DS, R (on the application of) v The Secretary of State for the Home Department

1. MRS JUSTICE HEATHER WILLIAMS: The claimant renews his application for permission to apply for judicial review of the defendant's decision, dated 18 December 2024, to make a public order disqualification ("POD") decision in respect of him, pursuant to section 63 of the Nationality and Borders Act 2022 ("NABA 2022").

2. Permission to apply for judicial review was refused on the papers by Ritchie J on 14 May 2025. Those representing the claimant did not ask for the renewal hearing to be listed for longer than 30 minutes but, having read the papers, I arranged for the hearing to be scheduled for an hour, as I appreciated that that there were a number of contentions that the claimant wished to raise. In the event, I permitted Mr Fripp to address me for 45 minutes, and then a further 15 minutes when replying to Mr Biggs's 15-minute submissions. In all, I had the benefit of an hour of Mr Fripp's submissions which was, on any view, a generous allocation for a renewal hearing. The factual background

3. The claimant is a national of Portugal, born on 11 February 1998. He states he was brought to the UK as a child, aged approximately three - four years, by his maternal grandmother, and that he has resided in the UK ever since. Initially he was dependent on his mother. He was taken into care aged 14.

4. Whilst in the UK the claimant has been convicted of criminal offences on multiple occasions. In 2014 he was convicted in respect of theft and battery; in October 2015 of possessing a knife, blade or pointed object in a public place; and in December 2015 he was sentenced to a youth rehabilitation order, activity requirement, curfew and attendance centre requirement.

5. On 28 July 2017 at Woolwich Crown Court the claimant was convicted of conspiracy to rob. On 1 September 2017 he was sentenced to seven years' imprisonment. He did not appeal against conviction or sentence. He was notified thereafter of the defendant's intention to make a deportation order against him and to remove him from the United Kingdom. He did not appeal this, and on 13 March 2019 he was served with a deportation order signed on 1 March 2019.

6. On 22 January 2021 the claimant, who had completed the custodial element of his criminal sentence and been detained under Immigration Act 1971 powers, was released from detention with electronic tagging and weekly reporting.

7. On 3 October 2022 the defendant decided that no material change in circumstances had been shown since the date of the deportation order and that the claimant's deportation continued to be justified and proportionate.

8. On 10 January 2023 the claimant was convicted of being concerned in the supply of heroin and crack cocaine, offences committed during his release on licence. He was recalled to custody. On 1 March 2023 he was sentenced to three years and nine months' imprisonment.

9. Removal directions were set for the claimant's removal to Portugal on 19 August 2024. These were cancelled following pre-action correspondence challenging the directions. Thereafter the claimant was referred to the National Referral Mechanism ("NRM") as someone who should be assessed as a possible victim of human trafficking because he had been recruited at age 14 in the UK by a gang who transported him to Gravesend, Cambridge and Clacton-on-Sea to sell drugs. On 3 September 2024 the claimant was issued with a negative reasonable grounds decision. On 8 November 2024 his solicitors sought reconsideration and on 2 December 2024 the reasonable grounds decision was reversed and it was found there were reasonable grounds to conclude that the claimant had been a victim of modern slavery.

10. On 3 December 2024 the claimant was given notification of the possible making of a decision to impose a POD, by use of the defendant's powers under section 63 of the NABA 2022. The claimant provided detailed representations on 11 December 2024. On 18 December 2024 the defendant took a decision to apply a POD to the claimant.

11. I have considered the POD decision in full. A covering letter informed the claimant that the decision meant he would no longer be entitled to receive modern slavery support and would no longer be protected under the NRM from being removed from the UK and would not be considered for permission to stay as a victim of trafficking ("VOT"). As the letter indicated, there is no right of appeal against a section 63 decision. The accompanying Reasons document summarised the claimant's history, including his offending, and listed the documents that had been considered, including Sentencing Remarks, OASys assessments, the deportation orders and his medical records. The document explained that POD determinations considers the level of threat to public order posed by an individual against their modern slavery specific recovery needs. The POD is applied where the threat to public order outweighs the need for modern slavery specific protection.

