Home Secretary acted unlawfully by denying victims of trafficking an effective process for identification and support before removal to France
- In a landmark ruling about the Government’s flagship “one-in-one-out” policy of removing asylum seekers to France, the High Court ruled that the Home Office acted unlawfully by removing the right of potential victims of human trafficking to request reconsideration of negative trafficking decisions before removal to France. The ruling applies to removals to other signatories to the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). The removal of the right to request reconsideration was unlawful because it significantly reduced the effectiveness of the UK's trafficking identification regime, denied decision-makers access to potentially decisive evidence, and undermined the statutory purpose of protecting victims of modern slavery and human trafficking.
- The Judgment reaffirms that the UK’s obligations to identify trafficking victims cannot be diluted for administrative convenience or to facilitate removals. It confirms that where an identification system relies on rapid decision-making and lacks extensive procedural safeguards, a meaningful reconsideration process may be essential to ensuring victims are identified correctly.
- Shu Shin Luh, Agata Patyna, Grace Capel, acted for EXR, GIP, HRE, and Catherine Meredith acted for AYA, four of the five Lead Claimants. All suffered incidents of human trafficking and torture and who were subject to removal to France under the UK-France Treaty, which entered into force on 6 August 2025. AYA was subsequently found conclusively to be trafficked but was refused temporary leave as a victim of trafficking. The five Lead Claimants were EXR, GIP, HRE, AYA and KAG.
About the case
- The challenge concerned a policy introduced for individuals facing removal under Operation Hillmore by amendment of the Modern Slavery Act Statutory Guidance (‘the statutory guidance’). The policy prevented those who received negative “reasonable grounds” or “conclusive grounds” decisions from requesting reconsideration, even where new evidence emerged casting doubt on the original decision.
- In AYA’s case, the Court had to consider issues of principle on the grant or otherwise of leave to remain to victims of trafficking with a positive Conclusive Grounds decision. This required the Court to make findings on “How France treats trafficking victims”.
- In the cases of EXR, GIP and HRE, the Home Secretary made a negative trafficking decision, which the Claimant challenged for being legally and factually flawed. They sought to exercise the right that victims have to request the correctness of the decision reconsidered because of those flaws and in the light of relevant fresh evidence casting doubt on the decision. However, their request was rejected by the Home Secretary because of an amendment that she introduced to the statutory guidance on 17 September 2025, which removed the right of reconsideration from victims of trafficking who were proposed for removal to a signatory state to the ECAT and the European Convention of Human Rights (the “ECHR”).
- The Claimants argued that the Home Secretary breached section 49 of the Modern Slavery Act 2015, and the UK’s obligations under ECAT in amending the statutory guidance to remove the right to request reconsideration from this group of victims of trafficking. Their challenge was heard before Mr Justice Sheldon at the end of April 2026.
- In a comprehensive judgment handed down today, Mr. Justice Sheldon found in favour of these Claimants and found that the arrangements made by the Home Secretary which instructed decision-makers to disregard relevant evidence and representations about the correctness of trafficking decisions were unlawful and deprived victims of a robust and effective process for victim identification.
Why the Policy Was Unlawful
(1) Undermining of UK’s statutory victim identification system
- The Court held that the Home Secretary's power under section 49 of the Modern Slavery Act 2015 to set arrangements for identifying victims of trafficking must be exercised consistently with the UK’s obligations under ECAT, which the legislation was designed to implement.
- While ECAT does not expressly require a reconsideration process, the Court held that both ECAT and the Modern Slavery Act require an identification system that is robust and effective, because identification is the gateway to vital protections and support for trafficking victims. The judgment emphasised that trafficking victims often face significant barriers to disclosure. Many are interviewed shortly after traumatic journeys, may suffer from trauma-related memory difficulties, and frequently disclose important evidence only after initial decisions have been made.
