DS, R (on the application of) v Secretary of State for the Home Department

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.

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.

1. The claim succeeded. The reconsideration policy was unlawful.
2. The state’s duty to identify trafficking victims is continuing. Relevant fresh evidence casting doubt on an earlier negative decision must be considered.
3. First responders and support providers may triage requests, but cannot replace or usurp the Single Competent Authority’s decision-making function.
4. 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.
5. Administrative efficiency and resource concerns could not justify disregarding potentially relevant evidence. The judgment itself was sufficient remedy.