CA-2025-002338 - [2025] EWCA Civ 1264

No transcript of the hearing or of the Judge’s judgment was available by the time of the hearing before this Court. We had been provided with two notes about the hearing on 16 September. The first is a note prepared by the Government Legal Department (‘GLD’). It is simply a note of the Judge’s short judgment. The second note was prepared by CTK’s solicitors. It is a note of the whole hearing including the short judgment. Ms Grange KC was asked during the hearing of this application whether she agreed that this note was accurate. She said that her side had not identified any mistakes in it. We therefore rely on that note as an accurate summary of what happened at the hearing, making due allowances for the speed of events at the hearing.

The Secretary of State’s decision refusing CTK’s further representations made by Duncan Lewis on 14 September 2025 was served on them shortly before the hearing on 16 September. CTK’s representatives served a proposed further ground for judicial review (ground 10) at the hearing. In essence, this was that the Secretary of State was acting unfairly in removing CTK to France before the Competent Authority had made its decision. Counsel pointed out to the Judge that, if CTK were to get a positive reasonable grounds decision, that would be a statutory bar to removal under section 61(2) of the Nationality Asylum and Borders Act 2022 (“the 2022 Act”). There is no dispute about that.

The Secretary of State’s counsel accepted early on in the hearing that the Competent Authority had not yet made a decision, but said that such a decision would be made before CTK was removed, and it was premature to say what any such decision would be. If the decision was negative CTK could challenge that decision from France, but if there was a positive reasonable grounds decision he could not be removed. The Judge asked what prejudice would be caused by a short adjournment until the trafficking decision had been made. Counsel’s response was that the deterrent effect would be reduced because the Secretary of State would not have a removal. Counsel accepted in answer to a question from the Judge that the wisest course might be to wait for the Competent Authority’s decision and to make a decision in the light of that. The Judge’s question about whether CTK could challenge a negative decision from France was left hanging at that stage. The Judge was told that the next available flight was on Thursday of the following week.

The Competent Authority’s decision was then served, and the Judge rose for 30 minutes to consider it. When the hearing resumed, CTK’s counsel made some initial points about the Competent Authority’s decision. She submitted that, in essence, incident 2 had been accepted, but there was not enough supporting evidence. It would be difficult for CTK to get that evidence, such as medical evidence, if he was in France. The context was that there was a “suspicion” that CTK had been trafficked. It did not help the Secretary of State to say that CTK could do this from France. There was an obligation on each State to investigate. It was hard-edged. The decision-maker had identified evidential gaps but had not investigated having accepted significant parts of CTK’s account about incident 2. CTK had not had the opportunity to get that evidence. The decision-maker had invited further representations. The Judge said that “if they have invited further representations, that might tip the balance”. CTK’s counsel submitted that the reconsideration process was meant to be “meaningful and effective”. CTK’s account had been accepted and he now had an opportunity to address the gaps, which he could not do from France.

The Judge asked how long was needed. CTK’s counsel said that the Secretary of State’s counsel had said a week. We asked about this point during the hearing. Neither leading counsel could really remember the context in which that remark was made, so we ignore it. Ms Naik is recorded as having said that her solicitors had asked for 14 days. There were further exchanges. The Secretary of State’s counsel then told the Judge that she had just received an email: “The answer is no, they [i.e. the Competent Authority] can’t take a reconsideration request from France”. The Judge’s immediate reaction was, “That forces my hand”. The Judge said he would grant a short period of interim relief “so as to give [CTK] an opportunity to make reps to the NRM with respect to the RG decision that has just been provided”. CTK’s solicitors were to use their best endeavours to provide those within 14 days; there would then be a discussion about further directions.

The Judge then gave a short judgment. He summarised some of CTK’s submissions. He noted that CTK was not asking for a mandatory order, so the test was whether there was a serious issue to be tried and if so where the balance of convenience lay. There was a serious issue to be tried about the trafficking claim, and whether the Secretary of State had “carried out her investigatory duties in a lawful manner”. The Judge held that CTK’s nine other grounds (see paragraph 18 above) did not raise a serious issue to be tried. He gave brief reasons for that conclusion. CTK has not cross-appealed against that aspect of the Judge’s reasoning.

Returning to the trafficking claim, he said that the “NRM” (by that he meant “the Competent Authority”) had served a decision during the hearing. The decision was that there were no reasonable grounds, but it referred to the opportunity to make representations so that the decision could be reconsidered. The Secretary of State’s counsel had confirmed to him that that reconsideration would not be expected to involve evidence being provided from France. There was a serious issue to be tried about whether the removal decision was lawful when there is still room for further investigation. If CTK were removed now he might be deprived of the opportunity to get a positive reasonable grounds decision. The balance of convenience was evenly poised. He recognised that there was “the public interest in the Secretary of State’s process being given full effect”. Weighty public interest considerations supported CTK’s removal. He described those. In that situation, the precautionary principle applied, and the court should make an order which preserved the status quo. In other words, CTK should stay in the United Kingdom until his trafficking claim had been reconsidered by the Competent Authority.