The Supreme Court held that an immigration tribunal hearing a human rights appeal against removal must decide for itself whether the person is a victim of trafficking and is not bound by an earlier National Referral Mechanism decision. It restored the Upper Tribunal’s conclusion that removing MS to Pakistan would breach article 4 of the European Convention on Human Rights, because there had been no effective investigation of his trafficking and such an investigation could not realistically take place if he were removed.
The United Kingdom is party to the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). ECAT requires effective identification of victims. Under the National Referral Mechanism (NRM), a first responder may refer a suspected victim to the Home Office. Officials first decide whether there are reasonable grounds to believe that the person may be a victim and, if so, later make a conclusive-grounds decision on the balance of probabilities. There is no appeal against an adverse NRM decision; the remedy is judicial review.
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MS came to the UK as a child and later gave evidence that he had been trafficked and exploited. The human rights appeal raised questions about how that evidence should be assessed and investigated.
Following a referral to the National Referral Mechanism, an official decided without interviewing MS that there were no reasonable grounds to believe that he was a trafficking victim.
MS had claimed asylum in September 2012. The claim was refused on 1 August 2013, and the next day the Secretary of State decided to remove him. The First-tier Tribunal dismissed his appeal but made findings favourable to him. After a successful challenge to the refusal of permission, the Upper Tribunal set aside the First-tier decision, preserved some positive credibility findings, and decided the appeal itself. It held that it could make its own trafficking finding if the NRM decision was perverse, contrary to guidance or flawed on another public-law ground. It found that MS was a victim of trafficking, that removal was not in accordance with the law because he was entitled to ECAT’s protection, and that removal breached article 4.
The Court of Appeal allowed the Secretary of State’s appeal. Following AS (Afghanistan), it held that the tribunal could revisit the trafficking decision only if it was perverse, irrational or not open to the decision-maker. It considered that the Upper Tribunal had wrongly treated the NRM decision as an immigration decision and had been wrongly influenced by the submission that ECAT obligations were positive obligations under article 4.
The appeal and the tribunal’s role
The Supreme Court granted permission to appeal. MS later resolved his immigration status by other means and sought to withdraw, but the Equality and Human Rights Commission wished to pursue the important question of law. Lady Hale, with whom the other Justices agreed, held that the Commission could intervene under the Equality Act 2006 and, under the Supreme Court Rules, could in effect take over the extant appeal so that the question could be decided fairly.
The Secretary of State conceded that, on an appeal alleging that removal would breach Convention rights, the tribunal must determine the relevant facts itself, while giving proper consideration and weight to any earlier decision. The Court held that the tribunal is not bound by an NRM decision and need not identify a public-law flaw in it. Its jurisdiction under section 82 of the Nationality, Immigration and Asylum Act 2002 is to hear appeals against immigration decisions, not to judicially review the competent authority. Appeals involve evidence and findings of fact: section 85(4) permitted the tribunal to consider any matter relevant to the substance of the decision, and the procedure rules provide for witnesses and documents. In Huang, the House of Lords had held that the appellate authority decides for itself whether refusal of leave is incompatible with a Convention right; it does not merely review the primary decision-maker. The weight due to an earlier decision depends on its nature and relevance. Here the NRM decision was essentially factual and had been reached on the papers, whereas the tribunals heard MS and had further evidence.
Article 4 and removal
The more difficult question was what followed from a finding that MS had been trafficked. Article 4 prohibits slavery, servitude and forced or compulsory labour. ECAT defines trafficking and, for a child, does not require proof of the coercive means listed for adults. ECAT itself has not been incorporated into domestic law, although the NRM, immigration rules and criminal offences implement aspects of it, and the Secretary of State has accepted that NRM guidance should accurately reflect ECAT.
The Strasbourg cases show that article 4 imposes positive as well as negative obligations. Siliadin recognised an obligation to have and apply criminal-law provisions against slavery, servitude and forced labour. In Rantsev, trafficking within the ECAT definition was held to fall within article 4 because it treats people as commodities. The state’s obligations include an adequate legislative and administrative framework, operational protection where the authorities know or ought to know of a credible suspicion of a real and immediate risk, and an independent investigation capable of identifying and punishing those responsible. Chowdury applied that framework and drew on specific ECAT provisions, while J showed that the investigative duty has limits where the relevant conduct occurred abroad. Lady Hale said that it was unnecessary to decide whether every ECAT obligation is incorporated into article 4.
The Upper Tribunal did not find that removal would expose MS to renewed trafficking. The outstanding duty was to investigate the credible account of trafficking that had already occurred. On the evidence before the tribunal, removing MS would frustrate an effective investigation.
That conclusion made it unnecessary to decide whether the Upper Tribunal had also been right to hold that removal was not in accordance with the law because it followed a flawed NRM decision. From 20 October 2014 that statutory ground was removed, although an appeal remains available where removal would be unlawful under section 6 of the Human Rights Act 1998.
Verdict: The Supreme Court unanimously allowed the appeal and restored the Upper Tribunal’s decision on article 4. The tribunal could decide the relevant facts for itself. The Court did not determine the alternative statutory ground of appeal.
Source: MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9
