Secretary Of State Concedes Public Order Disqualification Decision For The Second Time (9 June 2023)

• Published date: 20 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Duncan Lewis & Co Solicitors
• Author: Ms Maria Thomas, Hanna Kit and Elisabeth Jennings

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...