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The home secretary’s decision to reduce protections for potential trafficking victims to allow the “one in one out” asylum returns deal to proceed was unlawful, a high court judge has ruled.
The legal challenge was brought by five small boat asylum seekers earmarked for return to France – four from Eritrea and one from Sudan. It related to a change in guidance on the one in one out scheme, which meant that those denied trafficking protections no longer had the right to ask for it to be reconsidered.
In a lengthy judgment published on Friday morning, Mr Justice Sheldon found that Shabana Mahmood’s decision on the guidance was unlawful.
But other elements relating to individual decisions taken by the home secretary relating to the five cases were found to be lawful.
The judge found that the decision to amend the trafficking guidance to prevent reconsideration of cases given an initial negative decision made a “real difference” in two of the asylum seekers’ cases, but did not make a difference in two of the other cases.
All five asylum seekers were given permission by the judge to proceed with their legal claims.
The judgment is likely to have significant implications, with many asylum seekers who arrive in small boats potentially victims of trafficking, especially if they have passed through Libya on their journey to the UK.
The one in one out deal involves one person who has travelled from France to the UK on a small boat being forcibly returned to France in exchange for another asylum seeker in France who has not attempted to cross the Channel.
Mahmood amended the trafficking reconsideration guidance in order to expedite returns of some small boat arrivals to France.
Since the scheme started last August it is likely that more than ۱,۰۰۰ people have been removed to France under the scheme. Many have subsequently disappeared. Hundreds more small boat arrivals are in UK detention centres awaiting forced return to France.
The home secretary argued that because France is a signatory to treaties protecting trafficking victims that their cases could be dealt with in France. However, the court heard evidence that victims of trafficking who are not French or were not trafficked in France do not get the same protections in France. In the UK all trafficking victims have a right to the same protections.
