The Claimant submits that the Defendant’s position (said to be expressly stated in Statutory Guidance §14.242 4th bullet, and in the Decision itself) that the making of a POD decision stops the victim identification (VI) process is a misdirection in law, is unlawful and in breach of Article 4 ECHR and Article 10 ECAT. The Claimant contends that, even where a POD decision has been made, not only is there a discretion, but there is an obligation to proceed to a CG decision in all cases, in any event at least for so long as the individual has not been removed from the UK. The Claimant raises five sub-grounds.

First, as a matter of the plain reading of section 63 and the surrounding provisions in Part 5 of NABA, there is no provision in NABA which provides for VI to stop as a direct consequence of a POD decision. The statutory consequences of a POD decision are expressly spelled out in the legislation, and stopping the VI process is not one of them. Those consequences are: removing the prohibition on removal from the UK (section 63(2)(a)); removing any duty to grant a person limited leave to remain (section 63(2)(b)); and removing the duty to provide assistance during the recovery period (section 50A(5) MSA). The structure of Part 5 of NABA, read as a whole, confirms that Parliament did not intend the cessation of VI to be a legal consequence of a POD decision. In particular section 63(2)(b) assumes the continuation of the VI process; this sub-section only works if a positive CG decision can be made, because the requirement to grant leave under section 65 only applies in such circumstances. Notably, the POD regime applies not only to foreign victims of trafficking, but also to British victims who do not require leave to remain.

Secondly, passages in the Explanatory Notes to Part 5 NABA confirm that Parliament intended to disqualify an RG victim from accessing support for their recovery needs, but not to prevent them from being conclusively identified as a VOT. The Explanatory Notes refer expressly to the intention to implement Article 13(3) ECAT and thus to the three exemptions from protection (described above), but make no reference to the fourth exemption
suggested in the Statutory Guidance §14.242 4th bullet.

Thirdly, section 63 seeks to implement, and is to be construed compatibly with, Article 13(3) ECAT, and ECAT more generally. Article 13(3) makes no reference to VI being stopped on public order grounds. Article 13 as a whole is not concerned with VI, but is concerned with the scope of the state’s obligations to provide victim protection pending identification. The protection obligations (under Article 13(1) and (2)) and the exemption from them (under Article 13(3)) have been implemented in UK primary legislation. Nothing in Article 10(1) or (2) curtails the identification duty, whether on grounds of public order or otherwise. It is thus not a necessary implication of Article 13(3) that if recovery assistance is not provided on public order grounds, the VI duty also automatically ceases.

Fourthly, Parliament’s intention not to cease the VI process in respect of a PVOT subject to a POD is clear from the legislative history to NABA and in particular the removal of such an express provision from the earlier draft NABA Bill. This demonstrates that Parliament intended to “permit” an RG victim subject to a POD to go on to receive a CG decision. When the draft Bill was first introduced in Parliament, Clause 51 did provide expressly that a legal consequence of a POD decision was to cease victim identification to the CG stage. Subsequently in the Parliamentary process this provision was expressly removed and at the same time what became section 63(2)(b) was introduced, and the Secretary of State expressly stated that this assumed that a positive CG decision could still be made. The previous draft Bill and the removal of a provision and the minister’s statement are admissible aids to construction under the rule in Pepper v Hart and other authorities. In oral argument it was made clear that the Claimant limited himself to reliance on the terms of the draft Bill and its subsequent amendment, and the statement of Priti Patel MP, the minister, at the time.

Fifthly, the cessation of victim identification in the present case is incompatible with Article 4 ECHR. The operational duty under Article 4 requires measures to be taken to protect individual victims of trafficking and includes a duty to facilitate the identification of victims by qualified persons. Interpreting section 63 as not only permitting, but requiring, cessation of the VI process upon the making of a POD decision is incompatible with Article 4 ECHR.

In conclusion, as a consequence, because section 63 NABA does not authorise cessation of victim identification on the making of a POD, it is unlawful for the Defendant in the Statutory Guidance to direct decision makers so to do and the Statutory Guidance falls to be quashed. Further, in the case of the Claimant, it was unlawful for the Defendant to cease victim identification in respect of each of his two episodes of trafficking in 2001 and 2024 and there should be a mandatory order requiring the Defendant to make a CG decision in respect of each of those episodes.

The Defendant submits that, once a POD decision is made, there is no obligation to complete the VI process and it is lawful to stop that process. To require a CG decision would risk defeating the purpose of a POD of enabling removal of the PVOT as soon as reasonably practicable and, on any view, there can be no such obligation where an individual is no longer present in the UK. It is lawful and consistent with NABA, ECAT and Article 4 ECHR for the Defendant not to make a CG decision in respect of individuals who have received a POD decision. Thus, the Statutory Guidance is not unlawful and it was, and is, lawful for the Defendant not to make a CG decision in respect of the Claimant.

First, as regards the plain reading of section 63, NABA does not expressly provide for the removal of the obligation to make a CG decision. But it does not follow that Parliament intended the Defendant to be under a mandatory obligation to make such a decision in circumstances where (i) there is no obligation to do so under ECAT (ii) the PVOT is deemed a sufficiently high threat to justify immediate removal and before a CG decision is taken and (iii) there is no obligation to grant a person subject to a POD leave to remain if a positive CG decision is taken (section 63(2)(b)). The structure of the provisions in NABA show that Parliament intended for a POD to provide the Defendant with the ability not to complete the investigation for the purpose of CG decisions. There can be no obligation to make a CG decision in respect of individuals who have been lawfully removed, since the UK’s obligations to identify VOTs is limited to persons within its jurisdiction. Moreover, no legitimate purpose is served by continuing with the VI process pending removal. Even if a CG decision is issued, the POD remains applicable. It is not the case that section 63(2)(b) only makes sense if a positive CG decision can be made in respect of someone subject to a POD. That provision is to enable a POD to apply in relation to someone who already had a CG decision. As regards British citizens, once the POD is applied, section 50A(5) removes entitlement to support and no legitimate purpose is served in continuing to a CG decision.

Secondly, as regards the Explanatory Notes to NABA, since the words of this statute are clear and unambiguous, there is no justification for referring to them. In any event, here the Notes take the Claimant’s case no further. The passages cited are silent as to the effect of a POD on the making of a CG decision. In fact passages in the Notes support the Defendant’s case that the Claimant’s case on Ground 1 would be inconsistent with the stated aims of the legislation, which is to enable removal of serious criminals.

Thirdly, the terms of a treaty must be read together and in their context: Article 31(1) Vienna Convention. It does not follow from the fact that Article 13 ECAT does not address in terms the impact of Article 13(3) on the identification process, that the process provided for in Article 10 must be completed. Article 13(3) provides for removal prior to completion of the investigative process. The Article 10 investigative duty arises “until the identification process as victim of an offence provided for in Article 18 of the Convention has been completed”. It does not require the identification process for the purpose of a CG decision to be completed. The imposition of an obligation to proceed to issue a CG decision before removal would defeat the very purpose of the exemption. The exemption trumps rights of support and protection against removal which an individual might otherwise enjoy. The notion that a state is required to complete the investigative process in relation to a person who has abused the trafficking process would be absurd.

Fourthly, as regards Parliamentary materials, these materials impermissibly breach parliamentary privilege, the rule in Pepper v Hart is not satisfied and in any event they take the Claimant’s case no further. First the evidence amounts to impermissible questioning of proceedings in Parliament. As regards the earlier drafts and the subsequent removal of the express provision, the Claimant seeks to draw an impermissible inference that the reason for its removal is that there is, or was intended to be, an obligation to proceed to make a CG decision. Further the criteria in Pepper v Hart are not met. First, the provision is not ambiguous, obscure nor leads to an absurdity. Secondly there was no statement as to the meaning of the provision by a minister or promoter of the bill. Thirdly none of the statements are clear. As regards the amendment to remove the provision, the case of Kostal UK Ltd v Dunkley [2012] UKSC 47 [2022] 2 All E R 607 at §§26 to 27 suggests that it is not permissible to consider previous versions of the bill. In any event the inference which the Claimant seeks to draw is speculative.

Finally, as regards Article 4 ECHR, the Defendant submits, first that the operational duty under Article 4 does not extend to a duty to facilitate the identification of victims for the purposes of ECAT. The obligations in Article 4 must be construed in the light of ECAT, but they are not co-extensive with those under ECAT, which obligations cannot be read across. Article 4 might require the taking of operational protection measures, including facilitating victim identification, but that obligation must not impose an impossible or disproportionate burden on the authorities. In any event, the obligation does not extend to requiring the VI process to be completed, in particular for purposes other than investigating trafficking offences. The case of VCL v United Kingdom (2021) 73 EHRR 9 was concerned with victim identification in the specific context of prosecution of PVOTs and VOTs. That has no application to the imposition of a POD, which is not akin to a prosecution and conviction. As regards R (TDT Vietnam) v Secretary of State for the Home Department [2018] 1 WLR 4922 there needs to be a future risk of re-trafficking for the Article 4 protection duty to arise. There is no requirement to complete the investigative process in order to provide potential access to benefits outside the NRM process.

The Intervener supports the Claimant’s case. It submits that section 63 NABA purports to implement Article 13(3). Parliament therefore intended to legislate compatibly with ECAT. The Statutory Guidance under section 49 MSA providing guidance on how to apply NABA must intend to do the same.

Article 13(3) only provides an exception from Article 12(1) and (2), and not from Article 10. The Intervener relies on the UN Special Rapporteurs on Trafficking in Persons joint letter 5 November 2021 to the United Kingdom and the letter dated 7 September 2021 from the Independent Anti-Slavery Commissioner to the Defendant during pre-legislative scrutiny of NABA. Nothing in the plain text of Article 13(3) suggests that victim identification could be halted on public order grounds. Article 10(2) refers to the provision of assistance provided for in Article 12(1) and (2) to an individual in respect of whom there are RGs and their non-removal. It is not a necessary implication of Article 13(3) that if a recovery period is not provided to an individual on public order grounds, the identification process also ceases. Once an individual is removed there is no obligation to continue the identification process. But this does not justify the halting of that process whilst the individual remains in the UK. The UK legislation does not provide a statutory exception to the completion of the victim identification. Indeed the removal of such an exception from the draft legislation was a strong indicator that Parliament intended victim identification to continue in respect of those subject to a POD decision in compliance with ECAT. Further the continuation of the identification process also explains the basis for section 63(2)(b) which only applies if a CG decision is made.

The Intervener then set out in its written submissions the practical ramifications of excluding individuals from completing the identification process and from obtaining a positive CG decision following the imposition of a POD decision. The Intervener refers to an “unrecognised VOT” as someone who actually has been a victim of trafficking, but who has not been able to proceed to a CG decision; in other words someone who would get a CG decision if the process was completed. In his first witness statement, Mr Fookes identified the following seven such consequences for “unrecognised VOTs”.

In oral and written submissions on behalf of the Speaker, Ms Hannett KC drew to the Court’s attention the relevant principles relating to parliamentary privilege and the application of the exception in Pepper v Hart. In relation to the latter she emphasised a number of points of principle concerning the admissibility of extracts from Parliamentary debates and in particular ministerial statements. First, the satisfaction of the three Pepper v Hart criteria is a threshold or gateway question. Secondly, the threshold for concluding that a provision is ambiguous is comparatively high. Thirdly, Lord Browne-Wilkinson expressed doubt that a statement made by a member of the legislature other than a minister or sponsor would be admissible. Fourthly, preventing the Executive seeking to place a meaning on words different from that attributed when they presented the legislation to Parliament is not a separate or distinct test to be applied to the three criteria.

