VDA, R (on the application of) v Secretary of State for the Home Department

On 2 April 2026, Obi J granted without notice interim relief on the papers to restrain the claimant’s removal to France under what is colloquially called the “one in one out” Treaty of 29 and 30 July 2025. More prosaically, its full title is the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic on the Prevention of Dangerous Journeys (the Treaty).

The defendant applied six days later to discharge that order. Farbey J on 9 April 2026 ordered an oral hearing of the defendant’s discharge application, which took place before me yesterday. After hearing argument, I announced my decision to grant the defendant’s application, paving the way for the claimant’s removal to France pursuant to the Treaty. His removal is proceeding today or has proceeded today.

I now give my brief reasons, which time did not permit me to do yesterday. The claimant will continue to be referred to as “VDA”, pursuant to Obi J’s anonymity order, which neither party sought to alter and which I do not find reason to alter of my own motion.

Both parties agreed that a useful account of the applicable principles can be found in other authorities and, in particular, Sheldon J’s recent decision in R (AYA) v Secretary of State for the Home Department [2026] EWHC 552 (Admin). The commentary at paragraphs 6 to 27 of the judgment on the relevant international and domestic instruments is especially useful ahead of a hearing of certain “common issues” fixed for 28 April 2026 in this court (the common issues hearing). I need not repeat that commentary here, but I am guided by it.

Mr. Brown KC, for the defendant, also referred me to provisions in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, creating presumptions about treatment in certain countries, often called safe third countries, including France, and to section 80B of the Nationality, Immigration and Asylum Act 2002 on certification of human rights claims as clearly unfounded, unless the Secretary of State is satisfied otherwise, where a person is to be removed to such a country.

There was no disagreement about the applicable principles for granting or withholding interim relief. They are the well known American Cyanamid tests, recently re-examined in a public law context in R (FTDI Holding Limited) v. Chancellor of the Duchy of Lancaster [2025] EWHC 241 (Admin); see the joint judgment of Singh LJ and Chamberlain J at paragraphs 13 to 17, on which both parties relied.

The claimant is an Afghan national born in 1995 or 1996, who fled Afghanistan in September 2021 due to risk arising from his former role in the Afghan National Army. He states that he was held captive by the Taliban for about three months and tortured, by being stabbed in the groin area. He says he then lived in Iran for approximately one year and then in Turkey for three years.

While in Turkey, the claimant’s account is that he was subjected to trafficking and exploitation for a two month period, including forced labour at and around a restaurant, confinement, violence and non-payment of wages. He later travelled through Europe, residing in Italy and then France, where he reported that he was again subjected to violence and extortion by traffickers at the Dunkirk “jungle”.

He left for the UK by small boat on 18 January 2026. He has described the trip as frightening and dangerous. On arrival, he was detained and he remains in detention. He was screened, he complained, while he was exhausted, sleep deprived, in pain and without receiving any adequate explanation of the purpose or significance of the interview, including its relevance to trafficking.

At the screening interview, he denied past exploitation, which he later explained was due to misunderstanding, poor interpretation, the interview format and his physical and mental condition. He was not, he complains, given an opportunity to review or correct interview records, which were provided only in English. He complains of similar deficiencies in respect to a subsequent detention induction interview.

While detained, the claimant’s mental health appears to have deteriorated. A rule 35 report of 3 February 2026 concluded that his psychological presentation was consistent with his account. The defendant acknowledged potential indicators of modern slavery and accepted that, if credible, the claimant’s account would establish trafficking in Turkey and France.

On 6 February 2026, the defendant’s rule 35 response noted that the doctor had no concerns about continuing detention. The claimant was not on any medication, although the doctor had requested a GP assessment for consideration of treatment for his psychological condition. On 11 February 2026, France accepted the UK’s re-admission request. The first pre-action protocol letter from the claimant’s solicitors was sent on 26 February 2026. The PAP correspondence continued thereafter.

The claimant was referred to the National Referral Mechanism on 3 March 2026. He was interviewed that day about allegations of slavery. He was asked to give details of his entire journey and whether he had been mistreated at any stage. He told the interviewers only about forced labour in Turkey. He did not mention his experiences in France. His evidence is that he thought about doing so, but was told that his time was up.

