SM, R (on the application of) v The Secretary of State for the Home Department
[2024] EWHC 1683 (Admin)
KM, R (on the application of ) v Secretary of State for the Home Department
13 November 2024
[2024] EWHC 2870 (Admin)
High Court
An Albanian man's claim that he was a victim of human trafficking was rejected. When he tried to appeal the rejection, it was dismissed because his appeal was late. A judge ruled that the initial rejection was unfair because another decision related to his asylum application was wrongly made, making the late appeal acceptable. The trafficking claim will now be reconsidered.
Key Facts
- •Albanian national (KM) entered the UK seeking asylum in October 2022.
- •KM was placed in the National Referral Mechanism (NRM) for potential trafficking/modern slavery.
- •A Negative Conclusive Grounds (CG) decision was issued on February 14, 2024, rejecting KM's trafficking claim.
- •KM's new solicitors requested reconsideration on April 10, 2024, outside the one-month time limit in the Modern Slavery Statutory Guidance.
- •The request for reconsideration was refused due to the late submission.
- •KM challenged both the asylum withdrawal decision (conceded by the Defendant) and the CG reconsideration refusal decision via judicial review.
Legal Principles
Tameside duty: Public authorities must take reasonable steps to acquire relevant information before making decisions.
Secretary of State for Education and Science v Tameside MBC [1977] AC 1014
Modern Slavery Statutory Guidance: Sets out the procedure for reconsideration requests, including a one-month time limit and exceptions for exceptional circumstances.
Modern Slavery Statutory Guidance for England and Wales (under s.49 of the Modern Slaver Act 2015, version 3.7)
Interpretation of Guidance: The Guidance is not law but is a statement of government policy and must be given due weight. Interpretation is an objective question for the Court.
MN v Secretary of State for the Home Department [2021] 1 WLR 1956
Judicial Review: Challenges to decisions can be made if the decision-maker failed to take into account relevant considerations or acted unreasonably.
Various cases cited throughout the judgment
Alternative remedy: Judicial review may be precluded if an alternative remedy exists and has not been exhausted. However, this is ultimately a matter for the Judge's discretion.
In re McAleenon [2024] UKSC 31
Outcomes
The CG reconsideration refusal decision was quashed.
The decision was irrational and unfair because it overlooked the unlawful asylum withdrawal decision, which impacted the CG decision. The Defendant failed to take reasonable steps to ascertain the correct factual position (Tameside duty).
The application to amend the claim form to challenge the original CG decision was refused.
The amendment was sought too late and would have been procedurally unfair to the Defendant.
The Defendant is ordered to reconsider the CG decision by February 13, 2025.
A consequence of quashing the reconsideration refusal decision.
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