A Polish woman who originally came to the UK as a victim of trafficking has failed in an attempt to be recognised as entitled to housing under the homelessness legislation.

Lord Boyd of Duncansby in the Court of Session held that the woman, referred to as GO, had not established that she was a jobseeker and therefore a qualified person, where she had not worked due to mental health issues and an inability to speak English.

GO had arrived in the UK with her son in late 2014, in circumstances accepted as amounting to trafficking. After seeking help they were provided with housing and the son obtained work, but he lost his job and they accrued rent arrears which resulted in a decree for eviction.

Medical reports attributed her mental health issues to her experience in being trafficked. She did not wish to return to Poland, believing she had no meaningful future there, but her GP observed that that might be the best course of action as she had the potential support of family and friends and was able to speak the language.

It was argued for GO that article 4 of the ECHR included a right for victims of trafficking to accommodation; and further that she has a right to reside in the UK as an EU citizen and was entitled to access social provision including homelessness accommodation.

On the first point Lord Boyd ruled that once a victim of trafficking had been removed from the situation of slavery or servitude, the state’s principal obligation towards them was to identify and if possible bring to justice the perpetrator or perpetrators. That may mean certain support to the victim, but where there had been no breach of the state’s obligations under article 4, "in the absence of legislation the court should be wary about extending such an obligation beyond the immediate aftermath of the victim’s removal from their situation".

He added: "Any obligation that the State may have to the petitioner cannot be open-ended. There is nothing now to prevent the petitioner returning to her own country. The provision of housing will not in itself address the issue of the petitioner’s mental health. Given the fact that the petitioner does not speak English the provision of mental health services to her remains problematic. The observation from Dr MacLeod that the best course of action would be for her to return home where she would have the support of friends and family and is able to speak the language is not supportive of the petitioner’s position. 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."

Regarding EU law, the judge agreed with the local authority that homelessness assistance was social assistance for the purposes of the relevant directive. Further, GO could only reside in this country if she was a qualified person, which depended on her having a genuine chance of being engaged in work and she could not remain longer than 91 days unless she could show compelling evidence that she was continuing to seek employment and had a genuine chance of being engaged. Such evidence as was before the council "fell far short of compelling evidence that she had a genuine chance of being engaged".

Nor did she fulfil the criteria for "worker" in terms of the directive. There was no evidence that she would be able to return to work in the near future, and even if it was legitimate to look for exceptional circumstances arising out of her having been trafficked, these did not exist where her son appeared not to be exercising residence rights, she was not economically active and there was no barrier to her returning to Poland where she could access support and services.

Click here to view the opinion.