High Court finds the Home Secretary’s approach to making public order disqualification decisions is unlawful

In the first substantive judgment concerning the use of “public order disqualification” powers in trafficking cases under s.63 of the Nationality and Borders Act 2022, the High Court has found that the Home Secretary’s general approach has been unlawful to date and requires significant revision. The case is R (ABW) v Secretary Of State for the Home Department [2025] EWHC 3280 (Admin).

Legal framework

Access to support

Generally, potential victims of trafficking who receive a “reasonable grounds” decision (the first stage of the trafficking identification process) have a right to access various types of support under the National Referral Mechanism during their recovery period. Such benefits include a dedicated caseworker, additional financial support, safehouse accommodation and funded psychiatric treatment.

However, as a result of s.63 of Nationality and Borders Act 2022, the Home Secretary may exclude a “reasonable grounds” victim from accessing recovery support if, amongst other reasons, they are deemed a “threat to public order”. A person is deemed a threat to public order if they meet certain criteria which includes a victim who is a foreign criminal and received a custodial sentence of 12 months or more. Whether or not the Home Secretary should then exclude a victim who meets the definition is subject to the Home Secretary’s discretion.

Under the Modern Slavery Statutory Guidance, the Home Secretary sets out a framework which guides her caseworkers as to how to exercise their discretion. First, the caseworker is to assess what level of threat a victim poses. Second, they must assess what level of recovery needs a victim has.  

Third, they have to balance the victim of trafficking’s deemed threat against their recovery needs to determine whether a public order disqualification is appropriate. Finally, they must consider whether the individual is at risk of re-trafficking; if they are, then no public order disqualification can be made under any circumstances.

Of note are two key provisions: (1) anyone who meets the definition of a threat to public order is automatically deemed a high threat of harm. And (2) there is “high bar” for protection needs to outweigh the threat to public order, so even if protection needs are assessed as high, there is an automatic presumption that threat will outweigh the protection need.

Conclusive grounds decision

In addition to accessing support, “reasonable grounds” victims are generally entitled to a final “conclusive grounds” decision, which will determine whether they are considered on balance to be victims of trafficking and modern slavery. Once made, a positive decision can carry with it various benefits, including consideration of “VTS” leave, continuing entitlement to secondary NHS services, facilitating access to compensation under the Criminal Injuries Compensation Scheme, and assisting with the availability of a s.45 criminal defence.

Together, such benefits stand to make a fundamental difference to a victim of trafficking’s ability to stay in the UK, assist in criminal prosecutions and recover from their exploitation.

There are no express provisions in the Nationality and Borders Act 2022 that authorise the Home Secretary to decline to make a conclusive grounds decision for an individual who has received a positive reasonable grounds decision. However, the Home Secretary considered this to be a necessary implication of the public order disqualification regime and in practice operated a policy by which no conclusive grounds decision would be made for anyone subject to a public order disqualification decision.

Case facts

The claimant ABW is a highly vulnerable victim of repeated human trafficking and modern slavery.

As a result of his exploitation, he suffered very considerable mental health problems and has been sectioned under the Mental Health Act 1983 on multiple occasions.

In addition, he has been convicted on multiple occasions, including for convictions that carry more than a 12 month custodial sentence.

After obtaining a positive reasonable grounds decision, he was immediately subjected to a POD decision by the Home Secretary. The Home Secretary found that his “high” threat to public order outweighed his “high” recovery needs, and that he was not at risk of re-trafficking.

ABW’s support was stopped and he was informed that no conclusive grounds decision would be made in his case. Within a matter of weeks, he was subject to a further episode of modern slavery.

He issued an application for judicial review to challenge the public order disqualification decision and obtained interim relief so that he could re-access support under the National Referral Mechanism pending resolution of his claim.

