MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 (18 March 2020)
These proceedings in the Supreme Court have resulted in the outcome that when determining an appeal in which it was argued that that removal would breach rights protected by the ECHR, the FTT is not bound by a decision reached under the National Referral Mechanism (NRM) as to whether the appellant was a victim of trafficking. Moreover, the FTT does not have to look for public law reasons why that decision is flawed. Lady Hale, with whom Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed, began her judgment by observing that human trafficking and modern slavery are recognised “as twin evils requiring a world-wide response.” The UK is party to the Palermo Protocol 2000 (the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime). It is also party to the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) which, pursuant to article 1, has the purpose of preventing and combatting trafficking, to protect the human rights of victims, as well as to ensure effective investigation and prosecution, and to promote international co-operation on action against trafficking. MS, a Pakistani national entered the UK in 2011 aged 16 on a visitor’s visa prior to which he had been subjected to forced labour/physical abuse by relatives in Pakistan. His step-grandmother then deceived him into thinking that she was taking him to the UK for his education.
Once in the UK, he was forced to work without pay by his step-grandmother for her own financial gain. Both tiers of the tribunal found that he moved from job to job for the next 15 months, under the control/compulsion of adults. An essential part of ECAT’s purposes is the effective identification of victims with which article 10 is concerned. Accordingly, the UK has established the NRM. First responders, e.g. police officers or social workers, who suspect that a person may be a victim of trafficking refer the case for investigation to the Home Office, as the competent authority under ECAT. Officials first decide whether there are reasonable grounds to believe that the person may be a victim. If so, he or she is usually provided a period of “recovery and reflection” during which money, practical assistance and if necessary accommodation are provided. Not less than 45 days later (and nowadays usually much longer) the Home Office will make a decision on “conclusive grounds” regarding whether the person is, on the balance of probabilities, a victim of trafficking. Trafficking usually has an international dimension and victims crossing international borders often have immigration problems. The Equality and Human Rights Commission (EHRC), the AIRE Centre and ECPAT UK intervened in this appeal.
The proceedings
These proceedings primarily concerned the relationship between the decision-making processes of the NRM and the decision-making processes of the appellate immigration tribunals. Essentially, the appeal concerned the extent to which appellate immigration tribunals are bound to accept the NRM’s decisions as to whether a person is, or is not, a victim of trafficking? Alternatively, MS’s case additionally raised questions about the relevance of a finding that a person has been trafficked to the immigration decisions which come before the tribunals.
Specifically, when will a decision to remove a person from the UK be contrary to section 6 of the Human Rights Act 1998 because it is incompatible with that person’s rights under article 4 of the ECHR? Article 4.1 of the ECHR provides that “No-one shall be held in slavery or servitude” and article 4.2 states that “No-one shall be required to perform forced or compulsory labour”. This issue raised the broader question of the relationship between the individual’s rights under article 4 and the UK’s obligations under ECAT.
MS came to the police’s attention in September 2012 who then referred him to a local authority social services department. They referred him to the NRM owing to concerns as to his vulnerability and the possibility that he had been trafficked. Then in February 2013, without meeting or interviewing MS, the NRM decided that there was no reason to believe he was a victim of trafficking. The NRM considered that he was never under the control or influence of traffickers while in the UK and changed jobs freely. MS sought judicial review of this decision in April 2013. In September 2012, he had also claimed asylum, but it was refused in August 2013 and a decision was made to remove him from the UK. He appealed this decision on asylum and human rights grounds to the FTT which found that he had been under compulsion and control but dismissed his appeal.
In later proceedings, McCloskey J and UTJ Blum allowed MS’s appeal. However, Gloster, Sharp and Flaux LJJ had allowed the government’s onward appeal in the Court of Appeal. The UT decided that if satisfied that the NRM decision was perverse, the tribunal could make its own decision on whether an appellant was a victim of trafficking. However, in accordance with AS (Afghanistan) [2013] EWCA Civ 1469 the Court of Appeal held that the tribunal could only go behind the trafficking decision and re-determine the factual issues if the decision was perverse or irrational or one which was not open to it. The UT had in effect treated the NRM decision as an immigration decision, which it was not and it had also been wrongly influenced by a submission that the obligations under ECAT were positive obligations under article 4, contrary to Hoang Anh Minh [2016] EWCA Civ 565. Accordingly, in the Court of Appeal’s view, the UT had been wrong to conclude that there had been a breach of the procedural obligations under article 4.