The defendant issued a negative reasonable grounds decision on 12 March 2026. The defendant relied on that decision to support a subsequent asylum inadmissibility decision of 27 March 2026 and the issuing of removal directions on 30 March 2026, directing removal on 9 April 2026. The claimant then brought these proceedings on 2 April and obtained interim relief from Obi J on that day, as already explained.

Also on 2 April 2026 a doctor, Dr Elizabeth Clark, interviewed the claimant by telephone with an interpreter translating to the claimant’s Dari language. The call lasted 2 hours 10 minutes. Dr Clark had read many of the background documents. She concluded that it is highly likely the claimant has a diagnosis of posttraumatic stress disorder (PTSD) and this should be confirmed by a face to face assessment. She also considered that he currently has moderate depression.

On the question of suicide risk, she opined at paragraph 57 of her report of 8 April 2026:

“Although [the claimant] denied current suicidal intent to me, he has a number of risk factors listed above which are red flag warning signs that indicate a person is at heightened risk of attempting suicide at that moment in time, according to the Royal College of Psychiatrist’s report ‘Self-harm and suicide in adults’. … My professional assessment of his overall presentation and risk factors is that he is at low risk of suicide, but his risk of suicide might increase as his removal date becomes imminent and if he is removed to France, particularly if he faces further threats from others and harsh circumstances including homelessness and destitution.”

She opined further that his mental health systems started while in immigration detention in the UK and that the claimant was not receiving appropriate treatment for them currently. Not surprisingly, she considers that he would be better off not in detention and with the risk of removal to France removed and with access to proper treatment here in the UK in the community. She did not find that he was trying to feign or exaggerate his psychological distress.

The claimant seeks to challenge, first, the negative reasonable grounds decision of 12 March 2026 and, second, a decision made in September 2025 to, as it is put in the claim form, “amend the Modern Slavery Act statutory guidance (MSG), in order to remove the right to seek reconsideration of an adverse reasonable grounds trafficking decision to certain potential victims of trafficking”.

The first ground is that the defendant breached her Tameside duty because “in deciding whether to amend the MSG to take reasonable steps to acquaint herself with the information required to make that decision”: see paragraph 48 of the grounds. The second ground is that, in amending the MSG, issued under section 49 of the Modern Slavery Act 2015, the defendant breached the Padfield principle that a statutory discretion cannot lawfully be exercised so as to thwart or run counter to the policy and objects of the legislation: see the grounds at paragraph 56.

The third ground of challenge focuses on contentions that the process of interviewing for the purpose of making a reasonable grounds decision is unfair, both in general terms and in the manner in which it was operated in the claimant’s case. In brief, it is said that there were insufficient safeguards to protect the interviewee – in this case, the claimant – from adverse findings, resulting from problems of communication, interpreting, tiredness or sleep deprivation and the psychological impact of the interviewee’s difficult circumstances.

As for interim relief, the claimant, through Mr Bandegani, made the following main points in defence of the judge’s ex parte decision on interim relief, which he said should stand. First, there are serious issues to be tried. The Tameside and Padfield attacks on the defendant’s decision to amend the MSG would be tested at the common issues hearing. For the moment, there was a dearth of evidence on those issues from the defendant.

The Treaty, Mr Bandegani pointed out, did not oblige the defendant to remove the claimant to France. It was a discretionary decision. A short delay until after judgment, following the common issues hearing, would cause only slight prejudice to the defendant and was just. Any connection between interim relief and encouragement of small boat crossings was speculative at best. The balance of justice and convenience lay in preserving the status quo for a short time, as Obi J had thought.

So submitted Mr Bandegani. He said the claimant should not have to establish, at the interim relief stage, more than a real risk of irreversible harm or treatment, contrary to article 3 ECHR rights (i.e. rebuttal of the presumption that France would comply with its article 3 obligations) or otherwise. Sheldon J’s findings in AYA were to the effect that the kind of psychological trauma from which the claimant is suffering was precisely the kind of harm which could be irreversible and which the French healthcare system is not well equipped to treat.

Mr Bandegani submitted that the claimant’s mental health condition and symptoms were comparable to those of AYA in the AYA case, which had tipped the balance of convenience in his favour. The same outcome should follow here because AYA also faced removal to France and Sheldon J was not happy with the ability of the French health care system to protect him against harm that could be irreversible. It did not matter that AYA had been found to be a victim of trafficking, while this claimant has been found not to be one. The mental health conditions and symptoms were the same, whatever their cause.

