Tribunal decisions

The decision

Case No: JR-2024-LON-002780
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

06 August 2025

Before:

UPPER TRIBUNAL JUDGE CANAVAN

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Between:

THE KING
on the application of
U N G
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Ms G. Mellon & Ms E. Doerr
(instructed by The Aire Centre), for the applicant

Mr M. Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 12 March 2025

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J U D G M E N T

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Judge Canavan:

1. The applicant seeks to challenge the respondent’s decision dated 28 May 2024 to apply a Public Order Disqualification (‘POD’) to a trafficking claim under section 63 of the Nationality and Borders Act 2022 (‘NABA 2022’).

2. Section 63 NABA 2022 states that a ‘competent authority’ may determine that subsection (2) applies to a person to whom a positive reasonable grounds decision has been made in relation to a trafficking claim if the authority is satisfied that the person (a) is a threat to public order (as defined in section 63(3)); or (b) has claimed to be a victim of slavery or human trafficking in bad faith.

3. The statutory effect of a decision made by a competent authority to apply a POD with reference to section 63(2) NABA 2022 is that certain provisions of the protection framework for victims of slavery or human trafficking cease to apply i.e. sections 61 and 62 (recovery period/prohibition on removal) and section 65 (VTS limited leave to remain). Section 64(5) also states that any duty to provide assistance and support to an identified potential victim ceases in respect of a person to whom a POD determination is made under section 63(2).

4. The statutory guidance applicable at the date of the decision was: ‘Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland’ (Version 3.10) (‘the statutory guidance’).

5. The statutory guidance set out the procedures and timescales for a POD decision to be made [14.235-14.262]. The guidance outlines a structured decision making framework when considering whether to apply a POD [14.263-14.275] and when considering the risk of re-trafficking [14.276-14.278]. It also sets out specific guidance which must be taken into account when considering whether to apply a POD and when conducting a re-trafficking assessment for a child [14.281-14.285].

6. Inherent in the international and national schemes is the need to prevent human trafficking and modern slavery and to identify, protect, and provide prompt support and assistance to victims. This principle is reflected in the timescales set out in the statutory guidance when assessing whether the need for modern slavery specific support outweighs the threat to public order when considering whether to apply a POD and in the assessment of the risk of re-trafficking.

7. The statutory guidance states that decisions must be timely because it is important that decisions relating to public order are made promptly for the protection of the public, clarity for the individual, and for those providing support. The guidance states that there is no expectation that decisions makers will ‘undertake extensive investigation to support their decision.’ [14.266].

8. In cases involving British Citizens and non-detained Foreign National Offenders the statutory guidance states that the Competent Authority should issue a ‘minded to’ letter to the potential victim and/or their authorised representative within 2 working days, where possible, of a disqualification request being accepted. The letter should inform the individual that the Home Office is ‘minded to’ apply a POD subject to any relevant information being provided within 10 working days. The information requested should be relevant information as listed in the section ‘Public Order Decision Making Framework’ and should include any relevant information as to re-trafficking risk. The same paragraph states that it is not possible to seek an extension to this timeframe ‘unless exceptional circumstances apply’ [14.256].

9. The relevant part of the statutory guidance, which is the subject of this challenge states:

’British Citizen Cases and non-detained cases (Foreign National Offenders)

14.256 When using the Public Order Decision Making Framework, the Competent Authorities must take the following steps to gather relevant evidence:

• The Competent Authorities should issue a letter or email to the potential victim (or victim) of modern slavery and/or their authorised legal representative, if such contact details are held, within two working days, where possible, of the disqualification request being accepted. The letter or email will inform the individual that the Home Office is ‘minded to apply’ the Public Order Disqualification, subject to any relevant information being provided within ten working days.

• The information requested should be relevant information as listed in the section ‘Public Order Decision Making Framework’. Relevant information relating to re-trafficking risk, including the risk of re-trafficking if an individual was disqualified, should also be requested at this time. It is not possible to seek an extension to this timeframe unless exceptional circumstances apply. If contact details are not held, Competent Authorities will take the necessary action to implement the decision regardless of contact, on the basis of information already held.
…..
14.257 Only information provided by the individual by the date of the relevant decision will be considered within the decision-making framework and/or re-trafficking assessment unless an extension has been given in exceptional circumstances.

14.258 Extensions to this timeframe will only be granted in exceptional circumstances. It will be at the discretion of the decision maker to determine whether exceptional circumstances apply. Circumstances are generally only likely to be deemed exceptional where the individual is unable to obtain information, or provide information to the Competent Authority, for reasons which are beyond their control and which they could not have reasonably foreseen. If an individual considers that they will be unable to provide explanatory evidence within the ten-working day timeframe, they should notify the Competent Authority as soon as is practicable.’ [my emphasis]

10. The principal issues for determination in this case are:

(i) whether the relevant part of the applicable statutory guidance instructing decision makers that an extension of the 10 day time limit will only be granted in ‘exceptional circumstances’ is contrary to the requirements of procedural fairness, and as such, is Gillick unlawful (‘the policy point’); and

(ii) whether the decision to refuse an extension of time and to apply a POD was unlawful and/or procedurally unfair on the facts of this particular case (‘the individual point’).

