Would the Tribunal have found themselves in the straight jacket that the Court of Appeal has clothed it with had the Upper Tribunal not “exceeded it’s jurisdiction” or “ overreached itself” as concluded by the Court in The Secretary of State for the Home Department v MS (Pakistan)  EWCA Civ 594?
The appeal in MS in the Court of Appeal raised an issue of principle as to the jurisdiction of the First-tier Tribunal and the Upper Tribunal on a statutory appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 Act to undertake an indirect judicial review of a negative trafficking decision made by the Secretary of State in that individual’s case. In that context, the appeal was noted to concern the scope and effect of the previous decision of the Court of Appeal in AS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1469.
Without digging too far into the facts of the case, the Upper Tribunal was found to have gone way beyond the confines of the narrow approach set out in AS, reaching several conclusions, which in essence pointed to the Tribunal having wider jurisdictional powers than had been intended.
As a result of the Court of Appeal decision in MS, currently both tiers of the Tribunal have had their wings clipped, having no jurisdiction in a statutory appeal against a removal decision where an appellant mounts an indirect challenge to a negative trafficking decision, unless it can be shown that the trafficking decision
is perverse or irrational or one which was not open to the Secretary of State and,
only if it is, can the appellant invite the Tribunal to re-determine the relevant facts and take account of subsequent evidence since the decision of the authority was made.
What did AS(Afghanistan decide?
In AS, the Court of Appeal found as follows in 2013:
“14. If the First Tier Tribunal is entitled to take into account a decision that an appellant is (or has been) a victim of trafficking it seems odd that, if a perverse decision has been reached that an appellant has not been a victim of trafficking, the Tribunal cannot consider whether the facts of the case do, in fact, show that the appellant was a victim of trafficking. Abdi is authority for the proposition that a failure by the Secretary of State to apply her own policy is an error of law in the sense that she will have failed to take a relevant consideration into account. If in fact AS has been trafficked but the Secretary of State ignores that fact she will have failed to apply the relevant policy in relation to victims of trafficking. The mere fact that the Competent Authority has made a decision which on analysis is perverse cannot prevent the First Tier Tribunal judge from considering the evidence about trafficking which is placed before him; nor can it, in my judgment, be relevant that no judicial review proceedings have been taken by the applicant in respect of the Competent Authority’s decision. The FTT judge should consider the matter for himself.
16.In SHL v SSHD  UKUT 00312, however, a decision promulgated 3 days before that in EK, the Upper Tribunal reached a different conclusion. There was no adversarial argument but it appears that the appellant had sought to challenge on appeal to the First Tier Tribunal a decision of the UKBA that he had not been a victim of trafficking based on a finding that his assertions had not been considered credible. The Upper Tribunal held that the Convention could not be invoked as a free-standing source of rights since it was an unincorporated international treaty. As far as that conclusion is concerned, it does not purport to deal with the Abdi point that, if the Secretary of State has a policy, it is an error of law not to take that policy into account. That must be true whether the policy is derived from an international treaty or any other source. But para 34 of the decision also says this:-
“Finally, we consider that it would have been open to the appellant to challenge the respondent’s trafficking decision by an application for judicial review. The Tribunal was informed that such challenges have occurred. However, he did not pursue this remedy. We are of the opinion that backdoor challenges to trafficking decisions made by the respondent under the Trafficking Convention are not permissible in appeals of the present kind. They lie outwith the competence of the First Tier and Upper Tribunals.”
17.For the reasons given above, I cannot agree with this paragraph of SHL. It seems to me that First Tier Tribunal judges are competent to consider whether the Secretary of State has complied with her policy in relation to trafficking; if asked to consider that question, they should then decide whether she has in fact complied with her policy since that it is (or may be) relevant to her removal decision.
18.In this context it is important to be aware that a decision to refuse asylum is not itself an immigration decision appealable pursuant to section 82(2) of the 2002 Act (any more than a trafficking decision is such a decision). The relevant immigration decision is the decision to remove the appellant under section 10 of the Immigration and Asylum Act 1999 (see s.82(2)(g) of the 2002 Act). It is in reaching the decision to remove that the Secretary of State must consider relevant matters including (where relevant) whether an applicant for asylum is a victim of trafficking. No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as here, it is arguable that, on the facts found or accepted, the Competent Authority has reached a decision which was not open to it, that argument should be heard and taken into account”.
