DNG, R (on the application of) v Secretary of State for the Home Department

IN THE HIGH COURT OF JUSTICE KING’S BENCH DIVISION ADMINISTRATIVE COURT [2025] EWHC 3289 (Admin) Case No. AC-2025-004184 The Royal Courts of Justice Strand London WC2A 2LL Wednesday, 26 November 2025 BEFORE: MR JUSTICE KERR BETWEEN: THE KING (on the application of DNG) - and - SECRETARY OF STATE FOR HOME DEPARTMENT ---------------------- Claimant Defendant MS A WESTON KC and MR CHARLES BISHOP (instructed by Deighton Pierce Glynn) appeared on behalf of the Claimant MR E BROWN KC (instructed by Government Legal Department) appeared on behalf of the Defendant ---------------------- JUDGMENT (Approved) ---------------------- Digital Transcription by Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court) This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ MR JUSTICE KERR: Introduction 1. This is an urgent application for interim relief to prevent the claimant’s removal to France tomorrow. The claimant is from Eritrea where, it is his case, he worked as an orthodox Christian deacon. He arrived here in a small boat from France on 22 October 2025. The defendant wishes to remove him back to France tomorrow; France has agreed to take him. 2. I will deal first with anonymity. The claimant submits that an anonymity direction should be maintained under CPR 39.2(4) to secure the proper administration of justice and to protect his interests. It is said that the important principle of open justice is overridden because justice cannot be done without the anonymity order. 3. That is because, it is said, the claimant’s asylum claim is founded on what he claims to be a well founded fear of persecution in Eritrea if he were to return there. A precautionary approach, the claimant submits, requires the court to proceed, for present purposes, on the basis that the fear is well founded and that he would be at risk if his identity were known. The defendant is neutral on the issue of anonymity. 4. I am prepared to accept the claimant’s submissions on anonymity, albeit with some misgivings, because similar arguments are made routinely in many – indeed most – cases of this kind; and anonymity seems to be becoming virtually automatic, with open justice correspondingly undermined. That said, the submission seems to be sound and I will accept it and retain the temporary anonymity order I made yesterday afternoon. 5. The claimant’s application for interim relief proceeds on various grounds. The substantive judicial review claim was made in the last few days. The claim for interim relief is brought on the basis that the claimant seeks to restrain his removal to France tomorrow. He submits that there is a real issue to be tried, most notably in relation to the defendant’s negative reasonable grounds decision taken last month. It is said that the decision was taken precipitately, before he was able to obtain legal advice and make effective representations, in breach of principles of procedural fairness. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 6. It is further said that the decision maker irrationally found that the claimant was not a victim of trafficking and that the decision maker overlooked material considerations such that the decision is not rationally defensible. Reliance is placed on the statutory bar on removal in section 61(2) of the Nationality and Borders Act 2022, where a decision is made that a person is, or there are reasonable grounds to believe is, a victim of trafficking. 7. The claimant says the balance of convenience is in favour of preventing removal and that that would enable him to obtain medical evidence about the potential adverse effects that removal to France would entail. He submits that his removal to France would exacerbate his existing mental anguish and grief; and that he has not had a fair chance to challenge the rejection of his protection, human rights and trafficking claims. If he had to pursue them from within France, he would be at a distinct disadvantage. The Facts 8. In only slightly more detail, the facts are as follows. The claimant was born in October 2000 and is an orthodox Christian deacon, as he describes himself. He has various family members and they include an uncle who is in this country. He fled Eritrea in May 2020 after receiving papers requiring him to be conscripted into the Eritrean army. Over the following years, he travelled through Ethiopia, Sudan, Libya, Italy and then France. 9. During his time in Libya, he claims to have been trafficked and he says that he has been subjected to a number of traumatic events. Very sadly, his brother, having fled Ethiopia for Europe, committed suicide in September 2024 while awaiting determination of his asylum claim in France. That, not surprisingly the claimant says, is having a significant adverse effect on his mental state. 10. On 22 October 2025, he boarded a small boat on the French coast and arrived here on that day. He was immediately detained under immigration powers and interviewed for 42 minutes that evening between 18.43 and 19.25, with an interpreter in attendance by telephone. On 24 October 2025, the defendant served him with a notice of intent to declare his protection claim admissible. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 11. He was transferred to Harmondsworth Immigration Removal Centre, where he remains in detention. He was interviewed there and spoke to the welfare team. On 27 October, he was referred to the National Referral Mechanism (the NRM). On 31 October, the defendant’s decision maker decided there were no reasonable grounds for determining that he is a victim of trafficking. I have been taken thorough the written decision. 12. On 10 November, the defendant declared his asylum and humanitarian protection claim inadmissible, refused his human rights claim and certified it as clearly unfounded. On 11 November, he was served with a notice of liability to be removed from the UK. On the same day, a rule 35 report assessed him at level 2 of the adult at risk policy and, on 12 November, the defendant notified him that he would be removed on 27 November, which is tomorrow. 13. Representations were made on 18 November by lawyers by then instructed on his behalf. A letter before claim was sent the same day, criticising in detail the decisions that had been made, including the contention that the negative reasonable grounds decision was irrational. 14. Yesterday evening, on 25 November, the defendant informed the claimant’s representative, in response to further submissions, that they did not amount to a fresh claim and that the decision to refuse the claimant’s human rights claim and certify it as clearly unfounded is maintained. In those circumstances, the matter came before me today for an oral hearing. Submissions 15. The substantive grounds of challenge are six in number. In summary: - - the first is that the negative reasonable grounds decision was unlawful; the second is that the defendant’s inadmissibility guidance and implementation procedure creates a real risk of denial of procedural justice and access to justice; - the third is that the inadmissibility decision was unlawful; Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ - the fourth is that the current modern slavery statutory guidance for England and Wales, promulgated under section 4 of the Modern Slavery Act 2015, leads caseworkers to act unlawfully by breaching the positive duty under article 4 of the ECHR and the Tameside duty of enquiry; - the fifth ground is that the decision to remove the claimant and detain him pending removal are rendered unlawful by the matters relied in the first, second, third and fourth grounds. The legality of the claimant’s detention, it is said, turns on his removal being expected to take place within a reasonable timescale. - The sixth and final ground is that the claimant’s detention is, in any event, unlawful because it is in breach of the defendant’s detention policy. 