12. In terms of the threat to public order, the defendant considered that the convictions in September 2017 and in March 2023 indicated the claimant posed a high threat to public order, in accordance with the statutory guidance, as he had been convicted in the UK and sentenced to 12 months' or more imprisonment on both of these occasions. The judge's Sentencing Remarks from 2017 were quoted, including the judge's reference to, "an absolutely terrifying and serious offence" and "a group attack". Additionally, it was noted that offences of robbery and assault with intent to rob under section 8 of the Theft Act 1968 are offences listed in schedule 4 to the Modern Slavery Act 2015, providing a further reason why it was determined the claimant posed a high risk of threat to public order.

13. The decision noted the claimant's offending behaviour had escalated over the previous ten years and that since he had been released on bail he had 41 curfew breaches, so that his disregard for rules and authority was an aggravating factor. It was also noted that an entry on the claimant's medical records in June 2024 indicated he had a past history of violent and aggressive behaviour to staff, and that this was a further aggravating factor.

14. In addition, as the claimant was subject to a stage 2 deportation decision and a deportation order, statutory guidance indicated this was a further basis upon which he was considered to be a high risk to public order.

15. The decision then assessed the claimant's need for modern slavery protection as low. The last date given for his exploitation was in 2017 and a significant period of time had elapsed since then. His medical records were referred to, including references in the records from the Immigration Removal Centre to PTSD, anxiety and depression but no other independent medical evidence had been provided indicating mental or physical illness. It was also noted the claimant had voluntarily opted out of support with recovery needs in relation to his exploitation.

16. It was thus concluded that the risk to public order outweighed the claimant's need for modern slavery protections.

17. Finally, the document indicated that the defendant had considered whether there was a real and immediate risk of re-trafficking, in line with article 4 of the European Convention of Human Rights ("ECHR") obligations. It was concluded that the POD could be issued without putting the claimant at such a risk. The last date given for the exploitation he experienced was in 2017 and the area where he currently lived was geographically distant from the areas where he described being exploited. He was not currently in receipt of accommodation or other modern slavery support services and so the POD would have no immediate effect in that regard. Published policy states that decision makers were not expected to make an assessment of the re-trafficking risk outside of the UK. Removal directions were not currently in place.

18. The claimant sent a pre-action protocol letter dated 9 January 2025 and the defendant replied by letter of 21 January 2025, maintaining her decision. The claim was filed on 18 February 2025. The claimant's contentions are set out in the Grounds accompanying the Claim Form, a Reply dated 3 April 2025 and a Reasons for Seeking Renewal document dated 6 June 2025. The defendant relies upon the Summary Grounds of Defence accompanying the Acknowledgement of Service. The Legal Framework ECAT

19. The Council of Europe Convention on Action Against Trafficking in Human Beings ("ECAT") was adopted by the Council of Europe on 16 May 2005. Chapter III is headed "Measures to protect and promote the rights of victims, guaranteeing gender equality". ECAT was ratified by the UK in December 2008 with effect, as a matter of international law, from 1 April 2009. Prior to the NABA 2022, ECAT had not been given effect in domestic law. Rather, the Secretary of State had promulgated guidance which was intended to give effect to the UK's obligations under ECAT, and on that basis, the domestic courts had considered, in a number of cases (on the usual public law principles) whether the defendant's policy accorded with that stated intention. These authorities were reviewed by Underhill LJ in R (On the application of EOG and KTT) v the Secretary of State for the Home Department [2022] EWCA Civ 307; [2023] QB 351 at paragraphs 25-37.

20. However, it is common ground that the provisions of Part 5 of the NABA 2022 were designed to give effect to the UK's obligations under articles 10, 12, 13 and 14 of ECAT for identifying and supporting victims of modern slavery.

