Home Secretary found to have acted unlawfully by denying victims of trafficking an effective process for identification and support before removal to France
1. In a landmark ruling [ES1] regarding the Government’s flagship policy of removing asylum seekers to France, the High Court has today found that the Home Secretary acted unlawfully when it removed the right of potential victims of human trafficking to request reconsideration of negative trafficking decisions before removal to France and other signatories to the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”).
2. The judgment importantly reaffirms that the UK’s obligations to identify trafficking victims cannot be diluted for administrative convenience or to facilitate removals. It confirms that where an identification system relies on rapid decision-making and lacks extensive procedural safeguards, a meaningful reconsideration process may be essential to ensuring victims are identified correctly. The removal of the right to request reconsideration was unlawful because it significantly reduced the effectiveness of the UK's trafficking identification regime, denied decision-makers access to potentially decisive evidence, and undermined the statutory purpose of protecting victims of modern slavery and human trafficking.
About the case
3. DPG acted for GIP, a Sudanese asylum-seeker and victim of torture and trafficking in Sudan, who was one of five Lead Claimants, each of whom had been removed or threatened with removal to France under the UK-France Treaty which entered into force on 6 August 2025.
4. GIP, together with two other Lead Claimants, EXR and HRE, argued that it was in breach of section 49 of the Modern Slavery Act 2015, and the UK’s obligations under ECAT to amend the Modern Slavery Act Guidance on 17 September 2026 to remove the right to request reconsideration of a negative “Reasonable Grounds” (“RG”) or “Conclusive Grounds” (“CG”) decision where the Home Secretary was proposing to remove a victim to a signatory state to ECAT and the European Convention of Human Rights (the “Convention”).
5. In a comprehensive judgment handed down today, Mr. Justice Sheldon found in favour of these Claimants and found that the arrangements made by the Home Secretary which instructed decision-makers to disregard relevant evidence and representations about the correctness of trafficking decisions were unlawful and deprived victims of a robust and effective process for victim identification.
The process of victim identification in the UK
6. The UK’s process for identifying potential victims of human trafficking, is for individuals to be referred to the National Referral Mechanism (‘NRM’) by a designated ‘First Responder’, such as the Home Office. Once referred, a decision as whether someone is a victim of trafficking is taken in two-stages: (i) an RG decision; and (ii) a CG decision.
7. At the RG stage, the decision-maker asks whether there are “reasonable grounds to believe” that a person is a victim of trafficking or modern slavery. This is an objective question with a low threshold.
8. Normally, a victim or someone acting on their behalf may request reconsideration of a negative RG decision where: (i) additional evidence can be provided which, taken with all available evidence already considered, could demonstrate the person is a victim of trafficking; or (ii) there are specific concerns that a decision made was not line with the MSASG: §14.217. However, on 17 September 2026 the right of reconsideration was expressly removed from victims and potential victims of trafficking who the Defendant intends to remove from the UK where the receiving state is a signatory of the ECHR or ECAT: §14.216.
Legal findings
9. The Court held that the Home Secretary's power under section 49 of the Modern Slavery Act 2015 to set arrangements for identifying victims of trafficking must be exercised consistently with the UK’s obligations under ECAT, which the legislation was designed to implement.
10. While ECAT does not expressly require a reconsideration process, the Court held that both ECAT and the Modern Slavery Act require an identification system that is robust and effective, because identification is the gateway to vital protections and support for trafficking victims.
11. Importantly, the Court accepted that those arriving by small boat will often have endured a very difficult journey across the English Channel. They will frequently be malnourished and deprived of sleep for several days. Their first interview – the asylum screening interview – may take place only hours after their arrival and in the middle of the night. There will often be language difficulties, which will not be resolved by the use of an interpreter. The questions posed about exploitation may not be fully understood. In these circumstances, it would not be surprising if incomplete accounts are given of alleged trafficking experiences or if none are given at all.
12. Mr Justice Sheldon noted, furthermore, that referral into the NRM may be made before the individual has spoken about his experiences to a medical professional and referred to the following aspects of the Guidance;
12.1 Paragraph 13.11 of Annex D acknowledges that “Victims of modern slavery may initially be unwilling to disclose details of their experience or identify themselves as a victim for a variety of reasons”.
12.2 Paragraph 13.12 recognises that “Victims may experience post-traumatic stress disorder, which can result in the following behaviours: . . . avoidance of reminders or triggers of the trauma – more extreme manifestations may include avoiding talking about the trauma they have experienced at all costs even when it would be in the victim’s ‘best interests’ to do so, such as in a police or asylum interview”.
12.3 At 13.16, the Guidance notes that “Errors, omissions and inconsistencies . . . can also arise due to the impact of trauma, which can, for example, lead to delayed disclosure or difficulty recalling facts.”
12.4 At 13.17, the Guidance states that: “Victims may have problems in dealing with direct interviewing, especially in contexts which seem to them to be adversarial.”
12.5 As a result, the Guidance identifies at paragraph 14.224, as an example of further evidence that is likely to be relevant to a case, “Evidence that provides possible explanations for inconsistencies in a potential victim’s account of modern slavery e.g., a medical report detailing inability to provide a coherent account of their experience of modern slavery”.
13. In light of the above, the Court found that the amendment to the reconsideration policy had the effect that in a certain category of cases – for individuals who may be removed to other ECAT and Convention countries, including those being removed to France – relevant evidence casting doubt on the correctness of a RG or CG decision would be disregarded. That further evidence might include material contained in a report under Rule 35 of the Detention Centre Rules 2001, or medico-legal report, following concerns about the mental or physical well-being of a detainee. That evidence might be in the process of being obtained at the time that the relevant trafficking decision was being taken, or may only be available after the decision is made.
