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

An immigration appellate tribunal deciding whether removal would breach a Convention right must determine the relevant facts for itself. It is not bound by a National Referral Mechanism trafficking decision and need not identify a public law error before reaching a different conclusion. The weight given to that decision depends on its nature and relevance.

Trafficking within the meaning of the anti-trafficking convention falls within article 4 of the European Convention on Human Rights. Article 4 includes a positive duty to conduct an independent and effective investigation into potential trafficking. Removal is unlawful where it would prevent that investigation by making the victim’s necessary assistance and co-operation unavailable.

The appellant, a Pakistani national brought to the United Kingdom as a child, was subjected to forced labour. The National Referral Mechanism found no reasonable grounds for believing that he was a trafficking victim. The First-tier Tribunal dismissed his immigration appeal but made findings favourable to his account.

The Upper Tribunal, in [2016] UKUT 226 (IAC), found that he had been trafficked and allowed his appeal. It held that his removal was not in accordance with the law and would violate article 4 of the European Convention on Human Rights. The Court of Appeal allowed the Secretary of State’s appeal: [2018] EWCA Civ 594; [2018] 4 WLR 63.

After the appellant resolved his immigration status and sought to withdraw, the Equality and Human Rights Commission was permitted to take over the conduct of the appeal. The principal questions were whether an immigration tribunal was bound by a trafficking decision made through the National Referral Mechanism and whether removal would breach the state’s positive obligations under article 4.

1. Appeal allowed unanimously; the Upper Tribunal’s decision restored. The removal decision would breach the procedural obligation under article 4 of the European Convention on Human Rights because it would prevent an effective investigation of the appellant’s trafficking.

2. An immigration appellate tribunal must determine for itself the factual issues relevant to whether removal would breach a Convention right. It is not bound by a National Referral Mechanism decision and need not find perversity, irrationality or another public law error before reaching its own conclusion. Its function under the Nationality, Immigration and Asylum Act 2002 is appellate rather than supervisory. The tribunal may hear evidence and consider any matter relevant to the substance of the immigration decision.

   The approach in Huang v Secretary of State for the Home Department [2007] UKHL 11 applied. The tribunal decides Convention compatibility for itself on the basis of up-to-date facts. Proper consideration and weight must nevertheless be given to an earlier administrative decision according to its nature and relevance. Here, the First-tier Tribunal and Upper Tribunal were better placed to decide whether trafficking had occurred because they heard evidence, assessed credibility and possessed material unavailable to the National Referral Mechanism.

3. Trafficking within article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings falls within article 4 of the European Convention on Human Rights. Article 4 imposes positive as well as negative obligations. Their content is informed by the Palermo Protocol and the anti-trafficking convention, although it was unnecessary to decide whether every obligation in that convention forms part of article 4.

   The positive obligations include an adequate legal and administrative framework, reasonable operational protection where the authorities know or ought to know of circumstances creating a credible suspicion of trafficking, and an independent and effective investigation. The investigative obligation arises without a complaint once potential trafficking comes to the authorities’ attention and must be capable of identifying and punishing those responsible.

4. The authorities had not conducted an effective investigation. Passing the appellant from the police to social services and the National Referral Mechanism did not fulfil that obligation because the mechanism does not investigate criminal offences. The appellant’s full assistance and co-operation were indispensable to a realistic investigation and any prosecution. Since that participation would not be feasible following removal to Pakistan, removal would violate article 4 and would therefore be unlawful under section 6 of the Human Rights Act 1998.

5. It was unnecessary to determine whether the removal decision was also not in accordance with the law because it followed a flawed trafficking decision. That ground had been removed from section 84 of the Nationality, Immigration and Asylum Act 2002, but an appeal remained available where removal would be unlawful under section 6 of the Human Rights Act 1998.

6. The Supreme Court could permit an intervener to assume conduct of an extant appeal where an important question of law required determination after the appellant sought withdrawal. That procedure was consistent with the overriding objective and rule 9(7) of the Rules of the Supreme Court 2009.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and restored the Upper Tribunal’s decision on the ground that removal would breach the procedural obligation under article 4: [2020] UKSC 9.
2. Court of Appeal: Allowed the Secretary of State’s appeal, holding that the tribunals could depart from the National Referral Mechanism decision only on public law grounds and that the Upper Tribunal’s article 4 analysis was erroneous: [2018] EWCA Civ 594; [2018] 4 WLR 63.
3. Upper Tribunal: Set aside the First-tier Tribunal’s decision, found that the appellant had been trafficked and allowed his appeal on both the accordance-with-law and article 4 grounds: [2016] UKUT 226 (IAC).
4. First-tier Tribunal: Dismissed the immigration appeal, while making findings favourable to the appellant about his exploitation and lack of control over his work.