21. The key provisions of ECAT for present purposes are as follows. Article 10(1) addresses the identification of VOTs. Article 10(2) states: "Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2." Article 18 provides: " Criminalisation of trafficking in human beings Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally." Article 12 sets out the minimum level of assistance which needs to be provided for physical, psychological and social recovery from trafficking. Article 13 imposes an obligation to provide a minimum recovery period of 30 days, during which time it is not possible to enforce an expulsion order. This is subject to the public order exemption in article 13(3). These provisions state: " Recovery and Reflection period (1) Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carries out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory. (2) During this period, the persons referred to in paragraph 1of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2. (3) The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victims status is being claimed improperly." As Mr Biggs points out, there is no definition of "public order" in ECAT. Part 5 of the NABA 2022

22. Section 61(1) indicates the section applies to an identified potential victim where, "there are reasonable grounds to believe the person is a victim of slavery or human trafficking".

23. Section 61(2) states that, subject to section 63(2), this person, may not be removed from, or required to leave, the United Kingdom during the recovery period. The recovery period is defined in section 61(3) as beginning with the day on which the positive reasonable grounds decision was made and ending with whichever is the later of the day on which the conclusive grounds decision is made in respect of that person and the end of the period of 30 days from the beginning of the period. It is unnecessary for me to refer to section 62 for present purposes.

24. Section 63 is the key section for present purposes. It is headed "Identified potential victims etc: disqualification from protection". Sub-sections (1) and (2) state: "(1) A competent authority may determine that subsection (2) is to apply to a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that the person— (a) is a threat to public order, or (b) has claimed to be a victim of slavery or human trafficking in bad faith. (2) Where this subsection applies to a person the following cease to apply— (a) any prohibition on removing the person from, or requiring them to leave, the United Kingdom arising under section 61 or 62, and (b) any requirement under section 65 to grant the person limited leave to remain in the United Kingdom." The rest of section 63 indicates who will be considered eligible for a POD. Sub-section (3) contains a non-exhaustive list of the circumstances in which a person is a threat to public order. The list includes, at (b), where the person has been convicted of any other offence listed in Schedule 4 to the Modern Slavery Act 2015 anywhere in the United Kingdom, or of a corresponding offence; and at (f), where the person is “a foreign criminal within the meaning given by section 32(1) of the UK Borders Act 2007 (automatic deportation for foreign criminals)". Article 4 of ECHR

25. Article 4 of ECHR contains the prohibition on slavery and forced labour. There are three positive duties which arise under article 4, mirroring those arising under articles 2 and 3, ECHR. They were summarised by Underhill LJ in R (On the application of TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395; [2018] 1 WLR 4922, at paragraph 17, after reviewing the leading European Court of Human Rights' authorities, including Rantsev v Cyprus and Russia [2010] 51 EHRR 1. First, there is a general duty to implement measures to combat trafficking (usually referred to as "the systems duty"). Second, a duty to take steps to protect individual victims of trafficking, which arises where there is a real and immediate risk of trafficking or re-trafficking (usually called “the protection duty” or "the operational duty"). Third, a duty to investigate situations of potential trafficking ("the investigation duty" or "the investigative duty", sometimes also referred to as "the procedural duty").

26. The European Court of Human Rights has recognised that it will be guided by ECAT when interpreting article 4: see, for example, VCL & AN v The United Kingdom Application No 77587/12 and 746034/12 at paragraph 150.

27. However, the domestic authorities note there is no automatic read-across between article 4, ECHR and the ECAT provisions, which are not necessarily co-extensive: see, for example, Underhill LJ at paragraphs 30-31 in TDT and also R (On the application of A and Anor) v Criminal Injuries Compensation Authority [2021] UKSC 27 ; [2021] 1 WLR 3746, at paragraph 33. Guidance

28. The defendant has provided statutory guidance: "Modern Slavery: Statutory Guidance for England and Wales" ("MSAG"). This is provided under section 49 of the Modern Slavery Act 2015. It sets out the process for making POD decisions. Paragraph 14.242 of the MSAG provides that where a POD applies the following cease to apply: • Any prohibition on modern slavery grounds on removing the person from the UK or requiring them to leave; • Any requirement on modern slavery grounds to consider the person for Temporary Permission to Stay as a Victim of Human Trafficking; • Access to a recovery period or modern slavery specific assistance and support; and • Where a Conclusive Grounds decision has not yet been made, any obligation to make a Conclusive Grounds decision." The latter will be relevant to Ground 3, which I will come on to.

