AYA & Ors v Secretary of State for the Home Department

At a case management hearing on 19 February, Chamberlain J directed a “rolled-up hearing” of a number of judicial review challenges brought by individuals who were at risk of removal to France under 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”). That hearing, which is due to commence on 28 April 2026 and which I shall refer to as the “Common Issues Hearing”, involves claimants who contend that they were the victims of trafficking prior to their arrival in the United Kingdom.

At the Common Issues Hearing there will be a focus, among other things, on the decision of the Secretary of State for the Home Department to remove the right to reconsideration of a negative Reasonable Grounds or Conclusive Grounds decision for those individuals who are intended to be returned to a country that is a signatory to the Council of Europe Convention on Action Against Trafficking in Human Beings (“ECAT”) and the European Convention on Human Rights (“the Convention”).

Chamberlain J also directed that there should be a Joint Interim Relief Hearing to consider some common issues that may arise on applications for interim relief pending the Common Issues Hearing. The Joint Interim Relief Hearing took place before me on 3-4 March 2026.

At that hearing, I was required to consider the application for interim relief hearing in the specific case of AYA v Secretary of State for the Home Department. I was not required to consider the applications for interim relief in the specific cases of BXY v Secretary of State for the Home Department and EXR v Secretary of State for the Home Department as those cases concern, among other things, a disputed age assessment. The interim relief hearing for those two cases will take place on 24-25 March 2026. I will not make any findings with respect to the facts of those cases. Nevertheless, there are features of those cases that illustrate some of the common issues that I have been asked to consider, and so I will refer to aspects of those cases below.

The common issues are:

The cases of EXR, BXY and AYA involve consideration of a number of different legal provisions: the Treaty, ECAT, the Convention, the Modern Slavery Act 2015 (“the 2015 Act”) and the Guidance. I set out some of the essential details of those provisions below.

The background to the Treaty was described by the Court of Appeal in R (CTK) v Secretary of State for the Home Department [2025] EWCA Civ 1264 at [34]:

“The numbers of people crossing the English Channel in boats have gone up significantly this year. About 44,000 crossed between 5 July 2024 and 4 July 2025. Some of those trying to cross the Channel died; 78 in 2024. The Treaty’s purpose is to prevent unauthorised crossings of the Channel.”

The Court of Appeal pithily described the way the Treaty works as follows:

“it enables the United Kingdom, if certain conditions are met, to send back a person who has illegally crossed the Channel in a boat, and, in exchange, obliges the United Kingdom to accept into the United Kingdom from France, one other person, who has made an application from France under the Immigration Rules (HC 395 as amended) and has been accepted by Her Majesty’s Government for reciprocal admission into the United Kingdom. Ms Grange accepted that the Treaty binds the two relevant states in international law, but that in England and Wales it has no effect in domestic law except to the extent that its provisions have been incorporated into domestic law. That had not been done.”

Some of the main features of the Treaty are that it applies to persons who have not made a protection claim or have withdrawn their protection claim, or have had their protection claim declared inadmissible in the United Kingdom; as well as to persons who do not have an outstanding human rights claim, which includes third country nationals whose human rights claim has been certified as “clearly unfounded”. The Treaty provides that an application for readmission to France will contain “a statement indicating that the person to be transferred may need medical assistance or care”. After transfer to France, the Treaty provides that all reasonable steps should be taken to arrange the transfer of the individual back to the United Kingdom if a court or tribunal finds that the original transfer was unlawful, or a court or tribunal orders that the individual is transferred back. Where an individual has been transferred to France and they have ongoing legal proceedings, France confirms in the Treaty that it has no objection to the giving or taking of evidence from within its jurisdiction for the purposes of those proceedings.

ECAT came into force in respect of the United Kingdom on 1 April 2009. The preamble to ECAT observes that “trafficking in human beings constitutes a violation of human rights and an offence to the dignity and the integrity of the human being”. The purposes of ECAT are described at Article 1 as:

The definition of “Trafficking in human beings” for the purposes of ECAT is set out at Article 4(a):

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”

A “Victim” is defined (at Article 4(e)) as “any natural person who is subject to trafficking in human beings as defined in this article”.

Article 10 of ECAT is headed “Identification of the victims”, and provides that:

Article 12 of ECAT provides under the heading “Assistance to victims”:

Article 4 of the European Convention on Human Rights (“the Convention”) is concerned with the “Prohibition of slavery and forced labour”. It provides that:

“1 No one shall be held in slavery or servitude.

2 No one shall be required to perform forced or compulsory labour.”

In R(ABW) v Secretary of State for the Home Department [2025] EWHC 3280 (Admin) at [125], Morris J observed that Article 4 of the Convention imposes a number of positive obligations:

Morris J considered Article 4 of the Convention and its relationship with ECAT at [126], noting that the Strasbourg Court has said that it will be guided by ECAT in interpreting Article 4 of the Convention, and that the positive obligations under Article 4 of the Convention must be construed in light of ECAT. Nevertheless, Morris J observed that there was no “automatic read across” between the obligations under Article 4 and the obligations under the Guidance. Further, the State’s obligations under Article 4 are not necessarily co-extensive with those under ECAT.

The 2015 Act is “An Act to make provision about slavery, servitude and forced or compulsory labour and about human trafficking, including provision for the protection of victims; to make provision for an Independent Anti-slavery Commissioner; and for connected purposes.”

Part V of the 2015 Act is concerned with the “Protection of victims”. Section 49 provides, under the heading “Guidance about identifying and supporting victims” that:

“(1)

The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about—

(a)

the sorts of things which indicate that a person may be a victim of slavery or human trafficking;

(b)

arrangements for providing assistance and support to persons who there are reasonable grounds to believe are victims of slavery or human trafficking or who are such victims;

(c)

arrangements for determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking ;

(d)

arrangements for determining whether a person is a victim of slavery or human trafficking.

. . .