There was insufficient mental health support available in France, Mr Bandegani submitted on the basis of Sheldon J’s findings in AYA, There were also other deficiencies in the French system for dealing with asylum seekers: language interpretation and accommodation availability are worse there than here, Mr Bandegani submitted. Like AYA, this claimant would not benefit from being recognised as a victim of trafficking in France. Such bespoke support for victims of trafficking, as is available in France, would not be available to the claimant.

I can take the defendant’s main points more briefly, because, as I indicated at the hearing, I prefer them to those of the claimant. Mr Brown KC submitted that Obi J had given insufficient weight to the pressing public interest in the deterrent purpose of the Treaty and the proposition that interim relief would only be granted in narrow exceptional categories, such as where there is strong evidence of an unresolved trafficking victim identification issue or particular vulnerability, especially including serious mental health needs, that are unlikely to be addressed in France before the common issues hearing.

Mr Brown relied on the Country Information Note of February 2026 relating to France (the CIN) containing details of French immigration and asylum law, available asylum support and health care support. He submitted that the claimant was not arguably a victim of trafficking and that, as to his mental health difficulties, even if not fully addressed in France, any harm would be brief and reversible. The Treaty provided for return to the UK from France if the claimant’s judicial review were to succeed.

The level of harm, Mr Brown submitted, was not close to reaching the threshold required to override the strong public interest in the defendant being able to operate the Treaty in accordance with its terms and in accordance with what the defendant considered to be a lawful manner. There is no “particular vulnerability” here (Sheldon J in AYA at paragraph 106). As for the alleged mistreatment in France, which weighed with Obi J, the defendant had rejected the claimant’s account but if the French authorities accepted it, he could be treated as a victim of trafficking because the incidents at Dunkirk are said to have happened on French soil.

It is common ground that there is at least one serious issue to be tried, namely the legality of the decision to amend the MSG to remove the right to seek reconsideration of an adverse reasonable grounds trafficking decision in cases where persons claim to be victims of trafficking. The Tameside and Padfield grounds of challenge are live issues and the decision to amend the MSG amendment issue is expected to be determined, at first instance, following the common issues hearing on 28 April 2026.

The defendant does not agree that, in the present case, there is a serious issue to be tried as to the legality of her decision that there are no reasonable grounds for treating the claimant as a victim of trafficking. I need not state definitively whether, in my view, the claimant’s attack on the fairness of the interview process generally and in the claimant’s individual case raises a serious issue to be tried. I am of the view that the contention is, if arguable, weak.

The question is, then, where the balance of convenience and justice lies. On this issue, I prefer the arguments of the defendant to those of the claimant. It is true that there are some similarities between the medical and mental health problems of the claimant in this case and those of AYA in AYA. But there are also differences. This claimant has been found not to be a victim of trafficking. The time period up to first instance judgment, following the common issues hearing, has shortened since judgment in AYA was handed down on 11 March 2026, over a month ago.

While the claimant points to legitimate concerns about mental health support in France, Dr Clark is not impressed with the support currently available here in England. She says it is inadequate and that the claimant’s conditions of detention and that his symptoms have worsened while in detention here. A fair comparison between support in the UK and in France should, therefore. proceed from that unsatisfactory UK baseline.

Most importantly, the severity of the claimant’s condition and symptoms on the available evidence does not, in my judgment, reach the high threshold of a particular vulnerability which will lead to likely irreversible harm if the claimant is removed to France. On that point, I agree with Mr Brown for the defendant. The strong public interest in the defendant being able to operate the Treaty is not, in my judgment, outweighed here by the risks to the claimant’s mental and physical health if he is removed to France.

I bear in mind that the claimant can claim asylum in France. If he does so, he will have a legal entitlement to accommodation during the asylum process, including during any appeal. While there are shortages of accommodation, there are temporary emergency facilities and the entitlement to accommodation, including emergency accommodation, remains. I accept that healthcare provision for migrants and asylum seekers in France is patchy, but provision does exist. I take into account that France is a safe third country, benefiting from a strong presumption that it will comply with its article 3 obligations.

In all the circumstances, in my judgment, the balance of convenience and justice here is, for those brief reasons, tipped the other way, against interim relief and in favour of removal, from the way it was struck in AYA. I therefore made an order yesterday afternoon discharging the restraint on removal contained in Obi J’s order. The defendant’s application is granted. That concludes my judgment.