14. Mr Justice Sheldon noted that arrangements that deprive the decision-maker of such evidence means that there are bound to be many cases where a victim of trafficking will not be identified. This was supported by the Home Office’s own evidence that 79% of reasonable grounds decisions which were reconsidered in 2025 received a positive outcome.[1]
15. Given the pace at which initial decisions are often made and the significant number of negative decisions later overturned on reconsideration, the Court concluded that a system which prevents decision-makers from considering such evidence cannot be regarded as an effective mechanism for identifying victims of trafficking, and that was inconsistent with section 49 of the Modern Slavery Act and the ECAT obligations which that statutory scheme was intended to fulfil.
16. In addition, the amendment to the Guidance was found to be unlawful for the following reasons:
16.1 the policy unlawfully restricted the Home Secretary’s discretion to reconsider decisions and fettered the Home Secretary’s duty to identify trafficking victims. Although the Home Office argued that a residual power to reconsider remained, the evidence showed that reconsideration generally occurred only in exceptional circumstances, often when litigation was threatened;
16.2 the policy breached the Padfield principle, which requires statutory powers to be exercised consistently with the purpose for which Parliament conferred them. The purpose of section 49 of the Modern Slavery Act 2015 is to ensure the effective identification and protection of trafficking victims. By reducing the effectiveness of that identification process, the policy frustrated, rather than furthered, Parliament’s purpose; and
16.3 the Court additionally found that the amended guidance to be unlawful under the principles established by the Supreme Court in R (A) v Secretary of State for the Home Department. The guidance was intended to be followed by Home Office decision-makers and directed them not to reconsider trafficking decisions for individuals facing removal to France. Because the Court had already found that those cases should, in appropriate circumstances, be reconsidered where new evidence emerged, the policy effectively instructed officials to act unlawfully. As a result, the guidance itself was unlawful because it induced decision-makers to apply an unlawful approach to trafficking claims.
GIP’s individual challenge
17. DPG acts for GIP, a Sudanese asylum-seeker and victim of torture and trafficking in Sudan, who arrived by small boat to the UK on 24 August 2025 and claimed asylum on arrival. Because of the way in which he arrived in the UK, GIP was detained under immigration powers and allocated to the asylum inadmissibility process for consideration of removal to France under UK-France Treaty.
18. Shortly after arrival, GIP disclosed an account of violent beatings by a Sudanese paramilitary group to extract forced labour from him. However, this was not accepted by the Defendant who issued a negative RG decision, first on 24 September 2025 and then, further to reconsideration, on 3 November 2025. GIP argued that both decisions were legally and factually flawed yet the Defendant relied on them anyway to make further adverse decisions on remove the Claimant to France. When challenged by pre-action correspondence, the Defendant refused to reconsider her flawed negative RG decision dated 3 November 2025, relying on an asserted policy exception to the right to reconsideration.
19. On the morning of 27 November 2025, GIP was removed to France where he remains street homeless and destitute.
20. In upholding GIP’s individual challenge to the lawfulness of the RG decisions, the Court found that both decisions to refuse his trafficking claim were unlawful.
21. However, the Court also found that individuals who, on arrival in the United Kingdom, claim that they have been historical victims of trafficking, and do not indicate a risk of re-trafficking, may well be entitled to protection under Article 4, but that will not be the case if all of the alleged trafficking fell outside of the territorial scope of Article 4. GIP’s claim under Article 4 of the Convention was therefore rejected and the certification decision was upheld.
22. The terms of the final order and consequential matters, including permission to appeal, have been adjourned to a hearing listed for later this month.
Zubier Yazdani of DPG has commented: “The Government’s attempted crackdown on small boat arrivals cannot displace long-standing protections for victims of trafficking. We are pleased that the Court has rightly recognised that reconsideration is a fundamental safeguard against cursory and erroneous decision-making. Our client has suffered significantly as a result of the Home Office’s decision-making in his case, which the High Court has now ruled unlawful, and he should therefore be brought back to the UK to enable his claim for trafficking to be lawfully reconsidered”.
Zubier Yazdani, David Garrick, Emily Soothill and previous colleagues Frances Lipman and Patrick Green of DPG act for GIP instructing Sam Grodzinski KC of Blackstone Chambers, Shu Shin Luh and Grace Capel of Doughty Street Chambers and Jennifer MacLeod of Brick Court. Emily Soothill, Tabatha Pinto and Öykü Aktaş also act for other victims of trafficking and age-disputed minors who have challenged their removal to France under the UK-France Treaty.
Bindmans act for EXR (instructing Sam Grodzinski KC of Blackstone Chambers, Shu Shin Luh and Agata Patyna of Doughty Street Chambers and Jennifer MacLeod of Brick Court).
Wilsons act for HRE (instructing Sam Grodzinski KC of Blackstone Chambers, Shu Shin Luh of Doughty Street Chambers, David Sellwood of Garden Court Chambers and Jennifer MacLeod of Brick Court).
Duncan Lewis act for AYA and KAG (instructing Sonali Naik KC of Garden Court Chambers,James Robottom, Eleanor Mitchell and Jessica Sutton of Matrix Chambers, Gordon Lee and Josephine Fathers of Garden Court Chambers and Catherine Meredith of Doughty Street Chambers). [ES2]
For press enquiries please contact: esoothill@dpglaw.co.uk
[1] Statistics from the first quarter 2026 show that 84% of RG reconsiderations ended in a positive outcome, and 88% of CG reconsiderations were also positive.