A High Court test case on Britain’s France returns scheme turned not on human rights doctrine but on a Home Office caseworking entry nobody read. The government won the legal standard it wanted and lost the case anyway.
On 16 October 2026, Mr Justice Fordham handed down the third and final merits judgment in R (EXR) v Secretary of State for the Home Department (No.3) [2026] EWHC 2527 (Admin), a test case on how the Home Office decided who counted as an adult for removal to France under the UK-France Treaty 2025. The court quashed four Home Office age decisions, declared three planned removals unlawful, and formally declared that the Home Secretary had committed “serious breaches of her duty of candour to the Claimant and the Court.”
The ruling arrived roughly two weeks after the Home Office confirmed that the “one in, one out” scheme was “no longer processing new cases.” Coverage of the scheme’s end has focused on cost and scale. The EXR judgment documents something more basic: in the case chosen to test the scheme’s legal machinery, the department responsible for removals did not consult its own records, and those records said the assessment it relied on was not compliant with its own policy.
The Scheme and the Child Exclusion
The treaty came into force in August 2025. It allowed the UK to detain small-boat arrivals, declare their asylum claims inadmissible, and return them to France, in exchange for admitting an equal number of people from France through a vetted legal route. According to the Home Office’s own published figures, 1,087 people were returned to France and 1,117 were transferred into the UK between 6 August 2025 and 30 June 2026. Over the same period, according to Euronews, 27,920 people arrived by small boat.
One feature of the scheme was not in dispute. Unaccompanied children were excluded. As Fordham J explained (§3(iv)), the Home Office’s own Selection Instructions told decision-makers that unaccompanied asylum-seeking children were “not eligible,” giving effect to “an express exclusion in UFT Art 4, an exclusion with an important child-protection rationale.” That made age the hinge of every contested removal. If an adult was wrongly treated as a child, the scheme lost a removal. If a child was wrongly treated as an adult, the removal was unlawful.
The Government Won the Standard It Wanted
One fact about this case deserves emphasis. The Home Office won the first round decisively. In a first judgment in June 2026, Fordham J rejected the claimant’s argument that the court should decide his age for itself. He held instead that the ordinary, more deferential reasonableness standard of judicial review applied. The court would not ask whether the Home Office got the age right. It would ask only whether the decision fell within the range of reasonable responses, on the evidence available at the time. A second judgment in July set out how that review would work.
For an enforcement scheme built on speed, this was the favorable outcome. A correctness standard would have invited a full factual hearing on age in contested cases. Reasonableness review gives officials a margin for error. The October judgment shows the Home Office still could not meet it.
What the Record Shows
The claimant, anonymized as EXR, arrived by small boat on 29 September 2025, gave Eritrea as his country of origin, and claimed asylum. He said repeatedly that he was 25, born on 22 July 2000. He said so at initial screening, at booking-in at Manston, at his asylum screening interview, at a detention induction interview, and at a National Referral Mechanism interview (§6). On 13 October 2025, eleven days into detention and after being told he would be removed to France, he said he was in fact 17, born on 22 July 2008 (§8).
The court found the Home Office’s first two decisions to treat him as an adult were reasonable. Fordham J also recorded a Border Force officer’s assessment that EXR’s explanation, that smugglers in France told him to claim to be an adult, was “far from the norm,” because “agents generally encourage adults to pretend to be children if they believe they look young enough” (§8(iv)). The judgment did not dismiss that view. Its findings concerned what the Home Office did next.
The unread entry. In November 2025, Hillingdon Council social workers conducted a brief age assessment and concluded EXR was an adult. Under the Home Office’s Assessing Age guidance, a local authority assessment can be relied upon only if it is “Merton-compliant,” meaning it meets procedural standards set by case law, including engagement with documents the claimant submits. The Hillingdon assessment did not address a scanned birth certificate EXR had produced. The Home Secretary conceded at the September 2026 hearing that the assessment was non-compliant on that basis (§15).
The Home Office had recorded the same conclusion ten months earlier. On 24 November 2025, the Home Office caseworker later identified as “the decision-maker” answered a question in ATLAS, the department’s immigration caseworking system: “Is there sufficient evidence the decision is Merton-compliant?” The recorded answer was “No” (§16). Four days later, the Home Office told EXR’s solicitors it had considered the Hillingdon assessment and “maintained its decision to treat your client as an adult.” On 9 December 2025 it declared his asylum claim inadmissible on that basis and set removal for 18 December.
