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

A public order disqualification under section 63 of the Nationality and Borders Act 2022 is an exception to the protection normally available to a potential trafficking victim. The decision-maker must apply the power restrictively and on an individual basis. Statutory criteria identify the gateway to the discretion; they do not automatically establish a high threat to public order or create a presumption that disqualification should follow. A potential victim who has received a positive reasonable grounds decision remains entitled to a conclusive grounds decision while in the United Kingdom, even after disqualification, unless removed. A policy of stopping that process is unlawful. A decision based on an unlawful statutory framework, or which fails anxiously to assess general re-trafficking risk and the need for modern slavery support, is also unlawful.

The claimant, a Trinidad and Tobago national and foreign criminal, received positive reasonable grounds decisions concerning alleged trafficking in 2001 and 2024. The Secretary of State then made a public order disqualification decision under section 63 of the Nationality and Borders Act 2022. The decision ended his modern slavery support and protection from removal and stated that no conclusive grounds decision would be made.

He challenged the decision and the broader statutory guidance on four grounds: failure to complete victim identification; unlawful construction and application of the public order disqualification power; irrational assessment of public order, recovery and re-trafficking risks; and breach of Article 4 ECHR.

1. Ground 1 succeeded. Part 5 of the Nationality and Borders Act 2022, construed compatibly with ECAT, imposes an obligation to complete the victim-identification process and make a conclusive grounds decision after a positive reasonable grounds decision. That obligation continues after a public order disqualification while the person remains in the United Kingdom. Removal ends the obligation because a conclusive grounds decision cannot then be made in the United Kingdom.
2. The legislation expressly identifies the consequences of disqualification: removal of the prohibition on removal, removal of the duty to grant limited leave, and cessation of assistance and support under section 50A of the Modern Slavery Act 2015. Stopping the identification process is not an additional statutory consequence. The legislative scheme, including sections 61, 63 and 65, assumes that a conclusive grounds decision may follow disqualification.
3. The Secretary of State’s invariable policy of stopping the process was unlawful. Alternatively, if the Secretary of State retained a discretion not to proceed, the policy unlawfully fettered that discretion. The part of the decision stating that no further victim-identification decision would be made was quashed.
4. Ground 2 succeeded. Section 63 implements Article 13(3) ECAT and must be applied narrowly, restrictively and case by case. Section 63(3) identifies circumstances in which a person is deemed to be a threat to public order. It does not determine that every person within those categories presents a high threat, nor does it create a presumption that disqualification should be imposed.
5. The statutory guidance unlawfully treated persons within section 63(3)(b) or (f) as automatically presenting a high threat and imposed a high bar for modern slavery needs to outweigh public order concerns. This fettered the statutory discretion and created an automatic presumption in favour of disqualification. The relevant parts of the guidance, including paragraph 14.267 and the framework at paragraph 14.275, were unlawful. The decision itself applied those unlawful directions.
6. Ground 3 also succeeded on the alternative basis. The decision irrationally assessed only the risk of re-trafficking by the claimant’s known previous exploiters, rather than his general vulnerability to re-trafficking. It also failed adequately to address evidence that modern slavery support was necessary to mitigate that risk and selectively relied on the psychiatric evidence. The risk of re-trafficking in Trinidad and Tobago was not relevant to the public order disqualification decision itself, because that decision did not directly remove the claimant; the issue could arise on a later removal decision.
7. Ground 4 was dismissed. The claimant had not established a distinct breach of Article 4 ECHR. The court made no final order on relief and directed that the parties be heard on the appropriate orders and consequential matters.