FACTUAL BACKGROUND

11. The applicant is a French national who was born in the UK. At the date of the hearing he was 19 years and 11 months old. He is a care leaver and remains a ‘former relevant child’ in the care of a local authority in London.

EU Settlement Scheme Settled Status

12. On 06 October 2019 the applicant was granted settled status (Indefinite Leave to Remain ‘ILR’) under the immigration rules relating to the EU Settlement Scheme (‘EUSS’).

Criminal convictions & pending prosecutions

13. On 15 March 2022 the applicant was convicted of conspiracy/theft from person, conspiracy/robbery and possessing a knife blade/sharp pointed article in a public place. He was sentenced to 5 years detention in a young offenders institution. The sentence was reduced to 3 years on appeal.

14. The judge’s sentencing remarks indicate that the offences took place as part of a group attacks on victims for financial gain, which were ‘planned to target and to terrify innocent members of the public.’ During the last robbery another member of the group stabbed a man to death. That person was due to be tried for murder. The applicant was involved in the theft of a mobile telephone, was recorded in possession of a large knife (machete), and was involved in the robbery of the man who died. The judge noted that the jury had acquitted the applicant and other co-defendants of manslaughter but did not accept that they were unaware that knives would be used to threaten violence in the robbery. In particular, the judge noted that the applicant was seen with a knife on the Tube. The applicant was 15 years old at the date of the offences and was 17 years old when he was sentenced.

15. It is said that the applicant also has 6 pending prosecutions. The nature and seriousness of the charges are not particularised in the written pleadings. Other evidence indicates that the charges relate to conspiracy to supply Class A drugs. The applicant has alleged forced criminality in relation to these charges.

Deportation proceedings

16. In light of the applicant’s criminal convictions, it is said that the respondent issued a Stage 1 deportation decision on 03 October 2023. No copy of the decision appears to in the bundle. As a person with leave granted under the EUSS, the applicant had a right of appeal under The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the CRA Regulations 2020’). It is said that the appeal was stayed pending the outcome of the Upper Tribunal’s decision in Vargova (EU national, post 31 December 2020 offending, deportation) [2024] UKUT 00336, which was published on 25 October 2024.

17. I take notice of the fact that the Court of Appeal subsequently granted permission to appeal the Upper Tribunal’s decision on 15 April 2025. It is likely that the Court of Appeal will hear the appeal in Vargova later this year. Records available to the Upper Tribunal indicate that the EUSS appeal before the First-tier Tribunal in this case still appears to be stayed. Further review and case management is scheduled for early 2026. The appeal brought under the CRA Regulations 2020 still seems to be pending.

18. Regulation 13A(2) of the CRA Regulations 2020 states that a person’s leave to enter or remain is extended during any period when an appeal against a relevant appealable decision could be brought or is pending, subject to the requirements outlined in section 13A(1). The applicant was served with the relevant appealable decision dated 03 October 2023 while in the UK (regulation 13A(1)(a)-(b)), but without a copy of the Stage 1 deportation decision it is not possible to know whether the decision was certified or not (regulation 13A(1)(c) & regulation 16). However, it is reasonable to infer from the fact that no action has been taken to remove the applicant since 03 October 2023 that the decision might not have been certified or that removal pending the outcome of the appeal, at the very least, is unlikely.

National Referral Mechanism (NRM) referral

19. On 16 March 2024 the applicant was referred to the National Referral Mechanism (‘NRM’) by a member of the Metropolitan Police due to his claims of forced criminality. It is reasonable to infer from the date of the referral that it arose from the more recent criminal investigations.

20. The copy of the referral contained in the bundle indicates that the applicant was charged with conspiracy to supply Class A drugs (Crack and Heroin) carried out between 01 April 2023 and 26 July 2023. The applicant asserted by way of a defence case statement that he was compelled to supply Class A drugs and had been threatened with serious violence by older members of a gang if he did not. The applicant was charged and recalled to prison, but then released on electronically tagged bail. During the period covered by the most recent alleged offences the applicant turned 18 years old.

21. The last page of the referral form confirmed that the applicant wanted his case referred to the NRM. However, in response to the question asking, ‘Do they need support’, the form replied ‘No’.

22. Making a decision as the Immigration Enforcement Competent Authority (IECA) (‘the Competent Authority’), the respondent issued a positive reasonable grounds decision on 08 May 2024. By the date of that decision the applicant was 19 years old.