As regards amendments to a bill, Ms Hannett contended that evidence concerning the passage of a bill through Parliament including, though not limited to, amendments, amounts to parliamentary material which is only admissible when the conditions in Pepper v Hart are met. Establishing the reason for an amendment will almost certainly require extensive examination of statements to Parliament in a way that will introduce “impeaching and questioning” and the reason may not be expressly articulated in the Parliamentary debates. The Speaker drew to the Court’s attention cases where the Court has not expressly applied the Pepper v Hart criteria when considering the legislative history: Mazhar v Lord Chancellor [2020] 2 WLR 541 at §§47 and 68; and Kostal UK Ltd v Dunkley, supra.

The Speaker’s primary position was that the amendment evidence and the other evidence relating to the legislative history of the bill comprises Parliamentary materials which are inadmissible unless the court concludes that the Pepper v Hart criteria are met. In oral submissions, Ms Hannett submitted that, if the reason for the amendment is relied upon, this is admissible only if it falls within one of the circumstances in which reference may be made to proceedings in Parliament as summarised in R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §158.

There has been some confusion in the parties’ respective cases on Ground 1. In particular, initially it appeared that the Claimant’s case is that it is the cessation of victim identification upon the making of a POD decision in practice which is unlawful i.e. that, even if there is a discretion to proceed to a CG decision, it is the Defendant’s practice of not ever doing so which is challenged. Whilst that contention is central to some of his argument, by the close, the Claimant made clear that he contends that, after a POD is made, there is an obligation to proceed to a CG decision for so long as the individual remains in the UK and is not removed. The Claimant accepts that if the individual is removed, there is no longer any such obligation. In response the Defendant’s position is that, once a POD is made, there is no obligation to proceed to a CG decision, although there remains a discretion to do so. The Claimant’s characterisation of the Defendant’s position that under the Statutory Guidance the VI process must stop is strictly inaccurate. However the Defendant accepts that, as a matter of policy and practice, once a POD is made, the Defendant does not proceed to a CG decision and stops the VI process. There are thus two issues. Upon the making of a POD decision and during any period prior to removal:

I address compendiously, the Claimant’s first three submissions on Ground 1: construction of section 63, Explanatory Notes to Part 5 NABA and compatibility with ECAT.

In my judgment, the first and key issue is whether, regardless of any POD decision, there is a statutory obligation (imposed by NABA, in conjunction with ECAT) upon the Defendant to complete the VI process and proceed to a CG decision, once an RG decision has been made.

Secondly, if there is such an obligation, did Parliament remove or restrict that obligation, in circumstances where a POD is made under section 63?

If such an obligation is required by ECAT or NABA, then is there anything in section 63(3) or in any other provision of NABA which removes or limits that obligation where a POD is made? On the other hand, if any obligation to proceed to a CG decision is not required by ECAT or NABA, but is to be found, if at all, in the Statutory Guidance (as a matter of policy of the Defendant), then can that obligation be removed by the Statutory Guidance (as indeed §14.242 4th bullet of the Statutory Guidance purports to do)?

In my judgment Part 5 of NABA and section 63(3) are to be construed compatibly with (and in order to give effect to) ECAT generally and Article 13(3) in particular. It is clear that the NRM (including now NABA and the Statutory Guidance) is, and has always been, intended to fulfil the UK’s obligations under Articles 10, 12 and 13 ECAT: MS (Pakistan) v Secretary of State for the Home Department [2020] 1 WLR 1373 SCat §20. I refer to the Explanatory Note to MSA §235 in relation to the original version of section 49 MSA and the purpose of the Statutory Guidance; and to the Explanatory Notes to Part 5 of NABA: §§594 (in relation to the amendments to section 49 and 50 MSA); §§601 and 603 (in relation section 61 NABA); §§ 613, 615 (in relation to section 63 NABA) and §§622 and 624 (in relation to section 50A MSA). An Explanatory Note to an Act of Parliament is always admissible as an aid to construction of the statute, in so far as it casts light on the objective setting or context of the statute and the mischief to which it is aimed; there is no need to establish ambiguity, before taking the Explanatory Note into account: R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 at §§1 to 6. It follows that NABA must be construed compatibly with ECAT.

The Statutory Guidance itself implements the UK’s obligations under ECAT. Prior to the MSA (and Part 5 of NABA), ECAT was implemented wholly through the Government’s NRM policy without statutory backing. Following the introduction of primary legislation, the position nevertheless remains that ECAT is implemented, at least in part, through the Statutory Guidance: see Explanatory Notes to Part 5 of NABA §§603 and 624 (and also §235 Explanatory Note to MSA). The Statutory Guidance is to be construed so as to comply with ECAT and it is an error of law if the Statutory Guidance does not reflect the requirements of ECAT: MS Pakistan §20 and more recently, R (Alnoor) v Secretary of State for the Home Department [2025] EWHC 922 (Admin) at §2. The Statutory Guidance must be construed so far as possible to give effect to the UK’s obligations under ECAT: see R(MN and IXU) v Secretary of State for the Home Department [2021] 1 WLR 1956 at §85.

Moreover ECAT falls to be interpreted in accordance with the principles of interpretation applicable to treaties, and thus in accordance with Articles 31 to 33 of the Vienna Convention. By Article 31(3)(b) Vienna Convention, subsequent practice in the application of the treaty falls to be taken into account. In my judgment, in the present case, this includes the GRETA Guidance Note: see Annex 1 paragraph 18. By Article 32, “the preparatory work of the treaty” is a “supplementary means of interpretation”. Those materials include the Explanatory Report to ECAT. By Article 33, authenticated language texts are equally authoritative and are presumed to have the same meaning.

Thus, in construing NABA (and the Statutory Guidance), it is necessary to have regard to the provisions of the relevant articles of ECAT, which are in turn to be interpreted in the light of the Explanatory Report to ECAT, and taking account of the GRETA Guidance Note.

In my judgment, Part 5 of NABA imposes a statutory obligation upon the Defendant to complete the VI process and proceed to a CG decision where an RG decision has been made in respect of a PVOT. My reasons are as follows.

One of the three purposes of ECAT is to protect victims of trafficking: Article 1(b). Article 10 ECAT imposes an obligation upon Contracting States to complete the victim identification process. It is headed “identification of victims”. “Victim” here must mean an actual victim. Article 10(1) imposes an obligation to set up a procedure “so that victims can be identified”. The first sentence of Article 10(2) then imposes a treaty obligation to adopt measures “to identify victims”. The second sentence of Article 10(2) imposes an obligation not to remove a person benefitting from an RG decision “until the identification process as a victim … has been completed”. In each of these cases “victim” refers to an actual victim i.e where it has been established “conclusively” that the person has been a victim of trafficking. It is implicit in Article 10(1) and (2) that once an RG decision has been taken, there is an obligation upon the Contracting State to continue the VI process and proceed to a CG decision. This conclusion is supported by the express terms of the Explanatory Report to ECAT at §§126 and 127. Identification of victims of trafficking under Article 10 is “of paramount importance”. Victim identification is an express duty under ECAT Article 10: see Alnoor at §3. An essential part of meeting the purposes of ECAT set out at Article 1 is the effective identification of victims pursuant to Article 10: MS Pakistan §§1 and 2.

Turning to the position in the UK, initially the VI process was implemented through the NRM policy. That policy was then put on a statutory footing, initially by the MSA (sections 49 and 50) and then by Part 5 of NABA which, by section 60, amended section 49 MSA. Section 49(1)(b) as originally enacted referred only to RG decisions. As now amended by NABA, section 49(1)(b) and (d) MSA impose a statutory duty upon the Defendant to issue guidance about arrangements for providing assistance and support to persons who are victims of trafficking and for determining whether a person is a victim of trafficking. Section 49(1)(d) was introduced by NABA. It is implicit in these provisions that Parliament has imposed upon the Defendant or other public authorities an obligation to make a determination whether or not a person is a victim of trafficking. By introducing NABA, Parliament has made it a statutory requirement for there to be put in place arrangements for making a final CG determination. In this way, Parliament implemented the UK’s obligations in Article 10(1) and (2) ECAT to ensure completion of the VI process.

Furthermore, Part 5 of NABA proceeds on the basis that there is an identification process, which process culminates in a CG decision.

Section 61(3)(b) provides strong support for this conclusion. Section 61(3)(b)(i) makes express reference to “the day on which the conclusive grounds decision is made” in respect of a person who has the benefit of an RG decision (a PVOT). It envisages that, in the case of every PVOT, a CG decision will be made, rather than such a decision may be made. More generally, section 61(3)(b) provides for the end point of the recovery period following an RG decision. That end point is the making of the CG decision (unless a CG decision is made within 30 days of the RG decision). If there were no obligation upon the competent authority to proceed to a CG decision, then the recovery period could not be brought to an end. Parliament cannot have intended for the recovery period to run for an indeterminate period of time.

There was much argument about the significance of section 63(2)(b). As regards the provisions relating to a POD and the grant of leave to remain where a person has a positive CG decision, namely section 63(2)(b) and section 65(3) on the one hand, and section 65(6) and (7) on the other, in my judgment, they certainly support the conclusion that, following a POD decision, the competent authority retains the power to proceed to a CG decision (as the Defendant accepts): i.e. a CG decision can be made. However, I am not satisfied that an analysis of these provisions provides clear and direct support for the further proposition that in those circumstances the competent authority has an obligation to proceed to a CG decision.

Whilst the precise interrelationship between these provisions is not entirely clear, I deduce the following:

The statutory scheme in NABA is based on two stages: first, the making of an RG decision, and secondly, then proceeding to making a CG decision (one way or the other). In doing so, Parliament was intending to implement Article 10(2) which lays down such a two stage process. Any duty to proceed to a CG decision is not to be found in the Statutory Guidance alone. The Statutory Guidance is not free standing but grounded in the primary legislation, which itself implements the UK’s obligations under ECAT. (Indeed the 4th paragraph of §14.242 of the Statutory Guidance itself appears to assume that, absent a POD decision, there is an obligation to proceed to a CG decision: see “any obligation”).

For the foregoing reasons, I do not accept Mr Payne’s contention that any obligation to make a CG decision is contained only in the Statutory Guidance. Furthermore, even if this were correct, I do not accept that the obligation could equally be removed by the Statutory Guidance where there is a POD. There is no equivalent provision in ECAT which removes the obligation where a POD is made, and to do so in the Statutory Guidance is therefore not compliant with ECAT.

Part 5 of NABA specifies expressly three consequences where a POD decision is made. First, the bar on removal from the UK during the recovery period in section 61(2) and 62(2) is disapplied. Secondly, the obligation to grant leave to remain to a victim with a positive CG decision is disapplied. Thirdly, the obligation to provide assistance and support to a PVOT in section 50A(1) and (4) is disapplied, by section 50A(5) MSA. These three consequences are expressly reflected in the Statutory Guidance §14.242. However, unlike the position in the Statutory Guidance, NABA does not go on to provide that a fourth consequence of a POD decision is that the VI process ceases (such that there is no obligation to proceed to a CG decision). There is nothing in the statute which modifies that statutory obligation where a POD decision has been made. Stopping the VI process is not a statutory consequence of a POD decision.

