R (MS (Pakistan)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lady Hale,Lord Lloyd-Jones,Lord Briggs,Lady Black |
| Judgment Date | 18 March 2020 |
| Neutral Citation | [2020] UKSC 9 |
| Date | 18 March 2020 |
| Court | Supreme Court |
[2020] UKSC 9
Lady Hale
Lord Kerr
Lady Black
Lord Lloyd-Jones
Lord Briggs
Appellant
[MS (Pakistan)]
(Instructed by Anti Trafficking and Labour Exploitation Unit)
Respondent
Sir James Eadie QC
Julia Smyth
(Instructed by The Government Legal Department)
Intervener (1)
Jason Coppel QC
Chris Buttler
(Instructed by Equality & Human Rights Commission)
Intervener (2)
Ben Jaffey QC
Shu Shin Luh
Jason Pobjoy
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener (3)
Raza Husain QC
Shane Sibbel
Eleanor Mitchell
(Instructed by Deighton Pierce Glynn (Central London))
Interveners:-
(1) Equality and Human Rights Commission
(2) The AIRE Centre
(3) ECPAT UK
Heard on 21 November 2019
( with whom Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agree)
The world community recognises human trafficking and modern slavery as twin evils requiring a world-wide response. The United Kingdom is party to both the 2000 Palermo Protocol (the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime) and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”). The purposes of ECAT are to prevent and combat trafficking, to protect the human rights of victims, as well as to ensure effective investigation and prosecution, and to promote international co-operation on action against trafficking (article 1).
An essential part of that is the effective identification of victims (article 10). Accordingly, the United Kingdom has established the National Referral Mechanism (“NRM”). First responders, such as police officers or social workers, who suspect that a person may be a victim of trafficking refer the case to the Home Office, as the competent authority under the Convention, for investigation. Officials first decide whether there are reasonable grounds to believe that the person may be a victim. If there are, he or she is usually given a period of “recovery and reflection” during which money, practical assistance and if necessary accommodation are provided. Not less than 45 days later (and nowadays usually much longer) the Home Office will make a “conclusive grounds” decision as to whether the person is, on the balance of probabilities, a victim of trafficking.
Trafficking may, of course, take place internally. But very often it involves moving people across international borders, in which case victims are likely to face immigration issues. This case is principally about the relationship between the decision-making processes of the NRM and the decision-making processes of the immigration appeals tribunals: in essence, to what extent are the immigration appeals tribunals bound to accept the decisions of the NRM as to whether a person is, or is not, a victim of trafficking? However, it also raises questions about the relevance of a finding that a person has been trafficked to the immigration decisions which come before the tribunals. Specifically, when will a decision to remove a person from the UK be contrary to section 6 of the Human Rights Act 1998 because it is incompatible with that person's rights under article 4 of the European Convention on Human Rights (“ECHR”)? Article 4.1 provides that “No-one shall be held in slavery or servitude” and article 4.2 that “No-one shall be required to perform forced or compulsory labour”. This raises the broader question of the relationship between the individual's rights under article 4 and the UK's obligations under ECAT.
MS is a national of Pakistan. He entered the UK on a visitor's visa on 22 July 2011 when he was just 16. For the four years before that he had been subject to forced labour and physical abuse by his step-grandmother and her nephews in Pakistan. He was brought to the United Kingdom by his step-grandmother, who deceived him into thinking that he was coming here for his education. He was not. When he got here, he was initially made to perform labour for which he received no pay; this was arranged by his step-grandmother, who profited financially. For the next 15 months, he moved from job to job. The First-tier Tribunal (“FTT”) found that “he was under the control of adults”, “exploited as cheap and illegal labour” and “felt that he had no choice but to work in these establishments in order to survive”. The Upper Tribunal (“UT”) held that he was acting under compulsion and manipulation throughout those 15 months. He was “a commodity who had been bought and sold and put to forced labour for little payment” (para 52).
MS came to the attention of the police in September 2012. They referred him to the local authority social services department. In November, the social services department referred him to the NRM because he appeared to be “a vulnerable young person and potentially a victim of trafficking for exploitation purposes”. In February 2013, the NRM decided that there was no reasonable ground to believe that he was a victim of trafficking. The official concerned did not meet or interview MS. On a review of the documents, the official concluded that MS was “never under the control or influence of your alleged traffickers to the UK” because “you were able freely to quit each job you undertook and that you were able to move and work on [sic] your own accord in the UK”. This decision was later maintained on review. In April 2013, MS had issued judicial review proceedings challenging the decision.
In the meantime, in September 2012, MS had claimed asylum but this claim was rejected on 1 August 2013 and on 2 August the Secretary of State decided to remove him from the UK. MS appealed against this decision to the FTT, which dismissed his appeal on 3 December 2013. Nevertheless, the FTT made various findings of fact which were favourable to MS (see above). Permission to appeal was initially refused by both the FTT and the UT, but the refusal was successfully challenged by judicial review and the UT granted permission to appeal.
The UT heard the appeal in December 2015 and January 2016 and promulgated its judgment in March 2016: [2016] UKUT 226 (IAC). It set aside the FTT's decision but preserved some of its positive credibility findings which related to MS' time in the UK. Instead of remitting the case, the UT decided it for itself. The removal decision was challenged on two grounds: first, that it was “not in accordance with the law” because it had been based upon an unlawful NRM decision; and second, that it would be incompatible with MS' human rights under article 4 of the ECHR: Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), section 84(1)(e) and (c) respectively. The UT decided in the appellant's favour on both grounds. It acknowledged that the NRM decision was not an “immigration decision” which could be appealed under section 82 of the 2002 Act; it could only be directly challenged in judicial review proceedings. Nevertheless, if satisfied that the NRM decision was perverse, the tribunal could make its own decision as to whether the appellant was a victim of trafficking; it could also do so if the decision was in breach of the Secretary of State's guidance or on some other public law ground. If the appellant was the victim of trafficking, he was entitled to the protection of ECAT, and the decision to remove him was not in accordance with the law. It was also a breach of his rights under article 4 of the European Convention.
The Secretary of State appealed to the Court of Appeal, which allowed the appeal: [2018] EWCA Civ 594; [2018] 4 WLR 63. The court held that, in accordance with AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469; [2014] Imm AR 513, the tribunal could only go behind the trafficking decision and re-determine the factual issues if the decision was perverse or irrational or one which was not open to it (para 70). It was difficult to identify precisely what it was in the NRM decisions which was susceptible to such a challenge (para 75). The UT had in effect treated the NRM decision as an immigration decision, which it was not (para 77). The UT had also been wrongly influenced by a submission that the obligations under ECAT were positive obligations under article 4, contrary to Secretary of State for the Home Department v Hoang Anh Minh [2016] EWCA Civ 565; [2016] Imm AR 1272. Hence it had been wrong to conclude that there had been a breach of the procedural obligations under article 4.
This Court gave the appellant permission to appeal in February 2019. He was later able to resolve his immigration status by other means and applied to withdraw his appeal. However, the Equality and Human Rights Commission had applied to intervene in the case and wished to take over the appeal. This was resisted by the Secretary of State on the grounds that the Commission had no power to take over a case and that the Court had no power to allow it. Accordingly, a preliminary hearing was held on 2 October 2019.
The Commission applied to intervene in the appeal under its power to “institute or to intervene” in legal proceedings, whether for judicial review or otherwise, if it appears that the proceedings are relevant to a matter in connection with which the Commission has a function (Equality Act 2006, section 30(1)). Among the Commission's...
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