Public Order Disqualification (POD) process

‘Minded to’ letter – 08 May 2024

23. In correspondence, also dated 08 May 2024, the respondent notified the applicant that she was ‘minded to’ apply a POD under section 63 NABA 2022, subject to any further relevant information being provided within 10 working days. The correspondence stated that decision makers would only consider additional information provided within this timeframe. A deadline of 22 May 2024 was given. The correspondence went on to say that the applicant should contact the Competent Authority ‘as soon as possible if you are unable to provide the information by the required date or if you wish to discuss this request.’ This was consistent with the procedure set out in the statutory guidance.

24. The ‘minded to’ letter made clear that the applicant was a ‘foreign criminal’ within the meaning given by section 63(3)(f) NABA 2022 because of his convictions for criminal offences on 15 March 2022. The letter made no reference to any of the pending charges. It is likely that this was because a person can only be deemed a ‘foreign criminal’ with reference to the definition contained in section 32(1) of the UK Borders Act 2007 (‘UKBA 2007’) if they have been convicted of an offence and sentenced to a period of imprisonment.

Further representations – 16 May 2024 (sent 22 May 2024)

25. In response, the applicant’s legal representatives made written representations to the respondent. Two copies of a letter dated 16 May 2024 are contained in the trial bundle. The first is at pages 181-186. The second is at pages 194-200. Although there are similarities between the letters, they also contain some significant differences. At the hearing, it became clear that there was confusion among the applicant’s representatives as to which version was sent to the respondent. Initially it was said that both versions were sent, but after a break, Ms Mellon said that her instructions were that only the second version was sent to the respondent [pg.194-200].

26. Although the applicant’s further representations were dated 16 May 2024, the evidence shows that the correspondence was not sent to the respondent by email until 22 May 2024 at ‘4.21PM’ i.e. in the final hour of the working day when the deadline was due to expire [pg.192].

27. The correspondence itself did not provide a list of enclosures. The email dated 22 May 2024 referred to ‘various documents, including a historic psychology report, and various SARs made, which we are waiting for disclosure on.’ At the hearing, Ms Mellon clarified that the following documents were sent with the further submissions as indicated by attachments seen at pg.191 of the bundle:

(i) An email from SARU Online ID to the AIRE Centre dated 28 March 2024 confirmed receipt of a Subject Access Request (SAR) [pg.201-203] and a copy of an online receipt [pg.202]. Ms Mellon accepted that there was no copy of the underlying application.

(ii) A psychological report of Dr Robert Halsey dated 20 May 2021 [pg.204]. The content suggests that the report was prepared to provide some potential insight into the applicant’s psychological state for the criminal trial. Dr Halsey conducted a series of psychometric tests. He concluded that the applicant fell within the low average range for IQ, which was above the level indicative of mental impairment or learning disability. There was no indication of autistic traits. There was no indication of any tendency to yield or acquiesce to suggestive questions. However, there was an abnormally heightened tendency to shift the answers he had previously provided in response to ‘interpersonal pressure’ i.e. ‘an abnormally heightened level of compliance’. Dr Halsey also noted that there was a history of acute anxiety, panic attacks, and that the applicant reported hearing voices.

28. No witness statement or any other direct evidence from the applicant was sent with the written representations.

29. The further representations made in the correspondence dated 16 May 2024 requested an extension of time. The first page of the representations initially asked for an extension of time until 15 September 2024. Beyond stating that his representatives wanted to obtain ‘further evidence’, at that stage, the correspondence did not particularise why a 4 month extension beyond the initial 10 day deadline was necessary. The representations went on to say:

‘Along with this request we have made protective summary representations as to why the POD should not be applied under Section 63. The modern slavery protections for [UNG] outweigh any threat to public order. This is without prejudice to fuller representations we would like to make if we are granted the extension of time.

If you refuse this request for an extension of time, please provide us a decision with written reasons as well as proposed deadline by which our client can submit full representations on the POD.’

30. The representations went on to outline some of the factual history, including information about the applicant’s immigration history, criminal convictions, and the deportation proceedings.

31. The representations then set out generalised information about the legal framework relating to the application of a POD under section 63 NABA 2022. Within that summary of information those representing the applicant summarised various sections from the statutory guidance. They noted that the guidance set out a 10 day time frame for relevant information to be provided. The representations went on to acknowledge that the statutory guidance said that extensions to the time frame would only be granted at the discretion of the decision maker in ‘exceptional circumstances’ [pg.196].

32. It was submitted that there were ‘exceptional circumstances’ to justify an extension of time because it was beyond the applicant’s control to submit relevant evidence within the 10 day deadline. The main reasons given for the request for an extension of time were as follows:

‘First: this will allow any consideration of our client’s case to take into account relevant findings in the stayed UT proceedings. This is a timetable forced by another case, entirely outside our client’s control.

