Trafficking ‘Public Order Disqualification’ withdrawn following High Court grant of permission and interim relief ordering the Home Secretary to provide support to a victim of modern slavery

R (on the application of ISX (Bangladesh)) v Secretary of State for the Home Department [2024] EWHC 2757 (Admin)

Camila Zapata Besso represented ISX in his judicial review challenge to the decision of the Secretary of State for the Home Department (‘SSHD’) to impose a Public Order Disqualification (‘POD’) under section 63 of the Nationality and Borders Act 2022, against his entitlement to support as a potential victim of trafficking under section 50A of the Modern Slavery Act 2015. 

ISX is an extremely mentally vulnerable asylum seeker suffering from PTSD, depression, Attention Deficit Hyperactivity Disorder and an Emotionally Unstable Personality Disorder, with an acute history of self-harm. He was imprisoned for a drugs-related conviction in spring 2023. In December 2023, while he was detained under immigration powers, the SSHD acting as the Competent Authority accepted that there were ‘reasonable grounds’ to suspect that he had been trafficked and exploited by a local drugs gang in the period leading up to his conviction. He was subsequently released from detention on High Court bail, and supported and accommodated by the National Referral Mechanism ('NRM') under the Modern Slavery Victim Care Contract (‘MSVCC’). Professionals supporting ISX, including his MSVCC support worker and a consultant psychiatrist, were of the view that this support played a ‘crucial lifeline’ in his journey towards recovery, safeguarding his mental wellbeing and protecting him from being re-trafficked.  

However, on 9 May 2024 the SSHD decided to impose a POD on ISX, due to his previous offending. The effect of the POD was to disqualify ISX from NRM decision-making, protection and support. That immediately terminated the safeguarding, advice, material assistance and psychological support that ISX would otherwise be entitled to, and which he desperately needed.  

The SSHD’s published policy provided that a POD decision cannot be made if a trafficked victim’s need for modern slavery support outweighs the threat they pose to public order, but even if it does, a POD cannot be made if there would be a real and immediate risk of re-trafficking at the point that support is withdrawn. The POD decision recognised that ISX’s modern slavery recovery needs were ‘high’ because of his severe mental health issues, which were directly linked to his exploitation, however it found that those needs were outweighed by his threat to public order. 

ISX challenged the POD decision on the basis that the SSHD had disregarded professional evidence demonstrating that: (i) his threat to public order was lower, including because his most recent offending was bound up with his exploitation, and was committed outside the context of him being subject to modern slavery protections; (ii) he was still living in fear of his traffickers’ debt bondage and had acute mental health needs which hindered his ability to access the support and treatment he required to recover from his trafficking experiences; (iii) those needs could not be met by asylum accommodation and NHS entitlement alone, without MSVCC support, and (iv) MSVCC support was necessary for him to comply with treatment, stay away from the traffickers, rebuild his life free from exploitation, and avoid the risk of re-trafficking. All of that, ISX argued, was unlawful and in violation of his fundamental rights under Article 4 ECHR. 

ISX’s claim was accompanied by an application for urgent interim relief, which was granted by the Administrative Court pending an interim relief hearing. At a hearing in September 2024, the Court made a final interim relief order mandating the SSHD to restore and continue the package of support provided to ISX under the MSVCC, until the final resolution of the claim. The Court found that there was a serious issue to be tried in respect of each of the four grounds of challenge pursued by ISX, and that the balance of convenience lay in his favour. The judgment can be found on Westlaw (neutral citation [2024] EWHC 2757 (Admin)). 

The Court also found the grounds to be arguable, and granted permission for judicial review. The SSHD subsequently agreed to settle the claim by withdrawing the POD decision. Therefore, the NRM's consideration of ISX's trafficking claim will continue, as will his modern slavery support.

Camila Zapata Besso was instructed by Jamie Bell and Elleanor Wilkins-Bell of Duncan Lewis. 

For more information about Doughty Street’s Anti-trafficking team see here.