Moreover, construing the provisions of NABA in this way is compatible with ECAT and in particular Article 13(3) ECAT, which the provisions of NABA implement. Article 13 is concerned with the “recovery and reflection period” and sets out protections pending completion of the VI process. These protections are implemented in NABA: the bar on removal in Article 13(1) is implemented in section 61(2) and 62(2); and the obligation to provide assistance and support in Articles 13(2) and 12(1) and (2) is implemented in section 50A MSA. The exemption from these specific protections is removed by Article 13(3) on grounds of public order (or improper claim); and this is implemented in section 63.

The Defendant’s argument that the effect of Article 13(3) is to stop the identification process in Article 10(2) is premised on the fact that Article 13(3) allows for immediate removal and that following removal, there can be no CG decision. That fact is common ground. However, that does not cover the position following a POD but before removal. The State has the power to remove, in which case it is common ground that there can be no CG decision. However there is no warrant for the conclusion that, pending removal, the Article 10(2) obligation ceases. Moreover, even if the effect of Article 13(3) is to disapply the bar on removal pending completion of the CG process in Article 10(2) (as well as the bar on removal in Article 13(1)), it does not follow that pending removal, the Article 10 duty to proceed to a CG decision does not continue, or indeed that there is no such duty. There is no provision (either in Article 10 or in Article 13) which expressly disapplies Article 10 generally. Nothing in Article 13(3) curtails the distinct identification duty in Article 10(1) and (2) ECAT.

The question arises as to what, if any, purpose can be served by the making of a CG decision, once a POD has been made. In the case of a foreign individual, there is no bar on removal, and once removed, a CG decision cannot be made. Moreover, pending removal, the individual will not be entitled to the assistance and support otherwise due under section 50A(1) MSA. It might therefore be thought that there would be no benefit or purpose in proceeding to make a CG decision once a POD decision has been made. However, I am satisfied that there are a number of potential benefits arising from the making of a CG decision for a PVOT in respect of whom a POD decision has been made - both for a foreign person who has not yet been removed and for a British citizen. Put another way, various adverse impacts of not proceeding to a CG decision will be avoided. I refer to the benefits explained in detail by Mr Fookes in his first witness statement: see paragraph 90 above (other than paragraph 90(5)). In addition a VOT with the benefit of a CG decision is entitled to “move-on” support: §§8.27 to 8.28 and Annex F Statutory Guidance.

For the foregoing reasons, I am satisfied that, as a matter of construction of Part 5 of NABA in conjunction with Article 13 ECAT, it is sufficiently clear that the Defendant remains under an obligation to proceed to a CG decision in respect of a PVOT even after a POD decision has been made. In the light of this conclusion, I need not consider the Claimant’s two further arguments in support. However if there is doubt, I go on to consider whether they provide further support.

The detailed legislative history of the enactment of NABA is set out at paragraphs 59 to 68 of Annex 1.

I have been referred to the following cases and materials: Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 634-635; R v JTB [2009] 1 AC 1310 at §35; Cooke v MGN Ltd [2015] 1 WLR 895 at §§35, 37 and 39; Mazhar v Lord Chancellor [2020] 2 WLR 541 at §§46 to 54; R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §§158 to 166; Kostal UK Ltd v Dunkley [2021] UKSC 47 [2022] 2 All E R 607 at §§ 26 to 27, 32, 111; Ninety Broomfield Road RTM Co Ltd v Triplerose Ltd [2016] 1 WLR 275 at §§55, 57 and 58and to Bennion Bailey and Norbury on Statutory Interpretation, online ed (2020), §24.13. I derive the following principles in relation to the approach of the Court to parliamentary materials.

It is not now in dispute that the making of a POD decision does not prohibit the making of subsequent CG decision (i.e. does not necessarily require a stop to the VI process). It may well be that the foregoing legislative history supports that conclusion (as was the Claimant’s primary contention here). The distinct question is whether that history supports the further conclusion that there is an obligation to proceed to a CG decision and that section 63 does not remove that obligation where a POD decision is made. The Claimant’s submissions in fact did not go so far as to so contend, and in my judgment, neither the amendments themselves nor Priti Patel’s explanatory statements lend additional and distinct support for this further contention. This question arises on the assumption that Part 5 of NABA is, in its terms, otherwise ambiguous.

First, considering merely the amendments to the Bill made in the course of the Parliamentary process, the inclusion of clause 51(2)(a) in the original draft Bill stating that the effect of a POD decision would be to remove “any requirement” to make a CG decision, implies that, absent a POD decision, there is a “requirement” to make a CG decision, and further that but for clause 51(2)(a), that requirement would remain, even where a POD decision is made. Then in the course of the Parliamentary process, clause 51(2)(a) was omitted. This potentially raises a strong inference that the omission of the removal of “any requirement” takes one back to the position that there is such a requirement to make a CG decision. However, I am not satisfied that this is a necessary inference from the amendment alone. I consider that it is necessary to understand the reason for this amendment and related amendments.

Secondly, turning to the ministerial statements of Priti Patel explaining the amendments, and assuming that Pepper v Hart applies to these statements, the first two conditions for their admissibility are satisfied. At this stage of the argument, section 63 is ambiguous and Priti Patel’s statements are relevant ministerial statements. However I am not satisfied that the third condition is met. Her statements do not clearly explain the reasons for the removal of clause 62(2)(a) of the Bill (clause 51(2)(a) of the original Bill) at the stage in December 2021 and in particular do not state clearly that the removal of clause 62(2)(a) was to ensure that there is an obligation to proceed to a CG decision even once a POD decision has been made.

I therefore conclude that the legislative history does not add any additional support for the conclusion which I have reached.

This argument is of particular relevance in support of Ground 4 and the claim for damages. The issue here as stated is

I refer to the following case authority: Rantsev v Cyprus and Russia (2010) EHRR 1 at §§282 to 288; Secretary of State for the Home Department v Hoang [2016] EWCA Civ 565 at §§1, 25 to 31, 35, 39 and 41; Chowdury v Greece judgment of ECtHR 30 June 2017 at §§103, 104 and 110; R (TDT Vietnam) v Secretary of State for the Home Department [2018] 1 WLR 4922 at §§13 to 18, 23, 32 to 47; SM v Croatia (2021) 72 EHRR 1 at §295; VCL v United Kingdom (2021) 73 EHRR 9 at §150 to 162; R (A) v Criminal Injuries Compensation Authority [2021] 1 WLR 3746 SC.

Article 4 ECHR is set out at Annex 1, paragraph 1. It is established that Article 4 also prohibits human trafficking, read in the light of the definition of human trafficking under Article 4 ECAT: Rantsev §279 and Chowdury §104.

Article 4 also imposes positive obligations as follows:

As regards the relationship between Article 4 ECHR and ECAT:

The arguments on this issue were not entirely clear. First the Claimant’s case here is that the cessation of the VI process in the Claimant’s specific case was in breach of Article 4 ECHR. It is not clear whether it is contended that Article 4 imposes an obligation to proceed to a CG decision in all cases; or rather an obligation not to cease the VI process where there is a discretion to proceed to a CG decision. In either event, this case does not add to the wider issues of (1) whether there is an obligation to proceed to a CG decision and (2) if there is no obligation, but rather a discretion, the Defendant has fettered the exercise of that discretion. It appears that this further argument may have been advanced in order to establish a breach of the ECHR, such that it might found a claim for damages on the part of the Claimant. Moreover, there appeared to be some confusion as between the operational/protection duty and the procedural/investigation duty under Article 4. Nevertheless I am satisfied that the Claimant has not established breach of Article 4 ECHR as a distinct basis for his case on Ground 1.

First, if and in so far as the Claimant sought to rely upon the “procedural” duty under Article 4 (see paragraph 125(3) above), such an argument is unfounded: see Hoang §§35, 38 and 39. The competent authority (here the Defendant/IECA) is not concerned with procedural obligations under Article 4 ECHR. The Article 4 procedural duty (in so far as it encompasses victim identification) is entirely distinct from the CG identification process under the Statutory Guidance. It follows that non-completion of the CG process per se does not and cannot amount to a breach of the Article 4 procedural duty.

Secondly, in so far as the Claimant’s case is based on the “operational” duty, there is an operational duty to protect victims of trafficking and, in certain circumstances, that includes a duty to have in place measure to identify victims of trafficking. The operational duty to identify a victim of trafficking does arise in the context of potential prosecution of an individual who may have been trafficked: VCL at §§159, 160. The question is whether Article 4 imposes an operational duty to facilitate identification for purposes other than in the specific context of potential prosecution.

In my judgment, this has not been clearly established as a matter of principle. Most particularly, the present context of a POD decision relating to a PVOT with the benefit of an RG decision (where a POD decision is an inherent part of the victim identification and support regime) is quite different in nature from potential prosecution, which is extraneous to that regime. The rationale for the imposition of an identification duty under Article 4 stated in VCL §§159,160 cannot readily apply to the issue of completion of the VI process itself.

Thirdly, that this is so is demonstrated by the fact that in practice, in the context of a POD case, the imposition of the Article 4 operational duty cannot make any difference to the outcome. For the operational duty to arise there must be a credible suspicion of a future risk of re-trafficking: TDT at §§18, 39 to 41. However, if there is, in any case, a credible suspicion of a future risk of re-trafficking, then under the Statutory Guidance, a POD decision will not be made, and the VI process, leading to a CG decision, in respect of a PVOT with an RG decision will proceed. On the other hand, if there is no credible suspicion of a future risk of re-trafficking, then although a POD decision can then be made, in any event the Article 4 operational duty will not have arisen (as per TDT §18, 41).

Finally, on Ground 1, I consider the position if my conclusion that there is an obligation to proceed to a CG decision is wrong, and the Defendant’s primary contention is correct; namely that, once a POD is made, there is no obligation to proceed to a CG decision, although there remains a discretion to do so. In my judgment, even on this basis, the Defendant has acted, and is acting, unlawfully.

The evidence establishes that it is the Defendant’s policy and invariable practice to stop the VI process and not to proceed to a CG decision, once a POD decision is made. This policy is clear from the standard form template letter/decision document used in all POD cases: see paragraphs 28 and 74 above. The practice was adopted in respect of the Claimant in all three POD decisions taken: see Annex 3 paragraphs 31, 42 and 47. Mr Payne fairly accepted in argument that this is indeed the Defendant’s policy. Thus, the policy fetters the exercise of the Defendant’s discretion whether or not to proceed to a CG decision and is therefore unlawful. It follows that, on this alternative basis, the decision not to proceed in the case of the Claimant is unlawful, because no distinct consideration was given to the exercise of the discretion to proceed to a CG decision.

In the light of the foregoing, my conclusions on Ground 1 are as follows:

The effect of this conclusion on Ground 1 alone is that the Decision falls to be quashed as to part only: namely the decision at page 42 not to continue the VI process.

The Claimant submits that the Defendant’s approach to making a POD decision as outlined in §14.267 of the Statutory Guidance proceeds on the basis that more weight is always given to the public interest in disqualification. A high bar is set in order for a need for recovery assistance to outweigh any public order threat. This is unlawful as it presumes that a POD decision will be made where the victim meets the statutory definition of a threat to public order under section 63(3) NABA unless the presumption can be outweighed by a sufficiently high compelling body of evidence concerning the victim’s recovery needs and risks. The Claimant refers to two aspects: (1) compatibility of section 63 with Article 13(3) ECAT and (2) the structure of section 63 itself and the approach in the Statutory Guidance.

