"No removal while your own guidance promises a 30‑day NRM reconsideration": Secretary of State must preserve reconsideration opportunity offered under statutory guidance

Case: CTK, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 1264

Court: England and Wales Court of Appeal (Civil Division)

Date: 9 October 2025

Introduction

This Court of Appeal decision, arising from a rolled-up hearing on 23 September 2025, cements a clear domestic law principle: when the Competent Authority (CA) issues a negative Reasonable Grounds decision under the National Referral Mechanism (NRM) that expressly offers the individual a 30‑day right to request reconsideration in line with published statutory guidance, the Secretary of State cannot lawfully remove that individual before that domestic reconsideration opportunity is afforded.

The case concerns CTK, an Eritrean national who arrived in the United Kingdom by boat and claimed asylum on 12 August 2025. After his trafficking claim was referred to the NRM, the Immigration Enforcement Competent Authority (IECA) issued a negative Reasonable Grounds decision on 16 September 2025. Crucially, consistent with version 4.1 of the Modern Slavery statutory guidance then in force, the decision letter expressly invited a reconsideration request within 30 calendar days. At the same time, removal directions to France were set for the following morning, and the Secretary of State confirmed that if CTK were removed, the Competent Authority would neither reconsider the trafficking decision nor receive further evidence from him while he was in France.

Sheldon J granted interim relief to prevent removal pending the reconsideration opportunity. The Secretary of State sought permission to appeal on four grounds anchored in ECAT compliance, the supposed adequacy of judicial review from France, public interest in deterrence, and the period of relief granted. The Court of Appeal refused permission on all grounds, holding that the judge made no error of law or principle and that none of the grounds had a realistic prospect of success.

Summary of the Judgment

The Court of Appeal refused permission to appeal, endorsing the judge’s conclusion that there was a serious issue to be tried as to the lawfulness, in domestic law, of seeking to remove CTK when the Secretary of State’s own statutory guidance (version 4.1) and the CA’s decision letter afforded him a 30‑day opportunity to request reconsideration—and when the CA would not entertain such a request once he was in France. The court characterised the Secretary of State’s stance as a repudiation of a lawful decision made by her own specialist officials in accordance with published statutory guidance, a stance strongly arguable to be unlawful.

The court also:

Rejected the Secretary of State’s reliance on France’s ECAT status and Article 4 ECHR arguments as beside the point; the issue was a domestic public law duty to follow the Secretary of State’s own statutory guidance and the specific promise made in the decision letter.
Held that judicial review from France is no substitute for the domestic reconsideration process explicitly offered in the decision letter—reconsideration allows the introduction of new evidence and a fresh merits decision.
Confirmed the judge’s balance-of-convenience analysis as unimpeachable; deterrence and the bilateral “Prevention of Dangerous Journeys” Treaty (not incorporated domestically) could not outweigh the need to comply with domestic guidance and preserve the status quo.
Dismissed the complaint about the length of interim relief as hopeless, noting the judge had already shortened the 30‑day reconsideration window to 14 days on a best-endeavours basis.

Notably, the court recorded that the statutory guidance was amended the day after the High Court decision (version 4.2, effective 17 September 2025) to exclude the reconsideration route where the Secretary of State proposes removal to an ECAT signatory state. The Court of Appeal saw no compelling reason for permission to appeal in CTK’s case despite that development.

Analysis

Precedents Cited and Their Influence

Hadmor Productions v Hamilton [1983] AC 191: This authority sets the narrow appellate standard for interfering with a judge’s discretionary decision on interim relief. The Court of Appeal applied Hadmor to emphasise deference, particularly given the urgent context and the evolving position during the hearing. This framed the court’s refusal to interfere unless there was an error of law, principle, or a perverse outcome—which it found there was not.
American Cyanamid Co v Ethicon Ltd [1975] AC 396: The classic test for interim injunctions: serious issue to be tried, adequacy of damages, and balance of convenience, with preservation of the status quo where factors are evenly balanced. The Court of Appeal approved the judge’s use of these principles in a public law context, noting this was the appropriate framework for the interim relief analysis.
R (PCS Union) v Secretary of State for the Home Department [2022] EWCA Civ 842: Cited for the application of American Cyanamid principles to public law claims. It underlined that the court should avoid determining the ultimate merits at the interim stage and emphasised structured balancing, which the judge followed here.