29. The policy makes clear that the decision-making process is discretionary; that disqualification must be considered on an individual basis and that the decision maker must consider whether the need for modern slavery specific support outweighs the threat to public order, using the Public Order Decision Making Framework. Information that must, as a minimum, be considered when making a decision is listed. Having made the decision whether to apply the POD, the decision maker should go on to consider re-trafficking risk in accordance with the process set out in Assessing Re-trafficking Risk. In these respects see paragraphs 14.251-14.255, 14.265 and 14.270.

30. Paragraph 14.267 indicates that there is a high bar for modern slavery protections or support, to outweigh the threat to public order.

31. Paragraph 14.268 sets out a non-exhaustive list of information for consideration, indicating that "a decision maker may use their discretion to consider other relevant information."

32. Paragraph 14.269 says that the decision maker is to determine whether the individual is a high or a low threat to public order, and whether they have a high or a low need for modern slavery specific protections.

33. The Public Order Decision Making Framework is set out at paragraph 14.275. It cites the following (amongst others) as constituting a high priority threat to public order: conviction of an offence listed in schedule 4 to the Modern Slavery Act 2015; conviction in the UK of an offence for which the individual was sentenced to at least twelve months' imprisonment; and receipt of a stage 2 deportation decision or a signed deportation order.

34. The Assessing Re-trafficking Risk guidance is set out at paragraphs 14.276-14.278. The grounds

35. In summary, the claimant's grounds are as follows. Ground 1 The exemption provided by section 63(1)(a), which may be imposed if the defendant is satisfied that an individual is "a threat to public order", is more widely worded than the very narrow exception in article 13(3) of ECAT, which may apply if "grounds of public order prevent" observance of the recovery period. Accordingly, section 63(1)(a) is over-wide and intrudes on rights protected by article 4, ECHR. The claimant seeks a declaration of incompatibility and the quashing of the POD decision. Ground 2 Section 63(1) and (2)(a) are inconsistent with article 10(2) of ECAT and the co-extensive article 4, ECHR, which has the effect of preventing the removal of an individual in relation to whom there are reasonable grounds to believe they are a victim of trafficking, before the conclusive grounds decision has been made. The claimant seeks relief equivalent to that claimed under Ground 1. Ground 3 The defendant's policy is incompatible with article 10 of ECAT in denying a person such as the claimant, in respect of whom there are reasonable grounds to believe is a VOT, a conclusive grounds determination if a POD is made. The relief sought is the quashing of the decision. Ground 4 The defendant applied a flawed self-direction as to the interpretation of "public order". Section 63(1)(a) is over-wide and inconsistent with the narrow concept in article 13(3) of ECAT, which indicates that a threat must be such that it positively prevents a recovery and reflection period and that it is impossible to have such a period because of a threat to public order. The risk of criminal offending is not sufficient per se. The defendant has failed to adequately identify the scope of a “threat to public order” or to apply this to the POD decision made in the claimant's case. The relief sought is the quashing of the decision. As I clarified with Mr Fripp during oral submissions, Ground 4 is essentially a slightly different way of putting ground 1, save that different relief is sought. Ground 5 The MSAG purports to limit the contributing factors to "whether the need for modern slavery specific support outweighs the threat to public order" and that this is to be examined using the Public Order Decision Making Framework. However, this ignores a substantial number of material factors, in the instant case including the length of time the claimant has been in the UK, his age on arrival and that he was in public care at material times. The relief sought is the quashing of the decision. Ground 6 The defendant's assessment of the re-trafficking risk is artificial and inconsistent with the positive duty imposed by article 4, ECHR, in not considering the risk to him of re-trafficking if the claimant is removed to Portugal. The risk to him might well be from outside the UK, and the UK controls his exclusion from its territory by which he would be exposed to such a risk. The relief sought is the quashing of the decision. Analysis and conclusions

36. I do not consider that any of the claimant's grounds are arguable. This is for the following reasons which, inevitably, I will set out in summary form, given that it is already past 4.00 pm and I am giving this decision ex tempore after hearing oral argument. Ground 1

37. Ground 1 depends upon the court being satisfied that, at least, both of the following two propositions are arguable. First, that the alleged inconsistency between the wording of section 63(1)(a), NABA 2022 and article 13(3), ECAT exists; and, second, that this inconsistency means that the terms of section 63 intrude on rights protected by article 4, ECHR.