First, section 63 NABA is to be interpreted compatibly with Article 13(3) ECAT. Article 13(3) permits non-observation of the protective measures in Article 12(1) and (2) only “if grounds of public order prevent it”. This is an exception which must be interpreted narrowly. In turn Article 13(3) must be interpreted in accordance with its ordinary meaning of the word “prevent” – i.e. public order grounds must “preclude or make impossible” the continuation of recovery support. It must be interpreted in the light of the object and purpose of ECAT. Protection of victims is the paramount objective of ECAT: Article 1(b). Any article which seeks to reduce such protection must be interpreted restrictively. Section 63 must be interpreted in the same way and equally restrictively.

Article 13(3) calls for an individualised assessment of the degree of public order present in a given case and whether that degree is such as to justify non-observance of the recovery period. As regards the English and French text versions of Article 13(3), Article 33 Vienna Convention sets out how to reconcile apparent differences in wording. Article 33(4) favours the meaning that “best reconciles the texts”, using the interpretive principles set out in Articles 31 and 32. That includes recourse to the object and purpose of ECAT and the Explanatory Report to ECAT. Although the French text does not refer to requiring public order grounds to “prevent” observance of the recovery, the French version of the Explanatory Report to Article 13(3) at §173 makes clear that this is a threshold question and refers to the concept of “preventing” observation. That the public order ground is an exception that must be so serious to justify non-observance of the recovery period is supported by the GRETA Guidance Note §§31 to 36.

Further §34 GRETA Guidance Note draws on EU and ECHR case law to explain how high the threshold needs to be to justify disqualification. Article 13(3) should only be applied where there is “a genuine present and sufficiently serious threat affecting one of the fundamental interests of society”. This derives from the CJEU’s consideration of the term “public order” in the case of HT v Land Baden Württemberg in the context of the Qualification Directive 2004/83. The approach identified in HT is akin to the two-stage approach required under Article 13(3) and section 63.

As regards article 6(4) EU Directive 2004/81 relied upon by the Defendant, this cannot properly be used as a guide to interpretation of Article 13(3). First, the fact that Member States who are signatories to ECAT are also subject to this directive does not mean that the directive can properly be used as a guide to the interpretation of Article 13(3). Secondly the directive predates ECAT. Thirdly the UK did not sign up to this directive. Fourthly the directive is not faithful to and/or directly contradicts ECAT in important respects (as pointed out in the GRETA Guidance Note). Where there is a clear difference in language between Article 6(4) and Article 13(3) ECAT, the former cannot properly be used as a guide to the interpretation of the latter.

The Claimant submits, secondly, that section 63 creates a discretion to disqualify, but is silent as to how the discretion is to be exercised. There is a two stage process. However the Statutory Guidance introduces a blunt approach which unlawfully fetters the exercise of that discretion. The Statutory Guidance, and in particular §14.267 and The Decision Making Framework (“the Framework”) at §14.275, automatically treats anyone who has committed an offence listed in section 63(3)(b) and (f) as a “high” threat risk, regardless of the nature, circumstances of, or time since, the offence. It ignores a person’s rehabilitative efforts and remorse as mitigating the severity ascribed to the public order threat; and automatically presumes that a foreign national subject to deportation is a high risk to public order on grounds that similar considerations concerning public order would have been considered. Unlike the position of automatic deportation under section 32 UKBA, there is no express presumption in favour of disqualification in section 63. Meeting one of the public order threats identified in section 63(3) may put a person in scope of the exercise of the discretion in section 63(1), but does not itself ascribe a degree of severity (high or low) to that threat. The presumption of high threat by dint of falling within any statutory circumstances of section 63(3) is unlawful and constitutes the Defendant’s fundamental misdirection of law in respect of the terms of section 63(1). Further the Statutory Guidance wrongly gives more weight to a threat to public order before carrying out any individualised assessment. This essentially puts the thumb on the scale on the side of public order threat, even before it is weighted against needs for recovery assistance. This approach deprives victims of an individualised case by case approach, as required under Article 13(3) and pre-judges the weight to be placed on different factors in any individualised assessment. The directions in the Statutory Guidance do not apply the exception to recovery assistance under Article 13(3) restrictively and are contrary to the exercise of the discretion in a manner compatible with Article 13(3). That there is a fettering of discretion or a presumption in favour of making a POD decision is borne out by what has happened in practice. In virtually all cases - 284 out of 285 - where notice of intent has been given, the Defendant has proceeded to make a POD decision.

The approach to the exercise of the section 63 discretion in the Statutory Guidance is unlawful. The Decision expressly applied that unlawful approach in the Statutory Guidance and so it follows that in the Decision the Defendant failed to exercise her discretion lawfully. On a lawful application of the exception, the Defendant could not rationally have concluded that the Claimant’s public order threat met the narrow exception.

The Defendant submits that it is lawful for the Statutory Guidance to direct a decision-maker to have regard to the definition of a threat to public order set out by Parliament in considering the threat to public order posed by the individual being considered for a POD; to identify and balance the individual’s modern slavery specific needs against the threat to public order; and further for there to be a high bar for those modern slavery specific needs to outweigh the threat to public order with more weight given to the public interest in disqualification, as per §14.267 of the Statutory Guidance.

As regards the relationship between Article 13(3) and section 63 NABA, first NABA implements the provisions of ECAT in primary legislation and reflects Parliament’s intentions in terms of the implementation on the domestic plane. Secondly the fact that Article 13(3) is to be interpreted narrowly provides no basis for challenging Parliament’s assessment as to the weight to be attached to the criteria applicable to determine risk to public order or the public interest in safeguarding against the threat to public order. The words “public order” in Article 13(3) do not have an autonomous meaning. It is appropriate for the meaning of such words to be determined primarily by reference to domestic law: see ST (Eritrea) the Secretary of State for the Home Department [2012] UKSC 12 at §55. It is a matter for Parliament/the Defendant to set the national standards by reference to which the public order exemption provided for in Article 13(3) is to be applied. These standards have been implemented through a combination of primary legislation and statutory guidance. Thirdly, Article 13(3) does not purport to set out the approach to be taken to deciding “if grounds of public order prevent” the provision of a recovery period. The issue of whether or not grounds of public order prevent the provision of the recovery period is reserved to the discretion of the signatory states. Fourthly the Claimant and the Intervener adopt an excessively narrow interpretation of the word “prevent”. Neither the wording nor the purpose of Article 13(3) nor section 63 support a construction of “preclude” or “making impossible”. It is a matter for state parties to ECAT to define “public order”, the level of threat and the public interest considerations in balancing the relevant interests. Fifthly the French text of Article 13(3) contains no word equivalent to “prevent” and is much closer to, if not the same as, the wording in section 63 itself. Article 33(1) of the Vienna Convention provides that the text is equally authoritative in each language. Sixthly it does not follow from consideration of the object and purpose of ECAT that the interpretation of the public order exception must be narrow. Seventhly there is no warrant for reading into Article 13(3) the wording suggested in the GRETA Guidance Note namely “a genuine, present and sufficiently serious threat” to public order.

As regards the approach to POD decision-making in the Statutory Guidance, in initial written and oral argument, the Defendant appeared to be suggesting that Parliament had provided for the assessment of the level of threat or risk to public order, and decided that high risk is determined by reference to a custodial sentence, and had not provided for decision makers to reassess the level of risk by reference to a case specific assessment.

Following further exchanges in oral argument, the Defendant clarified her position on this issue in a subsequent post-hearing written note. The Defendant accepted that the relevant parts of the Statutory Guidance apply only to non-national security cases under categories (b)(f)(g) and (h) of section 63(3). For cases falling within other categories in section 63(3) - all of which are national security cases - there is additional separate guidance. Moreover, in practice non-national security cases falling under (g) and (h) have not arisen and so the Statutory Guidance applies, and has been applied, only to cases falling within (b) and (f). Category (b) is capable of applying to both British citizens and foreign nationals; category (f) applies only to foreign nationals. See Statutory Guidance §§14.244 and 14.245. The examples in the Framework relate to (b) and (f).

In considering whether to apply section 63(2) there is a four stage process. First, does the person meet the threshold condition in section 63(3) (b) (f) (g) or (h)? Secondly consideration is given to whether there are threat indicators. Those who fall into either category (b) or (f) are presumed to be a high threat to public order. The Decision Making Framework (the Framework) provides that anyone who satisfies (b) or (f) will satisfy the first high threat indicators there set out. Thirdly, the individual’s needs for modern slavery specific protections are assessed and balanced against their threat to public order and, because they are a threat to public order, a high bar is applied in considering whether those needs outweigh the public interest in being able to disqualify them from support and protections. Finally if it is considered that in principle a POD should be made the individual’s risk of re-trafficking is then assessed. The Framework contains a non-exhaustive list of “high” and “low” indicators of threat. As regards the “low” indicators, the Defendant accepts that the first listed indicator has no application to cases falling within (b) or (f). Further the next two “low” indicators are not sufficient in isolation to reduce the threat to public order to low but may do so cumulatively or with other low indicators. Age is a low threat indicator. The Framework is not exhaustive.

As regards what happens in practice, the evidence demonstrates that the Defendant takes a case specific approach: see the statement of Mr McGivena and the repeated directions in the Statutory Guidance itself. The fact that most of the time the POD is applied does not establish a fettering of discretion or an unlawful presumption. Mr McGivena gave, as an example, a case where a person met the disqualification criteria but where it was decided not to make a POD decision. In that case the individual had received a sentence of 12 months or more. The OASys assessment was that he was at no risk of reoffending and the offending was historic. He was not subject to a deportation order. There were no aggravating factors. The person had physical health needs as well as mental health needs directly linked to their period of exploitation and the individual had expressed remorse and engaged well with the authorities.

The Defendant’s approach in the Statutory Guidance is lawful and, given that the Decision applied that approach, it too is lawful.

The Intervener supports the Claimant’s case, making many of the same points about both compatibility with Article 13(3) ECAT and the structure of section 63 and the Statutory Guidance.

Section 63 NABA purports to implement Article 13(3). Parliament therefore intended to legislate compatibly with ECAT. The Statutory Guidance under section 49 MSA providing guidance on how to apply NABA must intend to do the same.

Article 13(3) is to be interpreted narrowly. This reflects the principles in Articles 31 and 32 of the Vienna Convention. Article 13(3) is to be interpreted in accordance with its ordinary meaning. “Prevent” means “preclude” “or render impracticable or impossible”. Public order grounds must therefore preclude or render impossible the continuation of recovery support. It must be interpreted in the light of its object and purpose, as set out in Article 1(b) ECAT. It must be interpreted in its context, which includes the Explanatory Report to ECAT at §173, and taking into account subsequent practice in application provided by GRETA’s interpretation of the treaty. GRETA’s work reinforces the need for a narrow interpretation. The Intervener relies on the GRETA Guidance Note at §§31, 33, 34, and 36, and further evidence given by GRETA to the Joint Committee on Human Rights (“JCHR”) and earlier statements by GRETA in other reports. Reliance is placed in particular on the reference at §34 of the GRETA Guidance Note to the need for a sufficiently serious threat to public order. Individualised assessment requires some detailed assessment of an individual’s personal circumstances, the nature of any offending which must give rise to a sufficiently serious threat and the likely impact of disqualification and return on that individual. The requirement for proportionality is in keeping with the case law of the ECtHR and the CJEU in relation to equivalent “public order” exclusion determinations; in particular the case of HT v Land Baden Württemberg and Article 24 of Qualification Directive 2004/83.

Applying those principles, section 63 provides the Defendant with a discretion to issue a POD in respect of someone with a positive RG decision if satisfied that they are a “threat to public order” and specifies the precise basis for this. §35 of the GRETA Guidance Note, although referring to a need to balance the interests, does not put forward a requirement that support needs must outweigh any threat to public order. The mere existence of public order grounds should not lead to the exercise of the power where the individual is in legitimate need of recovery assistance.

