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

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2025-LON-001153

In the High Court of Justice
King’s Bench Division
Administrative Court

12 June 2025

Before:

Clare Padley (sitting as a Deputy Judge of the High Court)

Between:

The King on the application of
XAG

-v-

Secretary of State for the Home Department

Order

On an application by the Claimant for an anonymity order

Following consideration of the documents lodged by the Claimant and the Defendant

ORDER BY CLARE PADLEY
(sitting as a Deputy Judge of the High Court)

  1. Anonymity:
    (a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998:
    (i) the Claimant’s name is to be withheld from the public and must not be disclosed in any proceedings in public; and
    (ii) the Claimant is to be referred to orally and in writing as XAG.
    (b) Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of any matter likely to lead to the identification of the Claimant in any report of, or otherwise in connection with, these proceedings.
    (c) Pursuant to CPR 5.4C(4):
    (i) the parties must within 7 days file a redacted copy of any statement of case filed, omitting the name, address and any other information likely to lead to the identification of the Claimant;
    (ii) if any statement of case subsequently filed includes information likely to lead to the identification of the Claimant, a redacted copy omitting that information must be filed at the same time;
    (iii) unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.
    (d) Any person wishing to vary or discharge this Order must make an application, served on each party.

Reasons

(1) Anonymity: The Claimant is a potential victim of trafficking who claims to have been trafficked for sexual exploitation and has received a reasonable grounds decision. There is some evidence that naming the Claimant will increase the risk they would face if returned to their country of origin. There are accordingly compelling reasons for the limited derogations from the principle of open justice in paragraph 1.

Order

Notification of the Judge’s Decision (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant and the Defendant’s

Acknowledgement of Service and Summary Grounds of Defence

ORDER BY CLARE PADLEY
(sitting as a Deputy Judge of the High Court)