Basis of legal challenge

ABW challenged the lawfulness of the public order disqualification decision on the following grounds:

• Ground one: the Home Secretary is obligated to make a conclusive grounds decision and her failure to do so in his case (and more generally) was unlawful;
• Ground 2: the Home Secretary misdirected herself in law as to the power under s.63 of Nationality and Borders Act 2022. Properly construed compatibly with Article 13(3) of ECAT, the power is only exercisable if a victim is considered a threat to public order, and the Home Secretary has established that she is “prevented” from providing the victim with recovery needs assistance during the recovery period on public order grounds. The Modern Slavery Statutory Guidance was unlawful on Gillick principles in so far as it reflected the wrong legal test, which lowered the threshold for when a public order disqualification could be made.
• Ground 3: It was unlawful and/or irrational to apply a public order disqualification to the Claimant because the decision failed properly to assess or balance his public order risk against his modern slavery needs or properly assess his risk of re-trafficking.
• Ground 4: The above failures all constituted breaches of article 4 ECHR.

Judgment

Mr Justice Morris found in favour of the claimant in respect of the two systemic grounds (grounds 1 and 2), which rendered the public order disqualification decision unlawful. In summary, the court found that the Home Secretary is under an obligation to make conclusive grounds decisions to victims of trafficking who have reasonable grounds decisions and who have been subject to a public order disqualification, while they remain in the UK. The Home Secretary has failed to fulfil this obligation to date.

The court also held that s.63 of the Nationality and Borders Act 2022 / public order derogations to the Home Secretary’s duties towards victims of trafficking are to be interpreted narrowly in line with article 13(3) of the Council of Europe Convention on Action against Trafficking (“ECAT”). This is not currently being done, with the Modern Slavery Statutory Guidance instead creating an unlawful presumption in favour of making a public order disqualification. This includes by presuming that every case that falls within s.63(3)(b) or (f) automatically poses a high threat to public order.

This presumption precludes the Home Secretary from assessing whether to apply her discretion to make a public order disqualification on a case-by-case basis, taking into account, for example, the time since the relevant offences or the question of whether the offence was a result of exploitation. The claimant’s public order disqualification decision was held to be unlawful because it resulted from the application of these presumptions.

Although strictly obiter, Mr Justice Morris found that, even if the Modern Slavery Statutory Guidance is lawful, the claimant’s public order disqualification was unlawful because, amongst other reasons, the Home Secretary had irrationally concluded that there was not a credible suspicion that he was at a real and immediate risk of re-trafficking. Her assessment of re-trafficking focused wholly and solely on the risks posed to the claimant by former traffickers and did not address the claimant’s general vulnerability to re-trafficking from other sources.

There were a couple of parts of the challenge in which the claimant was not successful as Mr Justice Morris found that there were no breaches of the claimant’s article 4 rights as protected under ECHR.

The court also found that the Home Secretary did not have to take into account the risks of a victim of trafficking being re-trafficked in their country of origin (if deported following the public order disqualification), as part of the re-trafficking assessment.

Importance of the judgment

This is a detailed and considered judgment, which should ultimately prove to be greatly assistive to vulnerable people seeking to recover from their exploitation and be recognised as a victim of trafficking.

The government has rightly committed itself over many years to providing a system which helps highly vulnerable victims to escape their traffickers and start to address their trauma. This commitment is important not only for the victims, but also to ensure that the perpetrators of these crimes can be brought to justice.

It is deeply worrying then that the Home Secretary has sought to dilute the systems in place, by relying on public order disqualification decisions to take away support, remove barriers to removal and ultimately expedite a victim of trafficking’s deportation, without any proper consideration of the suitability of such decisions or the consequences on victims of trafficking. The claimant’s case – where he was re-trafficked within a few weeks following his withdrawal from the National Referral Mechanism after being subject to such a decision – reflects the very significant and real consequences of the Home Secretary’s approach.

It is hoped that this judgment will provide an important reminder that victims of trafficking are people who have undergone significant acts of trauma and the Home Secretary should be extremely reticent to derogate from her duties towards supporting their recognition and recovery. However, it should also be noted that the defendant has already applied for permission to appeal the judgment and is seeking a stay of the effects of the judgment pending that appeal (a decision on that is pending).

The Home Secretary previously tried to obtain a stay of the effects of the judgment from its hand down, but the application was refused. This has already proved assistive in other public order disqualification challenges (for example the recent interim relief decision in R (oao EPS) v SSHD [2025] 12 WLUK 539).

The Claimant was represented by John Crowley and Kate Han of Leigh Day alongside counsel from Doughty Street: Shu Shin Luh, Agata Patyna and Rosa Polaschek. Anti-Slavery International intervened in the claim and provided pivotal evidence and legal submissions.