The structure of the scheme in the Statutory Guidance is suggestive of an excessively blunt approach to the imposition of POD decisions. Section 63(3)(f) specifies all those within section 32 UKBA (those with custodial sentences of at least 12 months) as a threat to public order. This captures a wide range of offences including for example abstracting electricity or being in charge of a dangerous dog. A public order threat is assessed as high, regardless of the nature, circumstances or time since the offence.Further evidence that an offence was directly linked to the individual’s exploitation is not sufficient to categorise a public order threat as low. See, by contrast, §35 of the GRETA Guidance Note.

Moreover the impression of such a blunt approach is supported by the available data in relation to the exercise of the power. The Intervener’s research suggests that a significant proportion of decisions relate to cases with an element of criminal exploitation. UK data service statistics and data in the FOIA response suggest that, within those in receipt of POD decisions, there is a high proportion of victims of forced criminality and the introduction of the mandatory assessment of re-trafficking risk has not brought about a substantial change in the Defendant’s practice. The unavoidable inference is that victims of forced criminality continue to be subject to POD decisions in significant numbers. The response to the first FOIA request dated 18 September 2024 indicates that the vast majority of convictions leading to a POD request related to drug related offences with the majority of those relating to drug production offences. Such offences are closely associated with forced criminality.

I consider first some general propositions relating to section 63 and its relationship to Article 13(3) ECAT; secondly, the meaning of, and approach to, Article 13(3) ECAT; and finally section 63 and how the Defendant applies it through the Statutory Guidance. The relevant legislative and other materials are set out in the Annex 1; the Framework is set out at Annex 2.

Section 63(1) and (2) NABA, in so far as it relates to “public order” disqualification, provides for a two-stage process. First, the competent authority must be satisfied that the person “is a threat to public order”. Secondly, if so satisfied, the competent authority then has a discretion to apply sub-section (2) i.e. to disqualify that person from protection.

Secondly, section 63 (together with the Statutory Guidance) implements Article 13(3) ECAT and must be construed and applied compatibly with Article 13(3): see paragraphs 99 and 100 above and, in particular the Explanatory Note to NABA at §§ 613, 615 (in relation to section 63). In turn Article 13(3) falls to be interpreted in line with the principles in the Vienna Convention. Articles 31(1) and 3(b), 32 and 33(1), (3) and (4) are of particular relevance. The following are aids to the interpretation of Article 13(3):

As regards material produced by GRETA, I consider that the GRETA Guidance Note falls to be “taken into account” as evidence of “subsequent practice in the application of” ECAT (under Vienna Article 31(3)(b)) (and, possibly also, as a “supplementary means” under Article 32 (the list in which is non-exclusive)).

Article 13(3) provides for an exception to the protection of the recovery and reflection period provided by Article 13(1) and (2). Protection of victims is a central purpose of ECAT: 4th recital and Article 1(1)(b). As an exception from that central purpose, Article 13(3) is to be interpreted and applied narrowly and restrictively: GRETA Guidance Note §§31, 33 and 34. Further, Article 13(3) is to be applied on an individual case by case basis: GRETA Guidance Note §§31, 33, 34 and 36.

As regards the concept of “public order” itself, this is not defined in ECAT or the Explanatory Report: GRETA Guidance Note §32. It does not have an “autonomous” meaning. It is a matter for contracting states to define their approach to “public order”; there is some leeway for contracting states to apply their own concept of public order. I accept the Defendant’s submission that it is for Parliament to set national standards of “public order”.

The GRETA Guidance Note §32 suggests that, whilst there is no consistent and clear definition of the concept in law, other relevant international standards can be referred to. However, in my judgment, none of these provisions assist directly in the proper interpretation of the public order exception in Article 13(3).

The GRETA Guidance Note §34 refers to an EU law test of “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. In turn the parties referred me to EU Citizenship and Qualification Directives (Directive 2004/38, Article 24 and 27 and Directive Article 2004/83 Articles 21 and 24) and, on the other hand, to Article 6(4) of the EU Trafficking Directive (Directive 2004/81); and to Case C-373/13 HT v Land Baden-Wurttemberg [2016] 1 WLR 109 §79 and R (MN and IXU) v Secretary of State for the Home Department, supra,at §§50 to 59, 69. However, in my judgment, ultimately neither §34, nor the EU directives (and case law on which they are based) provide direct assistance in the proper interpretation of the public order exception in Article 13(3). First, the terms of Article 13(3) are materially different from the terms of the directives. Secondly, the EU material is not “on all fours” with ECAT. Moreover, thirdly, §34 of the GRETA Guidance Note itself does not directly invoke the case law (HT v Land) but rather refers to it merely in the context of the more general proposition that Article 13(3) requires individual examination and the application of the principle of proportionality.

The English text of Article 13(3) provides that “the Parties are not bound to observe [the recovery and reflection period] if grounds of public order prevent it”. By contrast the French text of Article 13(3) does not refer to the notion of “preventing”. Rather, it refers, more generally, to the parties not being bound to respect the period “for public order reasons”. See Annex 1 paragraph 9. However the French text (as well as the English text) of the Explanatory Report to ECAT §173 addresses Article 13(3) in terms of “preventing” the state from observing the period: Annex 1 paragraph 17. Whilst not entirely clear, in my judgment, grammatically the words “prevent it” in the English text means prevent the state party from observing the period (rather than the grammatically more difficult “prevent the period itself”). (This grammatical analysis is supported by the French text of the Explanatory Report at §173). However I am not persuaded that Article 13(3) is to be interpreted so narrowly that the exception can only apply where the “public order” grounds make observance of the recovery period (and the provision of the benefits to be provided in the period) “impossible” or “preclude” it altogether. Whilst the Intervener sought to give factual examples of where it would be so “impossible” (i.e. where public order ground would “prevent” observance of the recovery period) these were not practically realistic and somewhat artificial.

Nevertheless, I accept that Article 13(3) is an exception and that, as such, it is to be construed and applied restrictively, so as not to unduly limit the protection to RG victims provided by Articles 13 and 12(1) and (2).

Similarly, and consistently with the approach to Article 13(3), section 63 itself falls to be construed and applied restrictively and on an individualistic basis. That section 63 is an “exception” is supported by the heading to section 63 itself referring to “disqualification from protection” (and the fact that the Defendant refers to the application of section 63 (a decision under section 63(2)) as “public order disqualification”.

As regards section 63 itself:

I turn to consider how the section 63 exception is applied by the Defendant through the Statutory Guidance.

First, the Statutory Guidance is not altogether clear and appears to be internally inconsistent in places. It uses the terms “threat to public order”, “public interest” and “risk to public order” without making clear distinctions: see, for example, §§14.267 and 14.270. In my judgment, the first two terms are not necessarily synonymous. Something might be “in the public interest” for reasons other than it being a threat to “public order”.

Secondly, the Statutory Guidance states expressly that a POD will be applied only where one or more of the conditions in section 63(3) is met: §14.251. It purports to assess the degree of threat to public order and the degree of the need for modern slavery specific protections, and then to balance one with the other: Statutory Guidance §§14.263 and 14.265. This is done by the competent authority/the Defendant applying the “Public Order Decision Making Framework” (the Framework) set out at §14.275 of the Statutory Guidance. The Framework is set out separately in Annex 2 hereto.

Thirdly, the Defendant accepts that in practice the Framework has been applied only to cases falling within subsections (b) and (f) of section 63(3) (respectively, a person convicted of an offence in Schedule 4 MSA and a foreign criminal sentenced to 12 months or more).

The Framework sets out in two tables, in respect of each of the two factors to be balanced (i.e. threat to public order and need for modern slavery protection), “indicators” (or cases) which are to be treated as “high” and “low”.

Turning to the Threat to Public Order table in the Framework and the “indicators” of high threat:

As regards countervailing “indicators” of low threat to public order, the Framework refers to four such factors.

In my judgment the assessment of threat to public order is mechanistic and practically automatic, and in places, unclear.

The Statutory Guidance directs the decision maker to consider the balance between the “threat to public order” on the one hand and “the need for modern slavery protections”, and whether one “outweighs” the other: §§14.252, 14.267 and 14.272. This, of itself, is appropriate. However, §14.267 goes on to impose a “high bar” for the threat to public order to be outweighed. (This “high bar” is said to be justified by “the public interest in disqualification”. It is not clear to me what this term is intended to denote or what it adds to the existing provisions and section 63.) In this way, the Statutory Guidance, as a matter of policy, tips the balance in favour of the threat to public order and thus in favour of making a POD decision in any particular case. In her final note on the issue, the Defendant positively asserted that this “high bar” applied to any level of threat to public order, and did not arise only if the threat to public order itself is high. It follows that in every case falling with subsections (b) or (f) (and thus to which the Statutory Guidance applies) there is a high bar i.e. there is a presumption in favour of making a POD (regardless of the fact that that person is also automatically categorised as posing a high threat to public order).

That the Statutory Guidance tips the balance of factors in favour of the making of a POD is evidenced by what has happened in practice. Out of 285 cases in which a person has been notified of an intention to make a POD decision, there has been only one case where that person was not disqualified.

For these reasons, the Statutory Guidance, in its own terms, fetters the discretion of the Defendant to make a POD decision under section 63(1) in two important respects: under the Statutory Guidance, the threat to public order posed by any person falling within subsections (b) or (f) of section 63(3) is automatically assessed to be high; secondly in every case falling within subsections (b) or (f), because there is a “high bar” for protection needs to outweigh the threat to public order, there is an automatic presumption in favour of making a POD decision regardless of the actual degree of threat to public order. Despite the terms of section 63(1), the Defendant automatically assesses the threat to public order as “high”. As the Statutory Guidance accepts, what is required is a balance between the “threat” to public order and the recovery needs and the level of each of those needs to be assessed on an individual basis. However the Statutory Guidance excludes, or severely limits, an assessment of the former, in practice. Thirdly, that the Defendant’s discretion is fettered in this way is borne out by what has happened in practice where a person with the benefit of an RG decision has been referred for consideration by the Defendant for a POD.

As a result of these fetters, the Defendant does not apply the section 63 discretion on an individual case-by-case basis and does not take account sufficiently (if at all) of the time since the relevant offences nor of the question of exploitation.

First, in my judgment, the Defendant is bound to exercise the discretion to disqualify in section 63, construed compatibly with Article 13(3) ECAT, as an exception to the protections and thus restrictively. However in the Statutory Guidance there is a presumption in favour of making a POD decision and thus the Defendant does not apply the exception narrowly or restrictively. That is not compliant with ECAT. Thus the presumption that every case falling within subsections (b) and (f) of section 63(3) constitutes a high threat to public order (and excludes the taking account of low risk factor 1) and the presumption in favour of making a POD indicated by the “high bar” are unlawful and constitute a misdirection of law by the Defendant in relation to section 63(1) and (2) NABA. Secondly, and in any event, aspects of the Statutory Guidance constitute an unlawful fettering of the statutory discretion provided by section 63.