(2)

The Secretary of State may, from time to time, revise the guidance issued under subsection (1).”

Section 50A provides that:

“(1)

The Secretary of State must secure that any necessary assistance and support is available to an identified potential victim (within the meaning given by section 61 of the Nationality and Borders Act 2022 (the "2022 Act")) during the recovery period.

(2)

For the purposes of this section, assistance and support is "necessary" if the Secretary of State considers that it is necessary for the purpose of assisting the person receiving it in their recovery from any physical, psychological or social harm arising from the conduct which resulted in the positive reasonable grounds decision in question.

. . .

In this section, a reference to assistance and support is to assistance and support provided in accordance with— (a) arrangements referred to in section 49(1)(b), or (b) regulations made under section 50.”

The reference to section 61 of the Nationality and Borders Act of the 2022 Act (“the 2022 Act”) is to the following provision:

Section 65 of the 2022 Act provides that:

“This section applies if a positive conclusive grounds decision is made in respect of a person—

(a)

who is not a British citizen, and

(b)

who does not have leave to remain in the United Kingdom.

(2)

The Secretary of State must grant the person limited leave to remain in the United Kingdom if the Secretary of State considers it is necessary for the purpose of—

(a)

assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation,

(b)

enabling the person to seek compensation in respect of the relevant exploitation, or

(c)

enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.

(2)

Subsection (2) is subject to section 63(2).

…

(4)

Leave is not necessary for the purpose mentioned in—

(a)

subsection (2)(a) if the Secretary of State considers that the person's need for assistance is capable of being met in a country or territory within paragraph (a) or (b) of subsection (5) (or both);

(b)

subsection (2)(b) if the Secretary of State considers that—

(i)

the person is capable of seeking compensation from outside the United Kingdom, and

(ii)

it would be reasonable for the person to do so in the circumstances.

(5)

A country or territory is within this subsection if—

(a)

it is a country of which the person is a national or citizen;

(b)

it is one to which the person may be removed in accordance with an agreement between that country or territory and the United Kingdom (which may be, but does not need to be, an agreement contemplated by Article 40(2) of the Trafficking Convention).

. . .

(10)

In this section— "positive conclusive grounds decision" means a decision made by a competent authority that a person is a victim of slavery or human trafficking;

… "

The Guidance states that it is “aimed at competent authority staff in any part of the UK who make decisions on whether or not an individual is a potential victim/victim of modern slavery for the purpose of the National Referral Mechanism (NRM) – wherever in the UK a potential victim is identified.” The National Referral Mechanism (“NRM”) is referred to as “the UK’s framework for identifying and supporting victims of modern slavery. It is one means of ensuring that adult victims receive the necessary support and assistance in the period immediately after their identification as a potential victim”.

When a potential victim of trafficking if referred into the NRM, the Guidance explains that a “Reasonable Grounds decision” will be made as to whether a person is a victim of trafficking or slavery, or is not a victim of any form of modern slavery. This decision should normally be made within 5 working days of the referral. Following a positive Reasonable Grounds decision, a victim will receive a Recovery Period of at least 30 days. The Guidance states that the Conclusive Grounds decision should generally be made as soon as possible: the test is whether “‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or slavery, servitude, and forced or compulsory labour.”

At paragraph 7.14 of the Guidance it is stated that “In some situations, someone may request a reconsideration of a Reasonable Grounds or Conclusive Grounds decision where there is additional evidence that may impact the decision or they believe the decision is not in line with published guidance.” Paragraph 7.15 refers to consideration for a grant of leave for “VTS” (victims of human trafficking or slavery) for those who do not have the right to remain in the United Kingdom.

The approach to “Reconsideration of negative Reasonable Grounds or Conclusive Grounds decision” is set out at paragraphs 14.217-14.235. Paragraph 14.216 – which is the amended provision of the Guidance and will be the focus of argument at the Common Issues Hearing -- provides that those paragraphs do not apply to those individuals that the Secretary of State intends to remove to France, among other countries.

Paragraph 14.217 provides that:

“An individual, or someone acting on their behalf, may request reconsideration of a negative Reasonable Grounds or Conclusive Grounds decision by the relevant competent authority. A reconsideration request must be made within 30 calendar days of the negative Reasonable Grounds or Conclusive Grounds decision on the following grounds:

• Where additional evidence can be provided which, taken with all the available evidence already considered, could demonstrate that the individual is a victim of modern slavery.

• There are specific concerns that a decision made is not in line with this guidance.”

Paragraph 14.220 deals with evidence to support the reconsideration request and states that “If this evidence could have been provided in advance of the negative reasonable grounds or conclusive grounds decision, there should be an explanation as to why this evidence was not provided earlier.” The Guidance provides at paragraph 14.232 that, generally, only one reconsideration request will be considered.

AYA is a national of Eritrea who entered the United Kingdom from France, via a small boat crossing on 12 August 2025, and was subsequently detained by the Secretary of State. He remains in detention. On his journey to France, AYA claims that he was subject to detention and exploitation at the hands of members of a militia in Libya.

When in France, AYA did not seek support from the French authorities. He says that he did not know how to do so, but a friend assisted him in beginning the asylum process. AYA claims that he was given an appointment and told to wait 2 months before being able to submit a claim: the appointment was booked for 17 September 2025. AYA says that he was homeless in France. He says that he developed a skin condition but did not know how to seek medical help. AYA says that he obtained 1500 euros from his brother to pay an agent to take him to the United Kingdom. He says that he was approached by police and invited to provide fingerprints but declined because the people he was with also declined. AYA says that owing to the ‘intolerable living conditions and the complete absence of support’ in France, he decided to travel to the UK to seek asylum.

On arrival in the United Kingdom, AYA claimed asylum. On 16 August 2025, the Secretary of State served a ‘Notice of Intent’ to treat AYA’s protection claim as inadmissible in the United Kingdom on the grounds that he could be returned to France pursuant to the Treaty.

