Stephanie Harrison KC and Georgie Rea of the Garden Court Immigration and Public Law Teams were instructed by Isabel Christ and Nancy Collins of Bindmans.
The High Court has today handed down judgment in R (EXR) v Secretary of State for the Home Department (No.2) [2026] EWHC 1726 (Admin), a significant test case concerning how courts review decisions made by the Home Secretary to treat a young person as an adult rather than a child.
The case arises in the context of the UK-France Treaty removal arrangements and the National Referral Mechanism for victims of trafficking.
This judgment follows an earlier ruling (EXR No 1 [2026] EWHC 1568 (Admin)) in which the Court held that decisions by the Home Secretary to treat an individual as an adult for the purposes of removal under the UK-France Treaty are reviewed on a reasonableness standard rather than by the Court making its own determination of age.
In this Judgment, the core question was whether for trafficking decisions, a different standard is applied, and the Court is to make its own determination of age. Mr. Justice Fordham answered that question in the affirmative.
Isabel Christ and Nancy Collins of Bindmans LLP instructed Stephanie Harrison KC of Garden Court Chambers leading Shu Shin Luh, Agata Patyna (Doughty Street Chambers) and Georgina Rea (Garden Court Chambers).
About the Claimant
The Claimant, EXR, is an Eritrean national and unaccompanied asylum-seeking child who suffered four separate incidents of human trafficking and modern slavery in his country of origin and on his journey to the UK. He arrived in the UK at the end of September 2025, aged 17. The Home Secretary disputed his age and treated him as an adult, rather than a child for decisions made for his removal under the UK-France Treaty and for decisions made in the National Referral Mechanism as to whether he had suffered human trafficking and modern slavery in his country of origin or on his journey to the UK.
Key Findings
Age is Objective Fact for the Court in trafficking decisions
In the first ruling on the issue, Mr. Justice Fordham held that where age forms part of the legal criteria for determining whether a person is a victim of trafficking, the court is entitled to determine whether the decision-maker got the age question right, rather than merely asking whether the decision was reasonable. This applies not only to elements of the statutory trafficking definition that expressly distinguish between children and adults, but also to child-specific provisions in the Modern Slavery Statutory Guidance relating to the assessment of the individual’s account of trafficking, including their credibility.
In reaching this conclusion, the Court rejected the Home Secretary’s narrower position that the correctness of age was only relevant to the definition of human trafficking and was not relevant to the credibility assessment of an individual’s claim.
Findings
Age within the trafficking definition itself
The Court noted that the definition of a “victim of human trafficking” in the Slavery and Human Trafficking (Definition of a Victim) Regulations 2022 expressly distinguishes between adults and children, and section 56 of the Modern Slavery Act 2015 cross-refers to these Regulations.
For adults, the decision-maker must establish one of the specified trafficking “methods” (such as coercion, deception, abuse of vulnerability etc.). For children, no such requirement applies because “any method” is sufficient. The regulations also contain child-specific forms of sexual exploitation. Whether a person was an adult or a child at the relevant time can therefore determine whether the legal definition is met.
The Secretary of State accepted, and the Court agreed, that in this situation age attracts a correctness standard. If the decision-maker concludes that an individual was an adult when in fact they were a child, the court is entitled to determine that question for itself. The legality of the decision depends upon the correct answer, not merely a reasonable one.
The principle extends beyond the trafficking definition
The more important part of the judgment is that the Court held that this logic is not confined to the statutory definition of trafficking. Age may also be a factor in the process by which decision-makers assess whether someone is a trafficking victim. Fordham J gave the example of credibility assessments. A person’s age may determine the way in which their evidence is to be approached. Thus, even though age is not part of the trafficking definition itself, it may still materially affect whether a victim’s claim succeeds or fails.
Child-specific provisions in the Statutory Guidance
The Court focused particularly on the Modern Slavery Statutory Guidance. The guidance contains provisions requiring special treatment of children, including:
- special consideration of the developmental stage, maturity and trauma experienced by children;
- recognition that children may struggle to disclose exploitation;
- a strong expectation that children will not suffer adverse credibility findings based solely on delayed disclosure; and
- a range of child-specific trafficking indicators.