16. Ms Weston KC, appearing for the claimant with Mr Bishop, submits that the asserted irrationality of the negative reasonable grounds decision, in particular, is the subject of a challenge with strong merits and there is a high risk that it is unlawful. She submits that would mean the removal of the claimant to France tomorrow would frustrate the intention of Parliament, as expressed in section 61(2) of the Nationality and Borders Act 2022, which bars removal for a particular period where a positive reasonable grounds decision has been made. 17. Ms Weston submits that there is, at the very least, a triable issue that the negative reasonable grounds decision and, indeed, the other decisions challenged, are unlawful; and she submits that the balance of convenience is against removal. In support of the latter submission, she says the claimant’s removal to France would very likely exacerbate his mental anguish and grief, particularly because of the sad suicide of his brother in France a little over year ago. 18. The injunction sought, Ms Weston argues, would enable the claimant to arm himself with proper legal defences against removal and support for his protection, human rights and trafficking claims. She submits that he would be at a distinct disadvantage if he had to advance those claims from within France. 19. For the defendant, Mr Brown KC submits that there are no triable issues and that the balance of convenience and justice are strongly in favour of allowing tomorrow’s Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ removal to proceed. He points to the strong public interest in government being able to carry out and implement its policies, in particular, under the so called one-in-one-out treaty with France. 20. As to the negative reasonable grounds decision, Mr Brown submits that the decision does not suffer from the defects attributed to it by the claimant. He is simply disagreeing with the decision maker’s assessment. In summary, Mr Brown contends that it is for the decision maker to apply the definitions and threshold that must be met in order to be classed as a victim of trafficking. 21. On close examination, Mr Brown submits, the decision maker did not err in finding the information provided insufficient to support that conclusion. The decision maker referred on several occasions to a lack of detail, although it was not their position that the claimant was an untruthful witness. The defendant’s position is that victims of trafficking are likely to be identified and supported, as appropriate, in France, as recorded in the relevant country information note to which I was referred. 22. Mr Brown submits that France is a safe third country and the treaty provides for returns to France and France has agreed to the return of this claimant. A final “casework barrier” was addressed last night, when further written submissions in relation to the decision to treat the claimant’s asylum claim as inadmissible were addressed. 23. The decision in the letter sent last evening was to reject the further submissions on human rights grounds, principally on the basis that France has a fully-functioning medical system and that the high threshold of risk of treatment contrary to article 3 of the ECHR was not met. Any medical facilities required in France would be available there; and the further submissions would have no realistic prospect of success (before an immigration judge) and do not amount to a fresh claim. Reasoning and Conclusion 24. I am conscious that this claim is at an early stage and that the application is limited to interim relief. It seems to me right that I should confine myself to the question of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ interim relief in the form of the application to restrain removal tomorrow. Although the application for interim relief covers other matters, notably release from detention, that matter, though not trivial and indeed quite urgent, is not one that I think should be addressed today in haste. 25. In relation to the question whether I should restrain removal to France tomorrow, I am persuaded that there is a triable issue on what I will call the trafficking point, namely the criticism of the negative reasonable grounds decision, either on the basis of irrationality or disregard of relevant material or both. I am not persuaded that any triable issue arises in relation to any of the other grounds of challenge at this stage. In particular, I do not think it is arguable that the defendant must wait until the claimant has had a full opportunity to marshal legal help and detailed evidence and submissions. 26. While these are frequently available, I do not accept that common law principles of procedural fairness, expounded in many cases such as those cited in the statement of facts and grounds including R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and R. (AAA) v Secretary of State for the Home Department [2023] 1 WLR 3103, in the present context yield an arguable right to be “lawyered up” before a removal is undertaken. It is the policy of the one-in-one-out treaty that removals should take place swiftly, indeed within three months in most cases. 27. In my judgment, the balance of convenience and justice remains in favour of the claimant’s removal. I accept the submissions of Mr Brown, for the defendant, that France is a safe third country; it has a functioning healthcare system; there is no risk of persecution there. The challenge to the negative reasonable grounds decision is, as I have said, in my view, arguable but not particularly strong. 28. I am confident that the decision that removal would not damage the claimant’s health irreparably, was incontestably lawfully taken. The suicide of the claimant’s brother in France in September 2024 is a very sad and regrettable event, but not a bar to removal to that country of this claimant. The public interest in the UK Government being able to operate the treaty with France is strong. France has agreed to take this claimant. Further steps in this litigation can take place while the claimant is in France. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 29. Those considerations, it seems to me, weigh heavily against interim relief. As has been said by judges of this court in other cases that the public interest in our government being able to implement and operate its policies is strong. 30. For those reasons, the application is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 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