Summary
A public authority may use first responders or support providers to triage requests to reopen a negative trafficking decision, provided the competent authority retains the decision-making function. A policy requiring direct requests from victims or representatives to be rejected, while permitting intermediaries to ignore requests without considering them, unlawfully fetters the discretion to reconsider. The state’s duty to identify trafficking victims is continuing, and relevant fresh evidence must not be disregarded for administrative reasons.
Factual background
The claimant challenged the Home Office policy governing reconsideration of negative reasonable-grounds and conclusive-grounds decisions under the National Referral Mechanism. The policy excluded direct requests from victims, legal advisers and outside organisations, requiring them to proceed through a first responder or support provider.
The claimant’s individual trafficking claim was later reconsidered and accepted. The remaining issue was the lawfulness of the reconsideration policy.
Held
- The claim succeeded. The reconsideration policy was unlawful.
- The state’s duty to identify trafficking victims is continuing. Relevant fresh evidence casting doubt on an earlier negative decision must be considered.
- First responders and support providers may triage requests, but cannot replace or usurp the Single Competent Authority’s decision-making function.
- The policy allowed intermediaries to ignore requests and instructed the Authority to reject direct requests. It therefore created an unlawful fetter on the discretion to reopen negative decisions and amounted to an abdication of the state’s responsibility.
- Administrative efficiency and resource concerns could not justify disregarding potentially relevant evidence. The judgment itself was sufficient remedy.
The court’s approach to earlier authorities
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Key cases cited
6 authorities cited.
- Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12
- British Oxygen Co Ltd v Board of Trade (British Oxygen Co Ltd v Minister of Technology) [1971] AC 610
- TDT, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2018] EWCA Civ 1395
- Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Or [2014] EWCA Civ 1622
- S, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 546
- MN, R (on the application of) v Secretary of State for the Home Department & Anor [2018] EWHC 3268 (QB)
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Cases citing this case
1 later case · 1 caution
Most senior citing decisions:
- LH, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 3457 (Admin) explained
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