Fordham J held that these provisions are not merely ordinary policy guidance. They are issued under a statutory duty in section 49 of the Modern Slavery Act 2015 and form part of the UK’s implementation of the Council of Europe Convention on Action against the Trafficking in Human Beings, which requires identification procedures to take due account of the special situation of child victims.
Requirements for Standard of Reasonableness where age is relevant to UK-France Treaty removals
Mr. Justice Fordham reaffirmed his earlier conclusion that, for decisions on whether an individual should be treated as an adult for the purposes of removal under the UK-France Treaty (UFT), the applicable standard of review is reasonableness, not correctness. The court is not deciding age for itself; it is reviewing the lawfulness of the Secretary of State’s decision to treat the person as an adult.
However, this second judgment is important because it explains how demanding that reasonableness review is in practice.
(1) Age-assessment decisions must be subject to anxious scrutiny
The Court held that where a young person challenges a decision treating them as an adult for removal purposes, the ordinary public law standard of reasonableness applies, but with close anxious scrutiny. This reflects the exclusion of children from removal under the UK-France Treaty and the serious consequences of wrongly treating a child as an adult and potentially removing them from the UK. Thus, although the legal standard remains “reasonableness”, the court will scrutinise the decision-making process and evidential basis very carefully.
(2) The Public Interest Does Not Dilute the Standard
The Home Secretary argued that the public interest in the efficient operation of the UK-France Treaty scheme should reduce the intensity of review.
Mr. Justice Fordham expressly rejected that submission and held that the effective operation of the UFT includes the effective operation of the child-protection exclusion itself. The need for an efficient removals scheme may justify expedited judicial scrutiny, but it does not justify reducing the standard of scrutiny. This is an important indication that the court envisages a robust application of a reasonableness review.
(3) Fresh Evidence Must Be Capable of Being Considered
The Court held that claimants may rely on evidence obtained after the Home Secretary’s age decision. If new evidence could realistically affect the age assessment, it may be relied upon to challenge the lawfulness of maintaining the previous decision. That again points to a more intensive form of review than a simple examination of the material that existed at the date of the original decision.
(4) Courts can scrutinise whether age assessments comply with Merton principles
The Court held that an individual may collaterally challenge an age assessment on the basis that it does not comply with the standards required by R (B) v Merton LBC. While the overall standard remains one of reasonableness, the Court will itself consider whether the assessment complied with the objective legal requirements of Merton. That remains a necessary part of the analysis. But the ultimate legal question remains one of reasonableness, namely whether it was reasonable for the Secretary of State to be satisfied that the assessment was Merton-compliant.
The Court went on to say that the Home Secretary’s “latitude is narrow” where she concludes that an age assessment is Merton-compliant when it is not.
(5) Benefit of the doubt remains important
The Court recognised the importance of giving the benefit of the doubt in appropriate cases, reflecting both the child-protection rationale underlying the exclusion of children from removal under the UK-France Treaty and the serious consequences of wrongly treating a child as an adult. He noted that both the Home Secretary’s “significantly over 18” policy and aspects of the age-assessment guidance recognise the importance of giving the benefit of the doubt in finely balanced cases.
The Court held that in a UFT case, what must be shown reasonably is that the individual is clearly an adult, and not a case where there is doubt. Whether a particular decision is reasonable will depend on the facts and reasoning in the individual case.
Significance
The judgment provides important clarification of the legal framework governing age disputes in both immigration and trafficking contexts. It confirms that while decisions to treat a young person as an adult for UK-France Treaty removal purposes are generally reviewed on public law reasonableness grounds, courts will closely scrutinise such decisions and may examine compliance with fundamental procedural safeguards. At the same time, the judgment recognises that in trafficking decision-making, age may in certain contexts be a matter requiring objective correctness rather than mere reasonableness.
The Court will now proceed to consider the substantive merits of the claimant’s challenges to the Home Secretary’s age-related decisions and the negative trafficking decision.
To contact or instruct Stephanie Harrison KC or Georgina Rea, please email: contactmyclerks@gclaw.co.uk
