The Secretary of State for the Home Department v MS (Pakistan)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Flaux,Lady Justice Sharp |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] EWCA Civ 594 |
| Date | 23 March 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/2402 |
[2018] EWCA Civ 594
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
MR JUSTICE McCLOSKEY and UT JUDGE BLUM
AA/07855/2013; [2016] UKUT 226 (IAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Lady Justice Sharp
and
Lord Justice Flaux
Case No: C5/2016/2402
Gwion Lewis (instructed by Government Legal Department) for the Appellant
Ronan Toal and Bryony Poynor (instructed by ATLEU) for the Respondent
Hearing date: 7 March 2018
Judgment Approved
Introduction
This is an appeal by the Secretary of State against the decision of the Upper Tribunal (McCloskey J and UTJ Blum) dated 15 February 2016 remaking the decision of the First-tier Tribunal and allowing the respondent's appeal against the decision of the Secretary of State dated 2 August 2013 to remove the respondent from the United Kingdom.
The appeal raises an issue of principle as to the jurisdiction of the First-tier Tribunal and the Upper Tribunal on a statutory appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to undertake an indirect judicial review of a negative trafficking decision made by the Secretary of State in that individual's case. In that context, the appeal concerns the scope and effect of the previous decision of this Court in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469.
The factual and procedural background
The respondent is a national of Pakistan born on 2 June 1995. He entered the United Kingdom legally on 22 July 2011 as a child, aged sixteen, on a visit visa. The visit visa expired on 20 December 2011 but he remained in the country. The respondent's case is that he was accompanied to the United Kingdom by his step-grandmother, having been deceived by her into thinking that he was coming here to further his education. In fact, he was employed in a series of Asian food shops and went from job to job. He claimed that he was exploited by adults who used him as cheap and illegal labour. He also claimed that he was the victim of land-grabbing in Pakistan and feared being killed by his step-grandmother and her nephews.
In September 2012, he came to the attention of the police and was referred to social services. On 9 September 2012 he was served with a form IS151A informing him of his liability to detention and removal. On 25 September 2012 he claimed asylum. There was a screening interview for children with him dated 9 October 2012 and a substantive asylum interview for children dated 13 November 2012. He also produced a witness statement dated 12 November 2012.
On 29 November 2012, a formal referral of the respondent was made by Tower Hamlets social services to the Competent Authority (“the authority”) under the National Referral Mechanism (“the NRM.”) This is the authority that, under domestic law, makes decisions on trafficking under the European Convention on Action Against Trafficking in Human Beings (“ECAT”). The NRM operates under the auspices of the Home Office and therefore the Secretary of State, such that a decision by the authority is effectively one made by the Secretary of State. On 1 February 2013, in a so-called Reasonable Grounds Minute, the authority decided that there were no reasonable grounds to consider that the respondent was a victim of trafficking (“the negative trafficking decision”). The authority accepted that he had been subject to an act of recruitment, transportation, transfer, harbouring or receipt in the United Kingdom within the meaning of Article 4 of ECAT and that he was potentially deceived as to the true purpose of being brought to the United Kingdom (as he was not enrolled in any form of education, as the respondent had expected). However, the authority did not accept that he had been brought to the United Kingdom for the purpose of exploitation in forced service or forced labour. On the same day, in a separate decision, the Secretary of State rejected the respondent's claim for asylum.
On 15 February 2013, a request for review of the negative trafficking decision was made. On 22 February 2013, the decision was maintained by the authority. Judicial review proceedings in respect of the decision were issued on 26 April 2013.
On 1 August 2013, the Secretary of State made her decision to refuse to grant the respondent asylum and on 2 August 2013, the Secretary of State made her decision to remove him from the United Kingdom. The respondent appealed against that decision to the First-tier Tribunal. On 3 December 2013, the First-tier Tribunal dismissed the appeal on asylum and human rights grounds. Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal on 13 January 2014 and by the Upper Tribunal on 18 February 2014.
