Supreme Court victory in MS (Pakistan)

In a judgment handed down on Wednesday 18 March 2020, the UK Supreme Court allowed the appeal of MS (Pakistan) v SSHD, overturned the Court of Appeal's judgment, and reinstated his successful appeal before the Upper Tribunal. This is a great result for victims of trafficking, ATLEU and the intervenors in the case.

ATLEU represented MS, a young boy trafficked from Pakistan to work in takeaway restaurants in the UK. He then decided that he no longer wanted to pursue his appeal in the Supreme Court because, after many years in the UK, he had resolved his immigration status in another way. The EHRC then took over the case with the help of interventions from the AIRE Centre and ECPAT.

This Supreme Court's decision means two things for victims of trafficking. Firstly, the judgment reinstates the Upper Tribunal's finding that MS was a victim of trafficking, and its jurisdiction to do so, despite MS having received a negative reasonable grounds decision from the NRM.

The Court decided that ‘when determining an appeal that removal would breach rights protected by the ECHR, the tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it’. That's important, because on one view, the Court of Appeals's judgment suggested that the Tribunal would be bound by a negative decision of the NRM. The Home Office had, in any case, effectively conceded this point before the full hearing.

Secondly, the Court also agreed with the Upper Tribunal that the Home Office's decision to remove MS from the UK, having wrongly decided that he was not a victim of trafficking, breached the UK's positive obligations under Article 4, ECHR. On the facts of his case, the positive obligation owed to MS was the police's duty to investigate the possible criminal offences committed by the traffickers, which would not be feasible if MS were removed to Pakistan.

The Supreme Court helpfully underlines in the final paragraph of its judgment that there is a right of appeal on Article 4 grounds. Whether a failure by the UK authorities to meet its other positive obligations towards a victim of trafficking could give rise to a claim that removal would breach their Article 4 rights remains to be decided in future cases.

The full judgment can be found here: MS (Pakistan) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 9