38. As regards the second of these points, the claimant rightly accepts that it is open to Parliament to depart from the requirements of ECAT by primary legislation if it chooses to do so, as was, for example, recognised in Secretary of State for the Home Department v S & VLT [2025] EWCA 188. Hence the claimant also needs to show an arguable infringement of article 4, ECHR so that he is able to rely on the Human Rights Act.

39. As I will explain, I do not consider that either of the two propositions I have identified is arguable.

40. I turn to the first of them. In Ground 1 of the Statement of Facts and Grounds, the claimant contends that the wording of article 13(3), that I have referred to, does not permit exclusion on the basis that a decision maker in the defendant's position judges a person to be a threat to public order; rather, application of the exception is limited to circumstances where public order considerations "act impersonally to prevent it being possible to provide the recovery and reflection process"; for example, it is said, the immediate participation in the individual in civil unrest.

41. However, I cannot see any warrant for reading the wording of article 13(3) so restrictively that it only applies where it is, in effect, impossible as a matter of fact to provide the recovery period. As I have mentioned, the phrase "public order" is not defined in ECAT. There is no authority suggesting that it has an autonomous single meaning, and in these circumstances it is open to the UK to adopt its own interpretation of these words in its domestic legislation.

42. Furthermore, there is no authority that I have been shown that supports the claimant's narrow construction.

43. The phrase "if grounds of public order prevent it" does not in itself preclude the enactment of a statutory scheme under which the defendant assesses whether such grounds exist. Nor does it require "prevent" to be confined to circumstances of impossibility.

44. As per articles 31-33 of the Vienna Convention on the Law of Treaties 1969, it is appropriate to look at the language used in article 13 in context and having regard to the purpose of ECAT. I accept Mr Biggs's submission that the claimant's approach is not consistent with the ordinary meaning of the words used in article 13(3) of ECAT, whether considered in the context of ECAT or a State's power to exclude or expel “aliens” (and in particular those who pose a threat to public order). As he contends, the claimant's submissions impermissibly seek to introduce a requirement that grounds of public order “preclude” or “make impossible” the observation of the article 13(1) period, in circumstances where neither the wording nor the purpose of article 13(3) or section 63 of the NABA 2022 provide any support for such a strained construction.

45. I accept that as the threat to public order is not defined in ECAT, it is a matter for state parties to define and determine “public order”, the level of “threat” and the public interest considerations in balancing the protection of the interests of the individual as against the right of the wider public to be safeguarded against public disorder.

46. For that reason in any event, ground 1 is unarguable. But secondly, even if it were thought that there is an arguable inconsistency between the wording of section 63(1)(a) and article 13(3), this does not of itself indicate that section 63 arguably infringes article 4 of the ECHR.

47. The specific protections of ECAT are not reflected in article 4. I have already summarised the positive obligations that arise under the latter provision. As the case law confirms, there is no read-across of the detailed provisions of Chapter III of ECAT into the content of those article 4 positive obligations. The claimant's submissions appear to simply elide the requirements of ECAT with the duties arising under article 4.

48. Although at one point this afternoon Mr Fripp appeared to accept that there was no direct read-across, at another point he said the provisions of ECAT and article 4 of the ECHR "parallel each other". Another phrase he used was that they "covered the same ground". I am satisfied that is not the position. I have set out in the legal framework section of this decision the authorities I have been shown and, whilst Mr Fripp, developed the point rather more in relation to his Ground 2 submission, I have been shown nothing that suggests that these concepts and provisions of article 13(3) are reflected in article 4 of the ECHR.

49. So there is simply no foundation for the assertion that the specific requirements of article 13(3) can be read across into article 4, ECHR. Accordingly, Ground 1 is unarguable on this basis too. Ground 2

50. Similarly, Ground 2 depends upon the court being satisfied that, at least, both of the following two propositions are arguable. First, that the alleged inconsistency between the wording of section 63(1) - (2)(a) of the NABA 2022 and the ECAT provisions exists; and, secondly, that it follows from this that section 63 intrudes on rights protected by article 4, ECHR.

