MS v Secretary of State for the Home Department

Sadly, in a judgment handed down on 23 March 2018, the Court of Appeal has overturned the ground-breaking decision of the Upper Tribunal (IAC) in MS (Trafficking - Tribunal's Powers - Art. 4 ECHR) Pakistan [2016] UKUT 226 (IAC).

Essentially, the case concerns MS, a Pakistani child trafficked to the UK by family members to be placed into forced labour in a take-away restaurant. MS received a negative trafficking decision from the Home Office in their role as Competent Authority. The First-tier Tribunal (IAC) then refused his appeal against removal. Although finding his account credible, the Competent Authority and First-tier Tribunal found MS was not being exploited in the UK by his traffickers but rather that he was working 'out of pure economic necessity'.

In his judgment, the President of the Upper Tribunal (IAC) disagreed with the Home Office and the First-tier Tribunal (IAC), finding that MS was clearly a victim of trafficking. He found that ‘If the Authority had made a lawful decision the Appellant would have been recognised as a victim of trafficking’ [59]. 

On this basis, although the Upper Tribunal dismissed MS’s appeal on asylum grounds, it found that his removal would breach his rights under Article 4 of the ECHR: particularly, because ‘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’ [64].

The Upper Tribunal also found that the decision to remove MS was ‘not in accordance with the law’: that if the Authority had made a lawful decision the Appellant would have been recognised as a victim of trafficking and, as a consequence, would have been entitled to the benefits of such recognition provided by the Trafficking Convention, including a reflection and recovery period and a grant of discretionary leave. This part of the Upper Tribunal’s decision is of less import now that the 2014 Act has so restricted the available grounds of appeal.

The Court of Appeal roundly disapproved the Upper Tribunal’s approach. The court decided that as a negative trafficking decision by the Competent Authority is not an appealable immigration decision, the Tribunal is not entitled to go behind the decision unless they first find that it was perverse or irrational. This approach restricts the Tribunal to considering only the evidence that was before the Competent Authority at the time of its decision. The judge will be prevented from considering any new evidence, including witness statements and medical evidence when deciding whether they can revisit the trafficking decision. In so restricting the jurisdiction of the Tribunal, the court was clear that the only proper route to challenging a trafficking decision is by judicial review. 

Of course, in a judicial review, the administrative court will also be restricted from considering evidence that was not before the Competent Authority. In these circumstances, the proper approach to challenging a trafficking decision is now likely to be a request for reconsideration, whatever procedural obstacles need to be navigated for doing that, and the delay that may entail, before bringing a legal challenge to the decision.

The court went further in finding that where the Competent Authority has made a negative trafficking decision, and the Tribunal decides to the contrary that the person is a victim of trafficking, the Tribunal is not entitled to allow the appeal on Article 4 grounds. Indeed, the court found it difficult to envisage any scenario whereby a failure of the Competent Authority could put the United Kingdom in breach of its article 4 procedural obligations.

This decision is bitterly disappointing for those representing victims of trafficking. It puts enormous obstacles in the path of those seeking to challenge Home Office decision-making in trafficking cases. It is not contentious that Home Office decision making is notoriously poor. In appeals against Home Office immigration decisions, the Tribunal reverses the decision in 50% of cases. It is easy to see why the Home Office is so keen that its decisions in trafficking cases are kept out of the reach of the Tribunal. 

Even where a person has an appeal on asylum or human rights grounds, it will now be much more difficult to challenge the Home Office’s conclusion that they are not a victim of trafficking without bringing parallel judicial review proceedings. 

Access to justice for victims trafficking is already massively circumscribed by the restrictions placed on access to legal aid. Added to this will now be the impossibility of arguing in the Tribunal that the Home Office’s decision on trafficking was just wrong. 

ATLEU is seeking permission to appeal to the Supreme Court in this case.

Immigration practitioners should now:

  1. Seek to challenge any negative NRM decision via judicial review or ensure that they secure for their client a public lawyer who will do so, as soon as possible. 
  2. Where judicial review is likely to be less appropriate, support their client and/or support provider with an application for reconsideration and maximise this opportunity to provide further evidence of trafficking, acting promptly. Home Office policy requires such applications to be made by the support provider, but the Home Office cannot lawfully ignore new representations/evidence submitted by legal representatives where no support provider is available to help. Legal aid will be available where the trafficking claim is integral to an asylum claim or, otherwise, under Exceptional Case Funding. 
  3. Raise Article 4 arguments in representations and appeals regardless of this decision in the event that there is further opportunity to litigate this issue. 

For the background facts to the case, and a summary of the Upper Tribunal’s decision, please see here.
 

Appeal court finds that deposit orders must not limit access to justice

H was a victim of trafficking, and brought proceedings against the respondents before the employment tribunal in relation to their alleged role in her trafficking. The respondents were acquitted of trafficking-related offences in criminal trials and, on that basis, applied to the tribunal for deposit orders against H. The tribunal may choose to make such an order when it considers that any specific allegation, argument or response has ‘little reasonable prospect of success’. The tribunal judge found in favour of the respondents, and ordered H to pay £75 in respect of each of three specific allegations.

