The Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594

“I do not find that this amounted to ‘forced labour’ but accepted in reality he would have had little choice but to work on the black market as he had no permission to work and needed money to survive.”

“In other words, whilst you may have been subjected to a degree of manipulation, this did not amount to exploitation in the form of ‘forced labour’- the work you did was not exacted under the menace of any penalty but was rather done out of pure economic necessity… …therefore, it is not accepted to the low standard of proof, ‘I suspect but I cannot prove’, that you were trafficked from Pakistan to the United Kingdom, and then internally within the United Kingdom, for the purpose of ‘forced labour’ exploitation.”

“84 Grounds of appeal (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— … (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; (e) that the decision is otherwise not in accordance with the law; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.” … (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; (e) that the decision is otherwise not in accordance with the law; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.”

“The identification of a person as a victim of trafficking provides no automatic right to remain on a long term basis in this country, although as will be seen there are provisions dealing with periods of time for the person concerned to recover and escape the influence of traffickers and also dealing with the grant of residence permits in certain circumstances. But decisions on claims by a person to be a victim of trafficking are not immigration decisions for the purposes of the immigration legislation and there is thus no statutory process for appeals. Judicial review would seem to be the only remedy.”

“‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

“12. Mr Schwenk, however, also submitted that, on appeal to the First Tier Tribunal against a decision to remove AS, the appellant was not confined to arguments about asylum but could make any argument he wished which was relevant to the decision to remove. One such argument he should be permitted to raise was that he was (or had been) a victim of trafficking. The First Tier Tribunal could not (or should not) refuse to entertain such evidence because it was relevant to the decision to remove which was the immigration decision which was being appealed pursuant to section 82(2)(g) of the 2002 Act. 13. Mr Rawat did not strenuously oppose Mr Schwenk's argument framed in this way and in my judgment he was right not to do so. If the conclusive decision of the Competent Authority was that AS had indeed been a victim of trafficking, it would be very odd if the First Tier Tribunal could not take that into account but had to dismiss an appellant's appeal against a decision to remove without remitting the matter to the Secretary of State to take into account the decision that such appellant had indeed been a victim of trafficking and may need the assistance required by the Convention. That indeed has been decided by the Upper Tribunal in EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 a decision which I would respectfully endorse. 14. If the First Tier Tribunal is entitled to take into account a decision that an appellant is (or has been) a victim of trafficking it seems odd that, if a perverse decision has been reached that an appellant has not been a victim of trafficking, the Tribunal cannot consider whether the facts of the case do, in fact, show that the appellant was a victim of trafficking. Abdi is authority for the proposition that a failure by the Secretary of State to apply her own policy is an error of law in the sense that she will have failed to take a relevant consideration into account. If in fact AS has been trafficked but the Secretary of State ignores that fact she will have failed to apply the relevant policy in relation to victims of trafficking. The mere fact that the Competent Authority has made a decision which on analysis is perverse cannot prevent the First Tier Tribunal judge from considering the evidence about trafficking which is placed before him; nor can it, in my judgment, be relevant that no judicial review proceedings have been taken by the applicant in respect of the Competent Authority's decision. The FTT judge should consider the matter for himself.”

“Finally, we consider that it would have been open to the appellant to challenge the respondent's trafficking decision by an application for judicial review. The Tribunal was informed that such challenges have occurred. However, he did not pursue this remedy. We are of the opinion that backdoor challenges to trafficking decisions made by the respondent under the Trafficking Convention are not permissible in appeals of the present kind. They lie outwith the competence of the First Tier and Upper Tribunals.”

“17. For the reasons given above, I cannot agree with this paragraph of SHL. It seems to me that First Tier Tribunal judges are competent to consider whether the Secretary of State has complied with her policy in relation to trafficking; if asked to consider that question, they should then decide whether she has in fact complied with her policy since that it is (or may be) relevant to her removal decision. 18. In this context it is important to be aware that a decision to refuse asylum is not itself an immigration decision appealable pursuant to section 82(2) of the 2002 Act (any more than a trafficking decision is such a decision). The relevant immigration decision is the decision to remove the appellant under section 10 of the Immigration and Asylum Act 1999 (see s.82(2)(g) of the 2002 Act). It is in reaching the decision to remove that the Secretary of State must consider relevant matters including (where relevant) whether an applicant for asylum is a victim of trafficking. No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as here, it is arguable that, on the facts found or accepted, the Competent Authority has reached a decision which was not open to it, that argument should be heard and taken into account.”

