The Secretary of state has been forced for a second time to concede a public order disqualification decision, in the case of LAN v SSHD – CO/1940/2023.
This litigation follows the case of VAN v SSHD – CO/792/2023, believed to be the first challenge to the new policy framework, which was lodged in early March this year. Both cases are awaiting the Secretary of State's summary grounds of defence.
The litigation is a challenge to the Secretary of State's policy for making public order disqualification decisions (PODs), pursuant to s63 of the Nationality and Borders Act 2022. Once a POD has been applied, potential victims of trafficking are no longer entitled to anti-trafficking specific support under the Modern Slavery Victim Care Contract (MSVCC). It further attempts to remove the duty on the Home Secretary to investigate and prevent re-trafficking in circumstances where it is claimed that the victim is a public order risk, and the NRM referral will no longer act as a bar to removal. The fundamental premise of the POD challenges is that the policy is unlawful because it positively authorises Article 4 ECHR breaches, as the disqualification exposes someone who is presumed to be at a high risk of re-trafficking (by virtue of their Reasonable Grounds decision) to a higher risk of re-trafficking by removing the support and protection that the MSVCC gives.
In both cases the Claimants' criminality is directly linked with their history of exploitation, and occurred following failure to adequately protect them once removed from the exploitative situation. In VAN v SSHD the Claimant was trafficked from Vietnam to the U.K. via China and Russia, where he was enslaved and forced to work without pay in inhumane conditions. Once he arrived in the UK he was soon after kidnapped outside his NASS hotel accommodation and taken to a remote, at the time unknown, location. Having been enslaved once more, VAN was forced to tend to cannabis plants. He only escaped the traffickers when arrested during a raid, but despite clearly being in an exploitative situation when found, VAN was convicted and sentenced to a two-year prison term.
In LAN v SSHD, the Claimant, a Polish national, has suffered more than a decade of being trafficked and re-trafficked for the purpose of forced criminality, in the UK and multiple jurisdictions in Europe. Trapped in an endless cycle of learned helplessness and lack of support, LAN repeatedly found himself being forced back to working for the traffickers. In 2019, LAN suffered a serious head injury connected with the circumstances of his exploitation, which has continued to cause him difficulties in his day-to-day life.
In both cases, the SSHD has withdrawn the POD following legal action and agreed to reconsider the decision afresh. Both LAN and VAN have subsequently been assessed by the Salvation Army as being in need of supported safe house accommodation, in order to mitigate the risk of re-trafficking. Whilst we welcome the SSHD's decisions to withdraw the PODs in respect of our clients, we remain concerned that the policy, applied as intended, will result in large numbers of potential victims being left without adequate support, and in consequence be at a real and immediate risk of being re-trafficked. This serious capitulation in respect of the UK's obligations under domestic and international law is extremely worrying, and calls for the lawfulness of the policy to be promptly determined by the Court. The Home Secretary's concessions in both cases simply show that once she is forced to consider actual facts and how the policy affects individuals, it is shown to be unlawful, unjust, and putting trafficking survivors at a serious and unacceptable risk of re-trafficking.
The team represents several additional Claimants subject to POD decisions, who will lodge and apply to link their claims to CO/792/2023 and CO/1940/2023 in due course.
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