On 22 September 2025, AYA was referred into the NRM. On 3 November 2025, the Secretary of State decided there were Reasonable Grounds to conclude that AYA had been a victim of trafficking on the basis of his experiences in Libya. On 10 December 2025, the Secretary of State found that there were Conclusive Grounds to accept that AYA had been a victim of trafficking on the basis of those experiences.

Representations were made that AYA should be granted VTS leave in the United Kingdom. It was contended that AYA suffered from chronic PTSD with depressive symptoms linked to his experiences in Libya; that the French authorities would not recognise him as a victim of trafficking and would not provide him with specific support, or leave to remain, as a victim of trafficking. On 22 December 2025, the Secretary of State refused to grant VTS leave to AYA on the basis that any recovery needs were capable of being met in France.

A further decision was made by the Secretary of State on 27 February 2026, following submissions from AYA’s legal representatives that he should not be removed to France because the decision to treat his asylum and humanitarian protection claim as inadmissible ought not to have been made, and there were exceptional circumstances or other grounds that mean his protection claim should be considered in the United Kingdom and that his removal would give rise to an unlawful interference with his rights under the Convention.

AYA had submitted that his removal to France would expose him to serious risks. There would be a breach of Article 3 of the Convention as he would face a real risk of homelessness, destitution, and lack of access to essential mental-health treatment. Further, he would be legally incapable in France of being recognised or supported as a victim of trafficking.

The Secretary of State rejected the further submissions, finding that the presumption of safety in relation to France had not been rebutted. The Secretary of State was not satisfied that the evidence provided by AYA established that he would face a real risk of Article 3 harm on return to France, nor that France would fail to provide accommodation, healthcare, mental-health treatment or trafficking-related protection. It was said that:

“The expert reports are outweighed by the comprehensive findings in the CIN, which confirm that France remains a safe third country with the administrative, practical and legal infrastructure necessary to protect vulnerable individuals, including victims trafficked outside its territory. Your submissions therefore do not rebut the statutory presumption of safety and do not demonstrate that your case is unsuitable for inadmissibility action.”

With respect to his human rights claim, the Secretary of State found that there was “not sufficient evidence to arguably show you face a real risk of serious harm or ill treatment in contravention of your rights under ECHR Article 3 following your return to France.” The Secretary of State said that she had considered the fact that AYA had received a positive Conclusive Grounds decision. However, it was noted that the statutory recovery and reflection period had elapsed, and no ongoing NRM processes remained outstanding. It was also noted that in refusing AYA’s request for temporary permission to stay on 22 December 2025, it had been found that “the evidence did not demonstrate that removal would impede your recovery or create a real risk of re-traumatisation meeting the Article 3 threshold”.

With respect to AYA’s claim under Article 8 of the Convention, the Secretary of State stated that AYA had not met the suitability requirements given that he had entered the United Kingdom illegally on a small boat. Furthermore, there were no exceptional circumstances for allowing him to remain in the United Kingdom.

BXY is a national of Yemen, who claims to be 17 years of age. He arrived in the United Kingdom by small boat on 18 October 2025. He claims to have fled his home after his father disappeared and the Houthi militia targeted him for forcible conscription. BXY claims that in 2017 he had been detained, tortured and subjected to forced labour by the Houthi militia.

On arrival in the United Kingdom, BXY was detained. During his detention induction interview, he disclosed experiences in Yemen and Greece which led to him being referred to the NRM. He received a negative Reasonable Grounds decision on 27 October 2025.

Subsequently, in December 2025 and January 2026, his solicitors sought a further referral in connection with experiences in Saudi Arabia and Turkey. On 9 January 2026, the Secretary of State made a further referral to the NRM in relation to the incident in Saudi Arabia. On 14 January 2026, the Secretary of State informed BXY that the referral with respect to Saudi Arabia was a “duplicate” and that it was being treated as a request for reconsideration; this request was refused on the basis that the Guidance does not entitle him to reconsideration.

In the meantime, on 7 January 2026, the Secretary of State decided to treat BXY’s asylum claim as inadmissible and to certify his human rights claim as “clearly unfounded”. The Secretary of State seeks to remove BXY to France.

EXR is a national of Eritrea, who claims to have experienced torture and trafficking in Eritrea, Ethiopia, Belarus and France. He claims to be 17 years old. EXR arrived in the United Kingdom by small boat on 29 September 2025 and was detained. At a Detention Engagement Team induction interview he stated that he had been subject to detention and forced labour in Belarus and in France. He also told the interviewing officer that when he was in Eritrea the authorities tried to subject him to forced conscription; and that when he was in Ethiopia he was detained, tortured and held for ransom.

On 10 October 2025, the Secretary of State made a negative Reasonable Grounds decision. The decision referred to EXR’s experiences in Ethiopia and Belarus, but not to his experiences in Eritrea and France. The latter were referred to the introductory account of EXR’s history, but were not returned to later in the reasoning of the Secretary of State. No findings were made, therefore, as to whether they gave rise to reasonable grounds for believing that the Claimant was a victim of modern slavery.

EXR subsequently obtained legal representation, and his solicitors asked for the decision to be reconsidered. This was refused on the basis that he was to be removed to a country that is a signatory to ECAT and the Convention. A further request was made for EXR to be referred to the NRM in respect of his experiences in Eritrea and France which had not been considered as part of the negative decision. On 14 November 2025, the Secretary of State notified EXR that

“As an NRM referral and decision have previously been completed in relation to your client, and the newly submitted information concerns incidents predating the NRM referral noted above, this matter falls within the scope of the reconsideration process.”

Given the amendment to the Guidance, the effect of this decision was that there would be no decision made with respect to those incidents.

On 9 December 2025, the Secretary of State declared EXR’s asylum claim inadmissible, and refused his human rights claim, certifying that there was no in-country right of appeal.