Secondly, as regards the Decision itself, the foregoing conclusions in relation to the Statutory Guidance are themselves a self-standing basis for a finding that the Decision was unlawful. As the Defendant accepted in argument, the Decision itself is based, at least partially, on the application of the approach in the Statutory Guidance; which approach I have found to be unlawful. In considering the Claimant’s convictions, the Decision (at pages 11 and 19) relies upon the fact that, since they fall within subsections (b) and (f) of section 63(3), the Claimant is to be automatically regarded as a high threat to public order under the Statutory Guidance. I have found this automatic “high” threat to be unlawful. Secondly, the Decision does not take account of the passage of time since release from prison or whether the offending is historic or predates the exploitation, which are theoretically “low threat” indicators, but which factors are necessarily excluded in cases falling within subsections (b) and (f) (see paragraph 174(1) above). Thirdly, the Decision (at page 34) expressly applies the “high bar” in §14.267 of the Statutory Guidance. I have found this “high bar” also to be unlawful. With these unlawful errors of approach, the Decision itself is unlawful.

The Claimant submits that, even applying the Statutory Guidance on its terms (i.e. even if the approach in the Statutory Guidance is lawful), the Decision is unlawful, in breach of the Statutory Guidance and/or irrational.

First, in any event, the Claimant should not have been subject to a POD on account of the real and immediate risk of re-trafficking. On a plain reading of the police assessment and the evidence from the NRM support worker and others about his conduct and current situation, it is clear that the Claimant, on any rational view, remains at a real and immediate risk of re-trafficking. The Defendant wrongly considered only whether there are re-trafficking risks from his previous traffickers. The suggestion that risk can be mitigated is contrary to the available and unchallenged evidence from both support workers and from Dr Qurashi. The Claimant is someone who is at a real and immediate risk of being re-trafficked which cannot be mitigated if NRM support were to be withdrawn. The Defendant’s conclusion to the contrary is unlawful. This alone merits quashing of the Decision.

Secondly, in the Decision and in the Statutory Guidance §14.276 the Defendant unlawfully limited the assessment to re-trafficking “in and from the UK”. No consideration was given to re-trafficking risk if the Claimant were to be returned to Trinidad and Tobago, notwithstanding the unchallenged expert evidence of Dr Seepersad of such a risk. A person may not be removed to a third state where there are substantial grounds for believing that they would be at a real risk of being subject to conduct which breaches Article 3 ECHR: Soering v United Kingdom (1989) 11 EHRR 439 at §§91 and 92. The same principle should apply and does apply to Article 4 ECHR, given the similarly fundamental nature of the duty. The Defendant failed to consider whether the exercise of section 63 to disqualify the Claimant from protection (including from the prohibition against removal from the UK), would be compatible with Article 4 ECHR; that was unlawful.

Thirdly, the Defendant’s assessment and reasoning in the Decision of the public order risks and the modern slavery needs and the balance between the two was unlawful and unreasonable.

The Claimant has taken a range of positive steps to reduce his own risks of re-offending and re-trafficking, but, on the evidence of those who have worked with him, he still requires recovery protection.

The Defendant submits that the Decision was neither a breach of the Statutory Guidance nor irrational.

First, the Defendant’s assessment of re-trafficking risks is consistent with a proper application of the Statutory Guidance. In the Decision, the Defendant carried out a careful and detailed analysis of the risk of re-trafficking having regard to, and applying, relevant considerations and the Statutory Guidance. The reasons given in the Decision provide a rational basis for the conclusion that the POD could be applied without putting the Claimant at a real and immediate risk of re-trafficking in or from the UK. The evidence from Wiltshire Police was taken into account. The fact that an individual may, by reason of his condition, be vulnerable to exploitation does not mean that they face a “real” and “immediate” risk of being re-trafficked. The Defendant carefully considered what could and should be done outside the MSVCC and concluded that, in the light of that, a POD could be applied without putting the Claimant at such risk. The Defendant took into account the fact of the recent alleged re-exploitation and rationally concluded that there was no real and immediate risk of trafficking from that individual. The letter from the NRM support worker at Migrant Help (Rose Phillips-Fuller) in relation to use of the Claimant’s bank account was taken into account. However, as noted in the Decision, there was very little detail of this. The Defendant did not misdirect herself by only considering whether re-trafficking risks arose from “known previous traffickers”. The Defendant had appropriate regard to the Claimant’s potential vulnerability to re-trafficking. The reasons given in the Decision provide a rational basis for the conclusion that there were things that could and should be done outside of modern slavery specific protections to mitigate any immediate re-trafficking risk.

Secondly it is not unlawful for the Decision and the Statutory Guidance to limit the assessment of re-trafficking risk to re-trafficking in and from the UK. There is no obligation to consider the risk of re-trafficking which might arise at some point in the future in the event that the PVOT in question were removed to a third country. Such a risk is impossible to quantify and cannot be said to be “real and immediate”. The mere lifting of the prohibition on removal does not affect the analysis. It is only if a further and entirely separate decision is taken to remove the person that any issue of potential re-trafficking abroad can in practice arise. A POD decision affects access to support but does not require or lead to the person’s removal from the UK. The Claimant’s reliance on a non-refoulment type duty by analogy with Article 3 ECHR is misplaced.

Thirdly, as regards the assessment of the public order risks and modern slavery needs, there is no basis to suggest that the Defendant did not properly take into account the material before the decision maker. Anxious scrutiny is demonstrated by the record of documents considered at the start of the Decision, the reference to the evidence of Dr Qurashi, the Medical Justice doctors and the MSVCC support workers and the detailed summary of key passages from a wide range of medical and other documentary evidence. This ground is essentially a disagreement with the assessments that the Claimant posed a high threat to public order and that the Claimant’s protection needs were outweighed by that threat and the weight given to different considerations. The balance of the public interest as against the interests of an individual is not capable of minute dissection. It is a matter for the Executive applying the assessment of Parliament as to the weight to be accorded to the public interest. The Claimant’s case is based on the proposition that a PVOT bears no responsibility for their criminal conduct or for the threat they pose to the wider public, with their entitlement to being identified as victims of trafficking or receiving state support remaining completely unaffected by their criminal conduct. Irrespective of the standard of review the Claimant’s approach does not afford the Defendant’s assessment an appropriate degree of respect.

As regards the assessment of the threat to public order, the Claimant’s case ignores all of the cogent and rational reasons which underlie the assessment. It is not correct that the Decision focused only on the static facts of the criminal offences. Regard was had to the fact that the criminal courts had considered the extent to which the Claimant’s mental health issues mitigated his criminality and had concluded that any mitigation was insufficient for him to avoid conviction or receiving multiple custodial sentences. The Claimant’s current conduct including positive behaviour was taken into consideration. The assessment was that that was insufficient to indicate that he was a low risk against the backdrop of the extent and nature of his recidivism and disorder he has caused. That was plainly within the range of reasonable assessments open to the Defendant. It was not irrational for the Defendant to conclude that the Claimant was unlikely to be able to refrain from drug use in the future. The conclusion that the Claimant had been undeterred from reoffending had proper regard to all relevant evidence which included the professional assessment of his offender manager as to the risks of reoffending and serious harm. The Defendant relies on the most recent OASys report of 24 April2024 i.e. OASys 2024.

As regards the assessment of recovery needs, in concluding that most of the support was available outside of the MSVCC the Defendant had proper regard to the totality of the evidence as to the impact of the withdrawal of that support including the evidence which supported the Claimant’s case that he would be lost without a support worker. The Defendant was entitled to place weight upon the Claimant’s ability to access support through the NHS, legal aid and other routes outside of the MSVCC as well as his ability to manage appointments by himself. The Claimant’s submission that he is only able to consistently access NHS treatment because of the NRM support work is an overstatement of the position, particular in the light of the letter from the NRM support worker, Christian Moreton dated 4 March 2024.The Defendant was not required to conduct a line by line assessment of all the different aspects of support contributing to his mental and social stability when concluding that the Claimant could be adequately supported outside of the NRM. Whether the Claimant has taken reasonable steps to ensure that he is not exposed to re-trafficking was a relevant factor on which the Defendant is entitled to place weight.

The Intervener submits that returning unrecognised VOTs to their countries of origin, without adequate assessment of the re-trafficking risks they may face there, may not be compliant with the negative duty of non-refoulement in Article 3 or Article 4 ECHR. The principle of non-refoulement is capable of a broader application beyond extradition and deportation: see Al-Saadoon (2010) 51 EHRR 9. The critical issue is whether the State is taking action which will expose an individual to a real risk of harm even if that harm would not be caused by the State itself. The Soering principle applies equally where the risk is of an Article 4 type harm: see R (Ullah) v Special Adjudicator [2004] 2 AC 323 at 355 §16. Further support for the application of the non-refoulment principle is provided in the GRETA Guidance Note §47. Returning an unrecognised VOT without an adequate assessment of the re-trafficking risks in those countries may also not be compliant with the duty of non-refoulment in Article 33 of the Refugee Convention. The risk of breach of this principle under Article 33 is more pronounced given that VOTs may constitute a particular social group: see section 33 (2)-(4) NABA.

This is a challenge to the rationality of the Decision on the facts of the Claimant’s case. First, in the light of my conclusions above, and in particular in relation to Ground 2, the substantive Decision falls to be quashed in any event and so Ground 3 does not arise. Nevertheless I go on to consider Ground 3, on the alternative basis, namely that the Statutory Guidance is entirely lawful and that my conclusion on Ground 2 is wrong.

Leaving to one side the issue of the lawfulness of the Statutory Guidance, this is a Wednesbury rationality challenge.

In relation to the whole NRM process (including in making a POD decision), the Defendant is required to show a high standard of reasoning, applying anxious scrutiny: see R(MN and IXU) v Secretary of State for the Home Department, supraat §242. The decision must show by its reasoning that every factor in the applicant’s favour has been properly taken into account: YH v SSHD [2010] 4 All E R 448 at §24. Similarly this Court must equally apply anxious scrutiny.

On the other hand, disagreement as to the weight to be afforded to different considerations does not establish irrationality: R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA Civ 594 at §44. The Defendant’s assessments of the balance between the threat to public order and support needs are to be accorded appropriate respect: Secretary of State for the Home Department v Rehman [2001] UKHL 47 [2003] 1 AC 153 at §50 and R (Begum) v Special Immigration Appeals Commission [2021] AC 765 at §§70 to 71.

There are four stages in the POD decision making process: see paragraph 38 above. In line with the Claimant’s contentions, and since it is determinative of whether a POD should have been made, I consider first the final stage: the risk of re-trafficking.

In my judgment, the Defendant’s conclusion that the Claimant was not at real and immediate risk of re-trafficking was irrational, because it considered only the risk from those individuals who had exploited him in the past and failed to consider, more generally, the risk of re-trafficking in the UK from anyone. Further to the extent that the Decision considered the issue, it did not adequately or properly take into account the evidence that the risk of re-trafficking could only be met by NRM support and could not be mitigated by measures available outside the NRM support. Limited consideration of this issue did not sufficiently take account of NRM support worker evidence and Dr Qurashi’s report.

For this reason alone, the Decision did not apply anxious scrutiny and was irrational and the Decision would fall to be quashed in any event. I set out my reasons in the following paragraphs.

In assessing the risk of re-trafficking, under §14.276 of the Statutory Guidance, four questions are to be considered. The first of these is whether there is a “credible suspicion that the claimant/person is at real and immediate risk of being re-trafficked”.

First, the Defendant’s consideration in the Decision of the risk of re-trafficking in or from the UK is set out in paragraphs 65 to 68 above. The Decision concludes that there is no suggestion that either of his past exploiters are likely to contact the Claimant and that the Claimant is “unlikely to encounter your exploiters”. The Decision concludes that “for these reasons”, there is not a credible suspicion of a real and immediate risk of re-trafficking.