Second: we consider that the question of trafficking for forced criminality, child and adult criminal exploitation, and duress are issues of real complexity which require evidence. We consider that expert trafficking evidence may be needed on the nexus between the trafficking for criminal exploitation and the offences. This is directed by the timetable in criminal proceedings, again outside our client’s control.

Third: our client is acutely vulnerable and requires an updated psychiatric report (issued around three years ago). We are currently in the process of commissioning a new report which will look at [UNG]'s trafficking indicators and risks, however due to expert availability and lack of capacity, this cannot be issued until July, or even possibly September of this year.

We have been in contact with and reached an agreement as regards the expert. We have been told that the earliest date a report can be provided is September 2024 but there may be some availability in July, if there are any cancellations.

An expert report is all the more important considering that [UNG]'s Reasonable Grounds decision was issued only a few days before the letter regarding the POD. He is not therefore receiving MSVCC support, and there will be no documents or risk assessments in any Salvation Army file. It is therefore vital that we are able to obtain relevant evidence to assist the decision-maker in their decision.

Moreover, we have also requested letters of support and made various subject access requests to obtain this evidence. [UNG] is a care leaver, so we have asked for letters of support from them, as well as making subject access requests to the Home Office, Social Services, YOI, the relevant police force, and his GP. The time delays that this entails are, once again, out of our control, and we submit that we should be granted the time to receive, review and submit the relevant evidence we require.

We will also be providing further evidence about the nexus too; namely a trafficking expert report and further detailed representations on the nexus issue. Therefore, it is paramount that more time is provided for us to conduct this necessary exercise.’

33. The representations went on to make protective submissions in relation to the proposed POD decision in the following terms:

‘We submit that the modern slavery protections for [UNG] outweigh any threat to public order. [UNG] was compelled to supply Class A drugs, by an older male from a gang in Tottenham with the threat of serious violence against him if did not do so. He was compelled to do this and was exploited. He was under direct instruction and any money he received from the drug supplies he had to give to the individual controlling him. [UNG] was threatened and told he had to deal drugs, and the older male used violence against him - he was extremely scared of him. Our client is at real and immediate risk of trafficking, especially without support.’

Rejection of the extension request – 24 May 2024

34. The respondent rejected the application for the extension of the 10 day deadline in a decision dated 24 May 2024. The following reasons were given:

‘On 22/05/2024 you requested an extension of time until 15/09/2024 (or at least 31/07/2024) to provide this information as you wish to provide further information in respect of your client's case, including a trafficking report and a psychiatric report.

Consideration has been given to your request however, extensions may only be granted where exceptional circumstances apply, meaning an individual is unable to obtain information, or provide information to the Competent Authority, for reasons which are beyond their control and which they could not have reasonably foreseen.

The reasons you have provided for an extension of time are not considered exceptional to warrant an extension of time being granted to obtain the information you require. 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.’ [my emphasis]

POD decision – 28 May 2024

35. Having refused the request for an extension of time the respondent went on to make a POD decision on 28 May 2024. The decision makes clear that the respondent considered a series of documents including Dr Halsey’s report (20/05/21), the judge’s sentencing remarks (08/07/22), the Criteria Assessment Sheet (31/08/22), MG5 police report (20/10/23), further representations (06/02/24), the NRM Referral Form (16/03/24), a defence statement (in response to the current charges), the Reasonable Grounds decision (08/05/24), an email from the police (13/05/24), the AIRE centre submissions (16/05/24) and unspecified Home Office records.

36. The respondent made clear that the decision considered the level of threat to public order posed by an individual against their modern slavery specific recovery needs. A POD would be applied where the threat to public order outweighed the need for modern slavery specific protections.

37. The respondent noted the background to the case, including the fact that a Reasonable Grounds decision had been made by the Competent Authority. The applicant was deemed to be a ‘foreign criminal’ within the meaning of section 32(1) UKBA 2007 and section 63(3)(f) NABA 2022 because of his conviction for criminal offences on 15 March 2022 for which he was sentenced to 3 years detention in a Young Offenders Institution.

38. The respondent took into account the judge’s sentencing remarks, which summarised the nature of the offences. The judge considered the psychological report prepared for the trial. The respondent noted that there was no evidence to suggest that the applicant raised a defence to the charge under section 45 of the Modern Slavery Act 2015 (‘MSA 2015’). In any event, it was noted that the offence of robbery was listed in Schedule 4 MSA 2015 as an offence to which the defence in section 45 did not apply.

