The Court of Appeal in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594 looked at whether the Upper Tribunal can second-guess the decision of the government to reject someone’s application to be considered a victim of human trafficking. It found that the tribunal can only re-make negative trafficking decisions in the extreme case of perversity or irrationality.

This finding overrules the earlier decision of former Upper Tribunal President McCloskey in the same case. It is said by the court to be the correct interpretation of AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469.

Quoting Lord Justice Flaux:

The Court of Appeal in AS (Afghanistan) was limiting the circumstances in which, on a statutory appeal against a removal decision, an appellant can mount an indirect challenge to a negative trafficking decision by the authority (in the circumstances where the appellant has not challenged it by way of judicial review), to where the trafficking decision can be demonstrated to be perverse or irrational or one which was not open to the authority, those expressions being effectively synonymous for present purposes.

The Court of Appeal, which in a side-swipe at the former President accuses him of “hyperbole” in his reasoning, went on to hold that “even if the Upper Tribunal had been entitled to conclude that the authority was wrong in making a negative trafficking decision, it should not have concluded that this amounted to a breach of the procedural obligation of the United Kingdom under Article 4”.

For more on this decision, see this post by the Anti Trafficking and Labour Exploitation Unit (ATLEU), a charity which acted for the respondent in the case. ATLEU calls the decision “bitterly disappointing for those representing victims of trafficking” and advises practitioners to seek to challenge negative trafficking decisions by way of judicial review if possible. It is seeking permission to appeal to the Supreme Court.