Written decision published by Court of Appeal in France removal case

We now have the Court of Appeal’s written decision in R (CTK) v Secretary of State for the Home Department [2025] EWCA Civ 1264. This was the case where the High Court granted interim relief preventing the removal of an Eritrean man to France, prompting a change in the modern slavery statutory guidance and this very ill advised application for permission to appeal by the Home Secretary which was dismissed on the spot by the court, without hearing from CTK’s lawyers.

For those who want some further context to the below case, do read my posts on the reality behind removal challenges and the various hurdles put in place for those trying to navigate the modern slavery identification system, particularly for those in detention. This case is a perfect illustration of pretty much all of the problems I wrote about.

Background

CTK is an Eritrean national born on 2 January 2000. He travelled to France via Sudan, Libya and Italy before making his way from France to the UK across the Channel on 12 August 2025.

His screening interview took place on 13 August 2025 with an Amharic interpreter. In response to a question about whether he had any medical issues, CTK said that he had a sore shoulder. He was asked if he had been exploited, apparently with some explanation given as to what this meant, and said “no”.

When describing his journey to the UK he said that he had been in Libya for a year where he had worked as a porter carrying bricks and that sometimes he was not paid for this, but he was usually paid. He said that he had not claimed asylum elsewhere because he had seen lots of people sleeping on the streets.

On 14 August 2025 he was issued with a notice of intent. On 15 August 2025 the UK made the readmission request to France and this was accepted by the French on 4 September 2025.

On 19 and 27 August 2025 CTK attended the detained duty advice scheme where he saw two different firms of solicitors, TNA Solicitors and Brit Solicitors. According to the Home Secretary, neither made any representations on behalf of CTK.

On 5 September 2025 CTK was served with an inadmissibility decision and she also refused a claim that his removal to France would breach his Convention rights (this claim was not directly made or particularised by CTK at this stage, rather it was inferred by the Home Secretary from his screening interview). CTK was also served with a notice of liability to removal the same day, and on 8 September 2025 he was given removal directions for 17 September 2025.

CTK then struck it lucky with his third attempt at the detained duty advice scheme on 9 September 2025 as Duncan Lewis were on the rota. They were formally instructed on 12 September 2025 and they notified the Home Office of CTK’s trafficking claim the next day. On 14 September 2025 they sent further representations to the Home Office and a pre action letter the day after that.

CTK was interviewed by the Home Office in relation to his trafficking claim on 14 September 2025. On 14 September 2025 the Home Office made the trafficking referral to the Competent Authority (trafficking decision making body) and they accepted the referral the next day. In the afternoon of 15 September 2025 the Competent Authority emailed Duncan Lewis asking for further information with a response to be provided by “16/09/2025”. The email asked “first, for “more detail of both exploitations in Ethiopia and Libya”; secondly, “Why is [CTK] reporting this now?”; and thirdly, “Are you able to provide additional documents that could support the Competent Authority referral?””.

The lawyer responded and (rightly) pointed out that it was unreasonable to request all of this within such a short timescale, particularly given the need for an interpreter to communicate with CTK. Notwithstanding the unreasonable deadline, CTK’s lawyers managed to serve a short witness statement addressing the three questions on 16 September 2025.

The interim relief hearing and negative reasonable grounds decision

The interim relief hearing took place on 16 September 2025 and a negative reasonable grounds decision on the trafficking claim was served at 5.39pm, during the hearing. The Competent Authority appears to have broadly accepted CTK’s account but did not consider that two of the incidents met the definition of modern slavery and said that insufficient detail had been given of a third incident.

CTK was also criticised for not having made his claim sooner and for the failure to provide evidence “which it would have been reasonable to expect, such as medical reports”. Of course, the failure to identify the claim at the outset was squarely that of the Home Office (unpaid work in Libya should have triggered a trafficking referral) and there was obviously no time for CTK to have obtained a medio-legal report, not least because of the difficulty he had in finding a lawyer who was able and prepared to actually work on his case.

The decision letter had a heading “Reconsideration routes” which said that a reconsideration of the decision could be requested within 30 calendar days of the decision.

There were several grounds of challenge in the judicial review. Initially, one of those was the outstanding reasonable grounds decision, as if the outcome was positive that would act as a statutory bar to removal. Once the negative decision had been served, the hearing pivoted.

The High Court asked whether the decision could be challenged from France. Counsel for the Home Secretary sought instructions and later in the hearing she received an email stating that the Competent Authority could not take a reconsideration request from France. This effectively brought the hearing to an end as the judge said that this had “forced [his] hand” as to refuse interim relief would mean CTK could not ask for reconsideration of the negative decision.

Applying the test in American Cyanamid Co v Ethicon Limited [1975] AC 396, he granted a short period interim relief to allow CTK to make the reconsideration request, with his lawyers to use their best endeavours to do this within 14 days.

The Court of Appeal

The court pointed out that both the negative reasonable grounds decision letter and the modern slavery statutory guidance in force at the time of the decision provided for CTK to request reconsideration of the decision. The court said that:

So the decision by the Secretary of State’s own specialist staff, the Competent Authority, was, in this respect, in accordance with the guidance. Yet before the Judge, the Secretary of State, in effect, repudiated that aspect of the decision and insisted to the Judge that CTK must be removed, in breach of her own published policy, and in breach of an unambiguous indication by the Competent Authority that CTK could request reconsideration of the Competent Authority’s decision within 30 days. It is strongly arguable both that the Secretary of State has no power to repudiate a lawful decision made by her own specialist civil servants, and made in accordance with her own published statutory guidance, and that, by doing so, she acted unlawfully.

All of the Home Secretary’s grounds of appeal were dismissed on the spot at the conclusion of the hearing, with the Court of Appeal stating that “We have no hesitation in deciding that none of them is arguable with a realistic prospect of success”.

Conclusion

One thing that is clear from this decision is the Home Secretary’s determination to push forward a clearly unmeritorious appeal because of a, frankly irrational, fear that any removal stopped would undermine the scheme of removals to France. As it is, it seems that most people who arrive across the Channel will not face removal to France and this seems far more likely to undermine any so-called deterrent effect than the few people who manage to obtain orders preventing their removal.

Anecdotally at least, it seems that the Home Office may be taking a more sensible approach to cancellation of removal directions since this farce of a case. However in a system this broken there are still, no doubt, many legal challenges to come.