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

Delay in making a conclusive grounds decision under the National Referral Mechanism must be reasonable in its legal and practical context. The duty to decide as soon as possible does not require strict first-in, first-out processing. It permits prioritisation of urgent cases and the allocation of finite resources among competing public interests, provided the system remains flexible and is not irrational.

Operational prioritisation guidance is not necessarily a public policy requiring publication. Internal guidance directed to civil servants, which changes with operational demands and does not determine individual outcomes, falls outside the publication principle in [2011] UKSC 12. Delay will not establish a breach of articles 4, 8 or 14 ECHR without a sufficiently established public law error, discriminatory effect or unjustified interference.

The claimant, a Kenyan national and potential victim of trafficking, received a positive reasonable grounds decision in August 2019 but did not receive a conclusive grounds decision until April 2023. She challenged the delay in her individual case, alleged systemic unlawfulness in the National Referral Mechanism, and challenged the defendant’s Prioritisation List for conclusive grounds decisions.

The issues included irrationality, articles 4, 8 and 14 ECHR, discrimination under the Equality Act 2010, the public sector equality duty, and whether the Prioritisation List required publication. By the substantive hearing, the individual delay claim was academic and the published guidance had been amended to address prioritisation.

1. Outcome. The claim was dismissed. No declaration, quashing order or mandatory order was granted.
2. Delay and prioritisation. The requirement in the statutory guidance that conclusive grounds decisions be made as soon as possible means as soon as reasonably possible within the practical and legal constraints of the National Referral Mechanism. It does not impose a rigid first-in, first-out rule. Prioritisation is lawful in principle where it responds to urgency, vulnerability, criminal justice needs, age-change cases or other legitimate operational objectives.
3. The defendant’s allocation system and Prioritisation List were not irrational. The evidence showed that the List was applied flexibly, including provision for safeguarding and older cases. The allocation of finite resources was principally an executive responsibility. The claimant’s disagreement with the ranking of categories did not establish public law error.
4. The delay in the claimant’s own case was regrettable but reasonable in context. Awaiting the asylum interview and seeking further information were open to the defendant. The later decision to proceed on existing evidence did not retrospectively make the earlier approach unlawful. The claim was also academic because a conclusive grounds decision had been made.
5. There was no breach of article 4 ECHR. The investigation duty concerns investigation capable of identifying and punishing traffickers, and the National Referral Mechanism was not the mechanism by which that duty was discharged. The evidence did not establish a breach of the protection duty or a failure to facilitate recovery.
6. The article 8 claim added little to the article 4 claim and failed. Any interference was not established and, in any event, was justified. The article 14 claim failed because any differential treatment was justified by high-level immigration and foreign-relations policy.
7. Direct discrimination in relation to Albanian cases was authorised by paragraph 1 of Schedule 23 to the Equality Act 2010. Any indirect discrimination was justified as a proportionate means of achieving a legitimate aim. The public sector equality duty was substantive but did not require the defendant to achieve a particular result; the evidence showed due regard had been paid.
8. The Prioritisation List was internal administrative guidance, directed to civil servants and resource allocation. It was temporary, flexible and did not determine individual outcomes. It was therefore not a public policy requiring publication under [2011] UKSC 12. The later publication of prioritisation arrangements in the guidance did not establish that the earlier List had always required publication.