Ms Naik KC, who appeared on behalf of BXY and AYA, contended that there was a serious issue to be tried that the Secretary of State had acted unlawfully in amending the Guidance to remove the right to reconsideration for individuals who were intended to be removed to France. Ms Naik KC submitted that it was implicit in the statutory scheme that there must be an identification process and this includes reconsideration of a negative reasonable grounds decision.

Ms Luh, who appeared for EXR, contended that the right to reconsideration was a necessary feature of the statutory scheme. There was a statutory duty to identify correctly potential victims of trafficking. That was reflected in section 49 of the 2015 Act, which implements Article 10 of ECAT. Ms Luh acknowledged that the process of identification did not have to be infallible. However, the United Kingdom was positively required to set up a process that was capable of achieving correct identification, and the requirement for reconsideration was the means by which the United Kingdom sought to ensure correct identification. This administrative process was to be preferred to the use of judicial review, which was properly regarded as the remedy of last resort.

Reliance was placed on the judgement of Sir Stephen Silber in R(SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), a case that pre-dated the 2015 Act. Sir Stephen Silber referred at [99] to the Explanatory Report to ECAT which states, in relation to Article 10, that “Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights”. At [100], Sir Stephen Silber stated that:

“If the failure to identify a trafficking victim correctly is a breach of his or her fundamental rights, then another fundamental right is her or her right to have his or her claim properly investigated. In consequence, a failure to consider fairly and properly whether a person has been trafficked must also be a breach of his or her fundamental rights bearing in mind the significance of the rights granted to a person held to be trafficked . . . ”

Ms Naik KC submitted that there was a serious issue to be tried that the decision of the Secretary of State to remove the right to reconsideration contravened the Tameside duty of inquiry. Before making a policy decision of this kind, the Secretary of State needed to make reasonable inquiries as to the decision’s likely impact on those affected: (i) there should have been inquiries as to the proportion of negative decisions which are reversed following reconsideration; (ii) there should have been inquiries as to the extent to which the countries where individuals were liable to be removed could be expected to identify victims of trafficking properly, and to provide them with the support to which they were entitled under Article 4 of the Convention and Article 12 of ECAT; and (iii) the views of expert organisations should have been sought as to the likely impact of removing the right to reconsideration on those affected.

With respect to the Padfield principle, Ms Naik KC submitted that there was a serious issue to be tried that the Secretary of State had not exercised her power to remove the right to reconsideration in accordance with the statutory purpose of section 49(2) of the 2015 Act. The purpose for which the Guidance is promulgated and then amended by the Secretary of State is to support the effective identification of potential victims of modern slavery, and to set out the assistance and support on offer to them, as part of the United Kingdom’s discharge of its international obligations under ECAT. Instead of acting in furtherance of that purpose, the Secretary of State exercised her discretion to remove the right to reconsideration for a different purpose: to facilitate removals pursuant to the Treaty. Further or alternatively, Ms Naik KC submitted that there was no rational or proportionate connection between the effective identification of victims of modern slavery and the removal of the right to reconsideration for the affected cohort.

Ms Naik KC also contended that there was a serious issue to be tried that the Secretary of State had breached the requirements for a lawful policy, contrary to the principles set out in R(A) v Secretary of State for the Home Department [2021] 1 WLR 3931. The law requires the Secretary of State to consider offering reconsideration of a negative Reasonable Grounds decision where an individual asks her to do so, and she is presented with evidence that reaches the “credible suspicion” threshold. Paragraph 14.216 of the Guidance sends a message to the Secretary of State’s officials, however, that they should not offer reconsideration to individuals in the Treaty cohort: that is, paragraph 14.216 sanctions, authorises or approves the blanket refusal of requests for reconsideration from members of the Treaty cohort which contravenes the non-fettering principle, and will also breach Article 4 of the Convention. Ms Naik KC submits that although in some cases reconsideration is offered, this does not detract from the general message of blanket refusal.

For the Secretary of State, Ms Grange KC submitted that there was no serious issue to be tried that the statutory scheme included a right to reconsideration. No such right appeared in ECAT, and it was not necessary for such a right to be included in the domestic regime. Further, the 2015 Act did not itself call for a right to reconsideration.

With respect to the Tameside point, Ms McGahey KC made submissions for the Secretary of State. She acknowledged that no evidence had been put before the Court as to what, if any, inquiries had been made by the Secretary of State before the Guidance was amended. That would be provided in the Summary Grounds in accordance with the timetable for the Common Issues Hearing. For the purposes of the interim hearing, however, it was said that the Secretary of State was entitled to assume that the United Kingdom, which was designated an ECAT Tier 1 country and was a signatory to the Convention, would comply with ECAT and the Convention. Further, that the number of decisions that were corrected by way of reconsideration was low. Whilst 79% of Reasonable Grounds decisions which were reconsidered received a positive outcome in 2025, there were only a small number of reconsideration requests: 865 out of 9,286 negative Reasonable Grounds decisions.

With respect to the Padfield point, Ms McGahey KC submitted that the Secretary of State was entitled to change the process of identification by removing the right to reconsideration for a particular cohort without this running contrary to the purpose of section 49 of the 2015 Act.

With respect to the unlawful policy argument, Ms McGahey KC submitted that the Guidance does not prohibit reconsideration; it only removes the right to such reconsideration for the cohort of individuals being removed to particular countries such as France. Furthermore, the Secretary of State has departed from her policy and reconsidered negative decisions in a number of cases. The discretion to do so in appropriate cases has not, therefore, been removed.

Ms Naik KC submitted that there is a serious issue to be tried that an individual should not be removed until an investigation into their allegations of being trafficked had taken place. This was supported by Ms Luh, who highlighted that the duty under Article 10 of ECAT required the United Kingdon to identify all incidents that make a person a “victim”.