  1. Permission: Permission to apply for judicial review is refused.
  2. Costs: The Claimant must pay the Defendant’s costs of preparing the Acknowledgement of Service and Summary Grounds of Defence, summarily assessed in the sum of £1,500.
  3. Further provision as to costs:
    (a) The Claimant has the benefit of cost protection for the purposes of s. 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Accordingly:
    (i) paragraph 2 specifies the maximum amount that the Claimant may be held liable to pay;
    (ii) the amount of costs that the Claimant is liable to pay is to be determined on an application by the other party under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013.
    (b) If the Claimant wishes to object to the order in paragraph 2 in principle, or the maximum amount there specified, the following directions apply
    (c) Where the Claimant does not make a valid request for reconsideration of the decision to refuse permission to apply for judicial review (see notes below):
    (i) Within 14 days of the date of this Order, the Claimant may file and serve a notice of objection (maximum 3 pages) showing why the order in paragraph 2 should not be made. The notice should include any objections to the principle that costs should be paid and/or as to the amount specified.
    (ii) If the Claimant does not file and serve a notice of objection within that period, paragraph 2 is a final order, which specifies the maximum amount that the Claimant may be held liable to pay.
    (iii) If the Claimant files and serves a notice of objection in accordance with (i) above:
    – the other party may, within 14 days after the date on which the notice is served, file and serve submissions in response (maximum 3 pages);
    – if the other party files and serves on the Claimant submissions in response, the Claimant may, within 7 days after the date on which the other party’s submissions in response are served, file and serve reply submissions (maximum 3 pages);
    – the Court will determine what costs order to make on the papers;
    – any costs ordered must be paid within 14 days of the date of the Court’s order (in accordance with CPR 44.7(1)(a)), unless the Court specifies another date.
    (d) Where the Claimant makes a valid request for reconsideration (see notes below):
    (i) Paragraph 2 does not become final as respects the maximum amount of the claimant’s liability to a party unless, insofar as it relates to that party:
    – the Claimant withdraws the application for permission; or
    – permission to apply for judicial review is refused on all grounds after a hearing.
    ii) If the Claimant wishes to contend that the order in paragraph 2 should not be made even if permission is refused on all grounds, the Claimant must within 14 days after the date of this Order file and serve a notice of objection (maximum 3 pages). The notice should include any objections to the principle that costs should be paid and/or as to the amount specified.
    (iii) If the Claimant files and serves a notice of objection in accordance with (ii) above:
    – the other party may, within 14 days after the date on which the notice is served, file and serve submissions in response (maximum 3 pages);
    – if the other party files and serves on the Claimant submissions in response, the Claimant may, within 7 days after the date on which those submissions are served, file and serve reply submissions (maximum 3 pages);
    – the Court will determine what costs order to make at or after the permission hearing.
  4. Renewal directions: Where the Claimant makes a valid request for reconsideration (see notes below), the following directions apply:
    (a) The permission hearing is to be listed with a time estimate of 1 hour, including submissions by the parties and an oral judgment by the judge. If the Claimant considers that more time should be allowed, the time estimate must be included with the request for reconsideration of permission.
    (b) Within 21 days of the service of this Order, the Claimant must file and serve an electronic copy of the Permission Hearing Bundle, prepared in accordance with the guidance on the Administrative Court website and containing the following documents:
    (i) the Claim Form, Statement of Facts and Grounds and any evidence or other documents filed with the Claim Form;
    (ii) any Acknowledgment of Service, Summary Grounds of Defence and any accompanying documents served by any Defendant and/or Interested Party;
    (iii) any Reply or other document served by any party to the proceedings at the paper permission stage;
    (iv) this Order;
    (v) the renewed application for permission to apply for judicial review (on Form 86B);
    (vi) any other document the Court would be likely to consider material to its decision on permission to apply for judicial review.
    (c) If the Claimant fails to comply with sub-paragraph (b), permission will be determined on the basis of the renewal notice and the documents before the Court at the paper stage, unless at the hearing the Court otherwise directs.
    (d) At least 7 days before the date listed for the hearing, the Claimant must file and serve:
    (i) a skeleton argument, maximum 10 pages;
    (ii) an electronic bundle containing any authorities which the Court needs to read at the hearing (the Authorities Bundle: see para. 22.1.2 of the Administrative Court Judicial Review Guide); and
    (iii) if requested by the Court, a hard copy version of the Permission Hearing Bundle and Authorities Bundles.
    (e) At least 7 days before the date listed for the hearing, any party other than the Claimant intending to participate in the hearing must file and serve any skeleton argument, maximum 10 pages.
    (f) If a party fails to comply with sub-paragraph (b), (d) and/or (e), the Court may have regard to the failure when considering any question about costs at the hearing.

