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

A reconsideration request under the Modern Slavery Statutory Guidance must be assessed by reference to the applicant’s delay, not merely the date on which later solicitors received the decision. The decision-maker has a wide discretion to identify exceptional circumstances, but must take account of highly relevant circumstances apparent from the file and apply the Guidance rationally and fairly.

Where an unlawful asylum-withdrawal decision has materially affected a related trafficking assessment, and the error remains uncorrected when a late reconsideration request is refused, the decision-maker must address that exceptional situation. Failure to do so may breach the Tameside duty and ordinary standards of rationality. The resulting refusal is unlawful and may be quashed.

The claimant, an Albanian national seeking asylum and protection under the National Referral Mechanism, received a negative Conclusive Grounds decision. His new solicitors sought reconsideration outside the one-month period in the Guidance, explaining that they had received the decision only after that period.

The defendant refused the request for want of an explanation for the relevant delay. The claimant challenged that refusal, together with an earlier decision treating his asylum claim as implicitly withdrawn after he missed an interview. The asylum decision was conceded and became academic. The central issue was whether the refusal to permit late reconsideration was unlawful for failure to consider relevant matters, fettering discretion, irrationality, unfairness or breach of the Tameside duty.

1. Outcome. Permission to apply for judicial review was granted on Ground 2. The refusal of reconsideration was quashed. The Conclusive Grounds decision was to be reconsidered by the defendant by 13 February 2025. The claimant received his costs on Ground 1, with no order as to costs on Ground 2.
2. The Guidance required an explanation for the claimant’s delay during the relevant period. Receipt of the decision by newly instructed solicitors after the one-month period did not itself explain the claimant’s earlier delay or restart the time limit. The defendant was entitled to reject that explanation.
3. The defendant did not unlawfully fetter its discretion. The refusal meant only that the facts provided—change of solicitors and later receipt of the decision—did not, by themselves, establish exceptional circumstances. It did not establish that a change of solicitors could never qualify.
4. The defendant nevertheless acted irrationally and unfairly when refusing reconsideration. The asylum withdrawal decision was plainly unlawful because it ignored the claimant’s evidenced reason for missing the interview. The defendant’s subsequent correspondence suggested that the withdrawal had affected the trafficking assessment. The erroneous position that the claimant had no outstanding asylum claim was therefore highly relevant to whether the case was exceptional.
5. Applying the Tameside duty and ordinary standards of rationality, the decision-maker should have taken reasonable steps to ascertain the correct position. A rational decision-maker who understood that the related Conclusive Grounds decision had proceeded on an erroneous basis would have recognised an exceptional case. Anxious scrutiny and the potentially serious consequences of an erroneous trafficking finding reinforced that conclusion.
6. The claimant could not add a freestanding challenge to the original Conclusive Grounds decision because it was not identified in the claim form and no timely amendment application was made. The alternative-remedy objection did not succeed because the claimant had attempted reconsideration and was prevented from obtaining it by the unlawful refusal. The court expressed a provisional view that, absent the asylum error, the other asserted Tameside matters would probably not have established an error at the original Conclusive Grounds stage.

First-instance judicial review in the High Court (Administrative Court). The judgment records no appeal or earlier judgment in the same proceedings.