It was a misdirection of law, and a misapplication of the Guidance, to treat further incidents of trafficking as if they needed to be dealt with by “reconsideration”. In any event, the removal of the right to reconsideration for this cohort meant that some allegations of trafficking would not be considered at all. Furthermore, any concerns that individuals might seek to “drip feed” allegations of trafficking could be, and were, adequately controlled by mechanisms in the Guidance for time limits and evidential thresholds.

Ms Luh submitted that EXR’s case illustrated the impact of the way in which the Secretary of State treated the issue of further incidents of trafficking and the removal of the right to reconsideration. In EXR’s case, the referral to the NRM had identified his allegation of being trafficked in Eritrea and France, and yet no decision was made on those allegations. Further, when this was pointed out, the Secretary of State refused to look at the matter again as this was said to fall foul of the amended Guidance that there would be no reconsideration of trafficking claims for those being removed to France. Ms Luh contended that judicial review from France would not be an appropriate remedy as a potential victim of trafficking should not be removed until a decision had been made about each alleged incident of trafficking.

These submissions were resisted by the Secretary of State. There was no requirement that all allegations of trafficking should be considered, whenever the allegations were made.

Ms McGahey KC submitted that new claims of trafficking were not dealt with expressly in the Guidance. At paragraph 14.45 of the Guidance, caseworkers are required to look at duplicate or existing claims. It is sensible for the caseworker to check whether an individual’s trafficking claim has already been considered, and whether the new matter was the same claim or was linked to the existing claim. If the claim had been determined, then it will go into the reconsideration process. Where reconsideration has been removed, a challenge to a decision to refuse to consider new trafficking claims can be made by way of judicial review.

The situation for trafficking victims who it was intended to remove to France was dealt with on a “macro” or general basis by Ms Naik KC and Ms Luh. Ms Naik KC also made specific submissions with respect to the circumstances of AYA.

On a “macro” or general level, Ms Naik KC and Ms Luh submitted that removal to France would mean that potential victims of trafficking, as well these who were conclusively found to have been victims of trafficking, would be sent to a country which (i) applied a narrow definition of trafficking which excluded trafficking which occurred outside of France and at the hands of non-French nationals; and (ii) did not provide bespoke support for potential victims of trafficking that fell outside of the French definition of trafficking, and denied them any form of bespoke leave.

Further, it is was submitted that (iii) while returnees will have legal entitlements to healthcare, they are likely to face significant barriers to exercising these entitlements and hence to accessing timely and effective treatment and care. Barriers are particularly significant in the context of mental healthcare; (iv) with respect to accommodation, returnees will have legal entitlements, but these will not be enforceable in the courts. New arrivals and asylum-seekers in France typically face very significant barriers to securing stable or indeed any accommodation, thereby placing them in a highly precarious situation involving very significant risks of homelessness; and (v) only returnees who seek asylum will be entitled to financial support, which is extremely limited and is likely to leave them unable to meet their basic needs without assistance from other sources. The support that was available compared poorly with respect to what was available in the United Kingdom, and their situation was not mitigated by the availability of some support from NGOs.

Ms Naik KC submitted that the concession made by the Secretary of State in AYA’s case - that there was a serious issue to be tried that France could not meet his needs in assisting him in his recovery from any physical or psychological harm arising from the exploitation that, it had conclusively been found, had occurred to him – should be applied generally to all potential victims of trafficking who would be referred to France.

Ms Grange KC, for the Secretary of State, accepted for the purposes of the interim relief hearing that there appears to be a gap in the way in which France identifies victims of trafficking within the meaning of ECAT. Nevertheless, the evidence was that the needs of potential victims of trafficking would be met in France. ECAT does not call for any specific assistance that has to be provided and there was nothing to suggest that there was a risk of re-trafficking in France.

Whilst Ms Grange KC accepted that the systems in France for accessing support are not as straightforward as in the United Kingdom, there are comprehensive support systems for vulnerable persons in France, including those who are or claim to be victims of trafficking. There is an effective system in France for accommodating asylum seekers and those in particular need. It was reasonable to expect that those being returned would claim asylum in France.

Ms Grange KC submitted that the healthcare system in France provides care to undocumented migrants, regardless of whether they claim asylum, including support for those who suffer from PTSD. This includes mobile mental health services which are deployed into areas where undocumented migrants may be located. NGOs provide additional support to that which was available from the French State. This includes identification and support for those whose trafficking would not be recognised under the French criminal code. Ms Grange KC contended that it could not credibly be suggested that Articles 3 or 4 of the Convention would be breached in this case.

On any view, however, France is a safe country. Life and liberty are not threatened there. There is a presumption that Articles 3 and 4 of the Convention will not be contravened if individuals were returned to France and this had not been rebutted by the evidence. Furthermore, under Article 4 of the Convention, the primary operational duty of the French State was to protect an individual from the future risk of re-trafficking, and there was nothing to suggest that would not be done by the French authorities.

Looking at the “macro” or general situation, Ms Naik KC and Ms Luh submitted that removing individuals to a place where there was a lack of appropriate care and support could result in irremediable prejudice in individual cases which could not be undone by bringing them back to the United Kingdom. Indeed, in some cases the returning individuals could be vulnerable to re-trafficking in France given the absence of the necessary support.

Both Ms Naik KC and Ms Luh emphasised that there was a weighty interest in the United Kingdom government adhering to its obligations under the 2015 Act and ECAT, as well as under Article 4 of the Convention; and that this was at least as weighty as any public interest in pursuing the removal policy under the Treaty even put at its highest.

In reality, however, the public interest arguments advanced by the Secretary of State were not weighty: the Secretary of State had not demonstrated that the Treaty was achieving its aims of deterring small boat crossings; the majority of removals did not involve individuals who claimed to be victims of trafficking and so those removals could (subject to any particular circumstances) still go ahead. Furthermore, the Common Issues Hearing would be taking place shortly, and any impact on the Secretary of State’s policy by the grant of interim relief would be short-lived.

