Claimant lawyers hail case on local authority powers and victims of trafficking

November 25, 2015

Claimant lawyers have hailed what they describe as a “ground-breaking” case on local authority powers to support victims of trafficking who are EEA nationals.

The claimant in AK v Bristol City Council was a Lithuanian national and a victim of trafficking who had escaped from the criminal gang for whom she was forced to work.

The High Court had been due to hear the case but the parties agreed a consent order shortly beforehand.

In the order the city council conceded that it was not prevented by s. 2 of the Localism Act 2011 nor by Schedule 3 of the Nationality Immigration and Asylum Act 2002 from providing support and assistance to EEA nationals who are victims of trafficking to the extent that such support and assistance is necessary to avoid a breach of Articles 3 and 4 of the European Convention on Human Rights and/or to comply with Article 11 of the EU Anti-Tracking Directive.

Adam Hundt, the claimant’s lawyer and a partner at law firm Deighton Pierce Glynn, said: “This is a major breakthrough for victims of trafficking. Whilst the national framework is targeted at providing support to victims up to a conclusive grounds determination by the Competent Authority, after a positive determination has been made, many trafficking victims find themselves destitute pending a grant of leave to remain by the Home Office, which triggers eligibility for mainstream welfare benefits but which can (as in this case) take many months.

“Central government has looked to local authorities to fill this gap. But until now, local authorities have looked the other way."

The background to the case – as set out in an agreed statement of reasons – was as follows:

On 14 October 2014 the designated competent authority under the National Referral Mechanism for the Identification of Victims of Trafficking (NRM) made a conclusive grounds determination that the claimant was a victim of human trafficking.
As an EEA national who had not been granted leave to remain at the time when her claim was made, and who did not satisfy the ‘habitual residence test’ and/or was not a jobseeker or a worker (as defined) in the relevant legislation, the claimant was ineligible for housing benefit and housing assistance, Employment Support Allowance and Jobseeker’s Allowance.
The claimant claimed that she was entitled to support and assistance from Bristol City Council from its Crisis Fund and/or under s. 1(1) of the Localism Act, as the only means by which she could provide for her most basic needs, she claimed, was through continuing to engage in prostitution, which she did not want to do. She claimed that the failure to provide her with accommodation and support breached her rights under the ECHR or the EU Trafficking Directive.
The city council denied that it had the power to provide the support claimed under s. 1(1) of the Localism Act, and further denied (if it had such a power) that it was under a duty to do so in the claimant’s circumstances. Bristol contended that the claimant could return to Lithuania to access support and assistance, and that she did not meet the requisite threshold of destitution for the failure to provide her with support to constitute a breach of her rights under the ECHR or the directive.
On 23 April 2015 Mr Justice Supperstone granted AK an interim injunction requiring the council to forthwith provide the claimant with accommodation and £50 per week in cash or vouchers with liberty to apply.
In June 2015 the claimant obtained casual work as a cleaner. On 29 September the parties agreed that the £50 per week payments were no longer required, but because the claimant’s working hours fluctuated payments were reduced to £35 per week.
The claimant applied for housing benefit in October 2015 in view of the hours she was working as a cleaner.
On 6 November 2015 Mr Justice Nicol granted the claimant a protective costs order and capped the claimant’s costs at £150 per hour for work not covered by a legal aid certificate (as the claimant’s legal had been withdrawn on means grounds – a decision that had been challenged).
On 9 November 2015 the Home Office stated that it would grant AK discretionary leave to remain for an initial period of 1 year subject to satisfactory completion of documentation and security checks.
The council had now agreed to: continue to provide accommodation to the claimant until she has access to alternative accommodation that she is able to occupy; and continue to provide the claimant with subsistence support of £35 per week until the week ending 18 December 2015.
The council was also prepared to concede that it was not prevented by s. 2 of the Localism Act 2011 nor by Schedule 3 of the Nationality Immigration and Asylum Act 2002 from providing support and assistance to EEA nationals who are victims of trafficking to the extent that such support and assistance is necessary to avoid a breach of the ECHR and the directive.
AK agreed to continue to make all reasonable efforts to seek alternative accommodation that she could afford, including applying for ‘mainstream’ housing and social security when she had the necessary documentation.
The claimant said she considered that the council’s concessions provided her with the substantive remedy sought in the proceedings, and she was thus content to withdraw her claim on these terms.

The claimant was represented by Adam Hundt and William Russell of Deighton Pierce Glynn’s Bristol office, and Tom Hickman of Blackstone Chambers.

The consent order can be viewed here.