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Secretary of State found to discriminate against Asylum seekers with dependent children who received less financial support

Published:

Re: R (MD) v Secretary of State Home Department [2021] EWHC 1370 (Admin)

In this case the claimants are single mothers from Albania living in this country.  Both have dependent children and were conclusively found to be victims of sex trafficking.  Both are recognised as refugees and therefore do not receive financial support under the provisions of the Modern Slavery Victim Care Contract in respect of any dependent children. However, if the claimants were not in receipt of asylum support but in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work) they would receive financial support in respect of dependent children.

The claimants submit that this difference of treatment between asylum seeker victims of trafficking with dependent children and non-asylum seeker victims of trafficking with dependent children is contrary to article 14 of the European Convention on Human Rights (ECHR), read with article 4 and article 1, first protocol (A1P1), which cannot be justified; and that it is irrational. In this way, the claimant submits that lone parent asylum seeker victims of trafficking, who are mainly female, receive less money each week than others who are not seeking asylum.

The claimants seek a declaration that the defendant is in breach of article 14 of the ECHR and damages affording just satisfaction for that breach.

 

Held: the court grants a declaration to the effect that the difference of treatment does violate article 14 of the ECHR.  Differential treatment is admitted. Although the defendant did not intend to treat asylum seeking victims of trafficking with dependent children less favourably as a class than those on mainstream benefits and not seeking asylum, they have done so.  It is accepted that the discrimination against the claimants occurred by mistake; they received the amount of support the government intended them to receive; while others, not on asylum support, accidentally and fortuitously received more than the government intended that they should receive, in the form of unmerited windfall. However this is, all the same, a violation of article 14.

This is a case where an award of damages is necessary to afford just satisfaction to the claimants. They should recover as financial loss the amounts they would have received if they had not been asylum seekers as well as victims of trafficking. This is to be determined in the county court, if not agreed.

 

Chris Buttler QC and  Ayesha Christie were involved in this case.

 

Please find court order here