Judge rejects homeless human trafficking victim’s claim for housing

Court of Session
Court of Session

A human trafficking victim whose application for accommodation as a homeless person was rejected by a Scottish local authority has had a legal challenge against the decision dismissed.

A judge in the Court of Session upheld the decision by Aberdeen City Council to refuse her application on the grounds that she was not entitled to reside in the UK as she was “not a job seeker” and accordingly not a “qualified person”, ruling that she would be a “burden on the State”.

Lord Boyd of Duncansby heard that the petitioner ‘GO’, a Polish national, arrived in Aberdeen along with her adult son in October 2014, having been trafficked into the country.

But the judge said the mental health problems she was suffering as a result would be better treated in Poland.

The court heard that she initially stayed at a house in Aberdeen with a man but left two months later because, she reported to police, that she had been the victim of physical and sexual abuse by him.

She and her son were given support from a number of agencies including the social work department and the Cyrenians charity and in February 2015 the GO and her son entered into a tenancy agreement with the council.

GO’s son had in the meantime obtained a job, but was made redundant on 1 April 2015 and has not worked since.

Rent arrears accumulated as a result and the council raised an action seeking recovery of possession of the property, but having become entitled to evict GO and her son it agreed not to do so pending resolution of this action.

In August 2015, GO applied to the council for accommodation as a homeless person, but the application was rejected by letter dated 11 September 2015 on the grounds that she was “not a qualified person” as defined in regulation 6(4) of the Immigration (European Economic Area) Regulations 2006.

She sought a review of that decision, but the council issued a final decision refusing her claim on 20 October 2015.

GO then lodged a petition for judicial review, seeking reduction of the decisions and declarator that the respondents were under an “obligation” in terms of the Housing (Scotland) Act 1987 to provide her with secure accommodation.

The court was told that the woman had been noted to have symptoms which appeared to be the result of human trafficking, including hyper-arousal, nightmares, flashbacks, anxiety, sleep problems and an inability to use public transport.

It was submitted that Article 4 of the European Convention on Human Rights (ECHR) included a right for victims of trafficking to accommodation and that the duty to provide such accommodation fell on the council.

The petitioner, who could not speak English, also said that she had a right to reside in the UK by virtue of Articles 21 and 45 TFEU and that as an EU citizen with a right to reside in the UK she was entitled to access social provision including homelessness accommodation.

Refusing her claim, Lord Boyd of Duncansby said: “In my opinion once a victim of trafficking has been removed from the situation of slavery or servitude the State’s principal obligations towards the victim is to identify and if possible bring to justice the perpetrator or perpetrators.

“In this case while it is clear that the petitioner has mental health problems and that these appear to be related to the effects of trafficking I am satisfied that there is no obligation on the council to provide the petitioner with housing. Any obligation that the State may have to the petitioner cannot be open-ended.

“Given the fact that the petitioner does not speak English the provision of mental health services to her remains problematic.

“In the face of these problems it is difficult to see how any obligation on the State arising out of Article 4 ECHR could be stretched to encompass a seemingly indefinite obligation to provide the petitioner with housing.”

GO also submitted that she should be considered a “worker” for the purposes of Article 45 TFEU and an EU Directive as she was actively seeking employment, but the judge held that she did not fulfil the criteria.

GO further argued that, in any event, there were “exceptional circumstances” arising from her having been a victim of trafficking and sexual abuse and as a result of which she suffered severe mental health issues, but the judge said there were “no exceptional circumstances which would entitle her to claim a right of residence in the United Kingdom”.

In a written opinion, Lord Boyd concluded: “It is accepted that she is a victim of trafficking. Fortunately that came to an end in December 2014. It is accepted that she was, at the time of the council’s decision, and subsequently experiencing mental health difficulties associated with trafficking.

“However the petitioner has no ties to the United Kingdom other than the presence of her adult son, who appears not to be exercising residence rights. She is not economically active and to that extent is a burden on the United Kingdom. She does not speak English. There is no barrier to her return to Poland where she could access support and services in her own language and there is the potential of support for family and friends.

“The only reason for a continued presence in the United Kingdom is her desire to remain here, though not it seems in Aberdeen where she is seeking to be housed. She does not wish to return to Poland. In my opinion these are not good enough reasons for her to be accorded a right of residence in this country, particularly when to do so would involve a burden on the State.

“For all these reasons I find that the petitioner has no right of residence under Articles 21 and 45 TFEU.”

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