In these proceedings case, Wall J decided that it was arguable that it had been unlawful for the SSHD to have had in place an unpublished policy which went directly against the terms of her published policy and which directly stoped her in her duty to consider whether asylum seekers had been trafficked en route to the UK. “AA” was a non-Arab Darfuri from Sudan who claimed that he feared persecution in his own country and fled to Europe. He travelled to France via Libya, claiming that in Libya he was sold into slavery and tortured. On arrival in France he made an asylum claim. His claim was unsuccessful and he travelled to the UK where he claim asylum again. The SSHD conducted a screening interview which did not identify him as a potential victim of modern slavery and he was returned to France under the terms of Regulation 604/2013 (Dublin III), as the appropriate jurisdiction to determine his claim for asylum. The SSHD’s guidance detailed the questions to be asked during the course of a screening interview including the following two questions, designed to elicit information which might suggest that someone had been the subject of modern slavery, i.e. “why have you come to the UK?” and “please outline your journey to the UK”. AA argued that at the time of his screening interview the SSHD also had an unpublished policy which was at odds with the published policy in that the two questions were not to be asked.
He agued that that unlawfully curtailed the opportunity for the SSHD to gather material which would have led her to conclude that he was a victim of modern slavery and act accordingly. AA also maintained that if a conclusive determination that he was a victim of modern slavery been made thereafter, he would have been eligible to apply for leave to remain in the UK. The SSHD accepted that she had a published policy in place at the time of AA’s interview which provided for the asking of the two questions. Equally, the SSHD further accepted that there was a policy decision taken not to ask those two questions at that time. It was the government’s case that that new policy was adopted in order to streamline the screening interview process with a view to reducing contact time between asylum seekers and others owing to the COVID-19 pandemic and to ensure that all cases were dealt with as expeditiously as possible. However, the SSHD asserted that asking the questions would not have actually resulted in AA giving any information amounting to evidence of modern slavery which would have resulted in a referral for more investigation. Granting AA’s application for judicial review, Wall J ordered the SSHD to use her best endeavours to bring AA back from France. The court refused to adjourn to provide the SSHD to submit a fuller defence as that would “in the vernacular, be an exercise in kicking the ball into the long grass.”
The High Court
Dealing with the point on arguability, Wall J applied DA & Ors v SSHD  EWHC 3080 (Admin), discussed here, and R (Lumba) v SSHD  1 AC 245 to hold that a secret policy must not be followed where it was inconsistent with a published policy. It was arguable that it had been unlawful for the SSHD to have had in place a secret policy which went directly against the terms of her published policy and which directly impeded her in her doing her duty to consider whether asylum seekers had been trafficked en route to the UK.
In DA & Ors v SSHD, three foreign nationals who claimed that they had been trafficked while in Libya relied on the same arguments advanced by AA in this case; that is, that the SSHD applied this unlawful and secret policy which resulted in evidence in support of a trafficking claim not being elicited from them in the course of their screening interviews. In DA & Ors, Fordham J held that the SSHD had in place a secret and arguably unlawful policy between 30 March 2020 and the date of his judgment on 13 November 2020 and after examining Fordham J’s judgment, Wall J judged:
21. I am quite satisfied that there is a proper argument to be made to the effect that it is unlawful for the Defendant to have had in place a secret policy which went directly against the terms of her published policy and which directly impeded her in her duty to consider whether asylum seekers have been trafficked en route to this country. After the interim relief hearing in DA -v- SSHD conducted by Fordham J, the Defendant made a formal admission that her conduct had been unlawful. She later applied to withdraw that concession. The issue was never adjudicated upon because the parties reached settlement before that could happen. However, it is conceded in the Defendant’s skeleton argument in this case that there is an arguable case that this was an unlawful policy.
22. It is further arguable that the Claimant has fallen foul of the Defendant’s alleged illegality and that the failure to ask these questions was material in that there is a real possibility that the outcome for the Claimant would have been different had they been asked. His case was decided when this secret policy was in place. There is evidence that he came through Libya on his way to France and thereafter the United Kingdom and that his professed experiences in Libya are consistent with those seen in others who were subjected to modern slavery in that country. On its face, the case has real strength.
24. … I am troubled by the fact that in the course of his interview at the Detention Centre the Claimant made disclosure that he had been the victim of torture. It is surprising that the simple answer “yes” to that question was not followed up by further enquiries being made of him. Had that been done, more detail would likely have been given and a referral have been made. Simply advising him to seek an appointment with health care, while laudable in itself, might be said to have fallen short of conducting a proper enquiry of the Claimant with a view to protecting him.
As to the balance of convenience, the decision not to grant interim relief would result in AA being left in France, where he would continue to be homeless and destitute and the decision to grant interim relief would involve the Home Office using time and effort to bring him to the UK and possibly supporting him. The balance to be struck between on the one hand a relatively modest financial loss and a serious risk of permanent injustice and damage to health on the other was in favour of granting the relief sought by AA and in relation to the appropriate order Wall J held that:
34. I cannot order that the Defendant brings the Claimant back from France. That is not in her gift. What I can and do order is that she uses her best endeavours to do so. I have been addressed as to the timescale within which this could be done. The Defendant says that a month is realistic and three weeks is the bare minimum required. The Claimant has referred me to a case in which a far shorter time period was given over the Christmas period. I have no evidence as to the particular difficulties that this case might involve. However, having made the decision that interim relief is appropriate, it must be achieved as swiftly as possible.
To ensure that happened Wall J ordered that if within fourteen days of his judgment being published AA was not back in this country, the SSHD had to file with the court and serve on AA a statement setting out the efforts made by her to comply with this order and why his return has not been achieved. The court added if AA wished to further argue that the efforts made have not been sufficient and sought further orders/directions, he had liberty to apply to the court on two days’ notice thereafter, then to be listed as an urgent matter.
Like DA & Ors v SSHD, this is quite a set back for the SSHD. She failed to identify AA as a potential victim of modern slavery and she now must bring him back from France so as to deal with his case (which has real strength) appropriately as his claimed experiences in Libya are consistent with those seen in others who were subjected to modern slavery there.