Almost four year delay in deciding trafficking claim held to be lawful by High Court

The High Court has said that it was not unlawful that a Kenyan refugee who had been trafficked to the UK as a domestic worker had to wait from August 2019 to April 2023 for a decision on her trafficking claim. The court also said that the delays within the National Referral Mechanism generally are not unlawful, nor did it take issue with the Home Secretary’s use of an undisclosed (until these proceedings) list of how cases were prioritised for decision making.

Somewhat confusingly for delay case fans, this case is R (FH) v Secretary of State for the Home Department [2024] EWHC 1327 (Admin). This one was bad for my blood pressure, so do brace yourselves. It’s a long one but there are lots of interesting/important bits such as another undisclosed (until February this year) policy on Albanian cases.

The claimant’s background

The claimant is a Kenyan national who came to the UK as an overseas domestic worker in June 2019. In early August 2019, the claimant asked her employer for her salary and was threatened and forced out of the house by them. She contacted the police and was referred to the National Referral Mechanism for a decision to be made on whether or not she was a victim of trafficking. The Single Competent Authority made a positive first stage (reasonable grounds) decision on 19 August 2019.

The claimant made an asylum claim on 11 January 2020. On 21 August 2021 she gave birth to her son. The claimant’s solicitors chased repeatedly for a decision, advising that the claimant was struggling with her mental health due to the delay. On 18 October 2022 the claimant’s solicitors sent a pre-action letter.

On 4 November 2022 the Home Office responded saying that a decision would not be made before her asylum interview, as the record of that was “a vital piece of information which forms part of the NRM’s decision making”. The Home Office said it would “aim” to make the decision within eight months of the asylum interview taking place “absent special circumstances”. No commitment was given as to when the asylum interview would happen.

The judicial review

The judicial review was lodged on 20 December 2022. There were three grounds of challenge. The first was that the delay in deciding the claimant’s case was unreasonable, discriminatory and a breach of the European Convention on Human Rights. The second ground was that there was unlawful systemic delay within the Single Competent Authority. The third ground was that the failure to publish guidance on how cases were prioritised within the Single Competent Authority was unlawful.

The acknowledgement of service and summary grounds were filed on 13 January 2023.

On 9 February 2023 the Home Secretary created a list with criteria for prioritisation of cases in the weekly allocation of cases to decision makers. This set out various categories of cases that would be prioritised including where a judicial review has been lodged or a pre-action letter sent.

The claimant’s asylum interview was scheduled for 9 February 2023. On 4 April 2023, after this judicial review had been lodged, she received a positive second stage (conclusive grounds) decision. Despite that, the Home Secretary did not try to argue that the judicial review had become academic.

Permission for the judicial review was initially refused on the papers but was granted following renewal of the application to an oral hearing that took place on 9 June 2023. Permission was granted with reference to a witness statement provided by a policy manager in the Home Office’s modern slavery unit which said that the guidance on prioritisation does not specifically provide for cases to be prioritised where a judicial review has been issued on the basis of delay.

The judge said that he would not have granted permission if it was not for the evidence that seemed to support the position that making a judicial review claim would then trigger action from the Home Office and the making of the conclusive grounds decision. He said “If, in practice, the way the system is operated is that those who would otherwise face a delay are able, by starting proceedings, to reduce the time taken to address their application then that is arguably not a rational way of operating the system.”

On 11 July 2023 the claimant was granted refugee status.

Disclosure appears to have been an almighty mess. There was a breach of the duty of candour for which an apology was made on behalf of the Home Secretary. The breach concerned a previously undisclosed policy (the prioritisation list that was disclosed in September 2023), which at the permission renewal hearing, counsel for the Home Secretary had asserted did not exist. The Home Office had not made its lawyers aware of this list until 25 August 2023.

The Government Legal Department accidentally disclosed material that was claimed to be legally privileged and then the claimants solicitors did not delete the erroneously disclosed documents when requested to do so. Eventually the documents were agreed to be included in the hearing bundle without the defendant waiving privilege.

The court said that the disputed documents were legally privileged and that the agreement that he should consider them placed him “in an invidious position”. However the documents disclosed that on 10 January 2023 the Government Legal Department had advised the Home Secretary to provide a shorter timescale for the decision and on 27 February 2023 had sent a further email advising that counsel had said “it would be very helpful if the conclusive grounds decision can be issued” before the renewed permission hearing.

On the issue of delays, reference was made to R (O & H) v Secretary of State for the Home Department [2019] EWHC 148 (Admin) which itself referred to a report from November 2014 by a senior civil servant in the Home Office which had criticised the National Referral Mechanism process, including the delays. The O & H decision also referred to a National Audit Office report from December 2017 which criticised NRM delays. O & H was dismissed, the judge in that case saying that “it appears from the evidence and the agreed statistics that the position is now improving” and “the simple fact of significant delays” did not on the facts establish unlawfulness.

Ministerial submissions on prioritisation of Albanian cases

Following the UK’s agreement with Albania on 13 December 2022 on returns, a Ministerial arrangement was made authorising “discrimination on the grounds of nationality where it arose from prioritising modern slavery cases where the potential victim was an Albanian national. It was supported by an Equality Impact Assessment (“EIA”) from the Albanian Irregular Migration Co-ordination Unit.”

On 19 January 2023 a Ministerial submission was made with two options for putting the arrangement into effect. The stated policy objective was to “help meet the ambition of 100 removals a week for Albanian nationals and provide for decisions on cases otherwise prioritised to meet criminal justice and safeguarding aims.” The submission also stated that “We do not believe it necessary to include mention of the Albanian case prioritisation in Statutory Guidance for competent authorities to operationalise”.