The combination of these authorities insulated the judge’s order from appellate intervention and underscored that urgent public law injunctions are governed by the same baseline principles adapted to the public law context.

Legal Reasoning

The Court’s reasoning is anchored in three interlocking domestic public law propositions:

Duty to follow published statutory guidance and the decision letter issued under it. The Modern Slavery Act 2015, section 49, requires the Secretary of State to issue and publish guidance on the NRM decision-making process. Version 4.1 of the guidance (then in force) provided a right to request reconsideration of a negative Reasonable Grounds decision within 30 days in two situations: where new evidence might change the outcome, or where there are specific concerns that the decision is not in line with the guidance. The CA’s letter to CTK faithfully reflected that. In public law, a decision-maker generally cannot depart from published policy/guidance without good reason, identified, weighed, and explained at the time of departure. The Secretary of State effectively sought to negate the CA’s express promise of a reconsideration opportunity by removing CTK before he could exercise it, and conceded that reconsideration would not be available from France. The Court held it was strongly arguable that the Secretary of State had no power to repudiate a lawful decision made by her own specialist civil servants in accordance with her own published guidance, and that such repudiation was unlawful.
Judicial review from abroad is not a functional substitute for the promised reconsideration route. The CA invited new evidence to plug evidential gaps and promised a fresh merits reassessment. A judicial review filed from France would be confined to public law grounds on the materials before the decision-maker and would not afford the same opportunity to introduce new evidence or obtain a merits redetermination. The court held this difference was material and dispositive: the promised reconsideration process in the UK could not be replaced by the theoretical possibility of a foreign-based judicial review.
Interim relief and the status quo. Applying American Cyanamid, the judge found a serious issue to be tried and that the balance of convenience was at least evenly poised. In those circumstances, preserving the status quo (i.e., keeping CTK in the UK long enough to exercise the reconsideration opportunity) was the prudent course. Arguments that removal deterred unsafe crossings could not trump compliance with domestic policy and process rights, particularly as the bilateral Treaty cited by the Secretary of State had not been incorporated into domestic law and therefore had no domestic legal effect capable of displacing the guidance-backed promise.

The court also noted the statutory context: if a positive Reasonable Grounds decision were reached on reconsideration, section 61(2) of the Nationality and Borders Act 2022 would impose a statutory bar to removal. Removing a person before they can pursue the reconsideration expressly offered to them risks depriving them of that statutory protection—further justifying the precautionary approach adopted by the judge.

Impact and Forward Look

The judgment is immediately significant in four respects.

Pre-17 September 2025 cases and individual decision letters promising reconsideration. For any case governed by version 4.1 of the statutory guidance—and especially where the CA’s decision letter explicitly offers a 30‑day reconsideration window—this judgment strongly suggests that removal before that window closes will be unlawful where reconsideration cannot be pursued post-removal. The Court expressly treated the offer in the decision letter, aligned with the then-published guidance, as binding in public law absent a properly reasoned and articulated departure.
Post-17 September 2025 policy change (version 4.2). The Secretary of State amended the guidance the day after the High Court decision so that reconsideration is not available where removal is proposed to an ECAT signatory. While the lawfulness of that policy change was not in issue in CTK’s appeal, the change is likely to generate litigation. Potential axes of challenge include:
- Consistency with section 49(1) of the 2015 Act (are “arrangements for determining” Reasonable/Conclusive Grounds undermined if reconsideration is selectively withheld precisely where removal is imminent?).
- Procedural fairness and legitimate expectation where an individual decision letter already promised a 30‑day reconsideration (an individualized assurance may survive a general policy change).
- Irrationality where the Competent Authority identifies evidential gaps and, in the same breath, withholds a meaningful opportunity to supply the missing material.
- Whether preventing reconsideration whenever removal is proposed to an ECAT state unlawfully conflates trafficking protection and immigration control aims, particularly in light of the statutory bar to removal following a positive Reasonable Grounds decision.
Deterrence and bilateral arrangements cannot displace domestic public law duties. The Court’s treatment of the unincorporated “Prevention of Dangerous Journeys” Treaty as carrying no domestic legal weight, and of generalized deterrence submissions as non-decisive at the interim stage, is a clear signal: policy aims cannot override the legal duty to follow one’s own guidance and to respect process rights conveyed to individuals.
Institutional point: the Secretary of State and her “own specialist civil servants”. The court’s observation that it is strongly arguable the Secretary of State lacks power to repudiate a lawful decision by the CA operating under published guidance has systemic weight. It underscores the procedural integrity of the CA’s functions within the Home Office and cautions against ad hoc executive overrides of guidance-compliant decisions.

