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Risk of re-trafficking must be assessed before disqualification on public order grounds

A new version of the modern slavery statutory guidance was published in January, adding some protections for people who are at risk of being disqualified from trafficking support due to a public order offence. These changes were made following the Home Secretary’s concession of a judicial review challenge to guidance that was brought in at the end of January 2023.

The public order disqualification changes in January 2023

On 30 January 2023 provisions of the Nationality and Borders Act 2022 relating to trafficking were brought into force. That included section 63 which provides for people who have been identified as a potential victim of trafficking (i.e. received a positive reasonable grounds decision) to be disqualified from protections where the decision maker considers that they are a threat to public order. This is referred to as the “public order disqualification”.

Where the public order disqualification applies, a person can be removed from the UK before a final decision is made on whether or not they are a victim of trafficking. There is also no requirement for them to be granted leave to remain if confirmed as a victim of trafficking (a positive conclusive grounds decision).

Why the guidance was changed in January 2024

After a hearing on 26 July 2023 in the case of R (MAN & LAN) v Secretary of State for the Home Department AC-2023-LON-001904 & AC-2023-LON-001640 Mr Justice Swift made an interim order. This said that disqualification decisions under section 63(1) of the Nationality and Borders Act 2022 should not be made pending the outcome of the litigation, without an assessment being made of the risk of re-trafficking and any support required to mitigate that risk.

The judicial review was then conceded by the Home Secretary shortly before the hearing and the guidance was changed on 8 January 2024, to include the following:

14.228. The Public Order Disqualification is a decision made using the Public Order Decision Making Framework set out below. Using this framework, decision makers will determine whether an individual can be disqualified. Once it is determined that a Public Order Disqualification can apply to the individual the Competent Authorities should then make a separate assessment of the re-trafficking risk for that individual in accordance with Assessing Re-trafficking Risk section below.

New guidance on assessing the risk of re-trafficking

On page 180 of the guidance, a new section called ‘Assessing Re-trafficking Risk’ is set out over three pages. When carrying out the assessment of re-trafficking risk, the Home Office will consider the following:

  • is there a credible suspicion of a real and immediate risk that the individual will be re-trafficked in or from the UK?
  • can the decision to disqualify be issued without putting that individual at a real and immediate risk of re-trafficking in or from the UK?
  • what, if anything, could and should be done outside of modern slavery specific protections to mitigate any immediate re-trafficking risk upon issuing the decision?
  • what reasonable steps could the potential victim themselves be expected to take to ensure they are not exposed to risk of re-trafficking?

If the decision maker concludes that there is no “real and immediate” risk of re-trafficking, then there is no barrier to the public order disqualification decision and the guidance says that the decision “should” be made.

The guidance also says that public order disqualification decisions must be quality assured through the “second pair of eyes review” process [14.271]. Both the re-trafficking risk assessment and the public order disqualification decision must be notified to the person [14.278]. Neither of these decisions can be challenged under the reconsideration process set out in the guidance, and the decisions are not appealable [14.281].

Anyone who is subject to the public order disqualification will not have their case considered any further, if leave has already been granted then it will be revoked [14.279]. Those in accommodation provided under the modern slavery victim care contract will be given nine days’ notice of eviction [14.280].

Conclusion

It is worth noting that this is the second time the Home Secretary has had to amend the guidance introduced under the Nationality and Borders Act following a challenge brought by Duncan Lewis (the previous case having triggered the 10 July 2023 update to the guidance). The risk of re-trafficking is likely to be present in many of these cases and could mean that the person is a refugee, so this is an important win.

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Sonia Lenegan

Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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