O & Anor, R (On the Application Of) v The Secretary of State for the Home Department

Competent authorities must decide Conclusive Grounds trafficking cases within a reasonable time, although no fixed statutory or Convention deadline applies. Reasonableness depends on the nature and effect of the power, available resources and all the circumstances. Significant systemic delay is not unlawful merely because it reflects increased caseloads, tardy administrative response or failure to achieve best administrative standards. Unlawfulness requires an irrational system or unfairness inherent in the arrangements. The fairness threshold is high, and individual aberrant cases do not establish systemic unfairness. Vulnerability may rationally determine priority for support and attention without requiring expedited Conclusive Grounds decisions.

The claimants were potential victims of trafficking who had received positive Reasonable Grounds decisions under the National Referral Mechanism. They waited approximately 34 months and more than 19 months respectively for negative Conclusive Grounds decisions. They challenged the Home Office system, alleging that the delays were incompatible with the applicable international instruments and domestic guidance, irrational, systemically unfair and individually unlawful.

The central issues were whether the decision-making process was subject to a reasonable-time obligation, whether the accumulated delays demonstrated an irrational or inherently unfair system, and whether the delays in the individual cases were unlawful.

1. Reasonable time. The absence of a prescribed deadline did not give the competent authority unlimited time. The duty to decide within a reasonable period arose from the adopted guidance, the relevant international framework and ordinary public law principles. What was reasonable depended on the nature and effects of the power, the circumstances of the case, fairness and consistency, and available resources.
2. Established rights distinguished. Authorities concerning delay in recognising an already established right, including Phansopkar and Mersin, did not govern a case in which the claimant sought a decision whether a status had been established. The claimants had a right to a decision, but not an established right to trafficking status.
3. Systemic unlawfulness. The Home Office had been slow to respond to rising referrals and the resulting backlog. That criticism did not establish irrationality. The evidence showed efforts to gather and assess evidence, monitor cases and increase resources. The system was capable of improvement, but delay was not inherent in its design. The court would not substitute its own view on departmental resource allocation.
4. Fairness and prioritisation. The threshold for systemic unfairness was high. The question was whether unfairness was inherent in the arrangements, assessed across the full range of cases. The impact of delay on vulnerable potential victims was accepted, but Reasonable Grounds decisions already triggered protection, support and accommodation. A policy prioritising attention and support according to vulnerability, rather than expediting Conclusive Grounds decisions, was not irrational or demonstrably unfair.
5. The individual claims therefore failed for the same reasons. The claim was dismissed.