Landmark Supreme Court judgment on state obligations under Article 4 ECHR to identify & protect victims of trafficking

The Supreme Court has issued a landmark judgment regarding the scope of positive obligations of the state under Article 4 ECHR, to identify victims of trafficking and afford them protection, including immigration status, for their safety and recovery.

The Supreme Court has overturned a decision of the Court of Appeal regarding the immigration tribunals’ jurisdiction to make its own findings as to whether an appellant is a victim of trafficking, and the circumstances in which removing a victim of trafficking, would amount to a breach of Article 4 ECHR, which prohibits slavery servitude and forced labour.

MS was a Pakistani national who was brought to the UK on a visitor’s visa when he was still a child. He had been subjected to forced labour and physical abuse by his relatives prior to his arrival in the UK. He continued to be exploited by relatives whilst in the UK. When he came to the attention of the police and social services, concerns that he may have been trafficked led to a referral being made to the National Referral Mechanism for a formal identification decision. The NRM Competent Authority, which in the UK is the Home Secretary, decided that there were no reasonable grounds to believe that he was a victim of trafficking. He challenged that decision by way of judicial review. Meanwhile, he also claimed asylum, but was refused and the Home Secretary sought his removal from the UK. 

On appeal, the First-Tier Immigration and Asylum Tribunal found that he had been forced to work under compulsion but dismissed his appeal. On appeal, the Upper Tribunal found the NRM decision that MS was not trafficked to be perverse or otherwise not in accordance with the law and made its own findings that MS was a victim of trafficking and that the decision to remove him would be contrary to Article 4 ECHR.

On the Home Secretary’s appeal, the Court of Appeal reversed the Upper Tribunal decision finding that the immigration tribunal could not go behind the NRM decision on trafficking and re-determined the facts and issues as to trafficking for itself. The Court of Appeal also held that the Upper Tribunal was wrong to consider the obligations under the Council of Europe Convention on Action against the Trafficking in Human Beings to be incorporated into the positive obligations under Article 4 ECHR.

The Supreme Court, in overturning the Court of Appeal’s decision, held that:

1. The immigration tribunal is not bound by a decision of the NRM nor does it need to seek a public law ground for finding such a decision flawed. As a fact-finding jurisdiction, the tribunal must make its own findings of fact. The weight to be afforded to an NRM decision will depend on its relevance to the issue before the tribunal.
2. In MS’s case, the immigration tribunals were better placed to decide whether he was a victim of trafficking.
3. Where a person is a victim of trafficking, it is necessary to consider whether his removal from the UK would be a breach of any of the positive obligations under Article 4 ECHR. A defective NRM decision may result in the appellant being denied protective measures required by ECAT, the specialist convention on trafficking, including the immigration status necessary for the appellant to cooperate in the investigation and prosecution of his perpetrators.
4. Where there had not been an effective police investigation into the crimes of trafficking, if that investigation cannot take place if the victim is removed, it would be a breach of Article 4 ECHR to remove him. In MS’s case, although he would not be at risk of re-trafficking, an effective police investigation could not take place if he were to be removed. It would breach Article 4 ECHR in the circumstances to remove him.

The full Supreme Court judgment can be read here.