The Supreme Court
Lady Hale first addressed the preliminary issue of permitting the EHRC to intervene in these proceedings and she then dealt with the principal issue and allowed MS’s appeal. Her Ladyship also addressed the second issue concerning trafficking and the ECHR.
(i) Preliminary issue
MS was granted leave to appeal to the Supreme Court in February 2019. He later wished to withdraw from the proceedings because his immigration problems had been resolved. So the preliminary issue arose as to whether the EHRC, which had applied to intervene in the proceedings, could take over the appeal (which was resisted by the government on the basis that the court had no power to allow it). But after holding a preliminary hearing on 2 October 2019, the Supreme Court permitted the EHRC to intervene in these proceedings and take over the appeal. Where an important question of law that may have been decided wrongly below is raised in an appeal, it is open to the court to permit intervention and allow the intervener to take over the conduct of the appeal. Under rule 3(1) of the Rules of the Supreme Court, an intervener is a party to an appeal. Moreover, an appeal can only be withdrawn with the consent of all parties or the permission of the court under rule 34(1). Overall, the Supreme Court is permitted to adopt any procedure that is consistent with the overriding objective, the Constitutional Reform Act 2005 and the Rules, rule 9(7), and under rule 2(2) the overriding objective is to secure that the court is accessible, fair and efficient.
(ii) Principal issue
On the principal issue, the Home Office conceded that when determining an appeal as to whether a removal decision would infringe ECHR rights, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision-making authority’s prior determination. So it became common ground that a tribunal is not bound by a decision of the NRM. Nor must it seek a public law ground for finding that such a decision is flawed. Prior to embarking upon a fuller analysis of the problem, Lady Hale said this:
11. … This is an important matter. As the AIRE Centre and ECPAT UK point out, had the tribunal been bound by such decisions, it could have had a profoundly chilling effect upon the willingness of victims to engage with the NRM mechanism for fear that it would prejudice their prospects of a successful immigration appeal.
The Supreme Court espoused a threefold rationale why the tribunal cannot be bound by the NRM decision. First, under section 82(1) of the Nationality, Immigration and Asylum Act 2002, the tribunal’s jurisdiction is to hear appeals against the immigration decisions of officials. Second, the tribunal does not have jurisdiction judicially to review the decisions of the competent authority under the NRM and “an appeal is intrinsically different from a judicial review”. The reason that the tribunal is not bound by a decision of the NRM is that it exercises statutory jurisdiction to hear appeals from immigration decisions. The 2002 Act and tribunal procedure rules indicate that immigration appeals are plainly intended to involve the hearing of evidence and the determination of factual issues. Lady Hale explained that the third reason was that this role of the tribunal had been “made crystal clear” by Lord Bingham in Huang [2007] UKHL 11. Indeed, Huang concerned article 8 of the ECHR outside the Immigration Rules and section 65 of the Immigration and Asylum Act 1999 – the predecessor to the 2002 Act – and Lord Bingham said this:
11. These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.
Although cases such as Edore [2003] EWCA Civ 716 and M (Croatia) [2004] UKIAT 24 correctly recognised that primary decision-maker’s judgment on the same or substantially the same factual basis is always relevant and may be decisive, such authorities did not describe the immigration appellate authority’s correct approach to its role. Lord Bingham said that when deciding an appeal the appellate tribunal is not reviewing the decision of another decision-maker. Rather, on the basis of up-to-date facts, it is deciding whether or not it is unlawful to refuse leave to enter or remain. Indeed, in the instant appeal, the UT had said that it “is better equipped than the Authority to make pertinent findings” as the latter is merely conducting a paper exercise without any live evidence in comparison to which the tribunal has “the distinct advantage of having heard the appellant’s viva voce evidence” and can also entertain previously unavailable evidence. The credibility of the appellant is undisputedly central to the disposal of the appeal. Lord Bingham’s view was that the tribunal’s first task is to establish the relevant facts and its second task is to weigh in the balance the competing considerations for and against granting leave, i.e. perform the proportionality exercise required by article 8(2) of the ECHR. The weighing of the public interest factors “is performance of the ordinary judicial task of weighing up the competing considerations on each side …” – as Lord Bingham had said – and Lady Hale held that:
15. It is thus apparent that “the proper consideration and weight”, which the Secretary of State says should be given to any previous decision of the authority, will depend upon the nature of the previous decision in question and its relevance to the issue before the tribunal. The decision of the competent authority under the NRM process was an essentially factual decision and, for the reasons given, both the FTT and the UT were better placed to decide whether the appellant was the victim of trafficking than was the authority.
She further explained that the more difficult question concerned the precise relevance of that factual determination to the appeal before the tribunals. As she said, this depended upon the relationship between the obligations in ECAT and the obligations in article 4 of the ECHR.
(iii) Trafficking and the ECHR
On the second issue, the court considered it necessary to examine the relevant obligations contained in ECAT and the Strasbourg jurisprudence relating to article 4 of the ECHR but it did not find it necessary to import all of the obligations in ECAT into article 4 in order to find a violation of the obligations in article 4. It was sufficient for MS, as a child, to be identified as a victim of trafficking if he was recruited and transported for the purpose of exploitation in the form of forced labour or services. There was no need to show that this had been achieved by any of the means set out in article 4.a of ECAT, a provision which defines trafficking in such a way that a child, recruited and transported for the purpose of exploitation through forced labour or services, may be considered a victim of trafficking. ECAT also imposes other obligations on states, to prevent trafficking and to identify and protect its victims. However, ECAT as such has not been incorporated into UK law and a variety of measures implement its obligations. The NRM fulfils the obligations in articles 10, 12 and 13 and article 14 has led to modifications in the Immigration Rules and various criminal offences have been created by the Modern Slavery Act 2015. Lady Hale said:
20. … The NRM does not, however, give private law rights to individuals. There is no right of appeal against an adverse decision or against a failure to provide the expected assistance. The only remedy lies in judicial review.
She pointed out that the government did not dispute the NRM should comply with ECAT and it accepted in Atamewan [2013] EWHC 2727 that it would be a justiciable error of law if the NRM Guidance did not accurately reflect the requirements of ECAT and a decision based on that error would accordingly be unlawful. This was also common ground in PK (Ghana) [2018] EWCA Civ 98. However, this offered limited help to a victim subject to an adverse immigration decision and it would be, in her Ladyship’s view, of much greater help if a failure to observe the requirements of ECAT were also a violation of article 4 of the ECHR.
Accordingly, Lady Hale next examined the Strasbourg jurisprudence in the context of the present appeal. She began her analysis with Siliadin v France (2006) 43 EHRR 16 where a Togolese girl had been transported to France and “lent” to a couple who forced her to work against her will. The ECtHR decided that that limiting the scope of article 4 to direct state action would be contrary to international instruments and render it ineffective. The court held that ECHR contracting states have positive obligations under article 4 of the ECHR to adopt and apply criminal law provisions against slavery, servitude, and forced labour. While Ms Siwa-Akofa Siliadin had not been been held in slavery, in the court’s view she had nonetheless required to perform forced or compulsory labour and France’s criminal law was defective at the time and the perpetrators had escaped justice and thus article 4 had been violated. Similarly, in CN v United Kingdom (2013) 56 EHRR 24 it was held that the absence of any legislation in the UK penalising forced labour and servitude violated article 4 which led to the enactment of Modern Slavery Act 2015. Lady Hale pointed out that Siliadin was a “breakthrough” case because the ECtHR recognised that article 4 imposed, not only negative, but positive obligations upon the state.