“(i) The Appellant was conveyed to the United Kingdom by his step grandmother, having been deceived by her into thinking that this was for the purpose of being educated. (ii) The Appellant was a child at the material time, having just attained his 16 th birthday and he was “under the control of adults”. (iii) Subsequently he was employed and went from job to job, in circumstances wherein – “He would have had little choice but to work on the black market as he had no permission to work and needed money to survive.” (iv) “He was a child surrounded by adults from his own country and at the very least would have been heavily influenced by them. Clearly he was vulnerable to exploitation.” (v) The Appellant was initially exploited by adults for the purpose of using him as “cheap and illegal labour”. (vi) Subsequently (at some unspecified stage) “at the most he may have been manipulated”. (vii) The Appellant's "SEF" account of his life in the United Kingdom prior to arrest by the police (in September 2012) was truthful. (viii) The Appellant was assisted by adult males of Pakistani origin working in the same industry to move around the country from job to job and, in doing so, he “... felt he had no choice but to work in these establishments in order to survive”. (ix) He paid a person for the purpose of using that person's particulars in the event of the Appellant being encountered by the police. (x) The Appellant “... was to some degree exploited by adults in the catering industry ....” (xi) Given his movements and changes of job, “....if he was a victim of trafficking this was very much at the lower end of the spectrum.” (xii) “I accept that he may have telephoned his step-grandmother's home shortly after arriving in the UK when he was unhappy with his situation and that he may have been told that a lot of effort had been taken [sic] to get him to the UK and even been threatened by one of his step-grandmother's nephews.” (xiii) The nature of this threat was a threat to kill him. (xiv) (As regards the Appellant's account of events in Pakistan) “I accept that he was a child and may not be expected to remember detail or respond in interview as an adult would be expected to do.””

“the core elements of [the respondent’s] case are believable”

“39. We are satisfied that in the final part of this passage the Court is referring to the standard of perversity (or Wednesbury irrationality) mentioned twice in earlier passages. The effect of the decision in AS (Afghanistan) is that in appeal proceedings the Appellant may, in certain circumstances, mount an indirect challenge to a negative trafficking decision of the Authority. We are satisfied that a challenge of this kind is not confined to perversity (or irrationality) grounds. Rather, it is clear from a consideration of [12] - [18] as a whole that where a removal decision has been preceded by a negative trafficking decision made in breach of the Secretary of State's policy guidance, the removal decision will be erroneous in law and, therefore, embraced by the " not in accordance with the law" ground of appeal in section 82 of the 2002 Act (supra). We further consider that, in principle, there is no reason why the Tribunal's consideration of negative trafficking decisions should not encompass, in cases where appropriate, other recognised public law misdemeanours such as the intrusion of immaterial considerations, leaving material evidence or considerations out of account, procedural unfairness and bad faith. 40. We give effect to the approach formulated immediately above in the following way. On behalf of the Appellant it is submitted that the issue of whether the Appellant is a trafficking victim is relevant to the immigration decision under appeal, namely the Secretary of State's removal decision. The specific argument advanced is that this Tribunal should determine that the Appellant's removal would be contrary to section 6 of the Human Rights Act 1998 if either (a) he is at risk of re-trafficking in Pakistan or (b) he has been denied the benefits and protections which would have flowed from a decision that he was a child trafficking victim and a lawful investigation of his claim to be such a victim.”

“Giving effect to the binding decision of the Court of Appeal in AS (Afghanistan), we conceive our duty to be to determine whether the immigration decision under challenge in this appeal, namely the decision to remove the Appellant from the United Kingdom and return him to Pakistan in the wake of the anterior refusals of his asylum and trafficking claims, is vitiated by any material error of law in the negative trafficking decisions. In proceeding thus we are conscious of the error of law decision of this Tribunal outlined in [2] above. The factual substratum of our decision is set forth in [10] - [17] above. It was further acknowledged that the Tribunal is empowered to make findings of fact bearing on the Appellant's case that he was a victim of trafficking.”

“We consider this to be a classic case of subtle, psychological compulsion.”

“49. His arrival in the United Kingdom heralded the beginning of the third phase in the Appellant's life. He had been deceived into believing that he had been brought to the United Kingdom to be in education. The contrast between the vision which this would have engendered and the ensuing reality was acute. This would have exacerbated his vulnerability. We readily infer that the labour which followed had been arranged by his grandmother and that she profited financially from the transaction. This was a callous arrangement motivated bilaterally by financial gain. 50. Contrary to the promises made the Appellant's life did not entail attending an educational institution and mixing, socially and otherwise, with his peers. Rather, he was plunged into an adult world of work, business and profits. He became an object of cheap and illegal labour. He was ruthlessly exploited by those who employed him. He found himself alone in a foreign country with an alien language and culture. He was bereft of parental and family support and his life was devoid of any parental figure. We consider that he was exploited from the moment of his departure to the United Kingdom, within days of his 16th birthday until his encounter with the police some 15 months later. We find that, during the initial phase, the Appellant received no pay for his work. The stamp of compulsion applied to his labour, where he worked, the hours he worked, his accommodation and those with whom he shared accommodation and associated. The Appellant had no true freedom of choice at any stage. 51. We take account of the fact that the Appellant did not have a single, fixed employment during the period under scrutiny. However, as appears from the preserved findings rehearsed in [12] above, his "mobility" was limited, it was confined to the Asian food industry; it was facilitated by fellow adult employees; and, finally, it was plainly motivated by a naïve and probably desperate hope of finding a better way of living. Moreover, as the preserved findings make clear, he was, properly analysed, acting under compulsion and manipulation at all times. He was not truly free in any real sense. He was, rather, a desperate, frightened and coerced teenager. Accordingly the factors of mobility and more than one employment do not alter our assessment above. 52. To borrow the phraseology of Rantsev, the Appellant was at the material time a commodity who had been bought and sold and put to forced labour for little payment, living and working under poor conditions: see [281]. Servitude and compulsory labour were the hallmarks of his existence. In Article 4 terms, his human dignity was relentlessly violated and he was denied a fundamental freedom.”

“We consider that the most elementary of enquiries at this stage viz late 2012 would have elicited from him an account including the circumstances of his arrival in the United Kingdom and details of subsequent employers and work conditions. This should, in principle, have resulted in prosecutions for offences under, inter alia, the Slavery Act 2015, subject of course to the application of the established criteria for prosecution. However, on the evidence before us, there is no indication of even the most elementary of police enquiries.”

“…Given our assessments and findings above, both decisions of the Authority are manifestly unsustainable. They are infected by a failure to conduct proper enquiries and to amass relevant and available evidence. They are further undermined by a failure to properly examine and assess the realities of the Appellant's life during the period of some four years before his departure from Pakistan. Further, the Authority failed to properly analyse the factors of the Appellant's pay, accommodation and mobility and failed to identify the elements of fear and coercion in his work circumstances. 56. In addition, in its assessment that the Appellant worked due to economic necessity, the Authority failed to recognise that this was not inconsistent with continuing exploitation, manipulation and forced labour. Further, the Authority placed disproportional weight on the failure of this frightened, isolated mid-teenager recently exposed to the culture and language of an alien country to make a formal complaint to the police. Finally, we consider that its approach to the issue of respite and recovery was hopelessly inadequate. In our judgment, these inadequate and cursory decisions would plainly have been vulnerable to successful challenge by judicial review.”

“59. If the Authority had made a lawful decision the Appellant would have been recognised as a victim of trafficking. This would have entitled him to a "recovery and reflection period" of at least 30 days, per Article 13(1) of the Trafficking Convention. At this remove, the loss of this benefit is irreparable. The Appellant would have qualified for a renewal residence permit under Article 14 if the Authority had considered his stay necessary "owing to [his] personal situation". We consider it highly probable that the Authority, duly armed with all appropriate information, directing itself properly in law and acting rationally would have found this condition to be satisfied. In accordance with Article 14(4), the grant of a residence permit would have been a material consideration in subsequent applications by the Appellant for leave to remain. He has, accordingly, been deprived of a valuable benefit. 60. Furthermore, the decision to remove him from the United Kingdom is not in accordance with the law for the discrete reason that none of these factors was taken into account. This was due to the unlawful decisions of the Authority. We note that our analysis and conclusions on the Trafficking Convention issues mirror closely those of the Administrative Court in Amatewan (supra) As this decision demonstrates, the effect of our analysis and conclusions above is that, in substance, the Appellant now has the status of trafficking victim. In this particular case, this is very much a current and enduring status.”

“In accordance with the latter provisions, a lawful trafficking decision would have entitled the Appellant to a range of services and benefits including appropriate accommodation, psychological support, counselling and legal advice. Recognition of and provision for his specific "safety and protection needs" would also have been required.”

“Accordingly, by virtue of Article 10(2) of the Convention, there exists, by reason of our condemnation in law of the decisions of the Authority, a prohibition against removing the Appellant from the United Kingdom at this point in time. The Secretary of State's removal decision is, in consequence, unlawful. Notably, in Atamewan (supra) the Court identified the UK Border Agency as the public authority which was under a positive duty to initiate an effective investigation by the police. This duty was considered to be unaffected by the circumstance that the victim had made no complaint to the police and the absence of continuing police investigations.”

“The same conclusion is reached by the different route provided by Article 4 ECHR. The Appellant is not simply the historical victim of treatment proscribed by this provision. He is, rather, the continuing victim of an enduring breach by the State of its investigative and procedural obligations identified in [27] above. Within the framework of section 6 of the Human Rights Act, the public authorities who, to date, have failed to discharge these obligations are UKBA, the Authority and the police service. Furthermore, 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. Accordingly, to remove him to Pakistan would contravene Article 4 ECHR. The Secretary of State's removal decision is unlawful on this further ground.”

“In our judgment the evidential foundation necessary for making this finding is lacking. Having regard to his age (now 19), his increased maturity and the positive aspects of his experiences during the last four years, which are likely to have fortified him as a person and will equip him to identify and avoid risks of this kind, we are satisfied that this case is not made out. Furthermore, on the hypothesis of his return to Pakistan, we are confident that the Appellant will be able to locate and re-establish himself in a manner which will distance himself sufficiently from the three persons concerned, his step-grandmother and her two nephews, to efficaciously eliminate such risk of re-trafficking as may arise. There is nothing in the evidence, including the experts' reports…warranting a different assessment.”

“Its task is to decide whether there are reasonable grounds to believe that a person has been trafficked and then, if appropriate, whether he has in fact been trafficked. The purpose of doing so is to provide humanitarian support, to allow the cooling off period and then to inform immigration decisions. It is true that as part of that process the police will be informed if the Competent Authority concludes that there are reasonable grounds to believe an offence has been committed. In that way an investigation will follow whether or not the person concerned initiates the process. But a positive decision by the Competent Authority is not a necessary step to the making of a criminal complaint.”