39. In assessing the threat to public order posed by the applicant, the respondent took into account records of further convictions for offences that appear to have been committed while in detention. On 03 November 2022 he was convicted of an offence of Assault Occasioning Actual Bodily Harm and two counts of Unauthorised Possession in Prison or Detention (Knife or Offensive Weapon). The respondent took this into account as an aggravating factor indicating repeat offending. According to the statutory guidance, this indicated that the applicant posed a ‘high threat to public order’.

40. The respondent went on to consider evidence relating to the need for modern slavery specific protections. The decision acknowledged that a Reasonable Grounds decision had been made. The decision also acknowledged that the referral form said that the applicant claimed that he was compelled to supply Class A drugs in the period 01 April 2023 to 26 July 2023. Because the stated exploitation occurred recently, the respondent applied it as a ‘high-risk indicator’ under the statutory guidance.

41. The respondent went on to consider Dr Halsey’s report. The decision acknowledged what was said in the report about the applicant’s age and vulnerability, but went on to note that the report pre-dated the period of alleged exploitation. The respondent did not accept that the diagnosis made in 2021 was linked to the current period of alleged exploitation.

42. The respondent found that there was no indication that the applicant had any severe physical or mental health conditions or any severe learning or accessibility needs. None had been raised with staff at the detention centre. Home Office records indicated that the applicant was not prescribed any medication. There was no evidence to show that the applicant had ‘high support needs’ due to his claimed exploitation. This was considered a ‘low-risk indicator’ under the statutory guidance.

43. The decision maker also took into account the fact that the applicant had opted-out of support with recovery needs in relation to exploitation in the NRM referral. This was also identified as a ‘low-risk indicator’ in the statutory guidance.

44. When the decision maker turned to weigh the risk to public order against the evidence relating to the applicant’s need for modern slavery protections, it was noted that the risk to public order was ‘high’, but there was only one ‘high’ risk indicator relating to the need for protections (recent exploitation) while several other indicators relating to the need for protections were ‘low’. Having weighed the various factors, the respondent concluded that the risk to public order outweighed the applicant’s need for modern slavery specific protections.

45. The respondent went on to conduct a re-trafficking assessment in accordance with the relevant statutory guidance. She took into account the fact that there was no evidence to indicate that those he feared had been in contact with him since the alleged period of exploitation or knew where he was. He was living in private accommodation and had opted out of modern slavery specific support. He was not receiving any support or accommodation under the Modern Slavery Victim Care Contract (MSVCC). For these reasons, it was considered that the consequences of being served a POD decision were ‘minimal’. No real or immediate risk of re-trafficking was identified.

Application for judicial review

Application filed in the High Court

46. Correspondence in the trial bundle suggests that the applicant’s legal representatives have been instructed since at least 06 February 2024, when written representations were made in relation to the deportation proceedings. It is reasonable to infer from the chronology that they would have been aware of the fact that the applicant was subsequently referred to the NRM by the Metropolitan Police on 16 March 2024. The Reasonable Grounds decision was made on 08 May 2024, nearly 2 months later.

47. The application for permission to bring judicial review proceedings to challenge the POD decision dated 28 May 2024 was not filed in the High Court until 27 August 2024. It was claimed that the application was urgent, but the claim was not made promptly and was filed the day before the extended 3 month deadline.

48. Even though the grounds focussed on procedural fairness issues with reference to the decision to refuse to extend time, the claim did not include a direct challenge to the operative decision dated 24 May 2024. It is 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.

49. This procedural issue was discussed at the hearing in the Upper Tribunal. The respondent did not raise any clear objection to the fact that the operative decision relating to the extension of time was not included in the challenge. On behalf of the applicant, Ms Mellon argued that if the procedure was unfair, the remedy would be to quash the POD decision in any event. On behalf of the respondent, Mr Biggs seemed to agree that it might be a matter for argument relating to the appropriate remedy if the claim succeeded.

Jurisdiction of the Upper Tribunal

50. After the claim was issued, the High Court invited further submissions from the parties on the question of jurisdiction. Further to those submissions, Mrs Justice Lang transferred the claim to the Upper Tribunal in an order sent on 03 October 2024.

51. In ABW v SSHD [2024] EWHC 3205 (Admin) (12 December 2024) Mr Justice Dove considered the issue of jurisdiction in an application for judicial review of a POD decision made under section 63 NABA 2022. Having reviewed the statutory framework, Dove J concluded that there was no mandatory obligation for such cases to be transferred to the Upper Tribunal because POD decisions might relate to British citizens as well as foreign nationals and may or may not relate to issues that might impact on a person’s immigration status. Nevertheless, he found that the High Court still had discretion to transfer a case to the Upper Tribunal if considered appropriate.

