The High Court has ordered that the Secretary of State for the Home Department must not exercise her Public Order Disqualification powers to remove support from potential victims of modern slavery pending trial unless she first conducts and takes account of an assessment of the risks of re-trafficking.
In January 2023, the SSHD introduced a Public Order Disqualification policy (“the policy”) through amendments to the Modern Slavery Statutory Guidance (‘Statutory Guidance for England and Wales under s49 of the Modern Slavery Act’). The policy directs decision makers to disqualify individuals who SSHD has identified as potential victims of trafficking from receiving support and protection if they are considered to be a threat to public order as a result of having committed a criminal offence. This includes disqualifying them from undergoing an assessment of the risk of re-trafficking and receiving protection from their traffickers, such as a place in a safehouse. The policy applies even if the potential victim was forced to commit the criminal offence by their traffickers..
On 1 March 2023, a Vietnamese national issued judicial review proceedings against the SSHD claiming that the policy was unlawful on a number of grounds, including that it induced breaches of the Article 4 ECHR protection duty. In May and June further individuals from Romania (MAN) and Poland (LAN) issued proceedings. VAN, LAN and MAN sought general interim relief to protect all potential modern slavery victims pending trial.
Swift J granted permission to apply for judicial review and ordered the Secretary of State not to disqualify anyone from receiving protection support pending trial unless an initial risk assessment has been conducted and factored into the disqualification decision.