JR-2026-LON-001715 & JR-2025-LON-001426
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The decision
JR-2026-LON-001715
JR-2025-LON-001426
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
AH
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Lindsley
UPON hearing from Mr Jay Gajjar, Counsel for the Applicant, instructed by SAJ Legal Solicitors, and Ms Hannah Burton, Counsel for the Respondent, instructed by the Government Legal Department on 3 June 2026 in the Upper Tribunal, 15-25 Bream’s Buildings, London, EC4A 1DZ.
It is ordered:
1. The application for judicial review is allowed.
2. The decisions of 16 August 2023 and 6 February 2025 are quashed.
3. The Respondent is to pay the Applicant’s reasonable costs, to be assessed by a costs judge if not agreed in:
JR-2025-LON-001426.
AC-2023-LON-003655 (UT reference: JR-2026-LON-001715).
CA-2024-002898.
4. Permission to appeal is refused because no application is made by the respondent and as I conclude that my decision does not err in law for the reasons set out in the judgment.
Signed: Fiona Lindsley
Upper Tribunal Judge Lindsley
Dated: 17th June 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 23/06/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2026-LON-001715
JR-2025-LON-001426
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Before:
UPPER TRIBUNAL JUDGE LINDSLEY
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Between:
THE KING
on the application of
AH
(Anonymity Order Made)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Gajjar, of Counsel, instructed by SAJ Legal Solicitors for the applicant
Ms H Burton, of Counsel, instructed by GLD for the respondent
Hearing date: 3rd June 2026
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J U D G M E N T
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Judge Lindsley:
Introduction
1. This is my decision in relation to two judicial review applications in relation to two connected decisions, the second decision being supplementary to the first.
2. The first application relates to a decision of the respondent dated 16th August 2023 (henceforth the first decision) refusing and certifying, under s.94 of the Nationality, Immigration and Asylum Act 2002, the applicant’s protection and human rights claim made on 8th July 2021 and stating that a deportation order had been made because the respondent deemed his deportation to be conducive to the public good. An application for judicial review of this first decision was made in the Administrative Court on 30th November 2023. Permission was refused on the papers by David Pievksy KC; it was then granted at an oral hearing before Deputy High Court Judge O’Connor but that decision was set aside by the High Court as the respondent had not been given notice of the hearing. A further renewal hearing took place before Mr Justice Ritchie who refused permission on 20th December 2024. The applicant appealed to the Court of Appeal. Permission was then granted by the Court of Appeal on one ground only and the matter remitted to the Administrative Court. The Upper Tribunal requested that the application be transferred to the Upper Tribunal to be heard jointly with the full judicial review hearing relating to the second decision, the supplementary decision of 6th February 2025, and on 15th May 2026 this application was transferred to the Upper Tribunal by Mr Justice Johnson.
3. The second decision is that of 6th February 2025 which is be read with the first decision of 16th August 2023 and provides further reasoning in relation to the refusal of the applicant’s human rights claim and the decision to take deportation proceedings against the applicant on the grounds that it was conducive to the public good. An application for judicial review was commenced in the Upper Tribunal in relation to this decision on 6th May 2025 and permission was granted for judicial review on the papers by Upper Tribunal Judge Bulpitt on 26th November 2025. The application was struck out for non-payment of the fee on 6th January 2026 but was reinstated on 12th February 2026.
4. Directions were made for the listing of the two applications on 3rd June 2026, and for skeleton arguments to be filed by both parties. At the start of the hearing it was agreed by consent that the applicant should be granted anonymity on the basis that as a person with a protection claim his need for anonymity outweighed his being named in these proceedings in accordance with the public interest in open justice. At the end of the hearing on 3rd June 2026 it was agreed that both parties could provide a written note on the issue of whether deportation amounted to a penalty as this would assist the Tribunal in the decision-making, both parties helpfully made written submissions on this issue. The Upper Tribunal is very grateful for the helpful written and oral submissions by both counsel.
The Surrounding Circumstances
5. The applicant is a citizen of Albania born in February 1995. He entered the UK illegally in May 2016 in a lorry as a result of having met smugglers in Belgium who offered him work in this country. As a result of the smugglers facilitating his entry to the UK he owes them £20,000. He then worked unlawfully in the UK in construction and in car washes, and without regularising his stay or making an application to the respondent. In April 2021 he agreed to take up work with a man called Avni in Newcastle who offered him construction work with accommodation. On arrival he was held against his will and ordered to cultivate cannabis with threats made against him and his family if he did not cooperate. On 13th May 2021 he was arrested for drugs offences and served with a notice as an illegal entrant by police and immigration authorities.
6. On 15th May 2021 the applicant was referred to the National Referral Mechanism (NRM) and received a positive reasonable grounds decision that he was a victim of modern slavery. On 8th July 2021 he claimed asylum on the basis he was at real risk of serious harm from Avni , whom he believes suspects he called the police, and from the smugglers to whom he owes £20,000 who have threatened his father in Albania saying that he would pay with his life. On 30th July 2021 he was convicted of the production of cannabis (a class B drug) at Teesside Crown Court having entered a guilty plea, and was sentenced to seven months imprisonment. On 7th October 2021 he was served with a decision to make a deportation order. On 22nd December he was interviewed substantively about his asylum claim. On 17th March 2022 he was given a positive conclusive grounds decision that he was a victim of modern slavery.
7. On 16th August 2023 the first decision under challenge was made refusing and certifying the applicant’s protection and human rights claim and deciding to deport him conducive to the public good. On 28th November 2023 he made further submissions but, in a decision of 7th December 2023, these further submissions were rejected as fresh claim under paragraph 353 of the Immigration Rules. On 20th December 2024 shortly before ethe oral permission hearing took place, the respondent agreed the respondent agreed to review her decisions with respect to whether the deportation of the applicant was conducive to the public good and the refusal of his Article 8 ECHR claim to remain. On 6th February 2025 the second decision was made supplementing the reasoning of the first decision on these matters and maintaining the refusal, certification and the conducive deportation decisions.
8. In short summary the ultimate position of the respondent in the combined decisions is to refuse the protection claim because the respondent finds that any subjective fear of serious harm that the applicant has is not well-founded and in any case there is sufficiency of protection in Albania and he could be reasonably expected to relocate internally if he believes that he is at risk in his home area. It is found that he has not shown the smugglers have any power or influence in Albania and that he is not at any real risk of re-trafficking as a man with some education, family support, no children and given his ability to access to the Albanian health services. It is found that he does not meet the family or private life exceptions to deportation, and that there are no exceptional circumstances over and above these exceptions. It is accepted that he is not a persistent offender and that his offending did not cause serious harm but his criminal conviction along with his disregard for the immigration laws of the UK by entering unlawfully, working illegally, delaying in claiming asylum and failing to comply with bail reporting conditions on two occasions suffices to mean that deportation proceedings were properly taken by the respondent conducive to the public good.