For the Secretary of State, Ms Grange KC submitted that the issue of small boat crossings was a very serious one. Reference was made to the fact there had been 70 fatal incidents and 166 people had died in small boat crossings. Specific reference was made to the recent report of Sir Ross Cranston (Report of the Public Inquiry into the events of 23 to 24 November 2021, when over 30 people died attempting to cross the English Channel in a small boat) which called for the practice of small boat crossings to end.

As for whether the policy was having a deterrent effect, Ms Grange KC submitted that it was impossible to say at this stage. However, what could be said was that now was a particularly important time for the policy momentum to be maintained as weather conditions will be improving over the next few weeks and months, and it was likely that there will be more crossings.

Furthermore, under the terms of the Treaty, there was still the availability of judicial review for those who had been removed, and there was an obligation on the United Kingdom government to return individuals to this country who were found to have been wrongly removed. It was realistic to assume that judicial review claims could be pursued from France. Individuals can communicate with their legal representatives by mobile telephones, and there was a dedicated office suite in Paris for persons to make contact with their legal representatives in the United Kingdom.

With respect to AYA’s specific case, Ms Naik KC sought to rely on a report from Dr Syed, a psychiatrist, who had assessed AYA on 3 October 2025. Dr Syed diagnosed AYA as suffering from PTSD and a depressive disorder which was “causally linked to sustained exposure to violence, captivity and present-day detention stressors”.

Dr Syed identified that AYA presented with “a low acute risk of suicide or deliberate self-harm, but a moderate to high chronic vulnerability”. If released into the community, the acute risk would be low, and the chronic risk would decrease to low-moderate with stable accommodation, and interpreter-assisted trauma therapy. If AYA was removed to France, however, the acute risk would elevate during removal and early reception, and the chronic risk would be moderate but higher if accommodation and access to healthcare was limited.

Dr Syed stated that there was a realistic prospect of recovery for AYA if he received adequate psychiatric treatment, therapeutic support (in particular trauma-focused psychological therapy, with 12-20 sessions over 6-12 months once safety and stability were secured), and stability in his living environment. AYA would also benefit from antidepressant medication. Dr Syed also said that AYA was not presently fit to fly until his situation had stabilised and detention-related stressors had been removed.

Ms Naik KC submitted that there was a serious issue to be tried that AYA’s removal to France would breach Article 8 of the Convention on the basis of Dr Syed’s evidence. Furthermore, the Secretary of State has accepted that there is a serious issue to be tried in respect of the refusal to grant VTS leave to AYA. In the circumstances, there was a serious issue to be tried that the Secretary of State had acted unlawfully in certifying AYA’s human rights claim as ‘clearly unfounded’. AYA’s claim could not be said to have no prospect of success, referring to R(AK) v Secretary of State for the Home Department [2009] EWCA Civ 447 at [34]: and ZL and VL v Secretary of State for the Home Department [2003] EWCA Civ 25, at [58].

Further, Ms Naik KC submitted that it would be open to a First-Tier Tribunal to conclude that the Secretary of State was wrong to find that AYA was not entitled to leave to remain as a victim of trafficking on the ground that such leave was in fact ‘necessary for the purpose of: - assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation’ for the purposes of section 65 of the 2022 Act.

Ms Naik KC submitted that the balance of convenience favours the “status quo”: that is, not removing AYA to France pending the rolled-up hearing. First, Ms Naik KC contended that AYA’s underlying claim is strongly arguable. Second, AYA is not likely to receive the support that he requires in France, especially as he will not be identified by the French authorities as having been a victim of trafficking. Third, the Common Issues Hearing is less than 2 months away, and AYA has already been in the United Kingdom for over 6 months. The public interest justification for his removal now pending the imminent final resolution of the issues has waned. Fourth, AYA’s return to France will exacerbate his mental health distress.

The Secretary of State resisted the contention that there was a serious issue to be tried in AYA’s case other than with respect to whether France was capable of meeting AYA’s needs under section 65 of the 2022 Act. Mr Anderson submitted that AYA’s case was not concerned with interference with any Article 8 rights. In any event, whilst AYA had been recognised as a victim of trafficking and had a diagnosis of PTSD, appropriate medical treatment for psychiatric conditions, including PTSD and depression, is available in France, including both pharmacological treatment and therapeutic treatment. It was clear that the French healthcare system provided access to mental health care, including for those suffering from PTSD. During the first three months after an asylum claim, an asylum seeker is entitled to healthcare via the Permanences d’accès aux soins de santé (“PASS”) system, which can include psychiatric care. After 3 months, an applicant is entitled to France’s universal healthcare.

With respect to the balance of convenience in AYA’s specific case, Mr Anderson submitted that the claims brought by AYA were weak. Further, that France has a system where AYA can receive treatment for mental health conditions and can be accommodated if, as expected, he claims asylum.. The risks identified by Dr Syed were not at the high end. Moreover, there was a strong public interest in AYA’s removal.

The test for interim relief in judicial review proceedings will be the modified American Cyanamid principles: is there a serious issue to be tried, and where does the balance of convenience lie?

Dealing first with the “common issues” which may be of assistance to other judges who are dealing with interim relief applications from potential victims of trafficking pending the Common Issues Hearing, I consider that there is a serious issue to be tried that the statutory scheme requires there to be a right to reconsideration.

It is clear that the statutory scheme, consistent with ECAT, requires there to be a process for the identification of trafficking victims: this is explicit in section 49(1)(b) of the 2015 Act which requires the statutory guidance to include “arrangements for determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking”. Furthermore, it is clearly arguable that the process for identification needs to be robust, given the accepted consequences for those who are victims of trafficking.

Nevertheless, what the process for identification consists of is not prescribed by ECAT. Rather, ECAT leaves it open to the various parties to the treaty to work out for themselves an appropriate mechanism for identification. This could include a process of administrative reconsideration, but it is difficult to see why that has to be called for.