Her Ladyship further explained that in Rantsev v Cyprus and Russia (2010) 51 EHRR 1 the ECtHR held that trafficking within the meaning of article 4 of ECAT fell within the scope of article 4 of the ECHR. Notably, the state had a positive obligation to prevent, to investigate, to protect and to punish. Ms Rantseva was a young Russian woman working in a cabaret in Cyprus and she wished to return to Russia but was apprehended by the cabaret manager who took her the police (who consigned her to the manager after which she was found dead outside the apartment of a male employee of the cabaret). Upon her father’s complaint, the ECtHR had to address whether the issue of trafficking, within the meaning of the Palermo Protocol (in force at the material time) and ECAT (in force later), fell within the scope of article 4, despite the fact that it referred only to slavery, forced labour and servitude. In Rantsev the ECtHR said this:
281. The court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions. It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade.
The court concluded that trafficking within the meaning of article 4.a of ECAT fell within the scope of article 4 of the ECHR and it did not consider it necessary to decide whether it was slavery, servitude or forced labour. As in Siliadin the ECtHR stressed that together with articles 2 and 3, article 4 of the Convention enshrined one of the basic values of the democratic societies of the Council of Europe. Furthermore, national safeguards against trafficking must be adequate to ensure the practical and effective protection of the rights of victims and potential victims. Immigration law and business regulations must abide by this standard in addition to criminal law. The scope of the positive obligations arising out of article 4 had to take account of the broader context of the Palermo Protocol and ECAT, which required not only punishment but prevention and protection. A credible suspicion that someone had been or was at real and immediate risk of being trafficked or exploited within the meaning of the Palermo Protocol and article 4.a of ECAT. Moreover, article 4 of the ECHR also entailed a procedural obligation to investigate situations of potential trafficking which did not depend upon a complaint. The authorities need to act of their own motion once they are aware and they must conduct an independent investigation which is capable of leading to the identification and punishment of those responsible: the investigative duty is freestanding.
The state’s positive obligation to prevent, to investigate, to protect and to punish flowing from Rantsev was subsequently confirmed by the decision in Chowdury v Greece [2017] ECHR 300 which concerned Bangladeshi strawberry pickers who had protested that their promised wages had not been paid despite working very long hours and their living and working conditions were “particularly harsh”. Armed guards watched them and opened fire on them causing injury to some of them. However, their employers were acquitted of trafficking in Greece. But the ECtHR held that contracting states are required to adopt a comprehensive approach and put in place measures, not only to punish the traffickers, but also to prevent trafficking and protect the victims. Overall, there had been a breach of the obligations to prevent, to protect, to investigate and to punish. Chowdury does follow the same analytical framework as Rantsev. However, it relies more on the specific provisions in ECAT to expand the content of those positive obligations.
In J v Austria [2017] ECHR 37, the ECtHR reiterated the positive obligations to protect victims, to conduct a comprehensive investigation and to “put in place a legislative and administrative framework to prohibit and punish trafficking, as well as to take measures to protect victims, in order to ensure a comprehensive approach to the issue, as required by the Palermo Protocol and the Anti-Trafficking Convention.” It was however held that the Austrian authorities had done all that could reasonably be expected to protect a group of women from the Philippines who had been recruited for domestic work in Dubai where they had been badly treated and were taken by their employers on a holiday to Vienna but escaped after three days and had the support of their community in Vienna. In MS’s case:
34. … The UT having decided that the appellant was indeed a victim of trafficking, it is necessary to decide whether his removal from the UK would amount to a breach of any of the positive obligations in article 4 of the ECHR. It could well be said that, because of the defective NRM decision, the appellant was denied the protective measures required by ECAT, including the immigration status necessary for him to co-operate in the investigation and prosecution of the perpetrators.
Applying principles found in the Strasbourg jurisprudence to the present case, Lady Hale further judged that:
34. … As is clear from the above cases, article 4 does require operational measures of protection where the authorities “were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been or was at real and immediate risk of being trafficked or exploited” (Rantsev, para 286).
