In the case of MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, handed down today, the Supreme Court has confirmed that the immigration tribunal can and must decide for itself whether an appellant was a victim of trafficking. The tribunal is not bound by decisions of the National Referral Mechanism (NRM) which is primarily responsible for assessing trafficking cases, nor even limited to finding public law errors in NRM decisions in order to go behind them.

Rejected by trafficking victim support system

The facts of the case perfectly illustrate the problem that would have been created had the Supreme Court decided otherwise. MS is a citizen of Pakistan and entered the UK as a child. He was forced to work for no pay and then in a series of jobs as cheap and illegal labour. He came to the attention of the police in 2012 and was referred to social services, who in turn referred him to the National Referral Mechanism, which is supposed to offer protection to victims of trafficking.

So far, so good. But, despite conducting no interview, an official at the NRM decided there was no reasonable ground for thinking MS was a victim of trafficking because he was “able freely to quit each job” and able to move and work of his own accord in the UK.

But trafficking argument found favour with immigration judges

MS had claimed asylum in the meantime, at least partly on the basis that he was a victim of trafficking and would be at risk if returned to Pakistan. His claim was rejected by the Home Office.

The First-tier Tribunal found that MS had been trafficked but dismissed his appeal anyway on the basis that he would not be in danger if removed. The case proceeded to the Upper Tribunal, which found that the NRM decision was perverse, meaning that that decision could be revisited by the tribunal, and that the appellant was entitled to the protection of the European Convention Against Trafficking and Article 4 of the European Convention on Human Rights. The appeal was therefore allowed on this basis.

Unhappy with this outcome, the Home Office appealed. The Court of Appeal overturned the Upper Tribunal decision on the basis that, while it was correct that a NRM decision could be overruled if perverse, this particular decision was not and therefore should not have been overruled. Further, the Upper Tribunal had wrongly held that the anti-trafficking convention imposed positive obligations and that there had been a breach of procedural obligations under Article 4 ECHR. The appeal should not have allowed on either of these grounds.

Supreme Court backs the judges

In yet another example of the Court of Appeal getting it very, very wrong, the Supreme Court allowed the appeal against that decision on all grounds.

The Supreme Court goes further even than the Upper Tribunal, holding that the tribunal “is in no way bound by the decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed.” Indeed, so wrong was the Court of Appeal on this point that the Home Office conceded this was so (paragraph 11 of judgment).

This is not to say that a decision under the NRM should be totally ignored. It should rather be given “proper consideration and weight”, which will depend on the nature of the decision and its relevance to the issues before the tribunal. In this case, the tribunal was far better placed to decide whether the appellant was a victim of trafficking than was the NRM.

The Supreme Court goes on to hold that Article 4 ECHR imposes positive obligations on signatory states and strongly suggests, without as far as I can see saying it outright, that the protections of the European Convention on Trafficking are effectively incorporated into Article 4. Given that the appellant had been found to be a victim of trafficking but had been denied the protections of the European Convention Against Trafficking, as implemented in UK law through the NRM, the Upper Tribunal has been right to allow the appeal. An effective investigation of what had happened to MS would be impossible if he were removed to Pakistan.

The decision is a welcome one which offers some belated clarity on the role of NRM decisions in immigration tribunal appeals and the potential outcomes available from such appeals. The case is also interesting from a public law perspective because of the comments on the positive obligations under Article 4 ECHR and the European Convention on Trafficking; and because MS himself withdrew from the proceedings because his immigration status was resolved, but the appeal continued to the Supreme Court anyway with an intervener acting in his stead.