In the circumstances, I consider that the argument about the right to reconsideration is not a strong one, and should not feature heavily in the balance of convenience for applicants at an interim relief hearing.

I consider that there is a serious issued to be tried that the removal of the right to reconsideration was carried out in breach of the Tameside principle. It is, in my judgment, strongly arguable that before the Secretary of State changed the Guidance she was under the Tameside duty. The amendment to the Guidance was a significant policy change which would impact on a sizeable number of individuals and so it could reasonably be expected that investigations or inquiry would be undertaken by the Secretary of State before the change was made.

What investigations or inquiry needed to be undertaken by the Secretary of State are primarily a matter for her, subject to public law supervision. At present, there is no evidence as to what, if any, investigations or inquiry were conducted by the Secretary of State. Accordingly, I cannot say at this stage whether the Secretary of State will be able to satisfy the Court at the substantive hearing of the application for judicial review that her Tameside duty was lawfully discharged. I am also not in a position to assess whether the test under section 31(2A) of the Senior Courts Act 1981 will be made out at the Common Issues Hearing.

In the circumstances, I am not able to say at this stage that the Tameside argument will be a strong one at the Common Issues Hearing as the evidence is not yet available from the Secretary of State, and so this argument should not weigh heavily in the balance of convenience in favour of applicants at an interim relief hearing.

The same applies to the argument based on the Padfield duty. I consider that the serious issue to be tried test is made out. Whether or not this will succeed is also not possible to assess at this stage in the absence of evidence as to the decision-making process of the Secretary of State. Whilst it appears that the amendment to the Guidance was made to facilitate the removal mechanism under the Treaty, and in circumstances where the Secretary of State might have been under the impression that France’s approach to identifying trafficking victims was broadly similar to that of the United Kingdom, the full facts will need to be established at the substantive hearing of the application for judicial review. In the circumstances, I cannot say at this stage that this argument is a strong one and should weigh heavily in the balance of convenience in favour of applicants at an interim relief hearing.

I also consider that there is a serious issue to be tried that the amendment to the Guidance sanctions, authorises or approves the blanket refusal of requests for reconsideration. I do not consider, however, that this is a strong argument and so should not weigh heavily in the balance of convenience in favour of applicants for interim relief. The argument is to a large extent dependent on whether there is a right to reconsideration. If there is no such right then it is difficult to see how paragraph 14.216 of the Guidance constitutes an unlawful policy, especially where (as I am told) reconsideration decisions are taken in exceptional circumstances

As for the victim identification issue, I consider that there is a serious issue to be tried that the Secretary of State’s approach of refusing to make Reasonable Grounds decisions on incidents of trafficking that pre-date a prior negative reasonable grounds decision is unlawful. The strength of this ground depends on the particular circumstances in which the refusal to make a decision may arise.

Where, for instance, there has been a referral into the NRM of a series of trafficking allegations but a decision is reached on only some of those allegations, it seems to me that there is quite a strong claim that the Secretary of State has acted unlawfully if she refuses to make a decision on the other allegations when the omission is pointed out to her. This omission is likely to run counter to the obligation to identify trafficking victims which is required by the statutory scheme, and there is no obvious reason for cutting down or refining the scope of that obligation even where individuals are removed to France (or other parties to ECAT and the Convention). The strength of the claim will be affected by the cogency of the allegations of trafficking that the Secretary of State omitted to consider. At an interim relief hearing, the Court will wish to consider, for instance, whether a seriously arguable claim for trafficking was made out, or whether the allegations of trafficking were fanciful or were not capable of constituting a proper claim of trafficking.

This may be distinguished from the situation where a decision has been made on the various allegations that have been referred into the NRM, and then some considerable time later further allegations of trafficking which pre-date the initial alleged incidents are relied upon. There is a good argument to be made, it seems to me, that the Secretary of State is entitled to take a different approach to respond to the drip-feeding of allegations, especially where there is a concern that this being done cynically to prolong an individual’s stay in the United Kingdom when they would otherwise be removed.

As for whether the needs of trafficking victims can be met in France, this will be a factor that needs to be weighed up as part of the balance of convenience, as it impacts on what, if any prejudice, will be suffered by the individual removed to France pending the outcome of their judicial review claim and their potential return to the United Kingdom under the terms of the Treaty.

There has been considerable evidence presented to the Court: witness statements or expert reports from Dr Christophe Pouly, Aisse Cisse, Professor Nichola Khan, Dr Katsiaryna Kananovich, Francois Zimeray and Jodie Spencer (a solicitor at Duncan Lewis). It is not appropriate to make definitive findings on that evidence for the purposes of an interim relief hearing, especially where the Common Issues Hearing is due to take place in less than two months. It is possible, however, to set out a number of propositions, as these may be of assistance to judges considering applications for interim relief in the meantime:

Taking into account these propositions and the submissions made by the parties, on the basis of the evidence currently before the Court, I can say that the French healthcare system is complex, and returnees will have different sets of legal entitlements at different points in their stay. I accept for the purposes of this application for interim relief that, in general, returnees are likely to face some barriers to exercising their entitlements, especially if they require interpretation services, and will not find it easy to access timely and effective treatment and care, especially mental health treatment and care.

With respect to accommodation, the inference that I draw is that this is available for those returnees who are claiming asylum. That is the requirement under French law, and chimes with the experience (albeit the sample size is extremely small) of Ms Spencer’s clients who have been returned to France under the Treaty. A Court considering these claims will ordinarily expect the returnee to claim asylum. That is what they have sought to do in the United Kingdom and, unless there are very specific and cogent reasons for why they could not be expected to do so in France, they will be expected to claim asylum there.

If they do claim asylum, then the returnee will also be entitled to some limited funding which, it appears, can be supplemented by NGOs. The financial support provided is meagre but is broadly aligned to asylum support rates in the United Kingdom which is set at £49.18 per week, or £9.95 if meals are provided in the asylum accommodation.