51. As regards the first of these points, the claimant relies on the terms of article 10(2) of ECAT and the part of the text that states: "Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities". Although not accepting this in his written submissions, in response to questions from me today, Mr Biggs acknowledged that it is arguable that the identification process that is there referred to equates to a conclusive grounds determination. Indeed, that would appear to be consistent with an obiter dictum observation of Baroness Hale of Richmond in MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 ; [2021] WLR 1373, at paragraph 19.

52. However, the next stage of the claimant's argument rests on the fact that the article 13(3) exemption does not say in terms that this exemption applies to the obligation I have referred to in article 10(2). Mr Fripp submits that the two are separate provisions that need to be approached on that basis. Whilst it is correct that article 13(3) does not specifically refer to article 10(2), I do not consider that this in itself significantly assists the claimant's argument. Article 13(1) imposes a prohibition on expulsion during the recovery period. Article 13(3) provides for a public order exemption from that prohibition on expulsion, designed to enable States to safeguard the wider public interest and/or prevent abuse of trafficking process; and it expressly provides for removal to be undertaken prior to the end of the recovery period. If it was intended that this exemption should not apply during the recovery period, if a conclusive grounds determination had yet to be made, this could easily have been spelled out in article 13(3). It was not. Accordingly, I accept Mr Biggs's submission that the part of article 10 relied on is to be read subject to article 13.

53. I also accept, consistent with the principles in the Vienna Convention that I have already referred to, and as Mr Biggs submits, that the imposition of an obligation on States which have lawfully invoked the public order exemption under article 13(3), to nonetheless proceed to issue a conclusive grounds determination before removal (or indeed at all), would defeat (or undermine) the very purpose of the exemption. The exemption is designed to enable States to protect the public against the threat of harm and abuse of the immigration system, and when the exemption is exercised, it trumps the right of support and protection against removal under ECAT that an individual might otherwise enjoy. In addition, the notion that a State is required to complete the investigation process in relation to a person who has abused a trafficking process (that is to say, the other limb of the exception) appears to be absurd.

54. Secondly, I stress again, that even if I am wrong and the claimant's contention regarding the inter-relationship between article 10(2) and article 13(3) of ECAT is arguable, he still has to show that this, in turn, arguably means that section 63(1) and (2)(a) are arguably incompatible with article 4, ECHR.

55. Paragraph 36 of the Statement of Facts and Grounds contends that the ECAT provisions are "co-extensive" with article 4, ECHR, but that is not correct, in the sense that there is no direct read-across, and article 4 does not impose obligations equivalent to the provisions of ECAT. Again, the claimant's submissions appear to simply elide the provisions of ECAT with those of article 4, ECHR, when no basis in the case law has been shown for doing so.

56. The claimant asserts that article 4 requires the defendant to ensure that the victim identification process is completed. Mr Fripp placed particular emphasis on this in his oral submissions today, saying that the article 4 duties could not be effectively undertaken unless this obligation was to be implied into article 4. However, strikingly perhaps, since this was a centrepiece of his submissions today, he provided no authority at all, either in the agreed bundle of authorities or in those handed up to me today, to support this argument in relation to article 4. When I asked him about this, it was at this point that he handed up the MS decision that I have just referred to and drew my attention to paragraph 19 which, of course, is in fact about an entirely different point, namely the construction of article 10(2) of ECAT. It does not in any respect support the contention that article 4 requires a conclusive grounds determination to be undertaken before removal. Of course, even if Mr Fripp were correct that article 4 had this effect, on his own case, this would still fall to be interpreted in light of the ECAT provisions. Thus it would not follow that there is an absolute obligation to complete a conclusive grounds determination in all circumstances. Notably, when I put that point directly to Mr Fripp and asked him if that was his submission, that article 4 gave rise to an absolute obligation to complete a conclusive grounds determination in all circumstances, he answered that it was, save where there was a permissible reason under ECAT for doing otherwise. This response simply underlines that he has to succeed on the ECAT construction limb of his argument too, to get anywhere with Ground 2, and that is an argument that I have already rejected as unarguable.

