AYA & Ors v Secretary of State for the Home Department

At an interim-relief hearing, the court held that it was seriously arguable that the statutory modern-slavery scheme required a process capable of identifying trafficking victims, but ECAT did not itself prescribe administrative reconsideration. Challenges based on the Tameside and Padfield principles, and on unlawful policy, were also seriously arguable, although their strength could not yet be assessed. It was particularly strongly arguable that the Secretary of State acted unlawfully by refusing to decide trafficking allegations referred to the National Referral Mechanism but omitted from an earlier decision. In most cases the public interest in implementing the removal policy would outweigh the claimant’s interests. Interim relief was nevertheless granted to a vulnerable claimant where removal created a serious risk that necessary mental-health treatment would not be accessed before the substantive hearing.

The judgment concerned interim relief applications arising from judicial review challenges by three individuals facing removal to France under the Treaty on the Prevention of Dangerous Journeys. The common issues included the removal of reconsideration rights for negative Reasonable Grounds or Conclusive Grounds decisions, the treatment of further trafficking allegations predating an earlier negative decision, and whether trafficking victims’ needs could be met in France.

The court determined only AYA’s application. BXY’s and EXR’s interim-relief applications were adjourned because they involved disputed age assessments. The central questions were whether there was a serious issue to be tried and, if so, where the balance of convenience lay.

1. Interim-relief test. The modified American Cyanamid principles applied: whether there was a serious issue to be tried and where the balance of convenience lay.
2. Reconsideration. It was seriously arguable that the statutory scheme, consistently with Article 10 of ECAT and section 49(1)(b) of the Modern Slavery Act 2015, required an effective process for identifying trafficking victims. ECAT left the mechanism open, however, and did not necessarily require administrative reconsideration. The reconsideration argument was therefore weak for interim-relief purposes.
3. Public-law challenges. The amendment removing reconsideration for persons intended to be removed to France was seriously arguable under the Tameside duty of inquiry, because it was a significant policy change affecting many people and there was presently no evidence of the inquiries undertaken. A Padfield challenge and an unlawful-policy challenge were also seriously arguable, but their strength could not yet be assessed. None should weigh heavily in the interim balance on the evidence then available.
4. Further trafficking allegations. It was quite strongly arguable that refusing to make a Reasonable Grounds decision on trafficking allegations referred to the NRM, but omitted from an earlier decision, was unlawful. The statutory obligation to identify victims was not obviously reduced merely because removal to France was contemplated. The position could differ where all referred allegations had been decided and substantially later allegations were advanced, particularly where there was a concern about cynical drip-feeding.
5. France and the balance of convenience. France provided legal entitlements to accommodation and healthcare for asylum seekers, but access to healthcare, especially mental-health treatment, could involve significant practical barriers. In most cases the public interest in deterring dangerous small-boat crossings and implementing the Treaty would prevail. AYA was an exception. The Secretary of State had conceded, correctly, that there was a serious issue as to whether France could meet his recovery needs for the purposes of section 65 of the Nationality and Borders Act 2022. There was also a serious issue as to the lawfulness of certifying his human-rights claim as clearly unfounded. Given his vulnerability, prior difficulties obtaining support in France and the risk of deterioration without timely treatment, the balance favoured interim relief.
6. AYA’s removal was restrained pending determination of his judicial review claim.

The judgment was a first-instance interim-relief decision. Chamberlain J had directed a rolled-up Common Issues Hearing and a Joint Interim Relief Hearing. BXY’s and EXR’s applications were to be heard separately because of disputed age assessments. AYA’s removal was restrained pending determination of his judicial review claim.