H appealed to the Employment Appeals Tribunal, which found largely in her favour and reduced the contested deposit orders to the nominal sum of £1. In particular, the appeal court held:

  1. That the tribunal judge had made an error of law by stating that a deposit order could be used to order a party to pay a sum which they would find ‘difficult but not impossible to pay’. This would risk deposit orders being strike outs ‘by the back door’ – which is inappropriate given the distinct legal test for a strike-out claim. Given the court’s obligations to comply with Article 6(1) of the ECHR, a deposit order must not impair access to justice. A party should not be ordered to pay a sum (s)he is unlikely to be able to raise. Deposit orders must pursue a legitimate aim and demonstrate a degree of proportionality between the aim pursued and the sum set.
  2. That the tribunal judge, in finding alleged inconsistencies in H’s evidence for her allegations, erred by failing to consider the possibility of communication difficulties. Where inconsistencies could be explained by badly expressed translations, the court ought grant ‘some leeway’.
  3. That the tribunal judge erred when he failed to consider, as part of his deposit order decision, that H was a victim of trafficking. In particular, the appeal judgment referred to Articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings (which came into force in the UK in 2009). Article 12 imposes an obligation to ensure subsistence for victims of human trafficking, and the judgment held that hefty deposit orders, which diverted victims’ limited resources away from subsistence, could lead to a breach of this obligation. Article 15 requires that victims have access to compensation from perpetrators of trafficking. As employment tribunal proceedings are one means of providing this compensation, hefty deposit orders that render access to such tribunals almost impossible for victims are at risk of breaching this obligation. Therefore, if a claimant is a victim of trafficking, the tribunal must take this fact into account before deciding upon a deposit order against them.

Read the full judgment here

Vulnerable victim granted legal aid for representation at Employment Tribunal

A victim of trafficking is entitled under the Trafficking Directive 2011/36/EU/to legal aid in legal proceedings. Accordingly, a tribunal erred in law when it failed to grant a postponement of a merits hearing to permit the Claimant to access legal aid. A victim of trafficking has a right in EU law to legal aid and the courts and tribunals must give effect to this.
 
A Claimant who contended that she was a victim of trafficking brought a claim in the Employment Tribunal against those whom she contended were her traffickers. She then applied to the Legal Aid Agency’s Exceptional Case Funding Regime to fund representation at the five day Employment Tribunal full merits hearing. The Legal Aid Agency refused the application on the basis that the client could represent herself and cross examine her traffickers. This was despite the fact that the client was illiterate and did not speak English, and that she contended that she had been kept in domestic servitude for over 10 years and hence was in a position of vulnerability. 
 
The Claimant applied for a postponement of the tribunal hearing to permit her to judicially review the agency’s decision. This application was refused on the basis that legal aid for representation at the Employment Tribunal is not ordinarily available. Upon appeal to the Employment Appeal Tribunal, Shanks J granted the postponement on the basis that the Claimant was entitled to take steps in respect of the judicial review to assert her entitlement to legal representation as set out in the Trafficking Directive. 
 
When contemplating how an employment judge would be able to hear such a case with the Claimant representing themselves, Shanks J’s reaction was, 'What a nightmare!'
 
The judicial review was not heard following a concession from the Legal Aid Agency that the Claimant was entitled to access legal aid. 

The full judgment can be found here
 

Upper tribunal delivers judgment in guidance case of trafficked child

In a strongly worded judgment, The Hon. Mr Justice McCloskey, President and Upper Tribunal Judge Blum held that the tribunal has jurisdiction to make their own decision on whether an appellant is a victim of trafficking and to consider if a negative trafficking decision has been reached in breach of the Secretary of State’s policy guidance. It also found that tribunals may be better equipped than a Competent Authority to make pertinent findings related to trafficking. This case lays down important guidance in trafficking cases. 

Overturning the decisions of the First-tier Tribunal, the Upper Tribunal held that MS was a victim of trafficking, a status which is current and enduring. It went on to make important observations and findings on the following issues:

(a) Violation of human dignity and fundamental freedom of a child who was bereft of parental and family support
(b) Control and subtle, psychological compulsion
(c) Free will and mobility to change employment, and exploitation
(d) Economic necessity and exploitation
(e) Perversity of Competent Authority decisions
(f) Article 4 breaches by the State
(g) The impact of a trafficking finding on a removal decision
(h) The Secretary of State's continuing obligations under Article 12-14 of the Trafficking Convention and Art 16 considerations upon removal.

The Tribunal also gave instruction that those engaging expert witnesses should ensure that the expert be provided with a copy of a section appearing at Annex A from the case of MOJ & Others, as a matter of course, at the initial stage of receiving instructions.

The Tribunal however considered the asylum claim to be defeated owing to availability of internal flight alternative.

Both parties have applied for permission to appeal to the Court of Appeal: MS challenging the asylum decision and the Secretary of State challenging the jurisdiction of the Tribunal concerning the Trafficking Convention and the State's non-immigration related duties under Article 4 of the European Convention of Human Rights.

Read our note on the judgment.

Read the full judgment.

Related articles: 
Guidance case begins of Pakistani child trafficked for forced labour 16 December 2015