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Court of Appeal clarifies scope for challenging trafficking decisions in immigration appeals

DATE: 23 Mar 2018

When A appeals to the First-tier Tribunal against the Secretary of State’s decision to remove him from the United Kingdom, what is the scope, within that appeal, to challenge a decision previously made by the Secretary of State that A is not a victim of human trafficking?

In the UK, decisions as to whether individuals are victims of trafficking for the purposes of the European Convention on Action Against Trafficking in Human Beings (“ECAT”) are made by the Secretary of State pursuant to a ‘National Referral Mechanism’ (“NRM”) used by several public bodies and non-governmental organisations.

In AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469, Longmore LJ held that the Tribunal, when determining a statutory appeal against a removal decision, should hear and take account of any arguable case that the Secretary of State had previously reached a “perverse” negative trafficking decision.

In MS (Pakistan) v Secretary of State for the Home Department (AA/07855/2013), the then President of the Upper Tribunal (Immigration and Asylum Chamber), McCloskey J, interpreted AS to mean that the Tribunal was entitled, when deciding an appeal against a removal decision, to scrutinize the previous trafficking decision for any error of law, not just for perversity, even if the trafficking decision was not challenged by judicial review at the time.

The Secretary of State appealed against that decision to the Court of Appeal. In a judgment handed down on 23 March 2018, Flaux LJ (with whom Gloster and Sharp LLJ agreed) allowed the appeal, agreeing with the Secretary of State that the Upper Tribunal misinterpreted AS:

“69 In my judgment, it is absolutely clear that the Court of Appeal in AS (Afghanistan) was limiting the circumstances in which, on a statutory appeal against a removal decision, an appellant can mount an indirect challenge to a negative trafficking decision by the authority (in the circumstances where the appellant has not challenged it by way of judicial review), to where the trafficking decision can be demonstrated to be perverse or irrational or one which was not open to the authority, those expressions being effectively synonymous for present purposes. Mr Lewis is correct that there is a two stage approach. First, a determination whether the trafficking decision is perverse or irrational or one which was not open to the authority and second, only if it is, can the appellant invite the Tribunal to re-determine the relevant facts and take account of subsequent evidence since the decision of the authority was made.”

Insofar as Collins J had suggested in XB v Secretary of State for the Home Department [2015] EWHC 2557 (Admin) (at [32]) that Longmore LJ was not “importing the Wednesbury test” in his judgment in AS, Flaux LJ held that this was “simply wrong” [74].

The Court of Appeal also agreed with the Secretary of State that the Upper Tribunal had “overreached itself in purporting to criticise the state agencies involved in compliance with the obligations of the United Kingdom under ECAT, in particular the police”, as part of a general assessment of whether the State had complied with its positive Article 4 ECHR duties. It “should have been no part of the functions of the Upper Tribunal to go beyond determining the lawfulness of the decision to remove the respondent” [88].

Gwion Lewis acted for the Secretary of State for the Home Department.