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

A public authority proposing to depart from its published policy must have, consider and contemporaneously articulate a good reason for the departure. Where statutory guidance and a lawful specialist decision afford a person 30 days to seek reconsideration, it is strongly arguable that removal which makes that reconsideration unavailable is unlawful unless the departure from the policy is justified.

The prospect of a judicial review from abroad, or removal to a state bound by an international trafficking convention, does not answer that domestic-law claim. On an interim application, the court applies the American Cyanamid approach and may preserve the status quo where there is a serious issue to be tried and the balance of convenience does not favour removal.

CTK, an Eritrean asylum seeker facing removal to France, made a referral under the National Referral Mechanism after instructing solicitors shortly before his scheduled removal. The Competent Authority made a negative reasonable-grounds decision on 16 September 2025. Its decision stated that CTK could request one reconsideration within 30 days on the basis of additional evidence or a concern that the decision departed from guidance.

Sheldon J granted interim relief preventing CTK’s removal. He held that there was a serious issue to be tried concerning the trafficking decision and the Secretary of State’s investigatory duties. The Secretary of State accepted that the Competent Authority would not consider a reconsideration request if CTK had been removed to France. She sought permission to appeal against the interim order.

Disposition

The court refused the Secretary of State permission to appeal. Sheldon J’s interim order was therefore not disturbed.

1. An appeal from a discretionary interim order is confined to error of law, error of principle, or a decision outside the range open to a reasonable judge. The court gave the judge considerable latitude because he had to decide an urgent application after the Competent Authority’s decision was served during the hearing. The applicable approach was that in Hadmor Productions v Hamilton, [1983] AC 191.

2. There was no arguable error in finding a serious issue to be tried. It was common ground that departure from published policy required a good reason, considered and articulated when the departure was made. The Competent Authority had lawfully followed the statutory guidance by offering CTK 30 days to seek reconsideration. The Secretary of State nevertheless insisted on removal which would prevent that process, without identifying a reason for departing from the guidance. It was strongly arguable that she could not repudiate that lawful decision of her specialist officials.

3. Neither ECAT nor Article 4 of the ECHR answered that domestic-law issue. The Secretary of State could not establish that CTK could enforce ECAT in France. Further, judicial review from France was not an equivalent remedy: reconsideration allowed new evidence and a fresh merits decision, whereas judicial review assessed the existing decision on the material then before the decision-maker.

4. The judge was entitled to preserve the status quo under American Cyanamid Co v Ethicon Limited, [1975] AC 396. The balance of convenience was at least evenly poised, and the court considered that CTK’s case could have been treated as markedly stronger because there was no relevant factual dispute. The bilateral treaty with France did not justify displacing the reconsideration opportunity created by the statutory guidance.

5. The requirement that CTK use best endeavours to make reconsideration representations within 14 days was rational. It materially shortened the 30-day period otherwise allowed. The subsequent amendment of the guidance and the likely small number of comparable outstanding cases supplied no other compelling reason to grant permission.

• Court of Appeal (Civil Division) — Refused the Secretary of State permission to appeal and dismissed her application: [2025] EWCA Civ 1264.
• High Court of Justice, King’s Bench Division, Administrative Court — Sheldon J granted urgent interim relief on 16 September 2025 preventing CTK’s removal to France while he sought reconsideration of the negative reasonable-grounds decision.