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  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’ .
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’ .
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:
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.
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.
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.