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Freshfields acts for the AIRE Centre on an important judgment for victims of trafficking

Freshfields Bruckhaus Deringer LLP (‘Freshfields’) has acted for the AIRE Centre on its successful intervention in the case of MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9. The Supreme Court handed down its judgment in the case on 18 March 2020, providing welcome clarity on the law governing the identification and treatment of victims of trafficking and modern slavery.

The appeal focused on the relationship between the decision-making process of the competent authority of the executive in the UK, known as the National Referral Mechanism (‘NRM’), and the immigration appeals tribunals. In particular, the case addressed:

i. whether the immigration appeals tribunals are bound to accept the decisions of NRM as to whether a person is a victim of trafficking; and
ii. the relevance of a finding that a person has been trafficked to the immigration decisions that come before the immigration appeals tribunals.

This is an important judgment because human trafficking often involves the movement of people across international borders who often face subsequent immigration issues. In this case, MS arrived in the UK aged 16, having been previously subjected to forced labour and physical abuse in Pakistan; he was then subjected to forced labour in the UK. After a finding by the NRM that he was not a victim of trafficking, MS appealed a subsequent decision to remove him from the UK (following an unsuccessful claim for asylum) from the immigration appeals tribunals via the Court of Appeal, who rejected his case, to the Supreme Court.

The Supreme Court held that the immigration appeals tribunals are in no way bound by the decision of the NRM, nor does it have to look for reasons as to why that decision is flawed. As Lady Hale noted in her judgment (which was unanimously agreed): “This is an important matter. As the AIRE Centre points out, had the tribunal been bound by such decisions, it could have had a profoundly chilling effect upon the willingness of victims to engage with the NRM mechanism”.

The Supreme Court found that in this case both tribunals were better placed to decide whether MS was a victim of trafficking than the NRM, having heard live evidence from MS (which the NRM did not).

The Supreme Court also considered the relationship between the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’) and Article 4 ECHR. Lady Hale ruled that once MS was found to be a victim of trafficking, it was necessary to decide whether his removal from the UK would amount to a breach of the positive obligations in Article 4 ECHR. The Court found that MS had not been afforded an effective investigation of the breach of Article 4 and that the authorities are under a positive obligation to rectify such a failure. Such an investigation would not be possible if MS was removed to Pakistan.

The AIRE Centre’s Director, Matthew Evans, said: “This case is the first opportunity that the Supreme Court has had to consider complex issues concerning the identification of victims of trafficking. I am delighted that the Court has recognised the importance of European human rights law in protecting victims of trafficking and I hope that today's judgment will make it considerably easier to challenge poorly reasoned trafficking decisions before the tribunal.”

Freshfields partner, Deba Das, said: “This is an important judgment for potential victims of trafficking. It underscores the need for judicial fact-finding and emphasises the enduring importance of European human rights norms. We are pleased to have acted for our long-term pro bono client, the AIRE Centre, on this appeal, along with the counsel team from Blackstone Chambers and Garden Court Chambers.”

The Freshfields team was led by partner Deba Das, with assistance from associates Emily Tilden-Smith and George Lumbers, and trainee Folarin Odunubi. The barrister team consisted of Ben Jaffey QC (Blackstone Chambers), Shu Shin Luh (Garden Court Chambers) and Jason Pobjoy (Blackstone Chambers). The AIRE Centre’s team comprised Matthew Evans and Markella Papadouli.

Freshfields regularly acts for third-party interveners in systemic cases where our client has something to add of real value to the Court.


Notes for Editors

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