In my judgment, it is clear from those parts of the Decision (and in particular the words “for those reasons”) that the Defendant’s conclusion was based wholly and solely on the risk of re-trafficking by those who had previously exploited him - namely in 2001 and the named individual in 2024. The Defendant did not address her mind to the wider question of the Claimant’s general vulnerability to re-trafficking from any source.This approach is expressly recognised in the Statutory Guidance itself at §§1.2, 13.5 and 13.6: see Annex 1 paragraph 47. Moreover, there was direct evidence before the Defendant of the Claimant’s vulnerability to being re-trafficked in general, namely: evidence from Wiltshire Police in emails dated 16 and 22 July 2024 of concern about re-trafficking even though the recent perpetrator had been arrested and the Claimant had moved to a new area; and in a letter dated 16 September 2024 from his NRM support worker, Rose Phillips-Fuller, also expressing concern that the Claimant’s vulnerability continued to pose a potential trafficking risk. Moreover in the 2024 RG decision the Defendant herself accepted that the medical reportsupported the Claimant’s extreme vulnerability and susceptibility to further trafficking. In my judgment, this alone was a failure to take into account a relevant consideration. This was a substantial and significant omission. To this extent, the Defendant’s failure to consider this, by applying anxious scrutiny, was a public law error rendering the Decision irrational.

Secondly, as regards the third and fourth questions in the Statutory Guidance §14.276 and whether the risk of re-trafficking could be mitigated by support outside the modern slavery specific protection, the Decision (at pages 39 to 41) gave some, albeit limited, consideration to this issue - not least because it had concluded that there was no relevant risk of re-trafficking. In this regard, the Decision referred to the following: access to primary NHS treatment (including community mental health services) through GP referral and the option of private treatment option; the fact that the Claimant was receiving Schedule 10 accommodation which would be unaffected by a POD decision; and the fact that the Claimant could take reasonable steps to prevent re-trafficking. However the Decision failed to take account of the fact that the mitigation relied upon in the Decision did not avert the risk of re-trafficking. The recent incident of re-trafficking in March 2024 had taken place at a time when, as a result of the March decision, NRM support had been withdrawn and even though the Claimant was at the time under the care of his GP, under probation supervision and in Home Office bail accommodation. The most recent evidence from the Claimant’s NRM support worker, Ms Phillips-Fuller, is clear that specific modern slavery support was necessary to manage the risk of re-trafficking. That evidence is more detailed than the earlier letter from Mr Moreton. The Statutory Guidance itself (at §§8.16 and 8.17) expressly tasks the NRM support worker to conduct such a risk and needs assessment. Her assessment in this case was not addressed in any substance in the Decision. Similarly Dr Qurashi’s report made clear that the risk of re-trafficking could not be met or mitigated by support outside modern slavery protection. Asked specifically, his view was that, in the absence of trafficking support, the Claimant was significantly more likely to be exploited by others: Report §§9.46 and 9.51. On this issue, the Decision (at page 39) cites a later part of Dr Qurashi’s report, referring to the need for specialist mental health care and to §9.59 and, in that paragraph to the need for a stable case worker. The Decision omits to refer to what Dr Qurashi actually said about this earlier in his report at §§9.46 and 9.51. In this way, the Decision quotes selectively from Dr Qurashi’s report, to suggest that what he recommends can be met without NRM specific support. For these reasons, the Decision failed adequately to take account of the need for modern slavery specific support and its conclusion that support outside the NRM mitigated the risk failed to take account of all the relevant evidence.

However, in my judgment, the conclusion in the Decision that any risk of re-trafficking which might arise abroad (i.e. upon return to Trinidad) at some point in the future was not relevant to considering whether there was a real and immediate risk of re-trafficking was neither wrong in law nor irrational.

First, the principle established by Soering is that Article 3 ECHR imposes an obligation upon a Contracting State not to remove a person to other states where there are substantial grounds for believing that that person would be at real risk of ill-treatment proscribed by Article 3: Soering §§91 and 92. The principle applies to cases of extradition, and to removal and deportation cases more generally. In particular, Soering establishes that the liability of the Contracting State is incurred “by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed treatment” (§91).

Secondly, in principle, there is a strong basis for concluding that the same principle should apply to Article 4: i.e. that Article 4 imposes an obligation not to remove where there are substantial grounds for believing that the person would be at real and immediate risk of being re-trafficked in the other country in breach of Article 4: see R (Ullah) v Special Adjudicator [2004] 2 AC 323 at 355 §16;Rantsev supra§283 and SM v Croatia supra§241.

Thirdly, on the facts of the present case, the report of Dr Randy Seepersad supports a conclusion that there is a credible suspicion that, if and when returned to Trinidad, the Claimant will be at real and immediate risk of being re-trafficked in Trinidad.

Fourthly, however, the Soering principle is directed towards decisions of removal. Whilst one purpose, and the effect, of the POD decision is to remove the bar on removal, it is not itself a decision to remove. In my judgment, the Decision does not have as a direct consequence the exposure of the Claimant to a real and immediate risk of being re-trafficked. A POD decision of itself does not result in the individual being exposed to any risk of re-trafficking abroad. Indeed the Claimant’s case at its highest was that the Decision may have such a consequence. Absent a decision to remove or deport the Claimant, the Decision does not itself expose him to a risk of re-trafficking in Trinidad. The issue could be raised if and when there is a decision to remove or deport the Claimant and that decision could be subject to legal challenge on Soering type principles, (even if there is no longer any right of appeal against a decision to remove per se).

In the light of my conclusions above in relation to the fourth stage, risk of re-trafficking, I deal only briefly with the assessment of the threat to public order and recovery needs and the balance between the two.

As regards high threat to public order, I am not satisfied that the conclusion in the Decision that the Claimant posed a high threat to public order was irrational, taking account not merely of the presumptions in the Statutory Guidance, but on the facts. On the one hand, some of the reasoning in the Decision on this issue can be criticised. First, the Decision concentrates on the Claimant’s past conduct, rather than the future risk of offending and future threat. In particular reliance upon judicial remarks upon his prior conviction and sentencing in the past, even taking account of mental health condition, are not in my view directly relevant to the assessment of threat. Conviction and sentencing for past offences serve wider and different purposes. Whether mental health excuses guilt, or mitigates guilt for purposes of sentencing, is not the same issue as to whether mental health affects the assessment of risks of future offending. Nor does the fact that an offence passes the custody threshold of itself indicate a high threat to public order. This is necessarily the position in relation to all cases under sub-section (f) and highly likely in sub-section (b) cases. Moreover the Decision does not adequately take account of the link between the Claimant’s mental health and offending and the fact that his mental health is in a better position, particularly with NRM support.

On the other hand, however, the OASys assessments strongly suggest that, looking forward, the Claimant does still poses a substantial risk of further offending and a high risk of harm to, at least the public and known adults (even though the most recent assessment (OASys 2024) which is not referred to in the Decision appears to show a reduction in risk: see Annex 3 paragraph 37). Moreover it is common ground that there is a link between the Claimant’s drug use, his mental health and his offending. The Decision confirms that the Claimant had not stopped using cannabis and there was no evidence of progress in drug rehabilitation. Whilst the Claimant may disagree with this assessment of the level of his threat to public order, in my judgment it was not a conclusion which was so unreasonable that it could not rationally have been reached.

As regards recovery needs, the Decision concluded, following a detailed review, that the Claimant’s needs for modern slavery specific protection were high. It went on to conclude, in the balancing exercise, that these did not outweigh the public interest in disqualification, in particular because some of those protection needs could be met outside the MSVCC. However, I have considered this issue in the context of re-trafficking risk and as I have found in paragraph 204 above, I consider that the Decision failed to take account of the evidence that modern slavery support was necessary and that the Claimant’s needs could not be adequately met by services outside MSVCC support. To this extent, the Decision erred.

As a result of this error, when carrying out the balancing of the threat to public order and the modern slavery protection needs, the Defendant did not give appropriate weight to the latter consideration. In particular the Decision expressly relied upon the finding that the protection needs could be met outside the MSVCC (see paragraph 64 above). Even on the assumption that the approach in the Statutory Guidance to balancing were correct (i.e. particularly in relation to the weight to be attached to the threat to public order and the “high bar”) it was irrational for the Defendant to conclude that in principle a POD decision should be made.

In the light of my conclusion on Ground 2, Ground 3 does not arise. However, if my conclusion on Ground 2 is wrong, and applying the Statutory Guidance in full, I find that the Decision was irrational and thus unlawful, primarily on the basis that it was wrong to find that there was not a real and immediate risk of re-trafficking in the UK and thus was irrational. (I also find that the Decision was wrong to find that the threat to public order outweighed the Claimant’s modern slavery protection needs).

The Claimant seeks damages arising from the infringement of his Article 4 ECHR rights. He submits that the Defendant has breached the Article 4 protection duty by:

As a result the Claimant has suffered harm which cannot be properly compensated for by declaratory relief and the Court should order damages for breaches of his Article 4 ECHR rights.

The Defendant submits that none of the facts established a breach of the Article 4 protection duty in the Claimant’s case. By removing the Claimant from the situation of claimed recent trafficking and by the arrest, criminal investigation and prosecution of the alleged exploiter, the State has fully discharged any Article 4 positive duties owed to the Claimant. It is denied that the Claimant is a victim and that an award of damages is necessary to afford a satisfaction.

I am not satisfied that the Claimant has established any relevant breach of Article 4 ECHR. In relation to Ground 1, I have found that the Claimant has not established breach of Article 4 ECHR as a distinct basis for his case on Ground 1 (paragraph 127 above). In relation to Ground 3, I have found that a risk of re-trafficking in a third country in potential breach of Article 4 has not arisen (paragraphs 205 and 209 above). Accordingly, Ground 4 is dismissed.

In the light of the foregoing conclusions, I find in summary:

I will hear the parties on the appropriate form of orders to be made in the light of these conclusions, and any consequential matters.

I am grateful to all counsel and solicitors for their assistance and for the quality of the argument placed before the Court.

International Instruments

UK domestic legislation and materials

Article 4 ECHR is headed “Prohibition of slavery and forced labour” and provides as follows:

ECAT is an international convention to which 46 states are parties and concluded on 16 May 2005. It entered into force for the UK on 1 April 2009. It is a measure designed to combat trafficking in human beings. It is not incorporated into English law and as such is not a direct source of rights enforceable in domestic law.

The Preamble to ECAT provides as follows:

Chapter I is headed “Purposes, scope, non-discrimination principle and definitions” and provides inter alia as follows:

For present purposes, Chapter III is central to the issues in the present case. It is headed “Measures to protect and promote the rights of victims, guaranteeing gender equality”. The following provisions of Chapter III are relevant.

Article 10, headed “Identification of the victims”, provides inter alia as follows:

Article 12 is headed “Assistance to victims” and provides, inter alia, as follows:

Article 13, is headed “Recovery and reflection period”and provides asfollows:

Article 13(3) is implemented in UK law by section 63 NABA and refers to the public order disqualification which is in issue in the present case. The text of the French language version of Article 13(3) is as follows:

The underlined words can be translated as “for public order reasons” and there is no reference to the concept of “preventing” (unlike the position in the French text of the Explanatory Report: see paragraph 17 below).