57. In support of his submissions that article 4, ECHR requires the equivalent of a conclusive grounds determination to be carried out in all cases (save where ECAT permits otherwise), Mr Fripp spoke in general terms of a State not being able to choose to shut its eyes to its obligations to victims of trafficking, as he suggested they would be able to unless his interpretation of article 4 was correct. However, that is plainly not this case at all. The decision made pursuant to section 63 is one where the State has carried out a reasonable grounds investigation and determined that there are reasonable grounds for believing that the claimant is a victim of trafficking, but has decided not to proceed to a conclusive grounds determination because of the application of a specifically-crafted exemption, which in turn reflects the public interest that I have referred to. This is a long way away from a suggestion that a State is simply choosing to close its eyes to its obligations to a victim of trafficking. So for all these reasons I consider Ground 2 to be unarguable. (Transcriber's note: after judgment Mr Fripp raised two points regarding the analysis of ground 2 which the judge noted but which I was unable to hear owing to his distance from the microphone which the recording was taken from.) Ground 3

58. In relation to Ground 3, Mr Fripp emphasised that section 63 does not say in terms that a conclusive grounds determination does not have to be undertaken if the circumstances provided for in section 63(1)(a) or (b) exist. He says in the absence of a statutory provision in relation to that, the question is whether the Secretary of State's policy reflects ECAT. He submits it does not.

59. However, this argument relies upon the same interpretation as to the inter-relationship between article 10(2) and 13(3) of ECAT that I have already found to be unarguable when addressing Ground 2. Accordingly Ground 3 is also unarguable. Ground 4

60. The claimant contends at paragraph 40 of the Statement of Facts and Grounds that the statutory wording, "a threat to public order" in section 63(1)(a) means, "a current threat, or a threat within a reasonable time looking forward, posing a significant challenge to public order, for instance by crime interfering with the fundamental maintenance of society and governance."

61. In so far as the claimant relies upon the wording of article 13(3) of ECAT, I have already addressed this contention. In short, there is no foundation for the very narrow interpretation that the claimant puts forward, nor has the claimant identified any authority or basis for this proposed meaning, whether by reference to ECAT or the domestic statutory provisions.

62. In addition, I have already explained why there is no arguable basis for challenging the compatibility of section 63(1) with article 4, ECHR.

63. It follows there is also no basis for challenging the legality or compatibility of section 63(3), and no freestanding basis for doing so has been advanced.

64. That being so, it is not suggested that the defendant failed to apply the terms of 63(3) in this instance. Indeed, it is clear for the reasons set out in the defendant's decision that the claimant fell within the non-exhaustive list of circumstances set out in 63(3), whereby a person is regarded as a threat to public order. Ground 5

65. This ground is misconceived. The Public Order Decision Making Framework does not require or lead to the decision maker ignoring relevant factors. As I have already referred to, the MSAG stresses that the decision must be an individualised, fact-sensitive assessment. Further, paragraph 14.268, which I have already referred to, specifically states that the decision maker may use their discretion to consider other relevant information additional to the non-exhaustive list of material provided, in undertaking the overall assessment of whether the need for modern slavery specific support outweighs the threat to public order.

66. Accordingly, there is no basis for the suggestion that the MSAG fetters a decision maker's assessment by impermissibly limiting the range of factors to be considered when making a POD decision, and there is nothing unlawful in the defendant's guidance highlighting certain factors that are likely to carry particular weight.

67. Furthermore, it is apparent that a careful, fact-sensitive assessment was undertaken in this case, and I have already summarised the reasoning. Ground 6

68. The defendant's assessment of the re-trafficking risk was rational and had regard to relevant factors.

69. The suggestion that the claimant was at risk of re-trafficking from outside the UK is wholly speculative. In this regard, I note that although detailed representations were made on the claimant's behalf after notification was given that a POD decision may be made, including on the topic of whether there was a risk of re-trafficking, there was no mention whatsoever of this prospect by those who acted for him. Outcome

70. Accordingly I refuse the renewed application for permission to apply for judicial review. (Order: Application refused) Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]