BVN (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

A statutory policy is unlawful only where it authorises, approves or presents a direction which contradicts the law, or materially misstates the legal position. The duty to provide informed consent to services under the European Convention Against Trafficking does not require a potential victim to receive fresh advice before withdrawing from the National Referral Mechanism. Article 4 of the European Convention on Human Rights may require officials to consider whether further steps are appropriate when a potential victim wishes to withdraw, but it does not mandate a particular warning or procedure in every case. Where the High Court grants conditional bail under its inherent jurisdiction, the Secretary of State cannot impose an additional condition restricting the liberty granted. Any variation must be sought from the court.

The claimant, a Vietnamese national and potential victim of trafficking, challenged statutory guidance issued under section 49 of the Modern Slavery Act 2015. He argued that the guidance unlawfully permitted withdrawal from the National Referral Mechanism without informed consent and that his removal-related decisions were consequently unlawful.

He also challenged a weekly reporting condition imposed by the Secretary of State after a Deputy High Court Judge had granted him conditional bail without imposing that condition. By the time of the substantive hearing both issues were technically academic, but the court considered them because they raised matters of public importance and recurring legal significance.

1. First ground dismissed. The guidance was not unlawful because it permitted withdrawal from the National Referral Mechanism by written request without expressly requiring further advice.
2. Articles 12.1(d) and 13.2 of the European Convention Against Trafficking require counselling and information during the recovery and reflection period, including information about legal rights and available services, to the extent necessary to assist recovery. They do not require a further, specific counselling exercise whenever a person later decides to withdraw. Adequately informed entry into the mechanism may provide sufficient information for a decision whether to remain.
3. Article 12.7 requires consent to services to be informed. That requirement concerns authorising interventions and services on entry. Withdrawal does not authorise an intervention or commit the person to anything. Once consent is withdrawn, it cannot be treated as continuing merely because the withdrawal was poorly informed.
4. Article 13.1 requires an informed decision about cooperation with competent authorities, but does not require information to be repeated at the point of withdrawal where the guidance adequately provides for information on entry. Article 4 may require officials to consider whether further enquiries or protective steps are appropriate in an individual case, particularly where there is a risk of re-trafficking. It does not impose a generally applicable requirement to give a particular warning or explain the advantages of remaining in the mechanism.
5. The guidance did not misstate the law or mislead officials by omission under the principles in R (A) v SSHD and BF (Eritrea) v SSHD. Nor was it irrational or procedurally unfair.
6. Second ground succeeded. The Deputy High Court Judge’s order was a grant of liberty, qualified only by the conditions imposed. The Secretary of State could not supplement that order by imposing a weekly reporting condition. The proper course was to apply to the High Court for variation. Judgment was therefore given for the claimant and a declaration made on the second ground.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.