52. In general, the Upper Tribunal does not have jurisdiction to consider judicial review applications challenging certain types of decisions relating to trafficking made within the NRM, such as Reasonable Grounds or Conclusive Grounds decisions. The statutory framework relating to modern slavery and trafficking primarily is rooted in the MSA 2015 rather than in the Immigration Acts albeit there are certain provisions, such as POD decisions made under section 63 NABA 2022, which are contained solely within an Immigration Act.

53. I am satisfied that the Upper Tribunal has jurisdiction to consider this claim for the following reasons. First, the claim involves a decision made under section 63 NABA 2022, an Immigration Act as defined. Second, although a POD decision could be made in relation to a British citizen, the decision that is the subject of this challenge has been made in relation to a foreign national. Third, the effect of the POD decision potentially impacts on the applicant’s immigration status in so far as protections on removal and granting of VTS leave might be affected.

54. However, I bear in mind that this claim also includes a broader challenge to the lawfulness of a procedural aspect of the statutory guidance relating to modern slavery made under section 49 MSA 2015, which relates to both British citizens and foreign nationals. The transfer order pre-dated the more detailed analysis of the law contained in Dove J’s judgment in ABW. In that case, one of the reasons Dove J retained the case in the High Court was because it included a challenge to the statutory guidance.

55. Nevertheless, having considered submissions on the point, a decision was made by the High Court to transfer this case to the Upper Tribunal. Although it is a matter for the Upper Tribunal to determine whether it has jurisdiction to hear a claim, neither party takes any issue in relation to jurisdiction.

56. In the circumstances, it is not appropriate for this tribunal to go behind the order already made by the High Court: see section 31A of the Supreme Court Act 1981 (as amended). If there is any lingering doubt as to whether this is the appropriate jurisdiction to consider a direct challenge to the lawfulness of the statutory guidance relating to modern slavery, it is perhaps assuaged by the fact that the Upper Tribunal has not considered it necessary to decide that issue for the reasons given below.

The hearing

57. I have considered the evidence contained in the trial bundle, the detailed written arguments, and heard extensive oral submissions from both parties. The details of those submissions is a matter of record. It is not necessary to set them out in any detail, but I will refer to any relevant arguments in my decision.

THE APPLICANT’S CASE

58. As noted above, the application did not apply for judicial review of the operative decision dated 24 May 2024 to refuse to extend time for further information. It is also relevant to note that, despite only seeking to challenge the POD decision dated 28 May 2024, this claim does not seek to challenge any of the substantive reasons given for the POD decision.

59. The applicant’s grounds raised two main points. There was a proliferation of additional applications and counter submissions, which do not need to be set out here. The unnecessary application to amend the original pleadings made after the grant of permission only sought to add some additional phrasing, but did not alter the underlying points made in the original grounds in any meaningful way.

60. In summary, the applicant argues:

The policy point
(i) The first ground argued that the relevant part of the applicable statutory guidance instructing decisions makers that an extension of the 10 day time limit would only be granted in ‘exceptional circumstances’ [14.256-14.258] is contrary to the requirements of procedural fairness at common law, and as such, is Gillick unlawful.

What fairness might require on the facts of an individual case is not necessarily limited to ‘exceptional circumstances’. Fairness will sometimes require additional time to submit further evidence depending on the nature of an individual case. Only the highest standards of fairness suffice given the serious nature of the issues involved in a trafficking claim. Directing decision makers only to extend time in ‘exceptional circumstances’ does not provide sufficient flexibility to meet the requirements of procedure fairness.

The individual point
(ii) The second ground argued, in the alternative, that the decision to refuse an extension of time and to apply a POD was unlawful and/or procedurally unfair in the circumstances of this particular case. The respondent misapplied the statutory guidance.

In any event, it was argued that there were ‘exceptional circumstances’ in this case because the applicant could not obtain ‘an up-to-date psychological and trafficking report’ that was required within the 10 day time limit because of circumstances that were beyond his control.

THE RESPONDENT’S CASE

61. In summary, the respondent’s arguments are:

The policy point
(i) The applicant fails to identify anything in the statutory guidance that is generally incompatible with the requirements of procedural fairness.

Decision makers are instructed that they have discretion to extend time beyond the usual 10 day period and that ‘exceptional circumstances’ might include circumstances where the individual is unable to obtain information for reasons that are beyond their control or which they could not have reasonably foreseen. The respondent submits that this provides adequate flexibility for the policy to be applied in a fact sensitive way that is compatible with the requirements of procedural fairness.

The individual point
(ii) The applicant has failed to show that the respondent’s decision was outside a range of reasonable responses to the submissions made on behalf of the applicant in response to the ‘minded to’ letter. The reasons given by the decision maker for refusing to extend time engaged with the submissions and were legally sustainable. If there was no procedural unfairness on the facts of this case, the policy point is academic.

