The High Court has ruled that the Home Office acted unlawfully when it removed the ability to request a reconsideration of a negative trafficking decision. This applied to people facing removal to countries that are parties to both the Council of Europe Convention on Action Against Trafficking in Human Beings and the European Convention on Human Rights. The policy was framed generally, but was introduced specifically to facilitate removals to France under the ‘one in, one out’ agreement. The case is R (AYA and others) v Secretary of State for the Home Department [2026] EWHC 1742 (Admin).
The judgment is 115 pages long and deals with five individual challenges. The most important finding, however, is a general one: the Home Office could not lawfully weaken the system for identifying victims of trafficking simply to make removals under the France agreement easier.
Background
As covered in this previous post, in September 2025, the Home Office amended the Modern Slavery Statutory Guidance to remove the ability to request reconsideration of negative trafficking decisions where a person was facing removal to a country that was a party to both the Trafficking Convention and the European Convention on Human Rights.
Although the amendment was framed broadly, it was introduced to facilitate removals to France under the ‘one in, one out’ agreement.
The claimants challenged the policy on a number of grounds, all of which succeeded, apart from one, namely that the Home Secretary had failed to make adequate inquiries before introducing the policy.
An effective identification system requires reconsideration
The court held that the policy was incompatible with the Home Secretary’s obligation under the Trafficking Convention and the Modern Slavery Act 2015 to maintain an effective system for identifying victims of trafficking.
Trafficking decisions, particularly reasonable grounds decisions, are often made quickly and on limited information. Victims may disclose their experiences gradually, and important evidence may only emerge after an initial negative decision. This is particularly so for small boat arrivals, where people have often experienced a difficult and traumatic journey to arrive in the UK. The reconsideration process is therefore an important safeguard within the identification system.
By removing the ability to request a reconsideration for people facing removal to countries covered by the policy, the Home Office had effectively ‘institutionalised a disregard for relevant new evidence’. That meant there was a real risk that people who were in fact victims of trafficking would never be identified as such, undermining the robust system of identification required by the Trafficking Convention and the Modern Slavery Act.
The existence of judicial review did not fix that problem. Judicial review will generally examine whether the original decision was lawful on the material available at the time. It is not a substitute for a process which allows the specialist decision-making body to consider significant new evidence.
Unlawful fettering of discretion
The Home Office counter-argued that decision makers retained a discretion to reconsider decisions in appropriate cases.
The court rejected that submission. Although such a discretion existed in theory, the published policy made no mention of it and, in practice, reconsideration was confined to a narrow range of circumstances, such as where litigation had already been commenced. The policy therefore unlawfully fettered the Home Secretary’s discretion.
Breach of the Padfield principle
The court also held that the policy breached the principle established in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. Statutory powers must be exercised to promote, rather than frustrate, the purpose of the legislation under which they are conferred.
Here, the purpose of the Modern Slavery Act includes ensuring that victims of trafficking are properly identified. A policy which deliberately reduced the effectiveness of the identification process in order to facilitate removals under the France agreement frustrated that statutory purpose and was therefore unlawful.
Conflict with R (A)
Finally, the court held that the policy was unlawful because it was contrary to the principle established in R (A) v Secretary of State for the Home Department [2021] UKSC 37. Public policies must not encourage or induce decision makers to act unlawfully.
By instructing decision makers not to consider reconsideration requests supported by relevant new evidence, the guidance encouraged caseworkers to disregard matters that they were legally required to take into account. It therefore induced unlawful decision making and was unlawful on that basis as well.
Other findings
Although the challenge to the reconsideration policy is the headline point, the judgment also contains a number of other findings that are likely to be relevant in future trafficking cases and/or removals under the ‘one in, one out’ agreement.
First, the court confirmed that the Modern Slavery Act 2015 requires the Home Office to make arrangements for identifying victims of trafficking regardless of where the trafficking is alleged to have taken place. The statutory identification duty is therefore not confined to trafficking with a territorial connection to the UK.
The position under Article 4 of the European Convention on Human Rights is different. The court held that where all of the alleged trafficking took place abroad, a failure by the authorities in the UK to identify someone as a victim will not ordinarily breach Article 4. The exception is where there is a credible suspicion that the person would face a real risk of being trafficked in the country to which they are being returned.
Second, the judgment contains helpful observations about France’s system for identifying and supporting victims of trafficking. The court accepted that France’s formal trafficking identification process is significantly narrower than the UK’s and may not recognise people trafficked entirely outside French territory. However, it did not accept that this meant return to France would necessarily leave victims without support or entitle them to temporary permission to stay. This is because where people claim asylum in France, even if they are not specifically recognised as victims of trafficking, they should have access to accommodation, healthcare and other support.
Conclusion
This judgment is a helpful reminder that the government cannot reduce the protections available to potential victims of trafficking simply because those protections make removals more challenging or slower. The UK’s arrangements for identifying victims must remain robust and effective.
That does not mean, however, that everyone whose trafficking decision was not reconsidered will now be brought back from France; nor that recognised trafficking victims cannot be removed to France. Indeed, the court found that the unlawful policy had made a real difference in only two of the five lead cases.
The terms of the final order, including relevant relief and remedies, have been adjourned to a hearing later this month. The Home Office has also said that it will seek permission to appeal. This is therefore unlikely to be the last we hear of the case.Â