Supreme Court rules that tribunals are not bound by National Referral Mechanism decisions in asylum-seeking case


Re: MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9

This important appeal concerned two issues: the extent to which the First-tier and Upper Tribunals are bound by decisions of the Competent Authority, made under the National Referral Mechanism, as to whether a person is or may be a victim of trafficking; and the relationship between breaches of the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”), and breaches of its positive obligations under Article 4 of the European Convention on Human Rights.

On the first issue, the Court of Appeal had held that, in general, the tribunals could revisit a decision of the Competent Authority only where it was shown to be perverse. This was despite evidence of systemic difficulties with the NRM decision-making process, and the strong likelihood that tribunals would have before them a more complete, detailed, and up-to-date picture of the relevant facts. By the time of the hearing before the Supreme Court, the Secretary of State had conceded that the tribunals could determine for themselves whether an appellant was a victim of trafficking wherever breaches of Article 4 were relied on as rendering removal unlawful. The Supreme Court set out the powerful reasons for which this concession had been correctly made.

On the second issue, the Supreme Court took note of the European Court of Human Rights’ increasing recognition of the relationship between positive obligations under ECAT and positive obligations under Article 4. It further confirmed that, in the case of MS, the UK’s failure to recognise him as a victim of trafficking had resulted in a wholesale failure to discharge its investigative obligations under Article 4; and that his removal would lead to a further breach of this duty. The extent of the Court’s endorsement of the connection between ECAT and Article 4 will doubtless be explored (and contested) in future cases.

Finally, the judgment is also of procedural significance as it records how the Equality and Human Rights Commission – an intervener in the courts below – was permitted to step into the shoes of the Appellant when the latter sought to withdraw from the proceedings. This creates a useful precedent in cases where a primary party is unable or unwilling to proceed with a case raising important issues of principle, and an appropriate statutory body or non-government organisation is willing to take matters forward.

Chris Buttler, Raza Husain and Eleanor Mitchell were involved in this case.