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

The claimant, a potential victim of modern slavery, challenged the Home Office's delay in issuing a conclusive grounds decision under the Modern Slavery Act 2015 and the lawfulness of an internal Prioritisation List used by the Single Competent Authority (SCA) to allocate conclusive grounds work. The court identified three main grounds: (1) unlawful delay in the claimant's individual conclusive grounds decision and alleged breach of Convention rights (articles 4, 8 and 14); (2) systemic unlawful delay across the NRM; and (3) unlawful failure to publish the criteria used to prioritise cases (the Prioritisation List).

The court held that, although the delay in the claimant's case and across the NRM was regrettable, the evidence did not establish irrationality or legal unlawfulness of the SCA's allocation processes. The Prioritisation List was an internal operational guide; it did not amount to a published policy requiring disclosure under the Lumba principle. The claimant had received a positive conclusive grounds decision during proceedings, rendering her individual delay claim academic. Claims under article 4 and article 8 ECHR and under the Equality Act 2010 (including the public sector equality duty) were rejected on the facts and as unjustified. The court also addressed the duty of candour and admissibility of expert evidence, admitting psychiatric evidence despite late service and admitting a limited expert witness on mental health impacts.

Background and parties

• The claimant is a Kenyan national referred to the National Referral Mechanism (NRM) after police contact in 2019 and received a positive reasonable grounds decision on 19 August 2019.
• She applied for judicial review challenging delay in receiving a conclusive grounds decision; the SCA issued a positive conclusive grounds decision on 4 April 2023 after proceedings were commenced.
• Counsel for the claimant and the Secretary of State were instructed and the matter was heard over several days in 2024.

Relief sought

• Declarations that individual and systemic delays were unlawful; declaration and quashing of the Prioritisation List; mandatory orders to publish any future prioritisation criteria; and damages under articles 4 and 8 ECHR (including article 14 arguments).

Issues framed by the court

1. Whether the defendant breached the duty of candour;
2. Admissibility of expert evidence (psychiatric report and witness statement);
3. Whether delay in the claimant’s case and systemically in the NRM was unlawful or unreasonable;
4. Whether Convention rights (articles 4, 8 and 14) were breached;
5. Whether the allocation / Prioritisation List was unlawful, including failure to publish, discrimination and breach of the public sector equality duty (PSED);
6. Appropriate relief, if any.

Court reasoning and disposition

• The court examined statutory and international instruments (Modern Slavery Act 2015 section 49; Council of Europe Convention on Action against Trafficking in Human Beings) and relevant guidance explaining that conclusive grounds decisions should be taken "as soon as possible" but with no fixed target.
• The Prioritisation List (first used 9 February 2023) arose after a Ministerial Arrangement concerning Albanian nationals. The List was an operational allocation tool and changed over time; it was not a public policy in the Lumba sense requiring publication.
• The court found no evidence of deliberate concealment of the List; late disclosure was a regrettable mistake that was rectified and did not produce unfairness that deprived the claimant of the ability to litigate the core issues.
• Systemic delay in the NRM was acknowledged and criticised as unfortunate, but prior authority and the evidence showed that the defendant had taken varied measures (recruitment, creation of IECA, operational prioritisation, training) and that prioritisation was a rational response to finite resources; the claimant failed to show unlawful irrationality.
• On Convention and equality claims the court held there was no established breach: the claimant had received reasonable support after a positive reasonable grounds decision, the protection duty under article 4 was not shown to be breached on these facts, and discrimination arising from the Ministerial Arrangement was authorised by statute and, in any event, justified on policy grounds.
• Expert evidence: the late psychiatric report was admitted given the absence of a clear prejudice to the defendant; parts of the other expert evidence were excluded as outside expertise.

Outcome

The claim was dismissed. The court concluded that while improvement in NRM performance is desirable, the legal threshold for judicial intervention on the facts was not met.

The claim is dismissed. The judge held that the delays, though regrettable and significant, did not demonstrate irrationality or unlawful systemic failure in the SCA’s decision-making; the Prioritisation List was an internal, flexible operational allocation tool and not a published policy requiring disclosure under the Lumba principle; article 4 and article 8 ECHR claims and equality/PSED challenges were not made out on the evidence; late disclosure of privileged material was an error that was corrected and did not vitiate the proceedings; limited expert evidence was admitted. The claimant’s individual delay claim was also academic because a positive conclusive grounds decision had been issued during the litigation.