The judge’s assessment was direct: “The ATLAS entry was very important. It should have stood as a bar on any removal.” He also found that there was no reasoned decision document for that November decision at all, describing “a documentary vacuum” (§14). The entry was not disclosed until June 2026. The judgment records that the Home Secretary’s own counsel became aware of it only shortly before 5 June 2026 (§19(ii)).
The repair attempt. After judicial review proceedings began and the High Court blocked the December removal, the Home Office told the court on 6 January 2026 that it had “decided to reconsider.” Four days earlier, a Home Office official had written to Hillingdon, saying the department was “working with our legal team to defend the [judicial review]” and needed “to take some remedial action.” It asked the council to update its assessment by considering three specific items (§21). The claimant’s solicitors, who had asked to take part in the reconsideration, were told nothing about this request (§24).
The resulting paper reassessment again concluded EXR was an adult. But it omitted his 12-page witness statement, which bore a statement of truth and explained how the birth certificate had been obtained. The reassessment then faulted him for failing to provide “a clear narrative as to how you obtained the document” (§25). Fordham J called the omission “a stark failure to take account of a plainly relevant consideration.” He summarized the pattern: “First time around, it was the birth certificate. Second time, it was the witness statement.”
The court rejected the claimant’s allegation of apparent bias against the council. It found instead that the process the Home Office designed was unfair (§24). Removal was rescheduled for 5 March 2026 and then for 26 March 2026, and was cancelled each time. On 25 March, hearing the Home Office’s application to discharge the injunction, a different High Court judge, Butcher J, found “evidence on which it could be found that EXR is a child” (§37). The injunction restraining removal remained in place (§1). Fordham J held that a decision not to reconsider, resting on the same flawed premise, could not survive: “A decision not to reconsider an unreasonable age decision cannot be a reasonable age decision” (§36).
Candour: Three Removals, Three Breaches
In judicial review, a public body must put relevant facts before the court, including facts that hurt its case. Fordham J found the Home Secretary breached that duty in connection with each of the three removal dates. For the December date, the failure was the undisclosed ATLAS entry. For March, it was the ATLAS entry plus the undisclosed January correspondence with Hillingdon, which the judge called “a serious double breach of the duty of candour” (§§19, 28, 39). According to the judgment, the Home Office’s position was that “the basic due diligence of accessing the primary source of ATLAS” was not undertaken “at any stage until June 2026.”
The breaches were aggravated, the judge found, because EXR’s solicitors had asked in December 2025 for “Any records and notes relating to the SSHD’s consideration of and reliance on LB Hillingdon’s age assessment.” The undisclosed entry “fell squarely within that request” (§19(iii)). The judgment records that the Home Secretary accepted the breaches and apologized to the court. Of each removal, Fordham J wrote: “It could have been disastrous.”
This is not the first time this autumn that the High Court has examined Home Office candour. Earlier this month RSN reported on a case in which the department’s defense implied the existence of family detention accommodation that had been closed since 2020. RSN also reported a ruling that the Home Office had changed asylum accommodation rules for torture survivors without consulting the charities involved. Different policies, different cases. In each, the department’s account to the court did not match its own records.
The Strongest Case for the Home Office
Fairness requires stating the Home Office’s position at full strength, and the judgment does so. Fordham J listed what he called “powerful features” supporting the department’s view that EXR was an adult (§42):
- EXR’s repeated assertions after arrival that he was 25, born in July 2000.
- The speed with which, having said on 13 October that he could obtain a birth certificate, his mother was said to have obtained one in Eritrea the next day and moved it to an uncle in Uganda by 16 October.
- The uncle’s account of two different original certificates, offered only after the Home Office identified differences in the stamp between the scanned copy and the original.
- The limits of the claimant’s expert evidence, which addressed plausibility rather than authenticity and contained errors Butcher J had described as “most regrettable” (quoted at §37).
- Assessments of physical appearance and demeanour by Home Office officials, a social worker, and experienced council social workers.
The judge also cited Court of Appeal authority that “anxious scrutiny may work both ways,” and that genuine asylum seekers “will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies” (§41, quoting Carnwath LJ in R (YH) v SSHD [2010] EWCA Civ 116). The Home Office did not run that argument. The judgment states that it “did not mount a pleaded claim, or any sustained argument” that EXR’s account was manifestly contrived (§42).
That is the central point. The court did not find that EXR is a child. It found that the Home Office’s process for deciding he was an adult was unlawful, and that the department did not make the strongest available case in its own defense.
