EXC, R (on the application of) v The Secretary of State for the Home Department

Statutory modern-slavery guidance must be understood and followed by the Secretary of State unless there are carefully formulated, reasonable grounds for departing from it. A victim should ordinarily leave the Modern Slavery Victim Care Contract only after a proper recovery-needs assessment, consideration of the victim’s journey, and arrangements for residual support. Immigration detention may change the body providing support, but does not by itself end the entitlement to support or justify treating the victim as having completed that journey. A decision based solely on the victim’s own assessment of re-trafficking risk may also be unlawful where a careful risk assessment is required. Where there is a good arguable case and withdrawal of support risks destitution and serious harm, interim reinstatement may be ordered.

The claimant, an Albanian national and recognised potential and confirmed victim of modern slavery, received support under the Modern Slavery Victim Care Contract. His support was ended by support-provider staff when he entered immigration detention. After release, the Single Competent Authority refused to permit re-entry, relying on the claimant’s stated view that he was not at risk of re-exploitation and the possible availability of support under section 4 of the Immigration Act 1999.

The claimant sought permission to challenge those decisions and interim relief. The central issues were whether he had been lawfully exited from the scheme, whether the guidance permitted termination or refusal of support because of detention or an intended deportation, and whether the re-entry decision was based on an adequate assessment of his needs and risks.

1. Permission and interim relief. Permission to apply for judicial review was granted. The claimant had a good arguable case that he had been unlawfully removed from, and refused re-entry to, the support scheme. Until trial or further order, he was to be treated as entitled to MSVCC support from The Salvation Army.
2. The guidance issued under section 49 of the Modern Slavery Act 2015 was accepted, at least for present purposes, to be statutory guidance. The Secretary of State therefore had a public law duty properly to understand it and, absent carefully formulated reasonable grounds, to give effect to its terms.
3. The guidance contemplated exit only following the relevant recovery-needs assessment and consideration of whether the victim had completed the recovery journey and had alternative support for residual needs. The claimant appeared not to have been exited by the SCA, no proper assessment had been undertaken, and the decision had instead been taken by provider staff.
4. Immigration detention could transfer responsibility for providing support from The Salvation Army to the detention authorities. It did not, without more, terminate the victim’s entitlement or establish that the victim had completed the recovery journey. The guidance also contained no apparent basis for excluding support solely because deportation was contemplated or intended.
5. A refusal based on the claimant’s reported self-assessment of re-trafficking risk was arguably inadequate. The authorities were required to undertake a careful assessment, including appropriate consideration of the claimant’s circumstances and vulnerabilities. The decision-making record also contained inconsistent reasons and no clear assessment connecting the claimant’s needs to his modern-slavery experience.
6. The balance of convenience favoured interim relief. Without support, the claimant faced destitution, loss of specialist support, dispersal from London and deterioration in his mental health. Those risks outweighed the possibility that public funds would be paid pending determination of the claim.