R (AYA & others) v Secretary of State for the Home Department

Judicial review claims were brought by a number of individuals who had arrived in the UK after crossing the Channel in small boats and faced removal, or had been removed, to France under the UK-France Treaty on the Prevention of Dangerous Journeys. Several such claims were heard together by Mr Justice Sheldon. The main common issue in those claims was a challenge to the lawfulness of the Home Secretary's decision to amend the Modern Slavery Statutory Guidance by removing the right to request reconsideration of a negative "reasonable grounds" or "conclusive grounds" decision in cases where the Home Secretary intended to remove the person to a country which is a signatory state to both the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights.

Sheldon J concluded that the removal of the right to request reconsideration was unlawful. Although the Home Secretary had a discretion to decide what arrangements to make for the identification of victims of trafficking, the Modern Slavery Act implicitly required the process of identification to be "robust and effective, even if not perfect". Although ECAT does not necessarily require each Contracting State to provide for a right to reconsideration, it will do so if arrangements are not sufficiently robust and effective without it. The UK's arrangements were not sufficiently robust and effective without a right to seek reconsideration, given that (among other things) initial decisions were made at considerable pace, at a stage when relevant evidence might not yet be available, and individuals were given no opportunity to respond to a provisional conclusion. As a result, a right to request reconsideration was necessary to ensure that decisions were accurate and informed by appropriate evidence. For similar reasons, the removal of the right to request reconsideration was also unlawful as a fettering of discretion, as a breach of the Padfield principle , and as an unlawful policy.

The Court also considered the scope of Article 4 of the European Convention on Human Rights, holding that it does not apply where the trafficking took place outside the territory of the relevant State party (or where the State was aware of circumstances giving rise to a credible suspicion of a real and immediate risk that an individual would be subjected to trafficking if they were removed to a particular foreign country). The Court also made certain findings about the provision available to asylum seekers and victims of trafficking in France.

Sam Grodzinski KC acted for the claimants EXR, HRE and GRP.

Mark Vinall acted for the Home Secretary.

The judgment is available here.