Proven, Disputed, and Not Established
Established by the judgment: four age decisions (28 November 2025, 2 February 2026, 9 March 2026, and 18 March 2026) were unreasonable and were quashed. The 9 December 2025 inadmissibility decision, maintained on 17 March 2026, was unlawful. Removal decisions made on 9 December 2025, 24 February 2026, and 17 March 2026 were unlawful. The Home Secretary committed serious breaches of the duty of candour in connection with all three scheduled removals. She must pay EXR’s costs on the age issues, including a 35 percent payment on account (§§43-44).
Not decided: EXR’s actual age. Whether his asylum claim has merit. The lawfulness of his detention, which stands adjourned. A separate trafficking-related age question that the court held is for the Upper Tribunal (§4). The judgment states that EXR turned 18 on 22 July 2026 on his own account (§3(i)).
Not established: RSN has found no published evidence of how many other treaty removals involved contested ages, adverse ATLAS entries, or non-compliant local authority assessments. Nor is there evidence that litigation of this kind caused the government to end the scheme. Home Secretary Shabana Mahmood told the Home Affairs Committee in September that it had been difficult “to scale up very large numbers of removals every week into the French system,” according to LBC, and put the cost at “about £56,000” per person returned. Whether cases like EXR’s contributed to that difficulty is a reasonable question. It is not a proven fact.
Why It Matters
For those who want the Channel crossings stopped, the instinctive reaction to a ruling like this is to blame the judges. The record does not support that reaction. The judge gave the Home Office the deferential standard it asked for. He accepted that its first decisions were reasonable. He recorded the evidence pointing toward adulthood, rejected the bias allegation against the council, and noted the Home Office’s own failure to argue its strongest point. What defeated the department was its own conduct. It relied on an assessment its caseworker had flagged as inadequate. It ran a reconsideration that its own official described to the council as part of the effort “to defend” the judicial review. And it failed to disclose either to the court.
That matters well beyond one Eritrean claimant. Any credible returns policy, whether bilateral with France or under the asylum reforms RSN examined earlier this month, depends on decisions that can survive review. The safeguards at issue here were not imposed by activist courts. They are the Home Office’s own: its child exclusion, its Assessing Age guidance, and its instruction that ATLAS “must be updated as promptly and accurately as possible.” A department that writes such rules and then does not read its own entries hands its opponents their strongest arguments. Each failure becomes another injunction, another cancelled flight, another costs order paid by taxpayers.
The opposite failure is just as serious. The treaty excluded children for safeguarding reasons. Had the December removal gone ahead, the judge found, it would have been unlawful, resting on an assessment the Home Office’s own system recorded as non-compliant. A government that cannot reliably separate adults from children cannot credibly enforce against the adults.
What Comes Next
The court has ordered the Home Secretary to file a witness statement by 16 November 2026 addressing each identified candour breach. EXR may respond by 27 November, and the Home Secretary may reply by 4 December, after which the judge will consider the papers further (§45). That statement should explain why no one consulted ATLAS for more than six months while the department pursued three removal dates.
Parliament should ask the broader question the judgment cannot answer. As the Home Affairs Committee reviews the scheme’s legacy, it should require the Home Office to disclose how many treaty cases involved disputed ages, how many relied on local authority assessments recorded in ATLAS as not Merton-compliant, and how many removals were cancelled after litigation. The scheme is closed to new cases, but the department that ran it remains responsible for the next returns arrangement. If the problem in EXR’s case was systemic, Parliament and the public are entitled to know before any successor scheme repeats it.
Sources
- R (EXR) v SSHD (No.3) [2026] EWHC 2527 (Admin), Fordham J, 16 October 2026 (approved judgment; paragraph references in the text)
- R (EXR) v SSHD [2026] EWHC 1568 (Admin) (first judgment, standard of review)
- R (EXR) v SSHD (No.2) [2026] EWHC 1726 (Admin) (second judgment)
- Home Office: transfers and returns under the UK-France Agreement, 6 August 2025 to 30 June 2026
- GOV.UK: UK-France treaty targeting illegal crossings comes into force
- Home Office: Assessing age instruction (the judgment applied version 12.0 of December 2025; the current published version is 13.0)
- Euronews: UK ends ‘one in, one out’ migrant returns deal with France (30 September 2026)
- LBC: Home Secretary’s evidence to the Home Affairs Committee on scheme costs
Featured image: Home Office headquarters, 2 Marsham Street, London. Photo by Steph Gray via Wikimedia Commons, licensed CC BY-SA 2.0.