The Secretary of State for the Home Department v MS (Pakistan)

On a statutory appeal against removal, a tribunal may consider a trafficking decision where it is relevant to removal. A negative trafficking decision is not itself appealable. If it has not been challenged by judicial review, the tribunal may go behind it and re-determine the trafficking facts only where the decision is shown to be perverse, irrational, or not open to the competent authority. The positive duties under the European Convention on Action Against Trafficking in Human Beings are distinct from the investigative and procedural obligation under Article 4 of the European Convention on Human Rights. The tribunal cannot substitute itself for the competent authority under Article 10(2), or criticise non-party agencies beyond deciding the lawfulness of removal without procedural fairness.

The respondent, a Pakistani national, entered the United Kingdom aged 16 and later claimed asylum and protection as a trafficking victim. The competent authority made and maintained a negative trafficking decision. Judicial review proceedings were issued but withdrawn. The First-tier Tribunal dismissed his asylum and human-rights appeal.

The Upper Tribunal set aside that decision for error of law, preserved favourable credibility findings, remade the decision, found that the respondent had been trafficked, and held that removal was unlawful. The Secretary of State appealed from the Upper Tribunal’s decision, reported at [2016] UKUT 226 (IAC). The central issues were the tribunal’s jurisdiction to examine a negative trafficking decision indirectly and the relationship between the trafficking Convention, Article 4 of the ECHR, and the removal decision.

1. Jurisdiction and the two-stage approach. Flaux LJ, with Sharp and Gloster LJJ agreeing, held that AS (Afghanistan) [2013] EWCA Civ 1469 required a two-stage approach. First, the tribunal must determine whether the negative trafficking decision was perverse, irrational, or not open to the competent authority. Only if that threshold is met may it re-determine the relevant facts and consider later evidence. A trafficking decision may be relevant to the lawfulness of removal, but it is not itself an immigration decision subject to statutory appeal.
2. Application to the Upper Tribunal. The Upper Tribunal had misinterpreted AS (Afghanistan) by treating any judicial-review ground as sufficient. It had conducted a complete re-determination of whether the respondent had been trafficked without identifying a Wednesbury error in the competent authority’s decisions. The authority had been asked to consider exploitation through forced service or labour. Its conclusion that forced labour had not been established was open to it on the First-tier Tribunal’s findings. The Upper Tribunal therefore exceeded its jurisdiction.
3. Scope of other appellate authorities. Huang v Secretary of State for the Home Department [2007] UKHL 11, Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, and J1 v Secretary of State for the Home Department [2013] EWCA Civ 279 concerned decisions which were themselves appealable. They did not authorise a tribunal to re-determine a non-appealable trafficking decision. The comparisons with R v L(C) [2013] EWCA Crim 991 and Hounga v Allen [2014] UKSC 47 were also misplaced because those cases arose in materially different procedural contexts.
4. ECAT and Article 4 ECHR. Following Secretary of State for the Home Department v H [2016] EWCA Civ 565, the positive duties under Articles 12 to 15 of the trafficking Convention are not the mechanism by which the United Kingdom discharges the investigative and procedural obligation under Article 4 of the ECHR. Even if the competent authority’s decision had been unlawful, the Upper Tribunal should not have treated that failure as establishing an Article 4 breach.
5. Article 10(2) and institutional limits. The removal prohibition under Article 10(2) follows a reasonable-grounds decision by the competent authority. The Upper Tribunal had no jurisdiction to substitute itself for that authority. It also went beyond its function by criticising the police and other agencies without giving the non-party agencies an opportunity to respond.
6. Disposition. The Secretary of State’s appeal was allowed.

1. Court of Appeal (Civil Division) — On 23 March 2018, allowed the Secretary of State’s appeal and held that the Upper Tribunal had exceeded its jurisdiction.
2. Upper Tribunal (Immigration and Asylum Chamber) — Set aside the First-tier Tribunal’s decision for error of law, preserved favourable findings, remade the decision, and allowed the respondent’s appeal: [2016] UKUT 226 (IAC).
3. First-tier Tribunal — Dismissed the respondent’s asylum and human-rights appeal on 3 December 2013.