As for the balance of convenience, I consider that in most cases the public interest in the Secretary of State being entitled to further her policy of seeking to deter small boat crossings by, among other things, removing persons to France under the Treaty will outweigh the interests of those seeking interim relief to prevent their removal.

In this regard, I place reliance on the judgment of Singh LJ and Chamberlain J in R (FTDI Holding Ltd) v Chancellor of the Duchy of Lancaster [2025] EWHC 241 (Admin) (“FTDI”), where they observed at [17] that:

“[the] special feature of such cases is that, other things being equal, it is likely to be in the public interest to allow a defendant public authority to enforce the law (as it understands it), or exercise powers in what it considers to be a lawful matter. The weight to be accorded to this public interest will vary from context to context, but may be considerable. In many cases, the claimant would need to point to something very compelling to outweigh it. In deciding whether a claimant has done so, the court will consider both the prima facie strength of the claim and the gravity of the consequences that would follow if interim relief were not granted.”

In the instant case, the Secretary of State is seeking to further a policy which falls within her immigration law powers, and which has specifically been formalised through an international treaty. The underlying policy reasons for the Treaty are undeniably strong. As I observed in R(SKG) v Secretary of State for the Home Department [2025] EWHC 2602 (Admin) at [55],

“there is a powerful public interest in permitting the Secretary of State to implement her policy, as reflected in the Agreement, having regard to the danger arising from unsafe crossings. One of the purposes of the Agreement is to disrupt the business model of those who are arranging and facilitating the journeys by small boat and to provide a deterrent as a way of gaining entry to this country. The danger that arises from unsafe crossings, which the evidence suggests have been increasing over recent times, is that there is serious risk to life and limb as a result of those crossings.”

I do not consider that there is a strong, let alone equivalent, public interest in ensuring that the Secretary of State complies with the statutory scheme for trafficking as suggested by Ms Naik KC and Ms Luh. As already explained, whilst I consider that there is a serious issue to be tried with respect to the amendment to the Guidance to remove the right to reconsideration, the various arguments do not appear to me to be strong (it is not possible to assess the Tameside and Padfield arguments as strong on the basis of the current evidence).

The exception to this will be those cases that raise the victim identification issue. I consider that the serious issue to be tried is quite strong (and should weigh quite heavily in the balance of convenience) where the Secretary of State has omitted to make a decision on trafficking allegations that were referred into the NRM, and the point is even stronger if the allegations that were not considered by the Secretary of State are persuasive on their face. Whether or not they would outweigh the public interest in removal, and thereby furthering the policy to deter small boat crossings, would then depend on the particular circumstances of the individual concerned: what would the impact be on the individual if they were to be removed; would any hardship or prejudice be remediable if they were to be returned to the United Kingdom if their claim for judicial review succeeded.

Each case will obviously have to be looked at on its merits. However, unless the evidence before the Court is of an individual with a particular vulnerability arising from a health condition (including a mental health condition), the difficulties in accessing healthcare services should not weigh heavily in favour of the applicant the balance of convenience. The Common Issues Hearing is due to take place at the end of April 2026, and a decision as to the lawfulness or otherwise of the Secretary of State’s approach to trafficking will be available shortly thereafter. The Court will need to assess, therefore, the prospects of the individual requiring healthcare that they will not be able to access in that time period and what impact that is likely to have on them, given that there is a prospect that they will be returned to the United Kingdom under the Treaty if their judicial review claim is successful.

As for the specific case of AYA, the Secretary of State has conceded (rightly in my judgment) that there is a serious issue to be tried that the assistance required for his recovery from psychological harm arising from the relevant exploitation was not capable of being met in France, and so he should have been granted limited leave to remain under section 65 of the 2022 Act.

I also consider that there is a serious issue to be tried that the decision to certify AYA’s human rights claim as unfounded is unlawful. The evidence before the Court is that removal of AYA to France could well interfere with his private life, based on Dr Syed’s assessment of him. Whilst that assessment is somewhat dated, the Court has not been provided with evidence to contradict his assessment. If the decision to certify is unlawful, then AYA could not be removed under the terms of the Treaty as his human rights claim would remain outstanding.

In my judgment, the balance of convenience tilts in AYA’s favour. As already explained, I recognise the substantial public interest that the Secretary of State has in pursuing her policy to deter small boat crossings through the operation of the Treaty. That public interest is, however, outweighed by the specific factors in AYA’s case.

AYA is a vulnerable individual who, on his evidence, experienced real difficulties in obtaining support when he was previously in France. I consider that there is a serious risk that the same will apply if he was to be returned to France under the Treaty.

If AYA is returned to France, he will not be recognised by the French authorities as a victim of trafficking within their understanding of ECAT as the trafficking did not take place in France, or at the hands of a French national, or even in the country from where AYA claims he is at risk of persecution. As a result, AYA will not receive any bespoke support for his PTSD as a victim of trafficking.

I do not doubt that if returned to France AYA will be provided with accommodation, as I expect him to claim asylum. I also expect that information about AYA’s mental health condition will also be passed on to the French authorities. Nevertheless, there is real doubt that AYA will be to access the mental health support in France that he requires in the time period before the Common Issues Hearing, given the difficulties in navigating the French health system and the gaps in timely support for those suffering from mental health conditions. Whilst my understanding is that AYA has not yet commenced the trauma work recommended by Dr Syed, I have not been provided with any evidence that it will not, or could not, commence before the rolled-up hearing.

Furthermore, on the basis of Dr Syed’s evidence, AYA is likely to suffer harm to his mental health if he is removed forcibly to France, and if removal is by flight (and I have not been told of other options). If, as may well be the case, AYA does not receive treatment in France, the effect of his removal may not be easily remediable even if he was returned to the United Kingdom promptly after a successful judicial review challenge.

With respect to AYA’s specific case, I grant interim relief restraining his removal pending the outcome of his judicial review claim.