FINDINGS AND REASONS

62. Both parties made extensive submissions outlining the general case law relating to procedural fairness, both in relation to the application of public policy and at common law. It is not necessary to repeat those authorities for the purpose of this decision.

63. At the heart of the law relating to procedural fairness, as it applies to public law decision making, is that what fairness requires will depend on the context.

64. It is appropriate to take the grounds in reverse order given my conclusions on the facts of this case.

The individual point

65. I have set out the factual background to this case in some detail above because that is the context in which this claim must be considered. Primarily, the decision not to extend time to produce an expert report before making a POD decision needs to be assessed with reference to the nature of the submissions made to the respondent in the correspondence dated 16 May 2024 (sent on 22 May 2024) and the reasons given by the decision maker for refusing to extend time on the evidence that was before them. The wider context is the timeframe contained in the statutory guidance for making prompt decisions in relation to trafficking to ensure that victims have access to protection and recovery provisions.

66. The claim primarily has been focussed on a broad challenge to the policy (the policy point being the first ground) at the expense of particularising how or why the individual facts of the case, in fact, gave rise to any procedural unfairness within the meaning of public law (the individual point being the second ground).

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.

69. Those representing the applicant would have been aware of the applicant’s previous convictions from 2022 since at least February 2024. The allegations of forced criminality were likely to have been known since his referral to the NRM on 16 March 2024. In the circumstances, it was foreseeable that the ingredients for a potential POD decision might arise quite a few weeks before the ‘minded to’ decision was made.

70. While acknowledging that a 10 day timeframe is quite short, the representations were sent in the final hour of the deadline. Although it is clear that those representing the applicant wanted to obtain further evidence from a number of sources, what is absent from the representations was any detailed explanation as to how or why such evidence was thought to be relevant to the POD decision. The reasons given for an extension of time were largely vague or unrealistic.

71. First, it was said that an extension would ‘allow any consideration of our client’s case to take into account relevant findings in the stayed UT proceedings.’ No explanation was given as to how or why any findings in the EUSS appeal might be relevant to the POD decision. It is reasonable to infer that findings of fact made in a EUSS deportation appeal might have some relevance to a POD decision depending on what evidence is produced at the appeal about the applicant’s personal circumstances and risk of reoffending. However, when the request was made in May 2024 it was clear that the EUSS appeal had been stayed. Indeed it is now stayed until early 2026. Those representing the applicant appeared to be suggesting an open ended delay in the POD decision pending the outcome of the appeal, which was unparticularised and unrealistic.

72. Second, it was said that ‘expert trafficking evidence’ might be needed to consider the ‘nexus between the trafficking for criminal exploitation and the offences.’ This appears to be a reference to the most recent charges where the applicant had alleged forced criminality. On the face of it, such evidence might be relevant to balancing the threat to public order with the need for modern slavery support under the Public Order Decision Making Framework. It might also be relevant to an assessment of the risk of re-trafficking. However, the representations only made a general assertion that they would like to obtain a trafficking report. The representations failed to identify a particular expert, failed to produce evidence to show that a trafficking expert had been contacted, and failed to provide any timeframe for an expert trafficking report. The representations also failed to explain why the applicant might need specific trafficking support, or what support might be needed, in the circumstances of this case.

73. Third, those representing the applicant went on to assert that their client was ‘acutely vulnerable’ and that an updated psychiatric report would be needed. The strength of this assertion was not obviously supported by Dr Halsey’s assessment in 2021. There was no evidence from the applicant or any up to date medical records (which might have been obtained within a shorter time frame) to give any indication of the applicant’s current mental state or vulnerability at the date when the request for an extension of time was made.

74. In relation to psychological evidence, those representing the applicant said that they were ‘in contact with and reached an agreement as regards an expert.’ It was said that a report could be prepared by September 2024 but there might be availability in July 2024. It was said that this was relevant because the applicant was not receiving MSVCC support. Again, the relevant expert was not identified nor was any underlying evidence produced to support the suggested timeframe.

75. I note that the trial bundle contains a quote from Dr Lisa Davies at Expert Psychological Services Limited to ‘undertake psychological assessment of offending risk, mental health and trafficking. The quote is dated 03 May 2024. However, it does not outline Ms Davies’ qualifications, nor the timeframe for preparing the report. Crucially, it seems that it was not among the documents sent with the representations on 22 May 2024.

76. An application notice was filed on 06 March 2025, only a few days before the hearing, seeking to adduce a copy of a report that was subsequently prepared by Dr Davies. Ms Mellon only sought to rely on the report in so far as it showed that the evidence might have been relevant to the POD decision. However, it is notable that the report is dated 05 March 2025. It is evident that, for various reasons, the process of obtaining the report took far longer than was suggested in the representations i.e. 10 months from the date of the ‘minded to’ decision.