Grants of Permission & Grounds to be determined
9. Lord Justice Arnold granted permission in the challenge to the first decision on the basis of ground one only. It is said: “The Appellant's challenge to the deportation decision based on Article 26 of the Council of Europe Convention on Action against Trafficking of Human Beings as formulated in the skeleton argument for the appeal is an arguable one. The Respondent makes the point that Article 26 was not relied upon in the Appellant's grounds and was first raised shortly before the hearing. The judge did not refuse to allow the point to be raised on the ground that it had not been pleaded, however, but rejected it on the merits.”
10. The operative part of Upper Tribunal Judge Bulpitt’s grant with respect to the second decision is: “On my assessment, there is some doubt about whether the applicant’s human rights claim might succeed before a First-tier Tribunal Judge. At [18] of this latest decision the respondent changes her position from that taken in the 16 August 2023 decision and acknowledges that paragraph 13.2.1 of the Immigration Rules, stating that the public interest requires the applicant’s deportation, does not apply to the applicant. In those circumstances and where the applicant does not therefore meet the definition of a foreign criminal in s117D of the Nationality Immigration and Asylum Act 2002 (and so the First-tier Tribunal Judge would not be required to have regard to s117C of the 2002 Act) it cannot be said the applicant’s human rights claim is bound to fail.”
11. Mr Gajjar helpfully clarified that it is not argued in the grounds that the applicant has an independent Article 8 ECHR other than one that it is set out in his protection claim and that it is accepted that permission was not granted to challenge the certification of this protection/ human rights claim beyond challenging the fact that it is made in the framework of a conducive deportation decision which it is contended is ultimately irrational in the context of the Article 26 ECAT obligations, the respondent’s guidance with respect to deportation and victims of trafficking with a positive conclusive grounds decision and the factual matrix of the positive conclusive grounds decision which covered the time point of the offending. It is argued, for the reasons set out below, that the consideration of the applicant’s offending when making the decision to deport him conducive to the public good is therefore unlawful as it is irrational. In these circumstances I find that the issues of “grounds not pleaded” in the respondent’s skeleton does not arise.
12. It is argued for the applicant that relief should be granted if this error is made out because whilst it would be open to the respondent to remake the decision as a removal one that outcome, removal rather than deportation, would be substantially different for the applicant and thus the test at s.31(2A) of the Senior Courts Act 1981 to refuse relief is not met as it is not “highly likely that the outcome for the Applicant would not have been substantially different if the conduct complained of had not occurred”.
Submissions
13. In short summary it is argued by Mr Gajjar, in his skeleton, his note provided after the hearing and oral submissions, for the applicant as follows. The challenge to the first decision is that it was made without consideration that the applicant had received a positive conclusive grounds decision finding that he is a victim of modern slavery in the UK despite this having happened over a year prior to the first decision. The second decision is accepted as engaging with the positive conclusive grounds decision but it is argued that this is not done in a way which is lawful or rational as once it is established that the applicant did not raise a s.45 Modern Slavery Act 2015 defence in his criminal trial and has not applied to Criminal Cases Review Commission (CRCC), to overturn his sentence or have it reduced based on his being in a state of modern slavery at the time of the offending, the fact of the applicant having been in a state of slavery at the time of offending, as established in the positive conclusive grounds decision of the NRM, is found to be of no relevance and given no weight.
14. It is further argued that the taking of deportation proceedings amounts to the imposition of a penalty, which, it is argued, is a term wider than prosecution, on the applicant and so the respondent should comply with her international obligations under Article 26 of the Council of Europe Convention against Trafficking of Human Beings (ECAT) by which there should be provision(s) in the criminal law or otherwise to allow for the possibility of not punishing victims of modern slavery who are involved with criminality. It is argued that it is clear from the wording of Article 26 and the ECAT explanatory notes that the principle of non-punishment goes wider than prosecution to include other measures such as deportation proceedings.
15. It is argued that this is the case because clearly deportation has a punitive effect on the individual. It is argued that there are conflicting views as to whether deportation is intended to be punitive. It is accepted that ECtHR authorities such as Uner v Netherlands and Maaouia v France conclude that deportation stands outside of the realm of criminal penalties and is instead a special preventative measure for immigration control; and that the Court of Appeal in Begum v SSHD [2024] EWCA Civ 152 also found that deprivation of citizenship in the context of evidence of trafficking did not contravene the non-punishment principle as this principle does not extend beyond criminal prosecutions. However in Begum arguments were made for the applicant that Article 26 was broad enough to cover deprivation of citizenship and that this should have therefore been taken into account, and in this instance the second decision states that the applicant should be removed to prevent further offending which is part of the hallmark of a criminal penalty, as per Ezeh and Connors v UK (2004) EHRR 1 at paragraph 102 which found that punishment and deterrence are the “twin objectives” of a criminal penalty.
16. It is also argued that the public interest in deportation is one which has a “moveable rather than fixed quality” as held by the Court of Appeal in Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098, and that it must be appreciated that there are cases where the individual circumstances mean that the public interest in deportation is reduced. The elements of that public interest are wide ranging and made up of the deterrent effect on foreign citizens from engaging with crime, the prevention of reoffending by the individual and the building of public confidence in the immigration system by the deportation of those foreign nationals who committed crime.
17. It is argued that the respondent has guidance which provides for a discretion with respect to whether deportation proceedings are taken against those with positive conclusive grounds modern slavery decisions, and that this discretion was not exercised lawfully or rationally as the decision of the NRM was given no weight simply because the applicant had not used the s.45 modern slavery defence or made an application to the CCRC to reduce or overturn his sentence, which, it is argued, is not a rational position. It is argued that this is not a rational decision because there must be a difference in the public interest in deporting an applicant who was a willing participant in crime rather than one who had been compelled to commit the criminal acts, and it must be an irrational decision not to acknowledge this difference where the respondent does not seek to undermine or go behind the decision of the NRM that the applicant was in a situation of modern slavery at the point the crime was committed. The additional factors placed in the balance by the respondent (the illegal entry, illegal working, bail breaches) are not ones which alone could rationally justify a decision to take deportation proceedings conducive to the public good, and so the decision should be quashed as one vitiated by irrationality.
18. Ms Burton argues for the respondent in short summary as follows. She argues that Article 26 of ECAT read with the guidance notes provides for alternatives and gives states latitude as to how they implement the non-punishment possibility with respect to victims of trafficking and modern slavery who commit crime. She argues that the UK has decided that it will implement Article 26 solely by way of the Article 45 defence, and that this is clear from the decision of the Court of Appeal in Bya v R [2022] EWCA Crim 1326 at paragraph 10 and 11. She argues that R (on the application of SV) v SSHD [2022] UKUT 39(IAC) finds that there is relevant policy guidance with respect to ECAT but only with respect to grants of discretionary leave to remain and Articles 12 and 14, and so there is no authority for there being guidance pertinent to Article 26.
19. Ms Burton further argues that deportation does not amount to a penalty. She relies upon authorities related to recommendations for deportation by criminal courts (R v Edgehill [1963] 1 QB 593 and R v Nazari [1980] 1 W.L.R. 1366) which hold that a recommendation is not part of the punishment, and the decision on deportation remains finally with the respondent. Reliance is also placed on Hussein v SSHD [2009] EWHC 2492 (Admin) which held explicitly that deportation is not an additional punishment when looking at the legality of detention. In addition in AT (Pakistan) v SSHD [2010] EWCA Civ 567 the Court of Appeal finds that deportation is a preventative measure and not a penalty, and in so doing relied upon the opinion of the European Commission in the ECtHR case of Moustaquim v Belgium that deportation is not a penal measure but one taken in accordance with the law on aliens when considering the application of Article 7 ECHR.
20. It is argued that in so far as respondent guidance exists with respect to conducive deportation and those with NRM decisions finding positive conclusive grounds that an applicant is a victim of trafficking or modern slavery that this provides for discretion for the respondent to take deportation action with only the caveat that the objections of the applicant must be considered. It is accepted that none of the factors listed in the guidance as indicators that deportation may be the correct course are relevant to this applicant’s circumstances but it is argued that his objections have been considered and a lawful decision made in which it is clearly acknowledged that he was in a situation of compulsion but nevertheless he was convicted of a drugs crime, raised no modern slavery defence and has not appealed the sentenced to the CCRC. It is argued that this decision is made in the round with other negative immigration matters relevant to the public interest placed in the balance and is clearly one rationally open to the respondent.
21. Ms Burton argued further that the outcome would be the same for the applicant, and that deportation would be maintained, even if less weight were given to his conviction due to the circumstances of modern slavery and so there would be no material difference so relief should not be granted applying the test at s.31(2A) of the Senior Courts Act 1981 even if an error of approach were found by the Upper Tribunal. She accepted however that if the outcome of a different approach to the criminal offending were to result in removal of the applicant rather deportation than that would be a significantly different outcome for the applicant, and therefore if I found the decision was vitiated by err and that was a possible outcome of any remaking of the decision by the respondent then relief should not be refused.
Discussion & Conclusion
22. The applicant is not a person caught by the automatic deportation duty contained in the UK Borders Act 2007, as a result of the length of his sentence, and he is not a foreign criminal within the meaning of s.117D(2) of the Nationality, Immigration and Asylum Act 2002.
23. However, the respondent may deport a person who is not a British citizen if she deems that it is conducive to the public good to do so under s.3(5)(a) of the Immigration Act 1971. This is reflected in the Immigration Rules at paragraph 13.1.1. There is both general guidance with respect to how to approach conducive deportation decision-making and guidance which deals with those who have positive conclusive grounds modern slavery decisions.
24. The respondent’s general guidance indicates that her policy is to pursue public good/ conducive deportation where there is a sentence of over 12 months, where the offence causes serious harm and where the applicant is a persistent offender. This applicant does not fall within these categories.
25. It is then said that deportation might be pursued for the following other reasons:
• national security
• where a court has recommended deportation
• involvement in gun crime or serious drug offending regardless of the length of sentence received
• where there is compelling circumstantial evidence that the person’s conduct or presence in the UK has caused or is likely to cause serious or high harm
• participation in, or facilitation of, a sham marriage
• where a person has facilitated (assisted or attempted to assist) another person in the fraudulent acquisition of leave
26. It was accepted by Ms Burton for the respondent that the applicant does not fall within any of these categories either. However, the guidance then makes plain that “This is not an exhaustive list and deportation may be pursued in any case where the Secretary of State considers that deportation is conducive to the public good.” There is clearly therefore a broad discretion for the respondent to commence conducive deportation proceedings.
27. The specific guidance with respect to victims of human trafficking/ modern slavery and conducive deportation under s.3(5)(a) of the 1971 Act states that this must not proceed where it would be in breach of ECAT, and then continues as follows:
• “Positive conclusive grounds decision
• Where the competent authority has made a positive conclusive grounds decision which confirms the person is a victim of trafficking or modern slavery, consideration will be given to granting permission to stay (if the person does not already hold immigration status in the UK). Where a decision is made to grant permission, approval must be sought from the FNORC Grade 5 not to pursue deportation. For guidance on temporary permission to stay for victims of human trafficking and slavery see: Temporary permission to stay for victims of human trafficking and slavery. Where the competent authority decides not to grant temporary permission, you must proceed to consider whether deportation is appropriate subject to consideration of any other objection to deportation the person may have made.”
28. The sum total of the guidance for a person in the applicant’s position therefore amounts to a requirement that consideration must be given to his objections to conducive deportation. Clearly those acting on behalf of this applicant have objected to his deportation on the basis that he was not a voluntary participant in criminality as he was in a situation of modern slavery at the time of the criminal acts, and that this has been accepted as true by the NRM on behalf of the British government and to proceed with deportation would be wrong and irrational, and that it would be contrary to the UK’s obligations under Article 26 of ECAT to impose this additional punishment/ penalty upon him.
29. I will first consider the impact of Article 26 of ECAT and the accompanying explanatory notes which read as follows:
• “ARTICLE 26
• Non-punishment provision
• Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
• Article 26 – Non-punishment provision
• 272. Article 26 constitutes an obligation to Parties to adopt and/or implement legislative measures providing for the possibility of not imposing penalties on victims, on the grounds indicated in the same article.
• 273. In particular, the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article 4, when such involvement results from compulsion.
• 274. Each Party can comply with the obligation established in Article 26, by providing for a substantive criminal or procedural criminal law provision, or any other measure, allowing for the possibility of not punishing victims when the above-mentioned legal requirements are met, in accordance with the basic principles of every national legal system.
30. As per the authorities very helpfully cited by Ms Burton and Mr Gajjar in their post-hearing notes, and perhaps most particularly what is said by the Court of Appeal in AT (Pakistan) v SSHD and in Begum v SSHD, and the ECtHR cases of Moustaquim v Belgium, Maaouia v France and Uner v Netherlands I find that it is clear in international and domestic law that deportation is not currently seen as a part of any punishment for a crime and is instead separately defined as a preventative measure taken against aliens and not a penalty. As stated by the Court of Appeal at paragraph 82 of Begum: “There is no authority either of a domestic court or of the Strasbourg court which has held that the non-punishment principle extends beyond criminal prosecutions….”
31. As a result, I find that the argument that Article 26 of ECAT itself has a protective force for those facing deportation fails. This is consistent with what is said by the Court of Appeal in Bya v R at paragraphs 10 and 11 where it is said that s.45 of the Modern Slavery Act 2015, which provides a defence for victims of slavery or trafficking who commit certain offences under compulsion attributable to slavery or relevant exploitation, is the domestic implementation of Article 26 of ECAT.
32. ECAT is of course also an unincorporated treaty and has no direct application in UK law, as set out at paragraph 35 of R (on the application of SV) v SSHD, relying on R (SC & Ors) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26, where it is said that: “it was not appropriate to seek to apply an unincorporated treaty, such as the Convention on the Rights of the Child, in reaching a determination; or to make a decision whether, in adopting the measure in question, the United Kingdom had complied with its obligations under the Convention. This flowed from the fundamental principle that an unincorporated treaty does not form part of the law of the United Kingdom.”
33. Ultimately what the applicant can rely upon is thus only what has been said with respect to deportation and positive conclusive grounds decisions in the respondent’s guidance and the protections of public law. I find that this means he is simply entitled to the respondent making a rational decision that considers the objections he puts forward to this course of action.
34. At this point I find that it is helpful to remind myself of the content of the positive conclusive grounds decision of the NRM. The decision is as follows: that the applicant is a victim of modern slavery because: “We found the following types of exploitation occurred: Forced Labour (Cannabis cultivation) Approx. April 2021 - May 2021.”
35. I now turn to the decisions of the respondent with respect to the reasoning for the applicant facing conducive deportation. As noted above the substantial engagement with the positive conclusive grounds decision relating to modern slavery is in the second supplementary decision. The key position with respect to the NRM decision is that it is acknowledged that the applicant received a positive conclusive grounds decision dated 17th March 2022 which decided he was a victim of modern slavery. This is reflected at paragraphs 12 and 13 where it is said that the applicant’s claim is taken at its highest and that includes the positive conclusive grounds decision. At paragraphs 18 and 19 it is said that despite the applicant not being a persistent offender and the fact his offending did not cause serious harm his deportation is conducive to the public good. This is said to be the case at paragraph 20 of the decision because of the fact of his conviction for production of a class B controlled drug, cannabis, and whilst this “may have occurred due to your exploitation and forced labour” he entered a guilty plea and has not appealed the conviction. Consideration is then given to the applicant’s illegal entry, failure to regularise his stay and failure to report in accordance with bail conditions at paragraphs 22-25 & 36. At paragraph 35 it is confirmed that the decision to deport was taken in the public interest as securing the removal of the applicant is in the “interests of preventing further offending and establishing a deterrent.” At paragraph 38 consideration reverts to the positive conclusive grounds decision and the failure by the applicant to use the defence relating to modern slavery despite being legally represented, or to appeal to the CCRC for the conviction to be overturned/ sentence reduced. It is said in conclusion with respect to this issue that given the applicant’s failure to take advantage of these options the finding by the NRM that the applicant is a victim of trafficking does not “demonstrate that any less weight should be placed on your offending for the purposes of deportation.”
36. The test for irrationality is a high one. As Ms Burton has set out in her skeleton argument citing In Council of Civil Service Unions and Others v Minister for the Civil Service [1985] A.C. 374, the House of Lords said: “By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”
37. The question for me is ultimately whether, when pursuing the public interest to prevent further offending and establish a deterrent, it was rationally open to the respondent to say that absent use of the s.45 defence, provided by the UK government in response to the Article 26 ECAT duty, no less weight should be given to the applicant’s conviction in circumstances where the NRM decision recognised the period during which the applicant’s criminal acts took place was one of modern slavery and the decision of the NRM is not said to be one to which weight cannot be given for any reason.
38. I find that this approach has the degree of perversity that leads me to find that it is irrational for the following reasons. The decision of the NRM is not disparaged for any reason or found to be one to which no weight is due as a result of other subsequent evidence. It is evidence which logically goes to the consideration as to whether this applicant will commit future crime: his only criminal conviction has taken place whilst he was in a situation of forced slave labour and so this indicates a lesser likelihood of his committing crime in the future than someone who has a history of involvement in crime in a situation of freedom and choice. It logically also goes to the consideration of deterrents: I find it irrational to assert that it would be possible to deter others from committing crime whilst in a situation of forced labour by deporting the applicant as such persons are not in situation of choice but the opposite: their situation is one of exploitation and slavery.
39. I emphasise that as the applicant has not used the s.45 defence or applied the CRCC it was rationally open to the respondent to have regard to the conviction, as stated in the second decision the applicant has this conviction and sentence and has not taken steps to undo it via the CRCC and so the respondent should not go behind it. It was also rationally open to the respondent to have regard to the other matters with respect to illegal entry, illegal working and failure to comply with bail conditions. What was not rational was to say that the existence of the positive conclusive grounds decision does not result in any less weight being placed on the offending, which the unchallenged and uncriticised NRM decision unarguably means took place while the applicant was in a state of modern slavery.
40. I find that it is not “highly likely” that the outcome for the applicant would not be substantially different if less weight had been given to the conviction in light of the NRM positive conclusive grounds decision finding modern slavery was the context in which the applicant’s criminality took place. I find that it is likely that the applicant would still face removal from the UK as a person whose protection and human rights claim has been found to be clearly unfounded, but with respect to that outcome I note that Ms Burton rightly accepted that would be a substantially different decision. I do not find however there is any factual basis for me to find that it is high likely that the conducive deportation decision would be maintained by the respondent as the criminal conviction was the central piece of the decisions under challenge that the applicant should face conducive deportation. In these circumstances it follows that as I have found the decisions of the respondent err in law by reason of irrationality I should grant the relief sought to the applicant.
Relief:
1. The decisions of 16th August 2023 and the supplementary decision of 6th February 2025 are quashed.
2. The respondent shall pay the applicant’s reasonable costs to be assessed by a costs judge if not agreed.
Fiona Lindsley
Upper Tribunal Judge Lindsley
17th June 2026
JR-2025-LON-001426
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
AH
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Lindsley
UPON hearing from Mr Jay Gajjar, Counsel for the Applicant, instructed by SAJ Legal Solicitors, and Ms Hannah Burton, Counsel for the Respondent, instructed by the Government Legal Department on 3 June 2026 in the Upper Tribunal, 15-25 Bream’s Buildings, London, EC4A 1DZ.
It is ordered:
1. The application for judicial review is allowed.
2. The decisions of 16 August 2023 and 6 February 2025 are quashed.
3. The Respondent is to pay the Applicant’s reasonable costs, to be assessed by a costs judge if not agreed in:
JR-2025-LON-001426.
AC-2023-LON-003655 (UT reference: JR-2026-LON-001715).
CA-2024-002898.
4. Permission to appeal is refused because no application is made by the respondent and as I conclude that my decision does not err in law for the reasons set out in the judgment.
Signed: Fiona Lindsley
Upper Tribunal Judge Lindsley
Dated: 17th June 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 23/06/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2026-LON-001715
JR-2025-LON-001426
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Before:
UPPER TRIBUNAL JUDGE LINDSLEY
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Between:
THE KING
on the application of
AH
(Anonymity Order Made)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Gajjar, of Counsel, instructed by SAJ Legal Solicitors for the applicant
Ms H Burton, of Counsel, instructed by GLD for the respondent
Hearing date: 3rd June 2026
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J U D G M E N T
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Judge Lindsley:
Introduction
1. This is my decision in relation to two judicial review applications in relation to two connected decisions, the second decision being supplementary to the first.
2. The first application relates to a decision of the respondent dated 16th August 2023 (henceforth the first decision) refusing and certifying, under s.94 of the Nationality, Immigration and Asylum Act 2002, the applicant’s protection and human rights claim made on 8th July 2021 and stating that a deportation order had been made because the respondent deemed his deportation to be conducive to the public good. An application for judicial review of this first decision was made in the Administrative Court on 30th November 2023. Permission was refused on the papers by David Pievksy KC; it was then granted at an oral hearing before Deputy High Court Judge O’Connor but that decision was set aside by the High Court as the respondent had not been given notice of the hearing. A further renewal hearing took place before Mr Justice Ritchie who refused permission on 20th December 2024. The applicant appealed to the Court of Appeal. Permission was then granted by the Court of Appeal on one ground only and the matter remitted to the Administrative Court. The Upper Tribunal requested that the application be transferred to the Upper Tribunal to be heard jointly with the full judicial review hearing relating to the second decision, the supplementary decision of 6th February 2025, and on 15th May 2026 this application was transferred to the Upper Tribunal by Mr Justice Johnson.
3. The second decision is that of 6th February 2025 which is be read with the first decision of 16th August 2023 and provides further reasoning in relation to the refusal of the applicant’s human rights claim and the decision to take deportation proceedings against the applicant on the grounds that it was conducive to the public good. An application for judicial review was commenced in the Upper Tribunal in relation to this decision on 6th May 2025 and permission was granted for judicial review on the papers by Upper Tribunal Judge Bulpitt on 26th November 2025. The application was struck out for non-payment of the fee on 6th January 2026 but was reinstated on 12th February 2026.
4. Directions were made for the listing of the two applications on 3rd June 2026, and for skeleton arguments to be filed by both parties. At the start of the hearing it was agreed by consent that the applicant should be granted anonymity on the basis that as a person with a protection claim his need for anonymity outweighed his being named in these proceedings in accordance with the public interest in open justice. At the end of the hearing on 3rd June 2026 it was agreed that both parties could provide a written note on the issue of whether deportation amounted to a penalty as this would assist the Tribunal in the decision-making, both parties helpfully made written submissions on this issue. The Upper Tribunal is very grateful for the helpful written and oral submissions by both counsel.
The Surrounding Circumstances
5. The applicant is a citizen of Albania born in February 1995. He entered the UK illegally in May 2016 in a lorry as a result of having met smugglers in Belgium who offered him work in this country. As a result of the smugglers facilitating his entry to the UK he owes them £20,000. He then worked unlawfully in the UK in construction and in car washes, and without regularising his stay or making an application to the respondent. In April 2021 he agreed to take up work with a man called Avni in Newcastle who offered him construction work with accommodation. On arrival he was held against his will and ordered to cultivate cannabis with threats made against him and his family if he did not cooperate. On 13th May 2021 he was arrested for drugs offences and served with a notice as an illegal entrant by police and immigration authorities.
6. On 15th May 2021 the applicant was referred to the National Referral Mechanism (NRM) and received a positive reasonable grounds decision that he was a victim of modern slavery. On 8th July 2021 he claimed asylum on the basis he was at real risk of serious harm from Avni , whom he believes suspects he called the police, and from the smugglers to whom he owes £20,000 who have threatened his father in Albania saying that he would pay with his life. On 30th July 2021 he was convicted of the production of cannabis (a class B drug) at Teesside Crown Court having entered a guilty plea, and was sentenced to seven months imprisonment. On 7th October 2021 he was served with a decision to make a deportation order. On 22nd December he was interviewed substantively about his asylum claim. On 17th March 2022 he was given a positive conclusive grounds decision that he was a victim of modern slavery.
7. On 16th August 2023 the first decision under challenge was made refusing and certifying the applicant’s protection and human rights claim and deciding to deport him conducive to the public good. On 28th November 2023 he made further submissions but, in a decision of 7th December 2023, these further submissions were rejected as fresh claim under paragraph 353 of the Immigration Rules. On 20th December 2024 shortly before ethe oral permission hearing took place, the respondent agreed the respondent agreed to review her decisions with respect to whether the deportation of the applicant was conducive to the public good and the refusal of his Article 8 ECHR claim to remain. On 6th February 2025 the second decision was made supplementing the reasoning of the first decision on these matters and maintaining the refusal, certification and the conducive deportation decisions.
8. In short summary the ultimate position of the respondent in the combined decisions is to refuse the protection claim because the respondent finds that any subjective fear of serious harm that the applicant has is not well-founded and in any case there is sufficiency of protection in Albania and he could be reasonably expected to relocate internally if he believes that he is at risk in his home area. It is found that he has not shown the smugglers have any power or influence in Albania and that he is not at any real risk of re-trafficking as a man with some education, family support, no children and given his ability to access to the Albanian health services. It is found that he does not meet the family or private life exceptions to deportation, and that there are no exceptional circumstances over and above these exceptions. It is accepted that he is not a persistent offender and that his offending did not cause serious harm but his criminal conviction along with his disregard for the immigration laws of the UK by entering unlawfully, working illegally, delaying in claiming asylum and failing to comply with bail reporting conditions on two occasions suffices to mean that deportation proceedings were properly taken by the respondent conducive to the public good.
Grants of Permission & Grounds to be determined
9. Lord Justice Arnold granted permission in the challenge to the first decision on the basis of ground one only. It is said: “The Appellant's challenge to the deportation decision based on Article 26 of the Council of Europe Convention on Action against Trafficking of Human Beings as formulated in the skeleton argument for the appeal is an arguable one. The Respondent makes the point that Article 26 was not relied upon in the Appellant's grounds and was first raised shortly before the hearing. The judge did not refuse to allow the point to be raised on the ground that it had not been pleaded, however, but rejected it on the merits.”
10. The operative part of Upper Tribunal Judge Bulpitt’s grant with respect to the second decision is: “On my assessment, there is some doubt about whether the applicant’s human rights claim might succeed before a First-tier Tribunal Judge. At [18] of this latest decision the respondent changes her position from that taken in the 16 August 2023 decision and acknowledges that paragraph 13.2.1 of the Immigration Rules, stating that the public interest requires the applicant’s deportation, does not apply to the applicant. In those circumstances and where the applicant does not therefore meet the definition of a foreign criminal in s117D of the Nationality Immigration and Asylum Act 2002 (and so the First-tier Tribunal Judge would not be required to have regard to s117C of the 2002 Act) it cannot be said the applicant’s human rights claim is bound to fail.”
11. Mr Gajjar helpfully clarified that it is not argued in the grounds that the applicant has an independent Article 8 ECHR other than one that it is set out in his protection claim and that it is accepted that permission was not granted to challenge the certification of this protection/ human rights claim beyond challenging the fact that it is made in the framework of a conducive deportation decision which it is contended is ultimately irrational in the context of the Article 26 ECAT obligations, the respondent’s guidance with respect to deportation and victims of trafficking with a positive conclusive grounds decision and the factual matrix of the positive conclusive grounds decision which covered the time point of the offending. It is argued, for the reasons set out below, that the consideration of the applicant’s offending when making the decision to deport him conducive to the public good is therefore unlawful as it is irrational. In these circumstances I find that the issues of “grounds not pleaded” in the respondent’s skeleton does not arise.
12. It is argued for the applicant that relief should be granted if this error is made out because whilst it would be open to the respondent to remake the decision as a removal one that outcome, removal rather than deportation, would be substantially different for the applicant and thus the test at s.31(2A) of the Senior Courts Act 1981 to refuse relief is not met as it is not “highly likely that the outcome for the Applicant would not have been substantially different if the conduct complained of had not occurred”.
Submissions
13. In short summary it is argued by Mr Gajjar, in his skeleton, his note provided after the hearing and oral submissions, for the applicant as follows. The challenge to the first decision is that it was made without consideration that the applicant had received a positive conclusive grounds decision finding that he is a victim of modern slavery in the UK despite this having happened over a year prior to the first decision. The second decision is accepted as engaging with the positive conclusive grounds decision but it is argued that this is not done in a way which is lawful or rational as once it is established that the applicant did not raise a s.45 Modern Slavery Act 2015 defence in his criminal trial and has not applied to Criminal Cases Review Commission (CRCC), to overturn his sentence or have it reduced based on his being in a state of modern slavery at the time of the offending, the fact of the applicant having been in a state of slavery at the time of offending, as established in the positive conclusive grounds decision of the NRM, is found to be of no relevance and given no weight.
14. It is further argued that the taking of deportation proceedings amounts to the imposition of a penalty, which, it is argued, is a term wider than prosecution, on the applicant and so the respondent should comply with her international obligations under Article 26 of the Council of Europe Convention against Trafficking of Human Beings (ECAT) by which there should be provision(s) in the criminal law or otherwise to allow for the possibility of not punishing victims of modern slavery who are involved with criminality. It is argued that it is clear from the wording of Article 26 and the ECAT explanatory notes that the principle of non-punishment goes wider than prosecution to include other measures such as deportation proceedings.
15. It is argued that this is the case because clearly deportation has a punitive effect on the individual. It is argued that there are conflicting views as to whether deportation is intended to be punitive. It is accepted that ECtHR authorities such as Uner v Netherlands and Maaouia v France conclude that deportation stands outside of the realm of criminal penalties and is instead a special preventative measure for immigration control; and that the Court of Appeal in Begum v SSHD [2024] EWCA Civ 152 also found that deprivation of citizenship in the context of evidence of trafficking did not contravene the non-punishment principle as this principle does not extend beyond criminal prosecutions. However in Begum arguments were made for the applicant that Article 26 was broad enough to cover deprivation of citizenship and that this should have therefore been taken into account, and in this instance the second decision states that the applicant should be removed to prevent further offending which is part of the hallmark of a criminal penalty, as per Ezeh and Connors v UK (2004) EHRR 1 at paragraph 102 which found that punishment and deterrence are the “twin objectives” of a criminal penalty.
16. It is also argued that the public interest in deportation is one which has a “moveable rather than fixed quality” as held by the Court of Appeal in Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098, and that it must be appreciated that there are cases where the individual circumstances mean that the public interest in deportation is reduced. The elements of that public interest are wide ranging and made up of the deterrent effect on foreign citizens from engaging with crime, the prevention of reoffending by the individual and the building of public confidence in the immigration system by the deportation of those foreign nationals who committed crime.
17. It is argued that the respondent has guidance which provides for a discretion with respect to whether deportation proceedings are taken against those with positive conclusive grounds modern slavery decisions, and that this discretion was not exercised lawfully or rationally as the decision of the NRM was given no weight simply because the applicant had not used the s.45 modern slavery defence or made an application to the CCRC to reduce or overturn his sentence, which, it is argued, is not a rational position. It is argued that this is not a rational decision because there must be a difference in the public interest in deporting an applicant who was a willing participant in crime rather than one who had been compelled to commit the criminal acts, and it must be an irrational decision not to acknowledge this difference where the respondent does not seek to undermine or go behind the decision of the NRM that the applicant was in a situation of modern slavery at the point the crime was committed. The additional factors placed in the balance by the respondent (the illegal entry, illegal working, bail breaches) are not ones which alone could rationally justify a decision to take deportation proceedings conducive to the public good, and so the decision should be quashed as one vitiated by irrationality.
18. Ms Burton argues for the respondent in short summary as follows. She argues that Article 26 of ECAT read with the guidance notes provides for alternatives and gives states latitude as to how they implement the non-punishment possibility with respect to victims of trafficking and modern slavery who commit crime. She argues that the UK has decided that it will implement Article 26 solely by way of the Article 45 defence, and that this is clear from the decision of the Court of Appeal in Bya v R [2022] EWCA Crim 1326 at paragraph 10 and 11. She argues that R (on the application of SV) v SSHD [2022] UKUT 39(IAC) finds that there is relevant policy guidance with respect to ECAT but only with respect to grants of discretionary leave to remain and Articles 12 and 14, and so there is no authority for there being guidance pertinent to Article 26.
19. Ms Burton further argues that deportation does not amount to a penalty. She relies upon authorities related to recommendations for deportation by criminal courts (R v Edgehill [1963] 1 QB 593 and R v Nazari [1980] 1 W.L.R. 1366) which hold that a recommendation is not part of the punishment, and the decision on deportation remains finally with the respondent. Reliance is also placed on Hussein v SSHD [2009] EWHC 2492 (Admin) which held explicitly that deportation is not an additional punishment when looking at the legality of detention. In addition in AT (Pakistan) v SSHD [2010] EWCA Civ 567 the Court of Appeal finds that deportation is a preventative measure and not a penalty, and in so doing relied upon the opinion of the European Commission in the ECtHR case of Moustaquim v Belgium that deportation is not a penal measure but one taken in accordance with the law on aliens when considering the application of Article 7 ECHR.
20. It is argued that in so far as respondent guidance exists with respect to conducive deportation and those with NRM decisions finding positive conclusive grounds that an applicant is a victim of trafficking or modern slavery that this provides for discretion for the respondent to take deportation action with only the caveat that the objections of the applicant must be considered. It is accepted that none of the factors listed in the guidance as indicators that deportation may be the correct course are relevant to this applicant’s circumstances but it is argued that his objections have been considered and a lawful decision made in which it is clearly acknowledged that he was in a situation of compulsion but nevertheless he was convicted of a drugs crime, raised no modern slavery defence and has not appealed the sentenced to the CCRC. It is argued that this decision is made in the round with other negative immigration matters relevant to the public interest placed in the balance and is clearly one rationally open to the respondent.
21. Ms Burton argued further that the outcome would be the same for the applicant, and that deportation would be maintained, even if less weight were given to his conviction due to the circumstances of modern slavery and so there would be no material difference so relief should not be granted applying the test at s.31(2A) of the Senior Courts Act 1981 even if an error of approach were found by the Upper Tribunal. She accepted however that if the outcome of a different approach to the criminal offending were to result in removal of the applicant rather deportation than that would be a significantly different outcome for the applicant, and therefore if I found the decision was vitiated by err and that was a possible outcome of any remaking of the decision by the respondent then relief should not be refused.
Discussion & Conclusion
22. The applicant is not a person caught by the automatic deportation duty contained in the UK Borders Act 2007, as a result of the length of his sentence, and he is not a foreign criminal within the meaning of s.117D(2) of the Nationality, Immigration and Asylum Act 2002.
23. However, the respondent may deport a person who is not a British citizen if she deems that it is conducive to the public good to do so under s.3(5)(a) of the Immigration Act 1971. This is reflected in the Immigration Rules at paragraph 13.1.1. There is both general guidance with respect to how to approach conducive deportation decision-making and guidance which deals with those who have positive conclusive grounds modern slavery decisions.
24. The respondent’s general guidance indicates that her policy is to pursue public good/ conducive deportation where there is a sentence of over 12 months, where the offence causes serious harm and where the applicant is a persistent offender. This applicant does not fall within these categories.
25. It is then said that deportation might be pursued for the following other reasons:
• national security
• where a court has recommended deportation
• involvement in gun crime or serious drug offending regardless of the length of sentence received
• where there is compelling circumstantial evidence that the person’s conduct or presence in the UK has caused or is likely to cause serious or high harm
• participation in, or facilitation of, a sham marriage
• where a person has facilitated (assisted or attempted to assist) another person in the fraudulent acquisition of leave
26. It was accepted by Ms Burton for the respondent that the applicant does not fall within any of these categories either. However, the guidance then makes plain that “This is not an exhaustive list and deportation may be pursued in any case where the Secretary of State considers that deportation is conducive to the public good.” There is clearly therefore a broad discretion for the respondent to commence conducive deportation proceedings.
27. The specific guidance with respect to victims of human trafficking/ modern slavery and conducive deportation under s.3(5)(a) of the 1971 Act states that this must not proceed where it would be in breach of ECAT, and then continues as follows:
• “Positive conclusive grounds decision
• Where the competent authority has made a positive conclusive grounds decision which confirms the person is a victim of trafficking or modern slavery, consideration will be given to granting permission to stay (if the person does not already hold immigration status in the UK). Where a decision is made to grant permission, approval must be sought from the FNORC Grade 5 not to pursue deportation. For guidance on temporary permission to stay for victims of human trafficking and slavery see: Temporary permission to stay for victims of human trafficking and slavery. Where the competent authority decides not to grant temporary permission, you must proceed to consider whether deportation is appropriate subject to consideration of any other objection to deportation the person may have made.”
28. The sum total of the guidance for a person in the applicant’s position therefore amounts to a requirement that consideration must be given to his objections to conducive deportation. Clearly those acting on behalf of this applicant have objected to his deportation on the basis that he was not a voluntary participant in criminality as he was in a situation of modern slavery at the time of the criminal acts, and that this has been accepted as true by the NRM on behalf of the British government and to proceed with deportation would be wrong and irrational, and that it would be contrary to the UK’s obligations under Article 26 of ECAT to impose this additional punishment/ penalty upon him.
29. I will first consider the impact of Article 26 of ECAT and the accompanying explanatory notes which read as follows:
• “ARTICLE 26
• Non-punishment provision
• Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
• Article 26 – Non-punishment provision
• 272. Article 26 constitutes an obligation to Parties to adopt and/or implement legislative measures providing for the possibility of not imposing penalties on victims, on the grounds indicated in the same article.
• 273. In particular, the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article 4, when such involvement results from compulsion.
• 274. Each Party can comply with the obligation established in Article 26, by providing for a substantive criminal or procedural criminal law provision, or any other measure, allowing for the possibility of not punishing victims when the above-mentioned legal requirements are met, in accordance with the basic principles of every national legal system.
