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

There are two relevant statutes: the Modern Slavery Act 2015 (“the 2015 Act”) and the 2022 Act. ECAT was not, at first, reflected in any domestic statutory provisions. When first enacted, the 2015 Act created relevant criminal offences, established an Independent Anti-Slavery Commissioner, and made provision, in Part 5, for the protection of victims. The 2015 Act was amended by the 2022 Act, which gave statutory effect to some of provisions of ECAT, and as we have already mentioned, conferred (for the first time) a statutory immunity from removal on a person in whose favour a positive reasonable grounds decision has been made. Section 65 of the 2022 Act provides, in short, that, if a person is given a positive conclusive grounds decision, he must be granted limited leave if the criteria at s. 65(2) are met.

Section 49(1) of the 2015 Act imposes a duty on the Secretary of State to issue guidance “to such public authorities and other persons as the Secretary of State considers appropriate about” four different topics. Those are (a) “the sorts of things which indicate that a person may be a victim of slavery or human trafficking”, (b) “arrangements for providing assistance and support to persons who there are reasonable grounds to believe are victims of slavery or human trafficking or who are such victims”, (c) “arrangements for determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking” and (d) “arrangements for determining whether a person is a victim of slavery or human trafficking”. Section 49(3) obliges the Secretary of State to publish the statutory guidance.

Version 4.1 was the version of the statutory guidance which was in force until 17 September 2025, when version 4.2 came into force. Annex E of the guidance is headed “Guidance for all Competent Authority staff on the NRM decision-making process (please note this annex applies for both the SCA & IECA and cases referred UK-wide)”. Paragraphs 14.216-218 of version 4.1 are headed “Reconsideration of Reasonable Grounds or Conclusive Grounds decision”. Paragraph 14.216 provides: “An individual or someone acting on their behalf, may request reconsideration of a negative Reasonable Grounds or Conclusive Grounds decision by the relevant competent authority. A reconsideration request may be made within 30 days of the negative … decision on the following grounds”. Those grounds are “Where additional evidence can be provided which, taken with all the available evidence already considered, could demonstrate that the individual is a victim of modern slavery” and “There are specific concerns that a decision is not in line with this guidance”. Paragraphs 14.217 and 14.218 give further explanations.

It is common ground that, if a decision-maker proposes to make a decision or to act in a way which departs from a published policy, he must have a good reason for doing so. It follows that he cannot lawfully depart from the policy unless he has considered what that good reason is, whether it justifies the departure in the particular case, and he has articulated that reason at the same time as he has decided to depart from the policy.

The effect of paragraph 14.216 of version 4.2 is that the reconsideration provisions do not apply to a person if the Secretary of State proposes to remove him to a country which is a signatory to ECAT. We infer that this amendment was a response to the Judge’s decision in this case.