Complex Concepts Simplified

NRM and the Competent Authority (CA): The National Referral Mechanism is the UK framework for identifying and supporting potential victims of modern slavery/trafficking. The CA (here, the Immigration Enforcement Competent Authority, IECA) makes two sequential determinations:
- Reasonable Grounds (RG): Is there reason to believe the person is a victim? A positive RG triggers protections, including a statutory bar on removal under section 61(2) of the Nationality and Borders Act 2022.
- Conclusive Grounds (CG): A final decision whether the person is a victim on the balance of probabilities, with limited leave potentially available under section 65 of the 2022 Act.
Reconsideration (version 4.1): The guidance then in force allowed one reconsideration of a negative RG/CG decision within 30 days either where new evidence may change the result or where the decision appears inconsistent with the guidance. The CA’s letter to CTK mirrored this policy and provided a live, 30‑day opportunity.
Version 4.2 change (17 September 2025): The guidance was amended to disapply reconsideration where removal is proposed to an ECAT signatory state. This shift post-dated the High Court’s injunction and did not retrospectively alter the promise already made to CTK in his CA letter.
ECAT and “Tier 1”: The Council of Europe Convention on Action Against Trafficking in Human Beings sets standards for protection and investigation. A “Tier 1” ECAT signatory is shorthand for a state fully adhering to those standards. However, in the UK’s dualist system, treaties bind internationally but have no domestic legal effect unless incorporated into domestic law. ECAT’s existence does not displace domestic public law duties under UK statutes and guidance.
American Cyanamid interim relief test: An injunction can be granted where there is a serious issue to be tried, damages would be an inadequate remedy, and the balance of convenience (including preserving the status quo) favours interim protection pending final determination. This applies in public law, adapted to context.
Rolled-up hearing: A procedural device in judicial review where permission and the substantive application (or interim relief) are heard together due to urgency.
Dualism v Monism: The UK is dualist: treaties require domestic incorporation to have internal legal effect. France is monist, but the Court was not in a position to say whether CTK could compel ECAT compliance in France; in any event, this was irrelevant to the UK’s domestic duty to follow its own guidance.

Practice Points

Where a CA decision letter offers a 30‑day reconsideration, removal should ordinarily be paused to permit its exercise, especially if the CA will not consider a reconsideration from abroad.
Judicial review from abroad is not a substitute for reconsideration: it does not allow new evidence nor a merits redetermination.
For pre-17 September 2025 cases, retain the CA letter: the individualized promise may found a strong public law position even if general guidance has since changed.
Where deterrence and policy arguments are advanced against interim relief, courts are likely to prioritise compliance with published guidance and the preservation of the status quo.
Expect litigation testing version 4.2’s lawfulness and its interaction with individualized assurances and statutory duties.

Conclusion

The Court of Appeal’s refusal of permission in CTK clarifies a robust and practical principle in the trafficking/removal context: when the Competent Authority has, consistently with published statutory guidance, given a claimant a 30‑day right to seek reconsideration of a negative Reasonable Grounds decision, the Secretary of State must not defeat that opportunity by removing the claimant before it can be exercised—especially where the CA will not entertain reconsideration or new evidence from abroad. Arguments about ECAT compliance, bilateral treaties, or general deterrence cannot override the domestic public law duty to follow one’s own guidance and respect explicit process assurances given to individuals.

While the Secretary of State moved swiftly to amend the guidance (version 4.2) to withhold reconsideration where removal to an ECAT signatory is proposed, CTK stands as a coherent statement that, under version 4.1 and decision letters issued pursuant to it, the domestic reconsideration route must be preserved. The decision underscores the limits of executive latitude in urgent removal cases and highlights the judiciary’s readiness to preserve the status quo to protect meaningful procedural rights conferred by statutory guidance and individual decision letters.