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The Supreme Court has today handed down judgment in MS (Pakistan) v Secretary of State for the Home Department (“SSHD”) [2020] UKSC 9. The first issue was whether a tribunal is bound by a competent authority’s decision that a person has not been trafficked, when determining whether a removal decision breaches ECHR rights. SSHD accepted that the tribunal is not bound by such a decision: the tribunal needs to determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision-making authority’s prior determination. The Court decided that “proper consideration and weight” would depend upon the nature of the previous decision in question and its relevance. The decision of the competent authority under the NRM process was an essentially factual decision and tribunals were better placed to decide whether an individual was a victim of trafficking. The central issue for the Court to decide concerned the circumstances in which an immigration decision to remove could give rise to a breach of Article 4 ECHR. That question raised the following issues: (a) the scope of the protections conferred by Article 4; (b) whether those protections could be enlarged by reference to provisions in the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”); and (c) whether the Upper Tribunal had been right to decide that removal would breach Article 4 ECHR on the facts of MS’ case. The Court concluded that it was not necessary to determine whether all the obligations in ECAT were incorporated into the state’s positive obligations under Article 4. It also accepted that the obligation to take operational measures to protect was not engaged on the facts, because MS had been effectively removed from the risk of further exploitation, and was not at further risk if returned to Pakistan. However, the Court concluded that the Upper Tribunal had been right to decide that there had not yet been an effective investigation as required by Article 4, because the police took no action after referring MS to social services. Such an investigation could not take place if the Appellant was removed. Therefore, the appeal was allowed on that ground [34-36]. Julia Smyth acted for the Secretary of State, led by Sir James Eadie QC.