How did the Upper Tribunal in MS seek to develop a wider approach?
The Upper Tribunal decision that was challenged by the Secretary of State and overturned by the Court of Appeal earlier this year provided as follows in its Headnote in MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR)  UKUT 226 – Tribunal decisions:
“Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.
Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.
Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance.
While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.
Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.
The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.
Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful”.
The Court of Appeal’s approach in MS
A Two stage approach
At paragraph 69 of its judgment, the Court of Appeal concluded as follows:
“In my judgment, it is absolutely clear that the Court of Appeal in AS (Afghanistan) was limiting the circumstances in which, on a statutory appeal against a removal decision, an appellant can mount an indirect challenge to a negative trafficking decision by the authority (in the circumstances where the appellant has not challenged it by way of judicial review), to where the trafficking decision can be demonstrated to be perverse or irrational or one which was not open to the authority, those expressions being effectively synonymous for present purposes. Mr Lewis is correct that there is a two stage approach. First, a determination whether the trafficking decision is perverse or irrational or one which was not open to the authority and second, only if it is, can the appellant invite the Tribunal to re-determine the relevant facts and take account of subsequent evidence since the decision of the authority was made’.
The Court of Appeal also considered and concluded as follows:
A trafficking decision, whether positive or negative, may well be relevant to the issue before the Tribunal as to the lawfulness of the removal decision. However, an appellant can only invite the tribunal to go behind the trafficking decision and re-determine the factual issues as to whether trafficking has in fact occurred if the decision of the authority is shown to be perverse or irrational or one which was not open to it. The Upper Tribunal was thus wrong and misinterpreted the decision of the Court of Appeal in AS when it said that, in effect, the Court of Appeal was contemplating that the Tribunal could go behind the negative trafficking decision and re-make the decision as to whether there had been trafficking, whenever that trafficking decision could be challenged on any judicial review ground as opposed to the narrow ground of perversity.
Longmore LJ in AS was careful to limit the instances where there can be an indirect challenge to a negative trafficking decision to those where the decision is shown to be perverse or irrational or one which was not open to the authority.
Where the Upper Tribunal was particularly critical of the decisions of the competent authority, it was difficult to identify precisely what it was in those decisions that the Upper Tribunal was saying was susceptible to a Wednesbury challenge. The decision of the authority that there was no exploitation, was clearly open to it on the findings made by the First-tier Tribunal judge, specifically that there had not been forced labour, and that decision was not perverse or otherwise susceptible to a Wednesbury challenge.
What the Upper Tribunal did in fact was to engage in a complete redetermination of the issue as to whether MS was trafficked and to reach a decision that he was, despite having failed to identify any specific respect in which the decisions of the authority were open to a Wednesbury challenge.
What the Upper Tribunal also did was to treat the trafficking decision as if it were an “immigration decision” under section 82 of the 2002 Act susceptible to the procedure applicable to the determination of statutory appeals under section 84 of the 2002 Act. However, trafficking decisions are not in the list of decisions susceptible to appeal, either before or after the changes to sections 82 and 84 effected in 2014. Accordingly, it is clear that the Upper Tribunal exceeded its jurisdiction.
As established by caselaw, there is no right of appeal against a trafficking decision. The only remedy is by way of judicial review. Where, as in the present case, there has been no judicial review, AS (Afghanistan) establishes that the trafficking decision is only susceptible to an indirect challenge on a statutory appeal where it is demonstrated to have been perverse or irrational or one which was not open to the authority. Nothing in the narrowness of the circumstances in which such an indirect challenge is permissible in any sense subverts the appeal process or the function of the Tribunal in respect of the decision which is the subject of the statutory appeal, here the decision of the Secretary of State to remove MS.
Trafficking decisions simply do not have the same status as adverse asylum decisions.
Even if the Upper Tribunal had been entitled to conclude that the authority was wrong in making a negative trafficking decision, it should not have concluded that this amounted to a breach of the procedural obligation of the United Kingdom under Article 4.
The Upper Tribunal also overreached itself in purporting to criticise the state agencies involved in compliance with the obligations of the United Kingdom under ECAT, in particular the police. It should have been no part of the functions of the Upper Tribunal to go beyond determining the lawfulness of the decision to remove MS. Even if it had had the jurisdiction it assumed it did have to re-determine the trafficking decision, it should not have engaged in such criticism without affording the police an opportunity to provide an explanation for not having pursued enquiries.
