissed an appeal by the Secretary of State for the Home Department against a decision ruling that JB, the respondent (and others in the same position as him), was eligible for financial support through support regimes for both asylum seekers and potential victims of modern slavery concurrently.

The Home Office had published statutory guidance relating to modern slavery (the Modern Slavery Act 2015 Guidance) which stated that recipients of support who were also seeking asylum at the relevant time were eligible for an increased weekly payment (ie, they could receive support from both regimes) for a period before the policy was amended, regardless of their accommodation status. The Home Secretary contended that this was not the intended meaning of the guidance, and that the court should read-in words to give effect to the intention of the drafter in the face of what she contended were ‘obvious drafting errors’.

The Court held that it was well established that it is ‘not the Court’s task to assess the merits … of the Policy, or to redraft the policy in an attempt to improve it’. The Court’s task was to construe the policy according to an objective interpretation of its natural and ordinary meaning, by answering the question: ‘what would an objective reader have understood the words to have meant when the policy was promulgated?’. The intentions of the policy maker were held to be irrelevant, as the court held that the policy stated ‘in categorical terms’ that JB was entitled to support under both regimes for the period before it was amended. After hearing submissions from both sides, there was no reason to amend this plain and obvious meaning; whether in reference to what the drafter might have written if ‘he or she had thought about it more carefully’, or in the face of an obvious error.

Chris Buttler KC and Ayesha Christie represented the respondent JB in this case.