On appeal from: [2018] EWCA Civ 594

MS’ application for asylum was rejected in August 2013 and the Secretary of State decided to remove MS from the UK. Appealing this decision to the FTT, on human rights grounds, the FTT had found that MS had been under compulsion and control but nonetheless dismissed the appeal. The UT then re-made the decision in view of errors of law by the FTT, finding in favour of MS. The UT observed that the decision of the National Referral Mechanism could only be challenged by judicial review proceedings, not through the immigration appeals system. However, the UT also held that if an NRM decision was perverse or otherwise contrary to some public law ground, the UT could make its own decision as to whether an individual was a victim of trafficking. Otherwise, the decision to remove him would be contrary to the European Convention on Action against Trafficking in Human Beings (‘ECAT’) and the European Convention on Human Rights (‘ECHR’).

The Respondent appealed to the Court of Appeal, which allowed the appeal. The UT had in effect treated the NRM decision as an immigration decision and had also been wrong to consider that the obligations under ECAT were also positive obligations under the ECHR, article 4 which prohibits slavery, servitude and forced labour.

The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission which had applied to intervene in the proceedings, could take over the appeal.

The Supreme Court unanimously allowed the appeal. As to the preliminary issue, the EHRC was permitted to intervene and take over the appeal. On the principal issue, the Secretary of State conceded that, when determining an appeal as to whether a removal decision would infringe rights under the ECHR, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision-making authority’s prior determination. It therefore became common ground that a tribunal is not bound by a decision of the NRM nor must it seek a public law ground for finding such a decision flawed.

For judgment, please download: [2020] UKSC 9

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website 21 November 2019 morning session and afternoon session and 2 October 2019 afternoon session.