MS v The Secretary of State for the Home Department

Article 4 ECHR encompasses human trafficking. In an immigration appeal, a trafficking decision is not itself appealable under the Nationality, Immigration and Asylum Act 2002. A tribunal must nevertheless take a relevant positive trafficking decision into account.

It may make its own trafficking finding where a negative decision is perverse, or where it was reached contrary to the Secretary of State’s policy. Article 4 includes procedural duties to identify, investigate and protect actual or potential trafficking victims. Removal will normally be unlawful where those duties remain undischarged and removal would prevent their effective discharge.

MS v The Secretary of State for the Home Department concerned a Pakistani national whose asylum claim and proposed removal were refused after the Competent Authority decided that he was not a trafficking victim.

The First-tier Tribunal dismissed his asylum and human-rights appeal. The Upper Tribunal later found a material error of law because the First-tier Tribunal had not made clear findings on trafficking, set that decision aside, preserved favourable credibility findings concerning his life in the United Kingdom, and remade the decision.

The central questions were whether the Tribunal could address the negative trafficking decisions, whether the appellant had been trafficked, and whether removal would breach Article 4 ECHR or otherwise be unlawful.

1. Appeal allowed. The Tribunal remade the First-tier Tribunal’s decision and allowed the appeal under section 84(1)(c) and (e) of the Nationality, Immigration and Asylum Act 2002.

2. The Tribunal held that trafficking falls within Article 4 ECHR, following Rantsev v Cyprus and Russia [2010] 51 EHRR 1. Article 4 includes positive procedural duties to protect and investigate situations of actual or potential trafficking.

3. A Competent Authority trafficking decision is not an immigration decision and is directly challengeable by judicial review. However, under AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469, a tribunal considering a removal appeal may consider whether a negative trafficking decision was perverse or contrary to the Secretary of State’s policy, where that bears on removal.

4. On the preserved findings and the Tribunal’s further findings, the appellant was a child deceived into travelling to the United Kingdom and exploited for forced labour. His apparent mobility between jobs and economic necessity did not establish genuine freedom of choice. The negative trafficking decisions were irrational and inadequately investigated.

5. Had a lawful trafficking decision been made, the appellant would have received the protection, assistance, recovery period and potential residence-permit consideration required by the Council of Europe Convention on Action Against Trafficking in Human Beings. Removal before the identification and criminal-law processes required by Articles 10(2) and 18 had been completed would be unlawful. It would also perpetuate the State’s breach of Article 4 because an effective investigation and prosecution required the appellant’s co-operation.

6. The appellant had not established a real risk of re-trafficking on return. Although he would face Convention-related risk from family members, safe internal relocation in Pakistan was available. His asylum claim therefore failed independently.

• Upper Tribunal (Immigration and Asylum Chamber): Remade the appeal after an earlier differently constituted Upper Tribunal found a material error of law in the First-tier Tribunal’s decision and set it aside.
• First-tier Tribunal: Dismissed the appellant’s asylum and human-rights appeal on 3 December 2013.