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

The Supreme Court considered the relationship between the National Referral Mechanism (NRM) decisions on trafficking and the factual and legal role of the immigration appellate tribunals, and the circumstances in which removal would breach the positive obligations under article 4 ECHR (prohibition of slavery, servitude and forced or compulsory labour). The court reaffirmed that appellate immigration tribunals are not bound by NRM decisions and must determine the relevant factual issues for themselves, giving appropriate weight to earlier decisions but not treating them as determinative. The court held that article 4 entails positive operational and procedural obligations informed by ECAT and Strasbourg jurisprudence (notably Rantsev and Siliadin), including an obligation to investigate and to take operational measures where there is a credible suspicion of trafficking; removal which would frustrate an effective investigation or prosecution may therefore breach section 6 of the Human Rights Act 1998. Applying these principles, the court allowed the appeal because removal would prevent the effective investigation of possible trafficking and prosecution, and so would breach the appellant's article 4 rights.

Background and procedural posture. MS, a Pakistani national who arrived in the United Kingdom as a child, alleged that he had been trafficked and forced into labour both before and after arrival. The local authority referred him to the NRM, but the competent authority found no reasonable grounds. Separately the Secretary of State decided to remove him and the First-tier Tribunal dismissed his immigration appeal, although it made favourable factual findings about his exploitation in the United Kingdom. The Upper Tribunal allowed his appeal, finding he was a victim of trafficking and that removal would breach article 4 ECHR; the Secretary of State succeeded in the Court of Appeal. This Court granted permission to appeal.

Nature of the claim and relief sought. The appellant sought to resist removal to Pakistan on the grounds that removal would be incompatible with his rights under article 4 ECHR, and that the Upper Tribunal was entitled to reach its own findings on whether he was a trafficking victim notwithstanding the NRM decision.

Issues framed by the court. The court framed two principal issues: (i) the extent to which immigration appellate tribunals are bound by factual determinations made under the NRM and the proper approach to such previous decisions; and (ii) whether the United Kingdom's positive obligations under article 4 ECHR (as informed by ECAT and Strasbourg case‑law) could be engaged so as to make removal unlawful because it would frustrate investigation and protection of a trafficking victim.

Reasoning and disposition. On the first issue the court held that tribunals are not bound by NRM decisions and must decide relevant factual issues for themselves on the evidence before them, although previous decisions are relevant and should be accorded appropriate consideration and weight. The court relied on the approach in Huang to explain the tribunal's role in establishing up-to-date facts and carrying out the human rights assessment. On the second issue the court explained that Strasbourg authority (Rantsev, Siliadin, Chowdury and others) requires a comprehensive approach, including operational and procedural obligations where the authorities are or ought to be aware of a credible suspicion that an individual has been or is at real and immediate risk of trafficking. The court accepted that the appellant had not been the subject of an effective investigation and that removal would make meaningful investigation and prosecution impracticable. For that reason the court allowed the appeal and restored the decision of the Upper Tribunal that removal would breach the appellant's article 4 rights.

Other points. The court noted that some grounds previously available under the Nationality, Immigration and Asylum Act 2002 have been amended and that appeals founded on incompatibility with Convention rights remain available under section 6 of the Human Rights Act 1998. The Equality and Human Rights Commission was permitted to intervene and to take over the appeal when the original appellant sought to withdraw.

This was an appeal allowed. The Supreme Court held that immigration appellate tribunals are not bound by NRM decisions and must determine relevant factual issues for themselves, giving appropriate weight to earlier decisions. Applying Strasbourg authority on article 4 and ECAT, the court found a positive obligation to investigate and protect where a credible suspicion of trafficking exists; removal which would prevent an effective investigation and prosecution would breach section 6 of the Human Rights Act 1998. The court allowed the appeal because removal would have frustrated the effective investigation of the appellant's alleged trafficking and so violated his article 4 rights.

First-tier Tribunal dismissed the appellant's immigration appeal (3 December 2013) but made favourable factual findings. Upper Tribunal allowed the appeal and found the appellant was a victim of trafficking ([2016] UKUT 226 (IAC)). Secretary of State succeeded in the Court of Appeal ([2018] EWCA Civ 594). The Supreme Court allowed the appeal and restored the Upper Tribunal's decision ([2020] UKSC 9).