Challenge to public order disqualification dismissed by Upper Tribunal

The Upper Tribunal has declined to decide a policy challenge to the ten day deadline, and “exceptional circumstances” requirement to extend it, to respond to a notification that the Home Secretary is considering excluding someone from trafficking protections under the public order disqualification. The challenge to the individual decision was dismissed but the tribunal did set out some useful guidance on what requests for an extension of time might usefully include. The case is R (UNG) v Secretary of State for the Home Department, JR-2024-LON-002780.

Background

The applicant is a French national born in the UK. He was 19 years and 11 months old at the date of the hearing and is a care leave who is in the care of a local authority. On 6 October 2019 he was granted settled status under the EU Settlement Scheme.

On 15 March 2022 the applicant was convicted of offences and sentenced to five years in a young offenders institution, reduced to three years on appeal. In response to the convictions, the applicant was issued with a stage 1 deportation decision on 3 October 2023. He appealed the decision, but this was stayed behind the case of Vargova which is expected to be heard by the Court of Appeal later this year, having been granted permission in April 2025.

On 16 March 2024 the Metropolitan Police referred the applicant into the National Referral Mechanism to assess whether he was a victim of trafficking. The referral seems to have arisen in relation to allegations that the applicant had been forced to supply class A drugs under threat of violence.

A positive reasonable grounds decision was issued on 8 May 2024, along with notification that the Home Secretary was minded to apply the public order disqualification process under section 63 of the Nationality and Borders Act 2022, which would mean that the applicant was disqualified from the protections that he would otherwise be entitled to as a victim of trafficking.

The applicant was given until 22 May 2024 to respond to the notification. The applicant’s solicitors responded by email at 4.21pm on 22 May 2024. The email included a psychological report from 2021 and also explained that they were waiting on a response from the Home Office to a subject access request made on 28 March 2024.

The solicitors asked for an extension of time until 15 September 2024. They argued that “exceptional circumstances” (as required under the guidance) applied here as the stayed proceedings may make relevant findings and “expert trafficking evidence may be needed on the nexus between the trafficking for criminal exploitation and the offences” and that timetable would be dictated by the criminal proceedings.

The solicitors said that they were also in the process of commissioning a new medico-legal report however it may not be possible to obtain this before September because of expert availability. They also referred to the outstanding subject access requests which, in addition to the one submitted to the Home Office, had been made to social service, the young offenders’ institute, the police and UNG’s GP.

The extension of time request was rejected on 24 May 2024 stating that the reasons given were not exceptional and that “Although you state that you are in the process of gathering information and commissioning reports, you have provided no evidence to demonstrate your attempts to obtain such evidence, that any appointments have been booked or an exact timeline of when this evidence will be produced”.

On 28 May 2024 a public order disqualification decision was made. The decision maker referred to further convictions that appear to have been committed in detention. The psychological report was criticised for being too old and the decision maker noted that there was no evidence of any severe physical or mental health conditions. A re-trafficking assessment was carried out as required under the guidance and no such risk was identified.

The judicial review

The judicial review was lodged on 27 August 2024, the day before the three month deadline to challenge the decision of 28 May 2024. The tribunal was critical of this, saying that the claim had not been made promptly. The tribunal also noted that there was no direct challenge to the refusal to extend time and said that it was “reasonable to infer that one reason why the claim was restricted in this way might have been because the delay in filing judicial review proceedings meant that any challenge to the 24 May 2024 decision would have been out of time”.

The judicial review had been lodged in the Administrative Court but was transferred to the Upper Tribunal under the discretion available in challenges to public order disqualifications.

There were two grounds of challenge, the first was referred to as “the policy point” and argued that requirement in the guidance of “exceptional circumstances” for an extension of time to be granted was procedurally unfair. The second was “the individual point” and argued that the refusal to apply the public order disqualification was unlawful and/or procedurally unfair because of the refusal to extend time. It was also argued that there had been exceptional circumstances in this case because of the inability to obtain a medico-legal report within the ten day time limit.

The Home Secretary’s position was that “exceptional circumstances” provided sufficient flexibility and was compatible with procedural fairness. On the individual point, the defence was that “The reasons given by the decision maker for refusing to extend time engaged with the submissions and were legally sustainable”.

The Upper Tribunal took the individual point first and set out what they would have expected to see in the extension of time request. This will probably be helpful to include in future requests so I am setting these two paragraphs out in full:

67. It is clear from the representations sent on 22 May 2024 that those representing the applicant wanted to obtain some form of expert evidence relating to the applicant’s psychological state and an assessment of the risk of re-trafficking. However, what is lacking from the representations is any detail to show why the evidence was necessary or relevant to the POD decision. Nor was sufficient supporting evidence produced to show what actual steps had been taken to instruct an expert.

68. Bearing in mind the short timescale outlined in the policy, the most effective way to explain the applicant’s circumstances, what protections and support he might need, and what his current mental state might be, would have been to prepare a detailed witness statement. At the very least, this might signpost the respondent to the relevant issues in order to consider whether further supporting evidence from an expert was necessary before a POD decision was taken. Taking a statement is likely to have been achievable in the 10 day timescale, but it is a piece of evidence that is notably absent from the evidence that was sent with the request to extend time.

The tribunal also set out how the other reasons given for the extension of time request should have been further particularised. Unfairly, the tribunal also criticised the fact that the representations were sent in the last hour before the deadline – this was not a judicial review application and there was no “promptness” requirement.

The applicant had also argued that there was no urgency to impose a public order disqualification because of the stayed appeal and criminal charges. This seems relevant, but the tribunal declined to address this on the basis that the argument was not made in the representations asking for an extension of time nor in the initial grounds for judicial review.

The tribunal concluded that the decision was one “that was open to the decision maker on the limited information provided with the representations”.

Conclusion

Perhaps thankfully, the policy point was left unresolved by the judge on the basis that it was academic and a disproportionate use of court time to decide it in this case. I believe that there is at least one other challenge to the very limited amount of time available to respond in public order disqualification cases, so the point will be decided, hopefully positively and soon. In the meantime, this case should be read carefully and in full by anyone who is applying for an extension of time in these cases. 

The final point I would note, although entirely speculative on my part given the lack of detail on this point, is that this looks like a case where the local authority should possibly have registered UNG as British years ago, in which case his current circumstances would be very different.