Reasons


(1) The Claimant is a citizen of Ghana who was born in 1989 and claims to have been the victim of serious sexual abuse as a young teenager. He has received a reasonable grounds decision from the Defendant as a potential victim of trafficking. A separate anonymity order has been made, whereby he will be known as ‘XAG’ in these proceedings.
(2) He seeks permission to challenge the Defendant’s decision dated 16 January 2025 to apply a Public Order Disqualification (POD) to his claim to be a victim of trafficking, pursuant to Section 63 of the Nationality and Borders Act 2022, dated 16/01/2023.
(3) The Claimant arrived in the UK in November 2010 with leave to enter as a visitor. His leave was extended to enable him to join the British army, in which he served from May 2012 to July 2018. The Claimant served in Afghanistan, where he was shot in the leg. He has made allegations of racial abuse by another officer.
(4) The Claimant was convicted of a number of offences in the UK between 2013 and 2022, including battery (2013), shoplifting (2015), false representations for gain (2018) and fraud (2020). On 11 August 2022 he was convicted of offences of possessing an indecent image of a child; possessing extreme pornographic images of bestiality and of distributing indecent images of children. He received sentences of imprisonment to run concurrently for 35 months and he was also placed on the sex offenders register for life.
(5) On 2 August 2023 the Secretary of State decided to deport the Claimant. The Claimant made a human rights claim which was rejected on 23 January 2024 and an appeal against that decision to the First-tier Tribunal (FTT) is pending.
(6) On 24 July 2024, following the Claimant’s release on licence from his custodial sentence, he was detained under the Immigration Acts. On 22 August 2024 he was granted conditional bail with release subject to accommodation by FTT and on 13 November 2024 he was released to Schedule 10 accommodation. On 18 November 2024, the Defendant made a decision that there are reasonable grounds to conclude that the Claimant is a victim of trafficking, based on his account of his childhood sexual abuse in Ghana.
(7) On 16 January 2025, the Defendant made the POD decision which is the subject of challenge in this claim. The effect of this decision is that the Claimant is no longer entitled to modern slavery support including financial support, accommodation and access to a support provider. The reasons for the decision are detailed in a document entitled ‘Reasons for Public Order Disqualification’. It refers to the Modern Slavery Statutory Guidance (‘the Statutory Guidance’) applicable to such a decision and concludes that the Claimant poses a “a high threat to public disorder” primarily by reason of his serious convictions and his deportation status. It also concludes that the Claimant’s need for modern slavery specific protections is considered to be high, taking into account the medical evidence and the statutory guidance. The decision then concludes, applying §14.267 of the Statutory Guidance, that the Claimant’s risk to public order outweighs his need for modern slavery specific protections’. The decision then considered whether there was a real and immediate risk of the Claimant being re-trafficked and concluded that there was not.
(8) The Claimant seeks an order quashing §§14.242, 14.272 and 14.278 of the Defendant’s Modern Slavery Statutory Guidance; an order quashing §14.267 of the Statutory Guidance; and an order quashing the decision of 16 January 2025 disqualifying him from such protection.
(9) There three grounds of challenge in the claim:
Ground 1 – that the Statutory Guidance (§§ 14.242, 14.267, 14.272, 14.278) is unlawful in that it positively authorises, and in fact, requires unlawful conduct and is incompatible with the positive obligations that arise under article 4 of the ECHR, to which potential victims of trafficking are entitled.
Ground 2 – that the POD decision is unlawful within the meaning of the Human Rights Act 1998, s. 6(1) as the Claimant is accepted as having ‘a high need for modern slavery specific protections’, so the Defendant has a ‘recovery duty’ to him under article 4 ECHR, the existence of which is not dependent upon him being at real and immediate risk of being trafficked. Although the Statutory Guidance relied on by the Defendant is authorised by Modern Slavery Act 2015, s. 50A and Nationality and Borders Act 2022 (NABA) ss. 61-63, those provisions merely permit but do not compel the making of the POD decision in relation to the Claimant.
Ground 3 – that §14.267 of the Statutory Guidance contains a policy that amounts to a fetter on the discretion of the decision maker, in requiring more weight to be given to the public interest in disqualification than the individual’s need for modern slavery protections and therefore the policy is unlawful.
(10) All three grounds of challenge in this claim are interrelated and depend on the primary challenge to the lawfulness of the Statutory Guidance applied by the Defendant in this case and its compatibility with Article 4 of the ECHR (and indirectly, The Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’) which is an international treaty which is not part of domestic law, but upon which the domestic regime is based (as outlined in R(TDT) v SSHD [2018] EWCA Civ 1395).
(11) Having considered all the legislative provisions and case law relied on by the Claimant and the Defendant’s response, I am not satisfied that any of the grounds of challenge are arguable. As the Claimant accepts, the Statutory Guidance applied in this case is made by the Defendant pursuant to the Modern Slavery Act 2015, s. 49(1) and 50A and NABA ss. 61-63. NABA is primary legislation intended to implement ECAT in the UK and it expressly permits the Defendant to make a POD decision which has the effect of excluding the rights of a potential victim of trafficking. The Statutory Guidance indicates the need for a case-by-case assessment including the assessment of the future risk of re-trafficking if a POD decision is being considered after weighing the risk to public order against the need for modern slavery specific protections. This POD decision was properly open to the Defendant to make on the facts of this case.