Home Office amends modern slavery guidance to facilitate returns to France following High Court decision

The modern slavery statutory guidance has been amended yesterday, following a grant of interim relief temporarily halting one man’s removal to France this week.

Background

The Home Office’s attempts to return people to France under the new treaty this week can at best be described as “shambolic”. This was entirely predictable.

On Tuesday the High Court prevented the removal of a man who had received a negative reasonable grounds decision on his trafficking claim (the first stage of a two stage process). More details from the hearing here.

It appears that the Home Office confirmed during the hearing that a reconsideration request to challenge the negative decision could not be made from outside the UK. On that basis, the High Court granted interim relief preventing removal so that the claimant would have a very short period of time to challenge the decision. The Home Secretary is seeking to appeal that decision.

The Home Secretary’s response and changes to the guidance

The Home Secretary’s response to the case has been to pretend as though the Home Office is giving traumatised people who have to suddenly navigate a complex system ample time, instead of just a few days, to raise claims: “Migrants suddenly deciding they are a modern slave on the eve of their removal, having never made such a claim before, make a mockery of our laws and this country’s generosity”. Perhaps some follow up questions on process may be useful in future.

Her response is of course completely disingenuous unless she is completely clueless about how the system is operating, neither of which are particularly impressive positions. I suspect that she knows perfectly well that the “intolerable” “last minute attempts to frustrate a removal” are a direct result of the system as designed by the Home Office, which does its absolute best to prevent people being able to access lawyers and make effective claims at all.

She has also threatened the Modern Slavery Act with a “review”. In the meantime, yesterday the Home Office amended the modern slavery statutory guidance, inserting a new paragraph 14.216 which states:

14.216 Paragraphs 14.217 to 14.235 do not apply to individuals who have received a negative RG or CG decision, and where the SSHD intends to remove that individual to a country that is a signatory to the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and European Convention on Human Rights (ECHR). For example, this may include individuals who have been served a notice or decision that informs an individual we are considering removing them to a country which is a signatory of ECAT and ECHR. 

The paragraphs referred to are those detailing the reconsideration process, meaning that the intended effect of this change is that people chosen to be returned to France will be unable to challenge a negative reasonable grounds decision through the reconsideration process. This guidance change may itself end up the subject of a legal challenge.

Conclusion

The alternative of course, would be for the Home Office to publish the selection criteria of who they consider suitable to be sent to France, and then to give those people enough time to put their case forward properly with legal assistance at the outset, meaning that mistakes like this are not made and the Home Office stops selecting unsuitable people to try to force on a plane to France.

Instead, the rushing and the mistakes will presumably continue, and the Home Secretary will continue to complain about “last minute legal challenges” as every other Home Secretary has done for as long as I can remember. I will reiterate – these challenges are the result of a system that is designed to try to prevent people from having enough time to bring cases at all. This guidance change does not change that, and successful challenges will continue on many other grounds.

Will France get fed up of being associated with this farce?