Article 14 is headed “Residence permit”. It concerns victims of trafficking with a conclusive grounds decision and provides inter alia as follows

Chapter IV of ECAT is headed “Substantive criminal law”. Article 18 (which is referred to in Article 10(2)) is headed “Criminalisation of trafficking in human beings” provides as follows:

Chapter V of ECAT is headed “Investigation, prosecution and procedural law”. Article 28 headed “Protection of victims, witnesses and collaborators with the judicial authorities and provides (in the context of criminal proceedings), inter alia, as follows:

Finally, Chapter VII is headed “Monitoring mechanism”. Article 36 establishes “GRETA”. It is headed “Group of experts on action against trafficking in human beings” and provides, inter alia, as follows:

Article 38 headed “Procedure” provides inter alia:

The Explanatory Report to ECAT provides, inter alia, as follows. In respect of “Chapter I – Purposes, scope, non-discrimination principle and definitions”, the Report states:

In respect of Chapter III “Measures to protect and promote the rights of victims, guaranteeing gender equality”, the Report states:

The French version of the last sentence of paragraph 173 is:

In September 2024 GRETA produced a guidance note on Article 13 ECAT. The GRETA Guidance Note provides, inter alia, as follows:

Article 6 of Directive 2004/81/EEC is entitled “reflection period”. By article 6(1) member states are required to ensure that the third country nationals concerned are granted a reflection period allowing them to recover and escape the influence of the perpetrators of the offences. Article 6(4) goes on to provide as follows:

Article 27 of Directive 2004/38 is entitled “General principles” and provides as follows:

Article 24 of Directive 2004/93 is entitled “Residence permits” and provides, inter alia, as follows:

The Vienna Convention on the Law of Treaties (“the Vienna Convention”) addresses Interpretation of Treaties in section 3.

Article 31 is headed “General rule of interpretation” and provides as follows:

Article 32 is headed “Supplementary means of interpretation” and provides as follows:

Article 33 is headed “Interpretation of treaties authenticated in two or more languages”and provides, inter alia, as follows:

Section 32(5) UKBA provides for automatic deportation in respect of a foreign criminal. Under section 32(1) and (2) a foreign criminal includes a non-British or Irish citizen who has been sentenced for an offence to a period of at least 12 months imprisonment. Section 32(4) provides expressly that the deportation of a foreign criminal “is conducive to the public good” (for the purpose of section 3(5)(a) Immigration Act 1971). Section 33 sets out a number of exceptions to the obligation to deport. These include where removal would breach the person’s rights under the ECHR (section 33(2)) or where the Secretary of State thinks that it would breach the UK’s obligations under ECAT (section 33(6A)).

ECAT was ratified by the UK in December 2008. It was not initially implemented by legislation. Initially the Secretary of State established administrative measures for identifying and supporting victims of trafficking under the National Referral Mechanism (“NRM”). This established the procedure for referral to a competent authority and the making of first a reasonable grounds decision and then, secondly, a conclusive grounds decision. The Home Office published guidance for staff on the operation of the NRM and competent authorities.

The Modern Slavery Act 2015 (“MSA”) came into force on 31 July 2015 which included the definition of modern slavery referring to Article 4 ECHR. To coincide with the coming into force of the MSA, a new version of the guidance was issued, effective from 31 July 2015.

Part 5 of the Nationality and Borders Act 2022 (“NABA”) came into force on 30 January 2023. The guidance was further amended.

The Parliamentary history leading to the enactment of Part 5 of NABA is set out at paragraphs 59 to 68 below.

Section 45(1) and (4) MSA provides a defence to a criminal charge for slavery or trafficking victims who commit an offence due to compulsion. However the defence does not apply to an offence listed in Schedule 4 to the MSA. Offences listed in Schedule 4 include serious violent and sexual offences. These offences include wounding contrary to section 20 Offences Against the Person Act 1861, and robbery contrary to section 8 Theft Act 1968.

Section 49 MSA as now amended by section 60 NABA provides as follows:

Section 50A was inserted into the MSA by section 64 NABA. (Section 50A implements Article 13(2) ECAT). It is headed “Identified potential victims etc: assistance and support” and provides as follows:

The Explanatory Note to MSA provides, inter alia, as follows:

Part 5 of NABA is headed “Modern Slavery”. It comprises sections 58 to 69. Section 60 makes amendments to the MSA, including to section 49, and section 64 inserts new section 50A MSA (both as set out above).

Section 61 is headed “Identified potential victims of slavery or human trafficking: recovery period” and provides as follows:

Section 62 is headed “No entitlement to additional recovery period etc”. It addresses the position where there is a second RG decision and provides as follows:

Section 63 is the key provision in this case. It is headed “Identified potential victims etc: disqualification from protection”and provides as follows:

Section 65 is headed “Leave to remain for victims of slavery or human trafficking” and provides inter alia as follows:

The Explanatory Notes accompanying Part 5 of NABA provide, inter alia, as follows:

The Statutory Guidance is entitled “Modern Slavery: Statutory Guidance for England and Wales (under S 49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland”. The following sets out provisions of version 3.8. (Version 3.12, in materially the same terms, was in force at the time of the hearing).

In section 1 entitled “About this guidance” and under the heading “Introduction to modern slavery”, the Statutory Guidance states:

Paragraph 1.20 sets out a definition section. “Conclusive Grounds Decision” is defined as “a decision taken by a competent authority as to whether, on the balance of probabilities, there are sufficient grounds to decide that the individual being considered is a victim of modern slavery (human trafficking or slavery, servitude or forced or compulsory labour)”. “Public order” refers directly across to section 63(3). “Public order disqualification” is stated to apply “when the competent authority is satisfied that the individual is a threat to public order and that disqualification from NRM support is appropriate considering the individual recovery needs of the person”.

Section 2 is entitled “What is Modern Slavery?”. Under the heading “Human trafficking”, paragraph 2.3 states that “The essence of human trafficking is that the victim is coerced or deceived into a situation where they are exploited.” It then sets out Article 4(a) ECAT.

Section 7 is headed “The National Referral Mechanism decision-making process”. The key points are that competent authorities consider cases of PVOTs referred to the NRM by First Responders and will then make an RG decision. Following a positive RG decision the PVOT receives a recovery period of at least 30 day and will receive support. The authority will make a CG decision at least 30 days after the RG decision. In many cases a CG decision will take longer. Following a positive CG decision, VOTs are exited from support when appropriate. They will then receive at least 45 days of support during the “move-on period”.

Section 8 is headed “Support for Adult Victims”. Paragraphs 8.7, 8.16 and 8.17 set out the role of the support worker in the assessment of risks and needs of PVOTs and VOTs under the MSVCC. Section 8 continues, inter alia, as follows:

Annex D to the Statutory Guidance addresses “working with vulnerable people”. Amongst adults who are particularly susceptible to modern slavery, at paragraph 13.5 the Statutory Guidance identifies former victims of modern slavery, people who are homeless or at risk of becoming homeless, people with drug and alcohol dependency issues, people with underlying health factors such as mental health disorders, people who have previously experienced abuse, people with criminal records, illegal immigrants and older people experiencing loneliness and financial hardship. Paragraph 13.6 goes on to state that:

Annex E of the Statutory Guidance states, at paragraph 14, that it “provides detailed guidance for staff in the Competent Authorities.” The section runs to some 72 pages.

Annex E addresses “Public Order Disqualification” between paragraph 14.235 and 14.292. (It deals separately with bad faith disqualification at paragraphs 14.293 et seq.). Paragraphs 14.235 to 14.242 provide as follows

Under the heading “a Public Order Disqualification requests”, Annex E states:

Annex E continues, under the heading “Evidence gathering and decision-making process”:

Paragraphs 14.256 to 14.259 set out the procedure and timetable for making a POD decision in the case of British Citizens and foreign national offenders who are not detained. Paragraphs 14.260 to 14.262 modify that procedure and timetable in the case of detained foreign national offenders. The ten day window to provide information in the former case, does not apply in the latter cases.

Central to the decision-making process under section 63 are the following three key sections of the Statutory Guidance:

The first of the three key sections provides as follows:

Paragraph 14.275 sets out, in two tables, “the decision-making framework” which contains a non-exhaustive list of indicators and which “will be used by Competent Authority decision makers on a case-by-case basis.”. The first table is entitled “Threat to public order” and the second table is entitled “Need for modern slavery specific protections”. Each table is then divided into two sections, namely “high” and “low”. The Framework is set out in full at Annex 2 hereto.

The third key section is “assessing re-trafficking risk”. Paragraphs 14.276 to 14.278 set out the approach to assessing re-trafficking risk at the final stage, “if decision makers decide that the Public Order Disqualification should be applied”.

Paragraph 14.276 then lists a number of factors which are to be considered, under four main questions: first, “is there a credible suspicion of a real and immediate risk that the individual will be re-trafficked in or from the UK”? Secondly “can the decision to disqualify be issued without putting that individual at a real and immediate risk of re-trafficking in or from the UK?”. Thirdly “What if anything, could and should be done outside of modern slavery specific protections to mitigate any immediate re-trafficking risk upon issuing the decision? Fourthly, “What reasonable steps could the potential victim themselves be expected to take to ensure they are not exposed to risk of re-trafficking?”

In conclusion, paragraphs 14.277 and 14.278 then provide that if it is found that there is a real and immediate risk that cannot be mitigated, then there will be no POD, the individual will continue to be eligible for support, and decision-making in the NRM will also continue. If on the other hand it is decided that there is no real and immediate risk of re-trafficking or that there are mitigating factors which do not prevent the issue of the POD, then the POD should be made.

The Nationality and Borders Bill as introduced on 6 July 2021 contained the following relevant provisions.

Clause 50 (which eventually became section 62 NABA) provided by clause 50(2) that a further RG decision does not result in any requirement to make a conclusive grant decision in relation to the person”. Clause 50 (2) was omitted from NABA.

Clause 51 (which eventually became section 63 NABA) provided by clause 51(2):

In NABA, clause 51(2)(b) was repeated and found in section 63(2)(a). However clause 51(2)(a) was omitted from section 63 and NABA generally. At that stage there was no provision in clause of 51(2) equivalent to what became section 63(2)(b) NABA.

Clause 53 set out provisions which were eventually found in section 65 NABA. Whilst clause 53(5) and (6) was in terms similar to section 65(6) and (7), clause 53 contained no provision similar to what became section 65(3) NABA.

In the Nationality and Borders Bill as amended in Public Bill Committee and dated 4 November 2021, clause 51 of the original Bill was now to be found in clause 62. Clause 62(2) retained the full terms of clause 51 including the removal of any requirement to make a CG decision. Clauses 49, 50 and 51 of the original Bill became, respectively, clauses 60, 61 and 62 of the amended Bill.

Then, in the Notices of Amendments dated 6 December 2021, the following amendments were explained as follows. First, by amendment 64, subclause (2) of clause 60 was to be omitted. It removed the requirement that a Conclusive Grounds decision could not be made before the end of the 30 days recovery period. Secondly, by amendment 69, clause 61 was amended, so as, effectively to omit what had originally been in clause 50(2) (namely the power not to proceed to conclusive grounds decision following a further RG decision). The Secretary of State’s explanatory statement provided that the amendment removed the disapplication of a requirement to make a conclusive grounds decision following a “further RG decision”. The new clause 61 (which became section 62 NABA) provided that, although an identified potential victim was not automatically entitled to protection from removal following a further RG decision, the competent authority might decide that it was appropriate to give them that protection.

Thirdly, and significantly for present purposes, by amendment 70, clause 62(2)(a) was omitted and, by amendment 71, a new provision (which became section 63(2)(b) NABA) was inserted.

As regards amendment 70, the Secretary of State commented “that the amendment was consequential on amendments 64 and 69”.

As regards amendment 71, (the insertion of what became section 63(2)(b)), the Secretary of State commented: