A new decision of the UK Supreme Court will bring greater protections for vulnerable people who are victims of human trafficking, according to the Equality & Human Rights Commission, which took over the conduct of the appeal.

Five Justices unanimously overturned the decision of the Court of Appeal in the case of MS, who came to the UK from Pakistan in 2011 when he was aged 16. For the preceding four years he had been subject to forced labour and physical abuse by his step-grandmother and her nephews in Pakistan. His step-grandmother told him he was coming to the UK for his education, but after he arrived he was initially made to work without pay, as this was arranged by his step-grandmother, who profited financially.

When MS came to the attention of police and social services he was initially assessed to be a potential victim of exploitation and trafficking. However, a Home Office official, without meeting MS, reviewed his paperwork and made a "conclusive grounds" determination that he was not a victim of trafficking.

MS claimed asylum in the UK, which was refused. On appeal, the Upper Tribunal ruled that he was a victim of trafficking and that his removal would breach article 4 of the European Convention on Human Rights (ECHR), which prohibits slavery and forced labour. This was because (as a result of the incorrect "conclusive grounds" decision) the police had not yet investigated the trafficking offences committed against MS in this country and they would be unable to do so if he was removed to Pakistan.

The Court of Appeal reversed that decision, holding that the Upper Tribunal was bound by the decision that MS was not a victim of trafficking unless the decision was perverse, irrational or not open to the decision maker. In any event, removing MS would not give rise to an article 4 breach. MS appealed to the Supreme Court.

MS, having married a British national, received indefinite leave to remain in the UK and felt unable to continue his appeals, but the Commission was given leave to take over the appeal process on his behalf, in order to clarify the jurisdiction of tribunals to determine for themselves whether an individual had been trafficked and the scope of article 4 in this context.

Lady Hale, with whom Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agreed, ruled that:

  • an immigration tribunal can make its own findings of fact as to whether an individual has been trafficked, and is not bound by the Home Office’s decision when determining whether removal would breach article 4;
  • the Upper Tribunal was correct to find that removing MS would prevent an effective police investigation and that this would breach article 4;
  • the requirements of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) inform the positive obligations under article 4.

The court said that the proper consideration and weight to be given to an authority’s previous decision would depend on the nature of that decision and its relevance to the issue before the tribunal. In the present case, the First-tier and Upper Tribunals were better placed to decide whether MS was a victim of trafficking than the Home Office official acting under the National Referral Mechanism.

The relevance of that factual determination depended on the relationship between the obligations in ECAT and the obligations under article 4, and the European Court of Human Rights had held that states had positive obligations under article 4 to adopt and apply criminal law provisions against slavery, servitude, and forced labour.

"This judgment will help any individual who the Home Office has assessed not to be a victim of trafficking and wishes to challenge his or her removal", the Commission commented. 

"External lawyers estimate this issue affects around 3,000-5,000 vulnerable people every year. Among them will be many individuals who, but for this decision, would have faced re-trafficking and exploitation following forced removal from the UK."

Click here to access the judgment.