MS (Pakistan) v Secretary of State for the Home Department

In MS (Pakistan) the Court was concerned with:

1) The extent to which immigration appeals tribunals are bound to accept the decisions of the National Referral Mechanism (“NRM”) as to whether a person is or is not a victim of trafficking; and

2) The circumstances in which a decision to remove a person from the UK will be contrary to Article 4 ECHR, read in the light of the UK’s international obligations under the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”).

On the first issue, the Secretary of State had argued (successfully) in the Court of Appeal that immigration appeals tribunals were only able to go behind NRM decisions and re-determine relevant factual issues if the NRM decision was perverse, irrational or a decision not open to the NRM to make.

On appeal to the Supreme Court, the Secretary of State conceded that immigration tribunals were in no way bound by the decision reached under the NRM: see paragraph 11 of the judgment of Lady Hale, with whom all of the other justices agreed.

Lady Hale explained why this was a proper concession (at paragraphs 11 to 15 of her judgment) having regard to (i) the statutory jurisdiction of immigration appeal tribunals and (ii) prior authority (in particular Huang v SSHD [2007] 2 AC 167) which made it ‘crystal clear’ that tribunals had to decide for themselves factual issues relevant to the immigration decisions falling within their jurisdiction.

On the second issue, the area of dispute centred upon the extent to which the detailed and specific obligations under ECAT could be said to form part of the positive obligations owed by the State under Article 4 ECHR. To the extent that they do, they are relevant (under the relevant statute) upon a challenge to an immigration decision in the immigration tribunals. To the extent that they do not, they are only relevant upon a judicial review challenge to a decision of the NRM.

Lady Hale carried out a detailed review of the relevant ECtHR jurisprudence at paragraphs 22 to 33 of her judgment, before finding that

1) The upper tribunal having decided that MS was a victim of trafficking, it was necessary to decide whether his removal from the UK would amount to a breach of any of the positive obligations in Article 4 ECHR.

2) Because of the defective NRM decision, MS was denied the protective measures required by ECAT, and that Article 4 ECHR does require operational measures of protection. Ultimately, however, MS had been removed from the risk of further exploitation (paragraph 34).

3) It was clear that there had not yet been an effective investigation as required by Article 4 ECHR, and (importantly) the upper tribunal had been right to hold that it was inconceivable that an effective police investigation could be conducted without the full assistance and cooperation of MS, which realistically would not be feasible if he were removed to Pakistan (paragraph 35).

For those reasons the appeal was allowed.

The Aire Centre and ECAPT UK jointly intervened in support of the appeal. 

Ben Jaffey QC and Jason Pobjoy acted for the AIRE Centre. Shane Sibbel acted for ECPAT UK. Sir James Eadie QC acted for the Secretary of State.

The full judgment is available here.