MS (Pakistan) v Secretary of State for the Home Department,  UKSC 9
https://www.supremecourt.uk/cases/uksc-2018-0159.html (Supreme Court, 18th March 2020)
In a case supported by the Equality and Human Rights Commission the Supreme Court has overturned the Court of Appeal judgment and in doing so has increased the protections for those who are the victims of human trafficking.
MS, from Pakistan was brought to the UK at the age of 16 by his step-grandmother.
He had been subjected to forced labour by his step-grandmother and her nephews in Pakistan and upon reaching the UK was made to work without pay whilst his step-grandmother profited.
Initially MS was assessed to be a potential victim of exploitation and human trafficking by police & social services. “…[T]he social services department referred him to the NRM [National Referral Mechanism] because he appeared to be ‘a vulnerable young person and potentially a victim of trafficking for exploitation purposes'” – (para 5 of judgment).
However, a Home Office official reviewed MS’s paperwork (never having met him in person) and made a ‘conclusive grounds’ determination that MS was not a victim of human trafficking.
MS claimed asylum in the UK and this was refused. He appeal to the Frist-tier Tribunal, who, whilst finding that he had been under compulsion and control, dismissed his appeal.
MS appealed to the Upper Tribunal who made a ruling that he was a victim of trafficking and that any removal would breach Article 4 ECHR (prohibition of slavery and forced labour).
Their decision was made on the basis that the result of the incorrect ‘conclusive grounds’ decision made by the Home Office official was that the police had not investigated the trafficking offences committed against MS in Pakistan, and they would be unable to do so if he was removed there.
Court of Appeal
The Court of Appeal then reversed the decision of the Upper Tribunal. It found that the Upper Tribunal was bound by the decision made by the Home Office official unless the decision was ‘perverse, irrational or not open to the decision maker’. The Court of Appeal held that removing MS would not breach Article 4 of the ECHR.
MS appealed this decision to the Supreme Court.
MS felt he was no longer able to continue with his appeals and the Equality and Human Rights Commission applied to take over the appeal process on his behalf.
The Supreme Court has now ruled in favour of the appellant and have clarified that:
- Immigration tribunals can make their own findings of fact re: if a person has been a victim of trafficking and will not be bound by a Home Office decision when determining whether in the case of removal Art 4 ECHR would be breached.
- The UT was correct in their finding that the removal of MS would prevent any police investigation and this would therefore breach his Art 4 right.
- The 2005 ECAT sets our requirements which can be used to advise the positive obligations that exist under Art 4 of the ECHR.
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