77. In my assessment, what was missing from the representations is also relevant to the lawfulness of the decision to refuse to extend time.

78. The representations made general submissions relating to the risk of trafficking with reference to the most recent charges, but were silent in relation to the convictions from 2022. If protective submissions were being made in relation to the Decision Making Framework, submissions needed to be made in relation to what weight should be placed on the previous convictions when balanced against the need for trafficking protections and support.

79. In the context of the arguments made in this claim, neither the representations sent on 22 May 2024 nor the pleadings in this claim particularise how or why the applicant might have needed trafficking protection or support. This is relevant to whether the refusal to extend time to submit further evidence, and the making of the POD decision, was likely to prejudice the applicant in any material way such that it rendered the decision to refuse to extend time procedurally unfair.

80. In the absence of a witness statement, or sufficient factual detail in the pleadings, Dr Davies’ report suggests that the applicant was released on bail in March 2024. It is not suggested that he needed accommodation or support either in the NRM referral or in the representations sent on 22 May 2024. At the date Dr Davies spoke to the applicant he was living with his father and had other close family members nearby. He was also a care leaver with the support of an allocated social worker.

81. Neither the representations nor the pleadings particularise what specialist support the applicant might have needed within the MSVCC in circumstances where he did not ask for support in the referral, he was likely to be living with family members, and had the support of an allocated social worker.

82. Nor did the representations or the pleadings particularise how or why the applicant might be prejudiced by the effect of a POD decision excluding him from VTS leave. The effect of the outstanding EUSS appeal was likely to extend his existing settled status, and in the absence of any evidence of certification under regulation 16, appeared to be protecting him from the risk of removal. Settled status would entitle the applicant to significant access to public services.

83. Beyond making vague submissions that his representatives would like to obtain further evidence, when this claim is considered in its full context, few reasons were given to explain what experts they wished to instruct or how the evidence might have been relevant to the POD decision on the facts.

84. The pleadings made in relation to the second ground also amount to little more than an assertion that it was ‘unfair’ to refuse to extend time to obtain expert evidence without particularising how or why the decision to refuse to extend time created any material unfairness on the facts of this case.

85. The applicant’s skeleton argument argued at [52] that there was no urgency to impose a POD decision given the outstanding EUSS appeal and criminal charges. However, this was not an argument that was included in the representations made to the respondent for an extension of time nor was it included in the case as originally pleaded.

86. Technically, the decision refusing to extend time was not included in this claim because a challenge to the decision dated 24 May 2024 would have been out of time. Although I observe that little or no consideration was given to the fact that the applicant was a child at the time of the offences in 2022, which gave rise to the POD decision, there has been no challenge to the substantive reasons given for applying a POD in the decision dated 28 May 2024.

87. The representations sent on 22 May 2024 made vague and generalised submissions asking for further time without particularising why that evidence might be relevant to a POD decision on the facts of this particular case or with reference to the Public Order Decision Making Framework. Nor did they produce evidence to support the assertions about the enquiries made with an unidentified expert.

88. It is in this context that the respondent’s decision dated 24 May 2024 should be considered. The decision maker referred to the relevant part of the statutory guidance, which makes clear that extensions of time are granted at the discretion of the decision maker. The decision maker noted that extensions would only be granted in ‘exceptional circumstances’. It is clear that they had in mind the relevant part of the statutory guidance and had considered whether to exercise discretion. Even if the timeframe for obtaining expert evidence was outside the applicant’s control, that is not the sole consideration. Adequate reasons must be given to show why the proposed further evidence is thought necessary and would be material to an assessment under the Public Order Decision Making Framework. In the end, the decision maker found that there was a lack of detail and underlying evidence to support the request to extend time (see [34] above). In my assessment, this was a decision that was open to the decision maker on the limited information provided with the representations.

89. For the reasons given above, I conclude that the decision to refuse to extend time was not outside a range of reasonable responses to the limited evidence produced in support of the submissions and was not procedurally unfair in the individual circumstances of this case.

The policy point

90. The reasons given by the decision maker did not focus unduly on the ‘exceptional circumstances’ test, but on the lack of detail and evidence to support the application to extend time. Those were matters that were relevant to the exercise of discretion on the facts of this case and did not rely on the broader policy context.

91. Judicial review is a discretionary remedy. Any claim with reference to the broader policy point is academic. I find that it would not be a proportionate use of court time to determine that point in the circumstances of this particular case.

92. Aside from some lingering doubt as to whether the Upper Tribunal is the appropriate jurisdiction to consider a broad challenge to statutory guidance made under section 49 MSA 2015, and in the absence of any procedural unfairness on the facts of the individual case, I find that there are no good reasons in the public interest to justify determining the policy point: see R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 [456]; R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 [208].

93. For the reasons given above, the claim is dismissed.

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