R (EXR) v Home Office: correctness standard applies to age in trafficking decisions

Where statutory guidance draws an important distinction between the approach owed to a child and that owed to an adult, and a decision-maker treats an individual as an adult in a way material to a negative trafficking decision, the court reviews that element for correctness rather than reasonableness.

That is the central holding of R (EXR) v Secretary of State for the Home Department (No.2) [2026] EWHC 1726 (Admin), handed down by Mr Justice Fordham on 10 July 2026. It is the sequel to a judgement of 25 June, in which he held that a reasonableness standard governs decisions to treat an unaccompanied individual as an adult for the purposes of removal to France under the UK-France Treaty 2025.

Anxious scrutiny, not diluted review

Four questions were left over from the first judgement. On the closeness of scrutiny, Fordham J held that anxious scrutiny applies, given the impact of the decision and the deliberate child-protection rationale for excluding unaccompanied children from the Treaty arrangements.

He rejected the submission that the public interest in the effective working of those arrangements reduces the intensity of review. The effective working of the arrangements includes the effective working of the exclusion for children. Asylum policy often supports expeditious scrutiny, but that is no reason to lower the standard of the scrutiny itself.

Fresh evidence post-dating the impugned decision may be relied upon. The Assessing Age Guidance requires review where new information carries a realistic prospect of a different assessment, and such material is not barred on admissibility grounds in judicial review.

On collateral challenge to a local authority age assessment relied upon as Merton-compliant, the analysis was described as nuanced. Absent authority, the judge would have held that the court simply determines Merton-compliance for itself, that being an objective legal standard identifying minimum standards of fair procedure. Bound by AAM and R (J), he held the overarching question remains one of reasonableness. But the practical distance between an answer that is wrong and one that is unreasonable is limited. The Home Secretary's latitude, he said, is narrow.

As to what must be reasonable, he would not be surprised to find in the Treaty context that the position requiring justification is that the individual is clearly an adult, though that turns on the facts and reasoning in each case.

Statutory guidance carries statutory force

The second issue concerned age within a Reasonable Grounds decision in the National Referral Mechanism. The Home Secretary accepted that correctness applies where "adult" and "child" feature in the victim test in regulation 3 of the 2022 Regulations, and would apply to section 59 of the Nationality and Borders Act 2022 were it in force.

Fordham J extended that logic to the Modern Slavery statutory guidance. Section 49 of the Modern Slavery Act 2015 imposes a duty to issue guidance on the indicators of victimhood. Read with Article 10(1) of ECAT, which requires due account of the special situation of child victims, that duty must be interpreted as requiring criteria addressing that special situation. Guidance which omitted child indicators would have been unlawful.

The consequence is that the guidance on assessing the timing of disclosure in children, and the child-specific indicators more broadly, engage the correctness standard where the adult characterisation is material to a negative decision. The difference between legislation and statutory guidance did not justify a different conclusion.

The judge declined the wider proposition that "child" always attracts correctness wherever it arises in a trafficking context, that route being unnecessary to the question before him.

Declarations were made by consent. The claimant's challenge to the negative Reasonable Grounds decision of 5 June 2026 transfers to the Upper Tribunal for fact-finding on age. A further hearing on the reasonableness of the adult treatment, and on the Home Secretary's compliance with the duty of candour, is expected on 17 September 2026.