OA (Nigeria) v Secretary of State for the Home Department

A public authority may follow an unchallenged published policy governing reconsideration requests under the National Referral Mechanism where the request is made in a capacity, and by a person, outside the policy’s scope. The decision is not irrational merely because the authority also has another statutory or administrative role, unless the factual circumstances show that following the policy leaves relevant new material without any realistic route to consideration. The legality of the decision must be assessed on the facts known when it was made, rather than by reference to difficulties arising later.

The claimant, a Nigerian national, challenged the defendant’s refusal to reconsider a negative reasonable grounds decision under the National Referral Mechanism for identifying victims of modern slavery. His solicitors submitted an expert psychological report during existing judicial review proceedings and invited reconsideration. The defendant refused because the request had not been made by a first responder or support provider involved in the case, as required by the published Competent Authority Guidance.

The claim was initially filed in the Upper Tribunal and was transferred to the High Court. Permission was granted on the challenge to the refusal to reconsider the trafficking decision. The central issue was whether applying the published policy in the circumstances known on 20 June 2017 was irrational or otherwise unlawful.

1. Claim dismissed. The decision challenged was properly characterised as a decision to follow the published Victims of Modern Slavery – Competent Authority Guidance, and to inform the solicitors how the new material should be put forward. It was not an unlawful refusal to consider the substance of the report.
2. The claimant’s letter was directed to the defendant in its capacity as competent authority. It expressly sought reconsideration of the reasonable grounds decision in the context of ongoing litigation. The policy stated that reconsideration requests could be made only by first responders or support providers involved in the case. Solicitors were not designated first responders.
3. The defendant was also a first responder, but the claimant had not, by 20 June 2017, asked it to act in that capacity. Nor had the claimant established that another first responder would refuse to make a referral. The later refusal by the Salvation Army could not be used to demonstrate that the earlier decision was irrational.
4. The positive obligation to identify and assist potential victims of modern slavery did not require the defendant to disregard its published policy on the facts then known. If it had been apparent at the date of the decision that no route existed for the new material to be considered, the conclusion might have been different. That situation had not been established.
5. The expert report was not before the original decision-maker. The defendant was therefore not required, in determining the original judicial review challenge, to take it into account. The ground of challenge failed and the claim was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): The claimant initially filed judicial review proceedings challenging an immigration certification decision. The claim was transferred to the High Court by order dated 1 August 2017.
• High Court (Administrative Court): Permission was granted on the challenge to the refusal to reconsider the trafficking decision. The claim was dismissed.