HS -v- Secretary of State for the Home Department (anonymity order)

Immigration and Asylum Chamber (Upper Tribunal)Anonymity Order

Claim number: JR-2024-BHM-000134

In the Upper Tribunal (Immigration and Asylum Chamber)
Judicial Review

26 March 2025

Before:

Upper Tribunal Judge Pinder

Between:

The King on the application of
HS

-v-

Secretary of State for the Home Department

Order

NOTIFICATION of the Judge’s decision (UT rule 30(1))

Following consideration of the documents lodged by the Applicant and the Acknowledgement of Service filed by the Respondent.

Order by Upper Tribunal Judge Pinder:

  1. The application is not admitted in so far as this seeks to challenge the Respondent’s decision of 13th November 2023.
  2. Permission is refused on all grounds seeking to challenge the Respondent’s decision of 22nd August 2024.
  3. I make an Anonymity Order in favour of the Applicant.  The Applicant shall be referred to by the initials HS throughout these proceedings.  No one shall publish or reveal the name or address of the Applicant or publish or reveal any information, which would be likely to lead to the identification of the Applicant in connection with these proceedings.  Failure to comply with this order could amount to a contempt of court.

Reasons

1. Applicant seeks to challenge by way of judicial review two decisions of the Respondent.  The first decision is that of the Respondent issued on 13th November 2023 to treat the Applicant’s protection claim as implicitly withdrawn pursuant to paragraph 333C(b) of the Immigration Rules.

The second decision is a decision made on 22nd August 2024 in which the Respondent decided that it was appropriate to apply the Public Order Disqualification (‘POD’), pursuant to s.63 of the Nationality and Borders Act 2022, to the Applicant (‘the POD decision’), the effect of which is to exclude the Applicant from being recognised and supported as a victim of trafficking.  This is because the Applicant, who has been recognised as a potential victim of human trafficking or modern slavery (‘VOT’), is – in the Respondent’s view – a threat to the public order having been convicted on 15th December 2014 of offences of possession a controlled Class A drug (cocaine) with intent to supply and offences of fraud by false representation.  The Applicant was sentenced to a total of 4 years and 2 months’ imprisonment on 23rd December 2014.

Preliminary issue – Anonymity

2. I consider that on the specific facts of this application, including the Applicant having raised protection-based reasons for seeking to remain in the UK, are such that an anonymity order is a justified derogation from the principle of open justice.  Any person may apply to have the order varied or set aside, on notice to the (other) parties.

Preliminary issue – Venue of challenge

3. Prior to reaching a decision on the Applicant’s application for permission to apply for judicial review, I issued directions for the Applicant to confirm whether he wished to a seek a (discretionary) transfer to the High Court, pursuant to the judgment of Mr Justice Dove (also President of this Tribunal) in ABW v Secretary of State for the Home Department [2024] EWHC 3205 (Admin) ([23]-[25] in particular).  This had also helpfully been raised by the Respondent at paras 6-8 of their Summary Grounds of Defence, where the Respondent also confirmed that they were neutral as to venue. I also requested that the Applicant confirms whether he seeks to pursue the first two grounds pleaded against the decision to treat his protection claim as withdrawn of 13th November 2023. On 17th January 2025, the Applicant’s solicitors confirmed on instructions that they wished to pursue these proceedings in the Upper Tribunal and that they wished to pursue the first two grounds pleaded.

4. As to venue, the High Court has confirmed that challenges of this kind are “within the institutional competence of the Upper Tribunal” and neither party seeks the Tribunal to exercise its discretion in transferring the matter to the High Court.  The Applicant seeks a quashing order only in respect of the Respondent’s decision of 22nd August 2024.  In all the circumstances therefore, this application is to remain in the Upper Tribunal.

Challenge to the Respondent’s first decision of 13th November 2023

5. In respect of the Respondent’s first decision of 13th November 2023, the Applicant’s application is out of time.  The Applicant’s solicitors have pleaded that neither they nor the Applicant had been served with any correspondence inviting the Applicant to attend interviews in connection with his protection claim.  No evidence (such as a witness statement) in support of this assertion has been provided.  In any event, even if I was to admit this aspect of the Applicant’s application, the Respondent has confirmed that they wrote to the Applicant on 16th December 2024 to notify him that his protection claim has been re-instated.  Surprisingly, the Applicant’s solicitors do not address this – despite my express direction at para 6 of the order of 9th January 2025 – and confirm that the first and second grounds of challenge are maintained.  The basis for the latter provided by the Applicant’s solicitors is only that the POD decision would also affect consideration of his asylum claim.

6. In light of the above, I do not admit the Applicant’s application to challenge the decision of 13th November 2023.  That decision has already been withdrawn and no reasons have been provided by the Applicant’s solicitors as to why the application should be admitted and in the alternative, why the application (grounds 1 and 2) is arguable in light of the Respondent’s reinstating the Applicant’s protection claim.

Challenge to the Respondent’s second decision of 22nd August 2024 (‘the POD decision’)

7. In his third ground of challenge, the Applicant argues that the POD decision is contrary to Article 14(1)(a) of the European Convention against Human Trafficking (‘ECAT’).  The focus on Article 14(1)(a) appears to be misconceived as the Applicant has not been recognised as a VOT having only received a reasonable grounds decision.  It is otherwise not clear on what basis the Applicant states that a breach of Article 14(1)(a) ECAT is justiciable.  For this reason, the Applicant’s third ground of challenge is not arguable.

8. In his fourth and fifth grounds of challenge, the Applicant has argued that the decision to disqualify him from protection and to set removal directions is contrary to Article 4 ECHR/s.6 HRA 1998.  The Respondent did not seek to proceed with the Applicant’s removal, following a stay being secured by the Applicant in April 2024, and there are no current removal directions in place.  The remaining submissions under these grounds are generic and unclear.  The Applicant refers to the general principles and/or components involved for a finding of trafficking to be made and asserts that his case was not referred to the police to investigate.  The Applicant does not seek to engage with the Respondent’s assessment that the Applicant is not at real and immediate risk of re-trafficking and on the grounds as pleaded, it is not arguable that the Respondent’s decision is irrational or procedurally unfair.  For these reasons, the Applicant’s fourth and fifth grounds of challenge as pleaded in writing are not arguable.

Costs

9. The Applicant will pay the Respondent’s costs of £1,200, subject to any representations in writing to be received within 9 days of the date on which this order is sent.

Reasons

10. The costs sought by the Respondent as detailed in the Acknowledgment of Service are in the sum of £5,460.  I do not consider that this is proportionate and reasonable to the volume of documents the Respondent will have had to consider and seek instructions on.  I have reduced the quantum of costs sought to the amount detailed at para 9 above, on a summary assessment, as reasonable and proportionate.