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

MR JUSTICE MOULD:

1. The claimant is a 53-year-old Chinese national who arrived in the United Kingdom in February 2002. On 20 May 2025, the defendant found that there were reasonable grounds to conclude that he was a victim of modern slavery who had been trafficked to the United Kingdom and, upon arrival, forced to work in conditions of forced labour. His account of his experiences was considered to be credible. He was granted a recovery and reflection period of 30 days until 18 June 2025.

2. At the time of that decision the claimant was detained in prison following his conviction on 21 January 2025 and sentence to 12 months' imprisonment for immigration fraud. On 2 June 2025 the defendant wrote to the claimant notifying him that she was now considering whether to disqualify him from receiving support in the National Referral Mechanism [“NRM”] on the grounds stated in section 63(3) (f) of the Nationality and Borders Act 2022 [“ that he is a foreign criminal. the 2022 Act ”]

3. Following receipt of representations from the claimant's then solicitors, on 13 August 2025 the defendant notified the claimant of her decision to apply a Public Order Disqualification [“POD”] and gave her reasons for doing so. As a result of that decision, the defendant withdrew the claimant's recovery period and support under the Modern Slavery Victim Care Contract [“MSVCC”] . The defendant subsequently provided him with hotel accommodation under section 98 of the Immigration and Asylum Act 1999 , but no subsistence support.

4. On 6 November the claimant began a claim for judicial review of the defendant's decision to apply a POD to him. On the same day, the claimant made an application for urgent interim relief for reinstatement of his NRM support, as a victim of modern slavery with the benefit of a positive reasonable grounds decision.

5. On 1 December 2025 the defendant filed an acknowledgement of service indicating her intention to contest the claim. On the same day she applied for a stay of proceedings pending judgment in R (on the application of ABW) v Secretary of State for the Home Department [2025] EWHC 3280 (Admin), a claim which raised essentially similar grounds of challenge to the defendant's policy in the Modern Slavery Statutory Guidance to those advanced under grounds 1 and 2 in the present claim. On 2 December 2025 the claimant's solicitors wrote opposing the application for a stay.

6. On 11 December 2025 Murray J made orders on the papers, firstly granting the claimant anonymity; and secondly listing the claimant's application for interim relief for hearing during the course of this week. The application has come before me today. In the meantime, the claimant has applied for asylum. The defendant has refused to grant him asylum support under section 95 of the Immigration and Asylum Act 1999 on the grounds that he is not destitute. He was required to leave his current accommodation by 10 December 2025, although I am told that the defendant has agreed to extend his accommodation support in his current hotel accommodation until the determination of a pending appeal against her decision to the First Tier Tribunal, which is listed to be heard on 2 January 2026.

7. On 17 December 2025 Morris J handed down judgment in R (on the application of ABW) v Secretary of State for the Home Department [2025] EWHC 3280 (Admin). He allowed that claim on grounds that correspond to grounds 1 and 2 of the present claim. In particular, Morris J held that the defendant has acted unlawfully in that case for the reasons that are summarised in [180] and [181] of his judgment. Those reasons essentially concern the legality of the approach stated in relevant parts of the statutory guidance to the evaluation of the issues that are to be considered, in making a decision whether or not to make a POD in accordance with section 63(3) (f) of the 2022 Act .

8. I am told that Morris J has since refused to stay the effect of his judgment in ABW on an interim basis, pending his determination of an application by the defendant for permission to appeal. I am also told that the defendant's present intention is that she will make an application for permission to appeal and, at the same time, will renew her application for the effect of Morris J's judgment to be stayed, either in the event that he grants permission or, should he refuse it, pending an application for permission to appeal being made to the Court of Appeal.

9. The test for granting mandatory interim relief against a public body exercising statutory powers is summarised in paragraph 16.6.1 of the Administrative Court Judicial Review Guide 2025, that summary being founded on the familiar principles as stated in De Falco v Crawley Borough Council [1980] QB 460 at page 461 and R (on the application of RRR Manufacturing Pty Ltd) v British Standards Institution [2024] EWCA Civ 530 at [87] and [112]. I shall simply quote from the Judicial Review Guide: i. "Where the relief sought is a mandatory order against a public body, a strong prima facie case needs to be shown … The consideration of the balance of convenience involves balancing the harm to the claimant that would be caused if interim relief is not granted and the claim later succeeds against the harm to the defendant, any third parties and the public interest that would be caused if interim relief is granted and the claim later fails."

10. In the present case it is not, as I understand it, in any real dispute that in the light of the decision of Morris J in ABW, this claim presents a strong prima facie case. That seems to me to be the inescapable consequence of the judgment in ABW ; in particular, the conclusions drawn by Morris J both on grounds 1 and 2 – especially on ground 2 in that case.

