AC-2025-LON-003558 - [2025] EWHC 2688 (Admin)

At the Teams hearing Mr Lee for the Claimant submitted, in essence, as follows. This case crossed the relevant threshold of raising a triable issue, for the purposes of interim relief. It also satisfied the test as to the balance of convenience and justice. In those circumstances an interim injunction should be ordered.

There was, said Mr Lee, a clear parallel with the CTK case itself. In that case, the triable issue had arisen because the relevant Home Office guidance had described the claimant’s right to request reconsideration and his proposed removal was going to thwart that entitlement. It would also involve a failure to “pause” the removal while the reasonable grounds issues were still in the decision-making pipeline. In CTK, the balance of convenience and justice favoured interim relief, so as to protect the claimant’s legal rights to a practical and effective reconsideration; albeit that this meant the Court requiring a deferral of the SSHD’s wish and attempt to secure removal to France.

This case, said Mr Lee, is relevantly similar. Here the triable issue arises in circumstances where the same guidance documents were applicable. Here, the reasonable grounds decision-making process purports to have ended, with the gatekeeper’s rejection of the Claimant’s requested reconsideration. But the right to reconsideration, says Mr Lee, must include within it a lawful decision in response to a reconsideration request. If the response to the requested reconsideration is arguably unlawful then there is a similar need as in CTK for the vindication of legal rights, and a similar balance of justice and convenience in favour of a postponement of removal.

Pausing there, I interpose this. It seemed to me that, in all the circumstances, the appropriate initial focus needed to be on whether Mr Lee was right to say that the gatekeeper’s response of 6 October 2025, refusing the requested reconsideration, was arguably unlawful. Was there a viable public law error or errors capable of satisfying the triable issue test for interim relief? It also seemed to me – and both Counsel agreed – that, at least in the present case, the Court was in a position to consider the triable issue question alongside the question of arguability with a realistic prospect of success for the purposes of permission for judicial review. I considered those two issues side-by-side. In her submissions on behalf of the SSHD, Ms Anderson focused in particular on what she said was the lack of viability of the claim.

Mr Lee’s case on the arguable public law error or errors in the adverse gatekeeper’s decision of 6 October 2025 went, in essence, as follows. There are two public law errors identifiable within the decision. Each of them is at least arguable. Either of them, if vindicated, would serve to vitiate the decision in law. That would mean that there had been no lawful response to the request for reconsideration. It would mean that the gatekeeper had unlawfully closed the gate to reconsideration. It would mean the Claimant could not lawfully be removed to France. The first public law error relates to the suggested absence of an alternative narrative (“an amended account”). The second public law error relates to the absence of a bodily examination (to see “marks” on the Claimant’s body).

So far as the alternative narrative is concerned, the position is as follows. In the Claimant’s email request of 1 October 2025, he said that the narrative discussed in the adverse decision of 3 September 2025 – based as it was on what was attributed to him in the capture of detail at the 26 August 2025 detention centre induction interview and embodied within the online referral form – had attributed to him details that he had not stated and did not accurately reflect his personal chronology. The point made within the adverse gatekeeper’s decision of 6 October 2025 was that, although the Claimant had stated that he had found parts in the recorded accounts which were not what he had actually said, “no amended account was put forward for consideration”. That was simply wrong. In public law terms it was a material error of fact or a relevant consideration which was obviously material being left out of account.

This is because of the other documents which the decision-maker had, and indeed to which the adverse gatekeeper decision referred. In those documents, the Claimant’s corrected account of what had happened in Libya was put forward. Both documents had contents which involved the claim to having been subjected to forced labour under menace and with violence. They were therefore very different from the benign description attributed to the Claimant from the induction and referral. It had recorded a claim of working in a restaurant in Libya, and only occasionally being paid. That was what had been addressed in the 3 September 2025 decision. The narrative contents of the two documents were completely overlooked by the gatekeeping decision-maker on 6 October 2025. That was notwithstanding that the rule 35 report and the solicitors’ representations were both available and referenced. The rule 35 report had contained a narrative description of coerced labour in Libya with beatings, which the reporting clinician had said in the report needed to be looked into in further detail. The solicitors’ letter of request had referred to coerced labour with beatings in Libya, and had also specifically referred to the narration of events within the rule 35 report. In all these circumstances, the decision-maker could not – on this first point – reasonably maintain the original decision that the Claimant’s account did not meet the relevant modern slavery definition.

So far as physical examination is concerned, the position is as follows. In the Claimant’s email request for reconsideration he explained that during the rule 35 check he did not have the opportunity to fully present vital evidence because he was not able to show the physical marks on his body that evidenced past torture and harsh treatment. That was clearly a description of his not having been examined for any such marks by the reporting clinician. That is supported by the contemporaneous recording within the rule 35 report itself that “no scars noted”. Recording that “no scars noted” is consistent with the clinician not having examined for any scars. The force of all of this is underscored, and the injustice to the Claimant is exacerbated, by the fact that subsequent attempts by the Claimant’s solicitors to organise video examination by clinicians while he is in detention have been thwarted, through no fault of the Claimant’s, because the video equipment has not been operating.

In the light of either, or the combination of both, of those arguable public law errors this claim crosses the relevant viability threshold and there is a triable issue. That was the essence of the claim.