The High Court (Sir Stephen Silber) has handed down judgment in an important case on the entitlement of trafficking victims to social security benefits: R (G) v. Secretary of State for the Home Department and Secretary of State for Work and Pensions  EWHC 942 (Admin). The case is the first to examine the extent of the entitlement to support for victims of human trafficking under Directive 2011/36/EU (the Trafficking Directive) and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). It also involved an attempt to disapply the Genuine Prospect of Work (GPOW) test applied in respect of certain social security benefits and arguments about the possibility of relying on unincorporated international conventions in domestic law.
Sir Stephen rejected the majority of the challenge. He held that, as an unincorporated international convention, ECAT could not be relied on directly in domestic law, that the Defendants were not bound by the concession to the contrary in R (Atamewan) v. Secretary of State for the Home Department  1 WLR 1959 and he did not disapply the GPOW test. He held that Article 11 of the Trafficking Directive contained two separate obligations of support and that, save in one respect, the Secretary of State for the Home Department’s Competent Authority Guidance faithfully implemented the requirements of the Directive. The only respect in which it failed to do so was in the prohibition on victims, who relied on their co-operation with the police as a basis for applying for discretionary leave to remain (and thereby access to mainstream benefits), from applying for leave directly and instead having to rely on the police making an application on their behalf.
David Blundell represented both the Secretary of State for the Home Department and the Secretary of State for Work and Pensions.