The High Court has dismissed a claim for judicial review that alleged that there are systemic unlawful delays in the time taken by the Home Office to decide whether someone is a victim of human trafficking: R (O and H) v Secretary of State for the Home Department [2019] EWHC 148 (Admin).

The UK Government has established a ‘National Referral Mechanism’ (“NRM”) to comply with some of its international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”). The ECAT has a two-stage process for identifying victims of trafficking, reflected in the NRM. The first stage is to ask whether there are “reasonable grounds” for believing that a person is a victim of trafficking. If that is answered positively, the second stage, after granting the potential victim a recovery and reflection period, is to determine whether the person is, in fact, a victim or not: Art. 10, ECAT. The second-stage decision is known as the “conclusive grounds” decision.

The two claimants, O and H, had waited 34 months and 19 months respectively for their conclusive grounds decisions after receiving their positive reasonable grounds decisions. Drawing on statistical data provided by solicitors and others who work with potential victims of trafficking, they claimed that such delays were typical and illustrative of a wider, systemic problem with the arrangements made by the Home Office for identifying trafficking victims in the NRM.

The Secretary of State resisted the claim. He argued that there was no legal duty to make a conclusive grounds decision within a particular period and that the claimants’ empirical evidence did not support their allegation of systemic “egregious” delays.

Garnham J agreed with the Secretary of State, concluding that the delays that had occurred in some cases, although regrettable, were not the product of an unlawful system:

“98. […] Delays are a function of the very substantial growth in the NRM’s caseload and the Home Office’s tardiness in responding. But in my judgment, it cannot be said that substantial delay is inherent in the arrangements. There is nothing to which my attention has been drawn, for example, which suggests there is some design fault in the system or some flaw in the arrangements which make delay inevitable. […] It may well be that the Home Office failed in its management of the NRM to reach the highest standards of administration; it may well be that it would now be possible to devise a better system but neither of those facts means their conduct of the NRM to date has been lawful”.

The judgment is a significant restatement of the principle that, in accordance with the separation of powers, the court will not generally involve itself in the internal management of a government department: see Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; and R (Arbab) v SSHD [2002] EWHC 1249 (Admin).

Gwion Lewis acted for the Secretary of State for the Home Department.

Former member of chambers, Nathalie Lieven QC (now Lieven J), acted for the Claimants.

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