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Public Law Solicitors

Public Order Disqualification Policy Revised by Home Secretary After Duncan Lewis Challenge (19 December 2023)

Date: 19/12/2023
Duncan Lewis, Public Law Solicitors, Public Order Disqualification Policy Revised by Home Secretary After Duncan Lewis Challenge

Duncan Lewis’ clients welcome the Secretary of State’s revised policy in respect of Public Order Disqualifications, published 8 January 2024, and the subsequent settlement of MAN & LAN v SSHD AC-2023-LON-001904 & AC-2023-LON-001640.

On 31 January 2023, Suella Braverman, the then Home Secretary, introduced a Public Order Disqualification (POD) policy, intended to provide the framework for disqualifying potential trafficking victims from receiving modern slavery specific support under the Modern Slavery Victim Care Contract, pursuant to s.63(1) of the Nationality and Borders Act 2022. The relevant provisions were contained in the guidance 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. The Policy failed to direct caseworkers to consider any risk of re-trafficking, in the event a POD were applied.

On 1 March 2023, Duncan Lewis issued judicial review proceedings on behalf of our client VAN, a Vietnamese national trafficked to and within the UK for the purpose of forced labour and forced criminality. VAN argued that the policy was unlawful on several grounds, including that it induced breaches of the Article 4 ECHR protection duty, in that victims and potential victims were placed at real risk of being re-trafficked as a result of support being terminated or withheld. This was the first challenge to the Secretary of State’s flagship policy. In May and June, two further Duncan Lewis clients from Romania (MAN) and Poland (LAN) issued proceedings on similar grounds to VAN.

On 26 July 2023, VAN, LAN, and MAN sought general interim relief to protect all potential modern slavery victims pending trial. Mr Justice Swift granted permission to apply for judicial review and ordered the Secretary of State not to disqualify anyone from receiving protection support pending trial unless an initial risk assessment was conducted and factored into the disqualification decision. In so doing, Mr Justice Swift remarked that this would not unduly burden the Secretary of State and would provide a practical safeguard against any potential breaches of Article 4 ECHR. VAN’s claim was subsequently stayed, and MAN and LAN were listed for a full hearing on 6 – 8 February 2024. A number of other claims were stayed behind the lead cases. No POD decisions have been made since the interim relief hearing. In December 2023, the Secretary of State was ordered by the Court to stay a POD decision made prior to the generic injunction, facilitating the Claimant being released from detention to safe house accommodation with full support.

On 8 January 2024, four weeks before trial, the Secretary of State amended her POD policy to include a specific requirement that where a Decision Maker concludes that an individual falls to be disqualified, a separate assessment concerning the risk of re-trafficking must be completed (para 14.228). The amended policy contains detailed instructions to caseworkers on the steps required to assess the risk of re-trafficking and confirms that where “it is found that there is a real and immediate risk that cannot be mitigated and prevents the issuing of the Public Order Disqualification decision, then that individual is not disqualified and will continue to be eligible for the support and protections of the NRM”.

The amended guidance reflects the points argued by MAN and LAN, and the evidence provided in support of the claims. This amendment provides a significant safeguard and protections for victims of trafficking who fall to be disqualified pursuant to s 63(1) NABA 2022.

On 18 January, following the policy amendment and withdrawal of MAN and LAN’s individual POD decisions, the parties agreed terms of settlement by way of a consent order and a detailed statement of reasons. A copy of the agreed order and Statement of Reasons are attached.

Duncan Lewis’ clients welcome the policy amendment and wish to thank those outside their legal team who contributed evidence in support of the claim, in particular Anti-Slavery International, Human Trafficking Foundation, Unseen, Helen Bamber Foundation, Chartered Forensic Psychologist Ms Lisa Davies, Dr Andrea Nicholson and her colleagues at the Rights Lab (University of Nottingham), and Independent Consultant & Policy Analyst Mr Philip Ishola.

Duncan Lewis Legal Team:

Maria Thomas, Manini Menon, Elisabeth Jennings, Adam Weisz, and Claire Mallon

Counsel Team:

Chris Buttler KC, Katy Sheridan, and Rosalind Comyn of Matrix Chambers and Marlena Valles of Blackstone.

Duncan Lewis Solicitors

Duncan Lewis’ award-winning public law team holds top tier rankings in the Legal 500 and Chambers directories and has been involved in high-profile cases such as the Rwanda challenge, Manston House, and the Brook House detention centre inquiry.

Read the full judgement here: https://www.duncanlewis.co.uk/Onlinelinks/AC-2023-LON-001904-001640.pdf

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