- The Court found that removing the right to request reconsideration prevented decision-makers from considering new evidence that could demonstrate that a person was in fact a victim of trafficking. This effectively created an “institutional disregard” for relevant evidence that may emerge after an initial decision, including medical reports, detention centre reports, expert evidence and material explaining inconsistencies caused by trauma. Victims may not, as a result, be identified at all or properly. In reaching its conclusion, the Court relied on Home Office statistics showing that reconsideration frequently corrected erroneous decisions. In 2025, 79% of negative reasonable grounds decisions and 77% of negative conclusive grounds decisions that were reconsidered were overturned and changed to positive decisions.
- Given the pace at which initial decisions are often made and the significant number of negative decisions later overturned on reconsideration, the Court concluded that a system which prevents decision-makers from considering such evidence cannot be regarded as an effective mechanism for identifying victims of trafficking, and that was inconsistent with section 49 of the Modern Slavery Act and the ECAT obligations which that statutory scheme was intended to fulfil.
Fettering of Discretion
- The Court further found that the policy unlawfully restricted the Home Secretary’s discretion to reconsider decisions and fettered the Home Secretary’s duty to identify trafficking victims. Although the Home Office argued that a residual power to reconsider remained, the evidence showed that reconsideration generally occurred only in exceptional circumstances, often when litigation was threatened.
Breach of Padfield Principle
- The Court also found that the policy breached the Padfield principle, which requires statutory powers to be exercised consistently with the purpose for which Parliament conferred them. The purpose of section 49 of the Modern Slavery Act 2015 is to ensure the effective identification and protection of trafficking victims. By reducing the effectiveness of that identification process, the policy frustrated, rather than furthered, Parliament’s purpose.
Unlawful in breach of R (A) v SSHD
- The Court additionally found that the amended guidance to be unlawful under the principles established by the Supreme Court in R (A) v Secretary of State for the Home Department. The guidance was intended to be followed by Home Office decision-makers and directed them not to reconsider trafficking decisions for individuals facing removal to France. Because the Court had already found that those cases should, in appropriate circumstances, be reconsidered where new evidence emerged, the policy effectively instructed officials to act unlawfully. As a result, the guidance itself was unlawful because it induced decision-makers to apply an unlawful approach to trafficking claims.
Other findings
In respect of the situation in France, the Court accepted that France does not officially or formally recognise victims of trafficking under the penal code unless the trafficking would an amount to an offence, because they have been trafficked in France, or by a French national.
As well, individual findings were made on (i) the lawfulness of each Claimant’s decisions on trafficking, asylum inadmissibility on safe third country grounds, and certification of the human rights claims; and (ii) the territorial scope of Article 4 ECHR.
In AYA’s individual claim Judge found that the refusal of temporary leave as a victim of trafficking (VTS) was not unlawful as healthcare is generally available to asylum seekers in France (even if AYA would not be formally recognised as a victim of trafficking). Whilst AYA is no longer subject to removal to France after Mr Justice Sheldon granted interim relief in March ([2026] EWHC 552 (Admin)). After that hearing the Defendant conceded that AYA would be dropped out the arrangements by which individuals are removed to France under the Treaty, known as “Operational Hillmore”. AYA’s protection claim will be examined in the UK and reconsideration of VTS is outstanding. AYA’s case was included in the group of cases to potential provide guidance, but in other cases, much will depend on the individual facts.
The terms of the final order and consequential matters, including permission to appeal, have been adjourned to a hearing listed for later this month.
Shu Shin Luh, Agata Patyna and Grace Capel of Doughty Street Chambers’ Immigration and Public Law Teams, acted alongside Sam Grodzinski KC of Blackstone Chambers, David Sellwood of Garden Court Chambers and Jennifer MacLeod of Brick Court. They were instructed by Bindmans LLP for EXR, Deighton Pierce Glynn for GIP and Wilson Solicitors LLP for HRE.
Catherine Meredith, also of Doughty Street Chambers’ Immigration and Public Law Teams, was instructed by Duncan Lewis Solicitors for AYA, alongside Sonali Naik KC, Gordon Lee and Josephine Fathers of Garden Court Chambers.
Duncan Lewis Solicitors also acted for KAG, instructing Sonali Naik KC and James Robottom, Eleanor Mitchell and Jessica Sutton of Matrix Chambers