On 1 April 2014, the authority issued a Reasonable Grounds Reconsideration Minute maintaining the negative trafficking decision. That Minute was more detailed than the previous Minute and took account of the findings of the First-tier Tribunal and of the Divisional Court in R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin) which considered the relevant Home Office Guidance to the authority. As before, the authority accepted that the respondent had been subject to an act of recruitment, transportation, transfer, harbouring or receipt. However, as before, it considered that the requirement for trafficking as defined in the ECAT, that he had been brought to the United Kingdom for the purposes of exploitation in forced service or labour, was not met.
The authority referred to the finding of the First-tier Tribunal judge that: “I do not find that this amounted to ‘forced labour’ but accepted in reality he would have had little choice but to work on the black market as he had no permission to work and needed money to survive.”. The Minute continued:
“In other words, whilst you may have been subjected to a degree of manipulation, this did not amount to exploitation in the form of ‘forced labour’—the work you did was not exacted under the menace of any penalty but was rather done out of pure economic necessity…
…therefore, it is not accepted to the low standard of proof, ‘I suspect but I cannot prove’, that you were trafficked from Pakistan to the United Kingdom, and then internally within the United Kingdom, for the purpose of ‘forced labour’ exploitation.”
On 23 April 2014, the High Court granted permission for judicial review in respect of the negative trafficking decision. However, five days later on 28 April 2014, the judicial review proceedings were withdrawn by consent. In light of the permission for judicial review having been granted, on 19 May 2014 the High Court ordered that the decision of the Upper Tribunal to refuse the respondent permission to appeal was quashed. Subsequently, on 23 June 2014, the Upper Tribunal granted permission to appeal.
By a Decision made on 20 August 2014, Upper Tribunal Judge Goldstein determined that the First-tier Tribunal judge had misdirected herself (as was effectively agreed between the parties before him) in failing to make a clear finding as to whether the respondent was a victim of trafficking, concluding that it was sufficient to ascribe to him a lower position on the spectrum of trafficking and omitting clearly to evaluate the nature of his employment in the United Kingdom and whether, even if freely chosen by him, it was nonetheless exploitative.
Accordingly the judge decided that the First-tier Tribunal judge had erred in law, such that her determination should be set aside but he directed, as agreed between the parties, that her positive credibility findings relating to the respondent's circumstances in the United Kingdom should be preserved. He ordered the parties to identify the issues to be re-determined at the resumed hearing in advance of a Case Management Review Hearing to be held before him on 7 October 2014.
The parties produced a Joint Statement on Issues dated 6 October 2014 for that hearing. This set out as agreed issues in contention on appeal whether on the findings of the First-tier Tribunal and related facts, policy and law, the respondent was subject to exploitation and was a victim of trafficking, subject to forced labour and in a position of vulnerability which was abused by employers to exploit him. It recorded that if the Upper Tribunal were satisfied the respondent was a victim of trafficking, what was not agreed was that, as was contended on behalf of the respondent, the Upper Tribunal had jurisdiction to determine (i) whether the Secretary of State had continuing obligations to the respondent pursuant to Articles 14 to 16 of ECAT; (ii) whether his proposed removal breached Article 16 of ECAT; (iii) whether the Secretary of State was in breach of the respondent's rights under Article 4 of the ECHR. The Secretary of State contended that, if the Upper Tribunal was satisfied that the respondent was a victim of trafficking, it only had jurisdiction to determine whether the respondent was at risk of being re-trafficked if returned to Pakistan.
The joint Statement then set out what the Court of Appeal in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 had held concerning the Tribunal's jurisdiction in respect of trafficking decisions at [16] to [19] of the judgment of Longmore LJ.
At the Case Management Review Hearing on 7 October 2014, the Upper Tribunal designated the case to be a guidance case. It appears from the respondent's skeleton argument for the resumed appeal hearing before the Upper Tribunal that there was a further Case Management Review Hearing on 16 July 2015, at which the Upper Tribunal determined that it did have...
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