MS v Secretary of State for the Home Department, UTIAC, AA/07855/2013

History and facts In July 2011 MS, a Pakistani child, was trafficked by members of his family to the UK and placed in forced labour in the restaurant and take­away food industry. Following arrest by police MS claimed asylum in September 2012 on the basis of fear of re-­trafficking and harm from those who trafficked him. He was 16 years old. In November 2012 the local authority referred MS to the National Referral Mechanism (NRM) following the Secretary of State for the Home Department (SSHD) refusal to do so. His social worker contacted the police including MS’ detailed account of his employers and of his exploitation and requested that they conduct an investigation. The police and Home Office failed to investigate his case. In January 2013 a negative reasonable grounds decision (RG) was issued on the basis that MS was not trafficked because he had been “free” to change employers and was not under any constraint from his employers. In August 2013 MS’ asylum claim was refused and though still a child he was not granted any form of leave. In December 2013 MS’ appeal was dismissed by the First­ tier Tribunal (FtT) although he was found to be credible in respect of his history in the UK. The Upper Tribunal (UT) found errors in the decision and the case was listed before the President for rehearing, including on the jurisdictional and legal issues associated with trafficking.

The Trafficking Decisions

The Competent Authority accepted that MS had been recruited, transported, transferred to and harboured in the UK and had been a victim of deception but did not accept that MS had been brought into the UK for the purposes of exploitation since he had not made the case that he was coerced into working or that his freedom of movement had been curtailed.

At paragraph 4 onwards the UT reproduced relevant parts of the decision:

“4….as the Appellant had received a salary, was able to rent accommodation and pay his bills and had moved around and worked in different jobs, he was not exploited and “..was never under the control or influence of the alleged trafficked in the UK”…the Appellant had never been the victim of forced labour in the UK as there had been no threat or menace to him…he may have been subjected to a degree of manipulation which did not amount to exploitation via forced labour. Rather, the Appellant worked “out of pure economic necessity”.

The decision of the FtT

The FtT found that:

1. MS had been brought to the  UK under the control of adults
2. MS had not been subject to physical threats or actual violence
3. MS had been able to leave when he was not happy with his situation
4. this did not amount to forced labour
5. MS had little choice but to work on the black market
6. MS, a child, had been surrounded by adults from his own country and at the very least would have been heavily influenced by them
7. MS was vulnerable to exploitation  
8. If MS was a victim of trafficking this was very much at the lower end of the spectrum.

The FtT also found as a fact that MS ceased to be in a situation which might have amounted to being a victim of trafficking following his arrest in September 2012.

Error of the FtT

“[The FtT] misdirected [itself], firstly in omitting to make a clear finding as to whether or not the Appellant was a victim of trafficking, secondly in concluding that it was sufficient to ascribe to the Appellant a lower position on a spectrum of trafficking and in omitting clearly to evaluate the nature of the Appellant’s employment in the United Kingdom and whether even if freely chosen by him it was nonetheless exploitative.”

Issues for the UT

1. Does this Tribunal have jurisdiction to determine whether the Appellant is a victim of trafficking?
2. If this Tribunal is so empowered and proceeds to make a finding of trafficking, what is the impact, if any, of such finding on the removal decision under appeal?
3. Is there any distinction in law between a victim of trafficking and a victim of forced labour.
4. If this Tribunal finds the Appellant to be a victim of trafficking, does the Secretary of State have continuing obligations to him under Articles 12 – 14 of the Trafficking Convention? And would the removal of the Appellant from the United Kingdom violate Article 16 thereof?
5. In Refugee Convention terms, will the Appellant, in the event of returning to Pakistan, be a risk of persecution as a member of a particular social group or of treatment proscribed by Article 3 ECHR?

Summary of key findings in relation to trafficking:

(a) Paragraph 46:

“We agree with Ms Cronin that this Tribunal is better equipped than the Authority to make pertinent findings. The decision of the Authority were the product of a paper exercise, entailing no live evidence. In contrast, we have the distinct advantage of having heard the Appellant’s viva voce evidence and, further, we have received live evidence not available to the Authority…”

(b) Paragraph 48:

“…deceived the Appellant into travelling into the United Kingdom. He was not acting voluntarily. He was, rather, under the control of a significantly older person whom he viewed as having been instrumental in attempts to disinherit him. We consider this to be a classic case of subtle, psychological compulsion.”

(c) Paragraph 50:

“..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 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.. until his encounter with the police some 15 months later…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 association. The Appellant had no true freedom of choice at any stage.”

(d) Paragraph 51:

“We take account of the fact that the Appellant did not have a single, fixed employment… However…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. …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..”

(e) Paragraph 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. 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.”

(f) Paragraph 55:

“….Given our assessments and findings…, 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..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.”

(g) Paragraph 56:

“..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 mid­teenager recently exposed to the culture and language of an alien country to make a formal complaint to the police…we consider that it approach to the issue of respite and recovery was hopelessly inadequate..”

(h) Paragraph 57:

“…the decisions of the Authority are unsustainable by reference to the three limbs of the Wednesbury principle, that is to say they are infected by failing to take into account material facts and evidence, together with the intrusion of distorted factors and assessments and, ultimately, irrationality, which is the synonym of the AS(Afghanistan) terminology of “perversity”.”

(i) Paragraph 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”.. 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 circumstances”…He has, accordingly, been deprived of a valuable benefit.”

(j) Paragraph 60:

“….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.”

(k) Paragraph 61:

“The unlawful decision of the Authority give rise to another significant consequence. By Article 10(2) of the Trafficking Convention, victims of trafficking shall not be removed from the territory of the state concerned until the process enshrined in Article 18 has been completed and the victim has received the assistance provided for in Article 12(1) and (2). 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.”

(l) Paragraph 63:

“Accordingly, by virtue of Article 10(2) of the Convention, there exist by reason of our condemnation in law of the decision of the Authority, a prohibition against removing the Appellant from the United Kingdom at this point in time.”

Expert report finding

Paragraph 69:

“…it suffices to highlight the detailed treatment of the duties of expert witnesses in the decision of This Tribunal in MOJ and Others …We have reproduced these passages in an appendix to this judgment. We consider that, henceforth, those engaging expert witnesses should, in every case, ensure that the expert is provided with a copy of this section of the MOJ decision, as a matter of course, at the initial stage of receiving instructions. ..”

Asylum finding paragraphs 67 ­ 69:

• “…In short, the availability of safe internal relocation undermines the Appellant’s asylum application fatally.
• Finally, one of the features of the Appellant’s case was his reliance upon four expert reports…On behalf of the Secretary of State, Mr Wilding criticised some of this evidence. He suggested that it was mere advocacy and that there were passages in the reports more akin to skeleton arguments than expert commentary and opinion.

He further highlighted that none of the experts had interviewed the Appellant.

• …we have made our findings and conclusions favourable to the Appellant without reference to any of the expert evidence. The reason for this is we did not consider it necessary to do so. However, while declining to descend into superfluous detail, we consider that there is some force in the criticisms levelled…”

Summary of conclusions