The option chosen by the Minister was to devote the majority of resources to Albanian cases while also progressing other high priority cases where there were criminal proceedings or where a child was about to turn 18.

A further Ministerial submission was made on 24 July 2023 recommending that the Minister combined various Ministerial arrangements and authorisations relating to discrimination in the treatment of Albanians in the immigration, asylum and National Referral Mechanism systems. This small mention seems potentially important.

We already know about the Ministerial direction in Albanian asylum cases, namely that no more than 2% were successful, as this was disclosed in a report earlier this year by the Independent Chief Inspector of Borders and Immigration. I am unaware of any such directions relating to immigration Albanian cases but this may very well be another secret policy that needs to be uncovered.

The impact on other nationalities who would have to wait longer for decisions was said to be mitigated because they would still be able to access support while waiting for a decision. This seems an incredibly infuriating and callous way to dismiss the harm caused to people waiting on minimal support for years and prohibited from working to properly support themselves.

Another Ministerial submission was made on 27 July 2023 which noted that the prioritisation of Albanian cases had resulted in a reduction of these cases in the National Referral Mechanism from around 7,000 to 5,700 in five months.

Two options were presented to Ministers, the first was that Albanian cases would continue to be prioritised and around 75% of resources would be allocated to these. The second option was that the Single Competent Authority would take a more flexible approach and could take operational decisions on resource allocation in line with wider priorities. Civil servants recommended the second option but unsurprisingly given the government’s rhetoric around Albanians the Ministerial decision was to go with the first option.

Civil servants made another Ministerial submission on 6 October 2023 saying that the non-prioritised cases were “very unlikely to get a decision” and that “certain case types, particularly women” were waiting much longer for a decision. They said that recruitment was ongoing and proposed that detained foreign national offenders were prioritised over Albanian cases, criminal justice cases and children about to turn 18. This was authorised by the Minister and a new prioritisation list was produced on 25 October 2023 [at 97]. This was updated again on 9 November 2023 to include asylum legacy cases.

Guidance amended to include list of how cases are prioritised

On 22 February 2024 the Modern Slavery Statutory guidance was amended to include the prioritisation criteria for conclusive grounds cases (currently on page 150 of version 3.10 of the guidance). The guidance states:

14.130. While this section sets out the current prioritisation approach, priorities can change periodically in line with Ministerial arrangements under the Equality Act 2010.
14.131. Any changes to the prioritisation criteria will be reflected in this guidance.

The High Court’s decision

The court declined to determine the duty of candour issue on the basis that an apology had been made and “the effect of any unfairness or procedural impropriety arising from late service of documents has been dissipated” through various actions.

On the systemic delay point, the court found that action had been taken since O & H as Ministers had “been alerted to the need to recruit additional decision-makers” although the judge then notes that “appears that recruitment campaigns have not resulted in an increase in permanent staff devoted to conclusive grounds decisions but rather a decrease of 69 decision-makers”. The establishment of the Immigration Enforcement Competent Authority was also considered as a “lever” to improve productivity, Other changes include no longer requiring decision makers to wait for an asylum interview transcript, providing overtime, using agency staff and enhanced training.

Other changes considered by the High Court to improve productivity were the policy changes allowing disqualification from protection on public order or bad faith grounds. There was no mention of the fact that the policy changes for public order disqualifications have been successfully litigated and changed. There was also no mention of the fact that bad faith refusals total nine since the changes were brought in almost a year and a half ago, which seems unlikely to have had much of an impact on delays.

The judge accepted the Home Secretary’s evidence that the use of the list was flexible and allowed cases involving vulnerable individuals to be dealt with urgently. The judge described this as “the differing priorities at different times reflects the ebb and flow of the delivery of a public service”.

The judge was dismissive of evidence from Helen Bamber Foundation’s Dr Katona, Kalayaan, Birnberg Peirce Solicitors and Migrant Legal Project. She held that “the claimant’s arguments amount to a strongly-held disagreement with the substance” of the list [at 169] and the challenge to the systemic delays was dismissed.

The judge also concluded that the delay in the claimant’s case was not unlawful (only that it was “highly regrettable” and gave “cause for concern in the context of a procedure that was intended to identify whether she had fallen prey to exploitation and abuse”) [at 173 and 174]. The judge also dismissed the ground that the failure to publish the prioritisation list was unlawful. In any event the Home Secretary had since published the list in the guidance and said that any changes would also appear there. Whether this would have happened without this litigation seems doubtful.

Conclusion

In a fairly meaningless “postscript” to the decision, the court said:

This judgement should come as limited comfort to the defendant. That he has surmounted the legal challenge does not mean that the situation is satisfactory. I would gratefully adopt and reiterate Underhill LJ’s observation in EOG, para 92 (cited above): solving the problem of this sort of delay would aid victims of trafficking, the Home Office and the courts.

The court also asked the Home Secretary nicely to sort out the delays in O & H in 2019 as mentioned above, as well as in R (EOG) v Secretary of State for the Home Department [2022] EWCA Civ 307 as follows:

Delays have increased since EOG which came out in March 2022 when the Single Competent Authority was taking under 600 days to make a conclusive grounds decision. So, contrary to the hopes of the judge in this case, I think this decision is likely to come as great comfort to the Home Secretary who will yet again have little incentive to do anything further to tackle the delays, which have barely moved from just under 700 days over the past year. Behind these numbers are thousands of people who have been exploited and are unable to work to support themselves during this time, instead left on destitution levels of support.