11. A further consequence of the conclusions drawn by Morris J in relation to ground 2, particularly in the paragraphs to which I have earlier referred, is that ground 4 of this claim also presents a strong prima facie case. That is because the challenge to the lawfulness of the defendant's decision in the present case on rationality grounds is clearly supported by the findings of Morris J in [180] and [181] of his judgment.

12. Mr Michael Biggs, who appeared on behalf of the defendant, understandably and quite properly did not seek to advance submissions to the contrary in relation to the question whether there was a strong prima facie case in these proceedings.

13. I turn then to the question of the balance of convenience. Ordinarily, where a mandatory interim order is sought in relation to a public body exercising statutory powers, or powers under a promulgated policy which have their basis in statute, that is a factor that attracts considerable weight in the balance of convenience. That is particularly so where the subject matter is essentially the deployment of public funds, for reasons which are so obvious as not to require any elaboration.

14. This case is rather different, however, because the statutory guidance which is the foundation for the decision under challenge has been found in relevant respects to be unlawful, in the light of the recent judgment of Morris J in ABW . In my view, that very substantially diminishes the degree of weight that should attach to that particular public interest factor, in drawing the balance of convenience in the present case.

15. I do not regard the prospect of an appeal against Morris J’s judgment as significantly elevating the level of weight that should be given to that particular facet of the public interest as things stand today in this case. For these reasons, I give limited weight in drawing the balance to the public interest which would in other cases apply where the Secretary of State is exercising public powers, whether statutory or policy based, and taking decisions on the deployment of public funds.

16. In my judgment, the correct approach to take so far as the claimant's position is concerned is this. There is a decision by the defendant that there are reasonable grounds for concluding that the claimant is a victim of modern slavery. There is a decision by the defendant that the claimant should be made subject to a POD. However, that decision is one that, for the purposes of today’s application, is subject to challenge on grounds that have a strong prima facie prospect of success. That is the essential context against which I should consider the points that have been properly taken by Mr Biggs in relation to the claimant's position. On the basis of that context, and in the light of the finding that the claimant has reasonable grounds for asserting that he is a victim of modern slavery, it follows that he should continue to receive support under the MSVCC, and all that is ordinarily provided by way of support under the MSVCC as set out in section 8 of the Statutory Guidance.

17. In those circumstances, I should need to see a powerful fact-based rationale for me to conclude that the balance of convenience nevertheless favours the refusal of reinstatement of that support pending trial of this claim.

18. I turn briefly to the factors upon which Mr Biggs places reliance.

19. Firstly, there is evidence that the claimant has access to NHS physical and mental health services. I accept that there is evidence that suggests his entitlement to that support. However, as Mr Bishop submits for the claimant, that in no way corresponds to the level of care-based support that he would receive if his entitlement under the MSVCC were to be reinstated.

20. The next point made is that the claimant is presently receiving accommodation support under section 98 of the Immigration and Asylum Act 1999 . However, that support cannot be compared to the level of focused support in terms of appropriate accommodation he would receive on reinstatement of his entitlement under the MSVCC. Mr Bishop reminds me that the claimant is diabetic. He has expressed concerns in his witness statements about the quality of the food that he is provided with in his current accommodation and whether it actually is suitable for his needs given his medical condition. There is force in that point. If his MSVCC entitlement is reinstated, he will be able to receive more individually focused support in that respect. It is also important to bear in mind the defendant's position that she is unwilling at this stage to accept that he should have continuing support under the Immigration and Asylum Act 1999. She has refused him support under section 95 of that Act , albeit that decision is under appeal to the First Tier Tribunal. The fact that the outcome may be in his favour does not seem to me to be a satisfactory alternative to the certainty that would result from reinstatement of his support under the MSVCC.

21. Essentially the same points apply in relation to the question of whether he is properly to be seen as destitute or not and the degree to which he may have access to alternative support through his relationship with his current partner, who I understand is a British citizen. There is some evidence to suggest that he may have access to alternative means, but again that is not comparable to the level of support he will receive if his entitlement under the MSVCC is reinstated.

22. My overall conclusion is that the harm caused to the defendant and to the public interest in making an order that the claimant’s support under the MSVCC should be reinstated is clearly outweighed by the harm resulting to the claimant were I to refuse interim relief, in circumstances where there is, as things stand before me, a strong prima facie case in the claim that he advances by way of judicial review; and in the knowledge that the essential context of that claim is the defendant’s finding that there are reasonable grounds that the claimant is a victim of modern slavery.

23. For those reasons I shall make an order on this application. 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]