MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9

A Pakistani national trafficked to the UK as a child for forced labour challenged his removal. The Supreme Court held that immigration tribunals are not bound by National Referral Mechanism trafficking decisions and must make their own factual findings. Removal would breach Article 4 ECHR as no effective investigation of the trafficking had occurred.

Facts

MS, a Pakistani national, entered the UK aged 16 in July 2011 after being subjected to forced labour and physical abuse in Pakistan. His step-grandmother deceived him into believing he was coming for education, but instead exploited him as cheap illegal labour for 15 months. In September 2012, police referred him to social services, who subsequently referred him to the National Referral Mechanism (NRM). In February 2013, the NRM concluded there were no reasonable grounds to believe he was a trafficking victim, a decision made without meeting or interviewing MS. His asylum claim was rejected, and removal was ordered.

Issues

Principal Issue

To what extent are immigration appeals tribunals bound by NRM decisions regarding trafficking victim status?

Secondary Issue

Would removal from the UK breach the appellant’s rights under Article 4 of the European Convention on Human Rights?

Judgment

Lady Hale, delivering the unanimous judgment, held that the Secretary of State conceded tribunals must determine relevant factual issues independently, giving proper consideration to NRM decisions but not being bound by them. The Court identified several reasons for this approach:

“The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”

The Court examined the obligations under the Council of Europe Convention on Action against Trafficking (ECAT) and their relationship with Article 4 ECHR, citing Rantsev v Cyprus and Russia:

“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”

The Court found that Article 4 requires operational measures of protection and a procedural obligation to investigate. Since no effective investigation had occurred and such investigation could not feasibly proceed without the appellant’s presence in the UK, removal would breach Article 4.

“it is inconceivable that an effective police investigation and any ensuing prosecution could be conducted without the full assistance and co-operation of the appellant. Realistically this will not be feasible if he is removed to Pakistan”

Implications

This decision clarifies that immigration tribunals have independent fact-finding jurisdiction regarding trafficking status, preventing NRM decisions from having a ‘chilling effect’ on victims engaging with the system. The judgment reinforces that Article 4 ECHR encompasses positive obligations derived from ECAT, including the duty to investigate trafficking offences. Removal of trafficking victims may breach Article 4 where effective investigation remains outstanding and requires the victim’s presence.

Verdict: Appeal allowed. The decision of the Upper Tribunal was restored. Removal of the appellant would breach Article 4 ECHR because no effective investigation of the trafficking had taken place and such investigation could not proceed without the appellant’s presence in the UK.

Source: MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9