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Secretary of State for the Home Department withdraws Public Order Disqualification policy

Published:

The Secretary of State for the Home Department has withdrawn the Public Order Disqualification policy as promulgated in versions 3.1-3.5 of his guidance ‘Modern Slavery: Statutory Guidance for England and Wales (under section 49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland’ (“the POD Policy”).

The Claimants and policy under challenge

The effect of the POD Policy was to exclude certain potential victims of trafficking who had committed criminal offences from protection under the NRM. This was the case even if the potential victim in trafficking had committed a criminal offence because of forced criminality. The POD Policy contained no obligation on decision-makers to consider whether the person to be disqualified was at any risk of re-trafficking.

The Claimants, MAN and LAN, are two men recognised by the Secretary of State to be potential victims of trafficking by way of sex trafficking and forced criminality respectively. On 5 May 2023 and 22 June 2023, the Secretary of State for the Home Department disqualified both MAN and LAN from the NRM’s protection under the POD Policy.

The Claimants issued judicial review proceedings. They challenged their individual disqualification decisions and the POD Policy on grounds (i) that the POD Policy induced breaches of Article 4 of the European Convention on Human Rights (and that Article 4 had been breached in their individual cases), (ii) that the POD Policy did not require the decision-maker to consider the risk of re-trafficking, contrary to the Tameside duty of inquiry, and (iii) that the process for making POD decisions was procedurally unfair.

Interim relief

Following a hearing on 26 July 2023, Swift J granted the Claimants interim relief against the operation of the entire policy. He ordered that “Pending the final hearing of these claims or further order, the Defendant shall not exercise her power under section 63 (1) of the Nationality and Borders Act 2022 in respect of a person in relation to whom a positive reasonable grounds decision has been made without, for the purposes of such decision, taking into account the results of an initial assessment of the person’s circumstances. For the purposes of this order, an initial assessment is the assessment described at paragraphs 8.11 to 8.12 of the Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery (sic) 2015) and Non-Statutory Guidance for Scotland and Northern Ireland issued by the Defendant in July 2023, pursuant to section 49 of the Modern Slavery Act.”

Compromise of the claim

The Defendant has withdrawn the POD decisions of MAN and LAN and withdrawn the POD Policy.

The Defendant has promulgated a new version of the Statutory Guidance, which is materially different in numerous ways.

Under the new policy the power under section 63 (1) of the Nationality and Borders Act 2022 may only be exercised when the decision-maker has conducted a re-trafficking risk assessment. If there is an immediate and real risk of re-trafficking the potential victim will not be disqualified.

 

The Claimants and Defendant have accordingly agreed to compromise the claim on the terms of the order and statement of reasons here.

The Claimants were represented by Chris Buttler KC, Katy Sheridan, Rosalind Comyn (Matrix) and Marlena Valles (Blackstone Chambers), instructed by Maria Thomas at Duncan Lewis.