The home secretary’s decision to reduce protections for potential trafficking victims being considered for removal under the “one in, one out” asylum deal was unlawful, a high court judge has ruled.
The legal challenge was brought by five small-boat asylum seekers selected for being returned to France – four from Eritrea and one from Sudan. It related to a change in guidance on the one in, one out scheme, which meant that those denied trafficking protections no longer had the right to ask for it to be reconsidered.
In a lengthy judgment published on Friday morning, Mr Justice Sheldon found that Shabana Mahmood’s decision on the guidance was unlawful, prompting lawyers for some of those affected to call for their clients to be returned to the UK.
Other elements relating to individual decisions taken by the home secretary concerning the five cases were found to be lawful.
The judge found that the decision to amend the trafficking guidance to prevent reconsideration of cases given an initial negative decision made a “real difference” in two of the asylum seekers’ cases, but did not make a difference in two of the other cases.
All five asylum seekers were given permission by the judge to proceed with their legal claims.
A spokesperson for the Home Office said the home secretary would appeal against the ruling.
The judgment is likely to have significant implications, with many asylum seekers who arrive in small boats potentially being victims of trafficking, especially if they have passed through Libya on their journey to the UK.
The one in, one out deal involves one person who has travelled from France to the UK on a small boat being forcibly returned to France in exchange for another asylum seeker in France who has not attempted to cross the Channel.
Mahmood had amended the trafficking reconsideration guidance in order to expedite the return of some small-boat arrivals to France.
It is likely that more than 1,000 people have been removed to France under the scheme since it began last August. Many have subsequently disappeared. Hundreds more small-boat arrivals are in UK detention centres awaiting forced return to France.
The home secretary argued that because France was a signatory to treaties protecting trafficking victims their cases could be dealt with there. However, the court heard evidence that victims of trafficking who were not French or were not trafficked in France did not get the same protections there. In the UK, all trafficking victims have a right to the same protections.
Sheldon said of the changes made by Mahmood: “In my judgment such a decision-making process cannot be regarded as robust and effective.”
The asylum seekers who challenged the policy included an Eritrean man who described being held in an underground detention facility in Libya, where he was kidnapped, beaten and deprived of food.
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Two other Eritreans described being held against their will in Libya, with one saying that many of those with him had died, and he was forced to accompany the dead bodies on a truck and dig their graves.
A fourth Eritrean man said he had been trafficked four times, including being kidnapped and held for ransom in Ethiopia before being detained by Belarusian soldiers and forced to dig trenches close to the border with Poland. The fifth was a Sudanese man who escaped the country’s war after the Rapid Support Forces attacked his village and killed members of his family.
Three of the five were removed to France by the Home Office. Lawyers are calling on the home secretary to bring them back to the UK.
Elizabeth Cole, a solicitor at Duncan Lewis, representing two of the five asylum seekers in the case, welcomed the court’s decision that the trafficking policy change was unlawful.
“This has had significant consequences: large numbers of vulnerable people have been unlawfully removed to France as a result,” Cole said. “We now urge the home secretary to acknowledge her obligations under both the treaty and domestic law, and bring our client, as well as potentially many others who have been unlawfully removed, back to the UK.”
The asylum seeker that Cole represents said: “It is really a feeling of hopelessness that I have. I believe that the Home Office had all the evidence in my case, but chose not to consider this. In their doing so, they failed to consider my case properly. I truly believe if they had properly considered my evidence, I would not have been returned to France.”
Emma Ginn, the director of the charity Medical Justice, which works with immigration detainees, said: “This is symptomatic of the government’s reprehensible attitude to trafficking survivors. Our clients’ medical evidence is disregarded and their trafficking disclosures are treated as an inconvenient impediment to removal.”
A Home Office spokesperson said: “Last-minute modern slavery claims must not be used to frustrate the removal of illegal migrants. We are reforming our laws to stop dubious last-minute claims, while strengthening protections for those who need them.”