30. As per the authorities very helpfully cited by Ms Burton and Mr Gajjar in their post-hearing notes, and perhaps most particularly what is said by the Court of Appeal in AT (Pakistan) v SSHD and in Begum v SSHD, and the ECtHR cases of Moustaquim v Belgium, Maaouia v France and Uner v Netherlands I find that it is clear in international and domestic law that deportation is not currently seen as a part of any punishment for a crime and is instead separately defined as a preventative measure taken against aliens and not a penalty. As stated by the Court of Appeal at paragraph 82 of Begum: “There is no authority either of a domestic court or of the Strasbourg court which has held that the non-punishment principle extends beyond criminal prosecutions….”
31. As a result, I find that the argument that Article 26 of ECAT itself has a protective force for those facing deportation fails. This is consistent with what is said by the Court of Appeal in Bya v R at paragraphs 10 and 11 where it is said that s.45 of the Modern Slavery Act 2015, which provides a defence for victims of slavery or trafficking who commit certain offences under compulsion attributable to slavery or relevant exploitation, is the domestic implementation of Article 26 of ECAT.
32. ECAT is of course also an unincorporated treaty and has no direct application in UK law, as set out at paragraph 35 of R (on the application of SV) v SSHD, relying on R (SC & Ors) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26, where it is said that: “it was not appropriate to seek to apply an unincorporated treaty, such as the Convention on the Rights of the Child, in reaching a determination; or to make a decision whether, in adopting the measure in question, the United Kingdom had complied with its obligations under the Convention. This flowed from the fundamental principle that an unincorporated treaty does not form part of the law of the United Kingdom.”
33. Ultimately what the applicant can rely upon is thus only what has been said with respect to deportation and positive conclusive grounds decisions in the respondent’s guidance and the protections of public law. I find that this means he is simply entitled to the respondent making a rational decision that considers the objections he puts forward to this course of action.
34. At this point I find that it is helpful to remind myself of the content of the positive conclusive grounds decision of the NRM. The decision is as follows: that the applicant is a victim of modern slavery because: “We found the following types of exploitation occurred: Forced Labour (Cannabis cultivation) Approx. April 2021 - May 2021.”
35. I now turn to the decisions of the respondent with respect to the reasoning for the applicant facing conducive deportation. As noted above the substantial engagement with the positive conclusive grounds decision relating to modern slavery is in the second supplementary decision. The key position with respect to the NRM decision is that it is acknowledged that the applicant received a positive conclusive grounds decision dated 17th March 2022 which decided he was a victim of modern slavery. This is reflected at paragraphs 12 and 13 where it is said that the applicant’s claim is taken at its highest and that includes the positive conclusive grounds decision. At paragraphs 18 and 19 it is said that despite the applicant not being a persistent offender and the fact his offending did not cause serious harm his deportation is conducive to the public good. This is said to be the case at paragraph 20 of the decision because of the fact of his conviction for production of a class B controlled drug, cannabis, and whilst this “may have occurred due to your exploitation and forced labour” he entered a guilty plea and has not appealed the conviction. Consideration is then given to the applicant’s illegal entry, failure to regularise his stay and failure to report in accordance with bail conditions at paragraphs 22-25 & 36. At paragraph 35 it is confirmed that the decision to deport was taken in the public interest as securing the removal of the applicant is in the “interests of preventing further offending and establishing a deterrent.” At paragraph 38 consideration reverts to the positive conclusive grounds decision and the failure by the applicant to use the defence relating to modern slavery despite being legally represented, or to appeal to the CCRC for the conviction to be overturned/ sentence reduced. It is said in conclusion with respect to this issue that given the applicant’s failure to take advantage of these options the finding by the NRM that the applicant is a victim of trafficking does not “demonstrate that any less weight should be placed on your offending for the purposes of deportation.”
36. The test for irrationality is a high one. As Ms Burton has set out in her skeleton argument citing In Council of Civil Service Unions and Others v Minister for the Civil Service [1985] A.C. 374, the House of Lords said: “By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”
37. The question for me is ultimately whether, when pursuing the public interest to prevent further offending and establish a deterrent, it was rationally open to the respondent to say that absent use of the s.45 defence, provided by the UK government in response to the Article 26 ECAT duty, no less weight should be given to the applicant’s conviction in circumstances where the NRM decision recognised the period during which the applicant’s criminal acts took place was one of modern slavery and the decision of the NRM is not said to be one to which weight cannot be given for any reason.
38. I find that this approach has the degree of perversity that leads me to find that it is irrational for the following reasons. The decision of the NRM is not disparaged for any reason or found to be one to which no weight is due as a result of other subsequent evidence. It is evidence which logically goes to the consideration as to whether this applicant will commit future crime: his only criminal conviction has taken place whilst he was in a situation of forced slave labour and so this indicates a lesser likelihood of his committing crime in the future than someone who has a history of involvement in crime in a situation of freedom and choice. It logically also goes to the consideration of deterrents: I find it irrational to assert that it would be possible to deter others from committing crime whilst in a situation of forced labour by deporting the applicant as such persons are not in situation of choice but the opposite: their situation is one of exploitation and slavery.
39. I emphasise that as the applicant has not used the s.45 defence or applied the CRCC it was rationally open to the respondent to have regard to the conviction, as stated in the second decision the applicant has this conviction and sentence and has not taken steps to undo it via the CRCC and so the respondent should not go behind it. It was also rationally open to the respondent to have regard to the other matters with respect to illegal entry, illegal working and failure to comply with bail conditions. What was not rational was to say that the existence of the positive conclusive grounds decision does not result in any less weight being placed on the offending, which the unchallenged and uncriticised NRM decision unarguably means took place while the applicant was in a state of modern slavery.
40. I find that it is not “highly likely” that the outcome for the applicant would not be substantially different if less weight had been given to the conviction in light of the NRM positive conclusive grounds decision finding modern slavery was the context in which the applicant’s criminality took place. I find that it is likely that the applicant would still face removal from the UK as a person whose protection and human rights claim has been found to be clearly unfounded, but with respect to that outcome I note that Ms Burton rightly accepted that would be a substantially different decision. I do not find however there is any factual basis for me to find that it is high likely that the conducive deportation decision would be maintained by the respondent as the criminal conviction was the central piece of the decisions under challenge that the applicant should face conducive deportation. In these circumstances it follows that as I have found the decisions of the respondent err in law by reason of irrationality I should grant the relief sought to the applicant.
Relief:
1. The decisions of 16th August 2023 and the supplementary decision of 6th February 2025 are quashed.
2. The respondent shall pay the applicant’s reasonable costs to be assessed by a costs judge if not agreed.
Fiona Lindsley
Upper Tribunal Judge Lindsley
17th June 2026