“35. …The involvement of the Competent Authority is not for the purpose of discharging the procedural obligations of the United Kingdom under article 4 ECHR. In short the application of the Guidance is not the mechanism by which the United Kingdom satisfies the procedural obligation under article 4. That becomes all the more clear when considering its role. 37. The decision of the Competent Authority in this case was for all practical purposes applying a threshold the same as "credible suspicion" or "arguable claim". For reasons enumerated by the judge its conclusion was flawed. The respondent's disappearance has deprived the Competent Authority and the respondent himself of a fresh decision. But absent a decision that such reasonable grounds exist, or a finding of a court that the "credible suspicion" hurdle has been overcome, the question whether an investigative process has failed to comply with the procedural obligation under article 4 cannot arise. The judge made no such finding; indeed remitting the matter for a fresh decision left open the possibility that the Competent Authority could decide again, and lawfully, that reasonable grounds to believe did not exist. Were that to have happened the procedural obligation would not have arisen. 38. Even having surmounted the reasonable grounds hurdle, had the Competent Authority then considered whether the person concerned was in fact a victim of trafficking, that second decision making process would not be concerned with the identification of wrongdoers and their possible prosecution. That function is the responsibility of the police and Crown Prosecution Service. The Competent Authority may make its own investigations, including seeking to interview the person concerned, but it is not a body with any constitutional responsibility for investigating or prosecuting crime, or identifying wrongdoers. 39. Its functions under the guidance are squarely focussed upon the alleged victim, and his welfare. Its role in a possible criminal investigation is limited to informing the police of a credible allegation of wrongdoing, having made a positive reasonable grounds decision. If it fails to do so, the person concerned may inform the police (as happened here via his solicitors). It is difficult to envisage how a failing even at the second substantive decision stage by the Competent Authority could feed into an assessment whether the United Kingdom was in breach of the article 4 procedural obligation. Perhaps, if it failed to notify the police of a positive reasonable grounds decision, and the person concerned was removed from the United Kingdom before the police could investigate a crime justiciable in this jurisdiction, its failure might found a successful complaint under article 4. But ordinarily in these circumstances there will have been a referral to the police whose function it is to investigate crime. It is possible to envisage a complaint that a police investigation was inadequate and, given its centrality in the prosecution of criminal wrongdoers, gave rise to a violation of the article 4 procedural obligation. But in the absence of a procedural obligation being assumed by a single public body (as may be the case, for example, with many coroners' inquests and article 2), a suggested violation would engage an evaluation of the overall response of various public bodies involved.”

“13. …By contrast, the appellate immigration authority, deciding an appeal under section 65, is not reviewing the decision of another decision-maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up to date facts. 15. The first task of the appellate immigration authority is to establish the relevant facts. These may well have changed since the original decision was made. In any event, particularly where the applicant has not been interviewed, the authority will be much better placed to investigate the facts, test the evidence, assess the sincerity of the applicant's evidence and the genuineness of his or her concerns and evaluate the nature and strength of the family bond in the particular case. It is important that the facts are explored, and summarised in the decision, with care, since they will always be important and often decisive.”

“46….It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. 50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) -will succeed.”

“28. Neither the appellants nor the interveners accept that the conclusive decision of UKBA (or whichever department becomes a competent authority for these purposes) is determinative of the question whether or not an individual has been trafficked. They, of course, are concerned with the impact of a decision adverse to the individual. We are asked to note that the number of concluded decisions in favour of victims of trafficking is relatively low, and it seems unlikely that a prosecutor will challenge or seem to disregard a concluded decision that an individual has been trafficked, but that possibility may arise. Whether the concluded decision of the competent authority is favourable or adverse to the individual it will have been made by an authority vested with the responsibility for investigating these issues, and although the court is not bound by the decision, unless there is evidence to contradict it, or significant evidence that was not considered, it is likely that the criminal courts will abide by it. 29. In the final analysis all the relevant evidence bearing on the issue of age, trafficking, exploitation and culpability must be addressed. The Crown is under an obligation to disclose all the material bearing on this issue which is available to it. The defendant is not so obliged, but if any such material exists, it would be remarkably foolish for the investigating authority to be deprived of it. Without any obligation to refer the case to any of the different organisations or experts specialising in this field for their assessments or observations, the court may adjourn as appropriate, for further information on the subject, and indeed may require the assistance of various authorities, such as UKBA, which deal in these issues. However that may be, the ultimate responsibility cannot be abdicated by the court.”

“He [the adjudicator] decided that there existed ‘a certain circumscribed jurisdiction in the adjudicator to examine the facts upon which the decision had been based and to consider whether the decision is in accordance with the law or is the result of an excess or misuse of the Secretary of State's powers.’”