Once MS had come to the attention of the police, he was effectively removed from the risk of further exploitation. Notably, UT found that he would not be at further risk if returned to Pakistan. But it was clear that there had not been an effective investigation of the breach of article 4. No further action was taken by the police after they handed him over to the social services department. Hoang Anh Minh established it is not the task of the NRM to investigate possible criminal offences, although the competent authority may notify the police if it considers that offences have been committed. Lady Hale was of the view that the authorities are under a positive obligation to rectify that failure and she agreed with the UT that such an investigation cannot take place if MS is removed from the UK to Pakistan. MS’s appeal was therefore allowed and the Supreme Court restored the UT’s decision on this ground.
Comment
Admittedly, Pakistan has quite a poor human rights record and is perhaps best known for an extraordinarily high number of honour killings and an extremely high incidence of child labour. But, on the brighter side, Pakistan is a common law jurisdiction rooted in the principles of English law and there is great potential to improve the suffering of the poor and the vulnerable. To that end, the Prevention of Trafficking in Persons Act 2018 has been enacted to combat the menace of human trafficking (especially in respect of women and children). In the past, Pakistan had enacted the Prevention and Control of Human Trafficking Ordinance 2002.
Anyone who commits the offence of trafficking in persons is liable to be punished with seven years’ imprisonment or a fine up to Rs 1 million or with both. But if this offence is committed in respect of women and children the punishment has been extended to 10 years’ imprisonment. So it is worth adding that MS’s trafficking to the UK by his step-grandmother would trigger criminal liability for her under Pakistani law as it presently stands. Furthermore, under the Prevention of Smuggling of Migrants Act 2018 whoever intentionally engages in or attempts to engage in the smuggling of migrants is liable to a term of imprisonment which may extend to five years but which shall not be less than three years and with fine up to Rs 1 million. Significantly, article 11 of the Constitution of Pakistan 1973, prohibits slavery and all forms of forced labour and trafficking in human beings are prohibited. And despite the prevalence of bonded labour, statute ensures its abolition. But it is nevertheless estimated that there are more than three million victims of modern slavery in Pakistan and much more work needs to be done to alleviate the suffering of these victims. Interestingly, the Supreme Court of Pakistan held in Darshan Masih v The State PLD 1990 SC 513 that sections 10 and 11 of the Bonded Labour System (Abolition) Act 1992 and article 11 of the Constitution of Pakistan prohibit brick-kiln owners from engaging labour by making advance payments under the country’s “bonded labour system”.
In the UK, 10,627 potential victims of modern slavery were referred to the NRM in 2019 compared to 6,986 in 2018. This constitutes a rise of 52% and there were “reasonable grounds” to believe 8,429 of these persons were victims of modern slavery. And the 39 Vietnamese people found dead in a refrigerated lorry in Essex in October 2019 yet again brought home the message that people are willing to take extremely deadly risks to come and work in the UK. Equally, the tragedy demonstrates that human traffickers will go to any lengths to extort money (in the case of the 39 Vietnamese victims £30,000 per head) from poor people who are duped into thinking that a bright future awaits them in the UK. In reality, trafficked Vietnamese nationals usually work as modern slaves in UK cannabis farms and in nail saloons, brothels, restaurants and domestic servants. The lorry driver, Maurice Robinson, pleaded guilty to manslaughter of the 39 Vietnamese victims.
Since Lady Hale began her judgment by characterising human trafficking and modern slavery “as twin evils requiring a world-wide response”, we can find some comfort in the fact that Pakistan has taken a few steps to address these problems. We can only hope that Pakistan will urgently ensure that women and children are not exploited and abused in what is an extremely male dominated society. As for the outcome in the present case, we must all surely agree with “Judge Brenda” (as Lady Hale is fondly known by the British people) in the Supreme Court that both the FTT and the UT were better placed to decide as a matter of fact whether MS was the victim of trafficking than was the authority.
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