A real and practical problem
It is not unknown for a negative trafficking decision to be served and remain unchallenged for one reason or the other. Those who had been labouring under the illusion that an unchallenged prior negative trafficking decision will in no way affect the presentation and outcome of a subsequent asylum appeal for the same claimant, need to have careful regard to the effect of MS.
The Home Office will most usually make a decision on a trafficking claim first and then serve any refusal of the asylum claim weeks or months later. Take, for example, the claim of a Vietnamese national who has been in debt bondage from Vietnam, was transported to the United Kingdom and then subjected to forced labour on a cannabis farm in the UK so as to achieve settlement of the outstanding debt. The trafficking decision may conclude that the person is not credible, is inconsistent, did not incur any debt in Vietnam, does not meet the definition of trafficking in human beings, has not been exploited and therefore is not a victim of trafficking. The facts giving rise to the trafficking claim are the same as those put forward in the asylum claim in relation to a claim of fear of reprisals, abuse or re-trafficking upon return to Vietnam due to the outstanding debt. In such circumstances, the facts relevant to the trafficking claim will inevitably fall for consideration in the asylum or Article 3 decision, however that asylum decision will usually merely note in brief that the claimant’s trafficking claim has already been considered and not accepted. Where no separate judicial review challenge is effected in relation to the trafficking claim, the MS effect as set out above will kick in and the claimant is likely to find on appeal that the Tribunal‘s hands are tied, unable to re-run the factual case nor take into account post- decision evidence relevant to the trafficking claim unless the two stage test set out above is satisfied.
As clarified below, a reconsideration request in relation to the negative trafficking decision can be made to the Secretary of State and could be relevant towards requesting an adjournment of an asylum protection appeal pending a decision on that reconsideration request. The Secretary of State’s relevant policy guidance however has in- built restrictions in this regards, Victims of trafficking: guidance for competent bodies:
“Reconsideration of a Reasonable Grounds or Conclusive Grounds decision
If a first responder or support provider wishes to submit additional evidence, or they raise specific concerns that the decision is not in line with published guidance, the Competent Authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal and the decision should only be reconsidered where there are grounds to do so.
This informal arrangement does not extend to other parties such as legal advisors and non governmental organisations outside the NRM. However those third parties could ask a support provider or first responder involved in the case to request a reconsideration. A support provider or first responder is not obliged to consider that request or provide reasons for not making a reconsideration request.
If a legal representative or non governmental organisation outside the NRM requests a reconsideration from the Competent Authority they should be notified that:
‘Our policy in the published competent authority guidance clearly set outs that reconsideration requests of NRM decisions may only be made by first responders or support providers involved in the case. You are not the first responder or support provider involved in this NRM case so under the published guidance we cannot reconsider the NRM decision based on your request. There is no breach of our policy as you are not entitled to make a reconsideration request in our guidance.
It is open to you to request a reconsideration via a first responder or a support provider involved in the case. If a support provider or first responder submits a reconsideration request in this case it may be considered in line with the published guidance’.
A legal representative should however submit the additional evidence and make relevant reconsideration representations on the basis that there is no first responder or support provider involved in the case.
Making a reconsideration request and seeking an adjournment in the First Tier Tribunal
So as to try and avoid the Tribunal in effect being inescapably tied to the conclusions of the unchallenged negative trafficking decision, where no a judicial review claim has been commenced, it may assist to submit a reconsideration request to the Secretary of State, along with any further supportive evidence and then subsequnelty request that the Tribunal grant an adjournment until a decision is made by the Secretary of State.
This is exactly the course of action I took within the last few days placing reliance upon an unreported decision in the First Tier Tribunal by Immigration Judge J R Neville dated 18 July 2019, PA/01278/2018, Ms Y A v Secretary of State of the Home Office Department(Hackney Community Law Centre instructed, Counsel, Ms R Moffat).
The issues that arose in YA were as follows in summary:
On 23rd March 2017, a negative conclusive grounds decision was made, with the Competent Authority rejecting YA’s claim to be a victim of trafficking. The evidence considered by the authority included a psychiatric report diagnosing YA with a depressive illness and PTSD. The conclusive grounds decision took issue with the amount of information provided to the report’s author.
On 15 December 2017, YA ‘s protection claim was refused. Within the refusal the factual account of trafficking was rejected in line with the competent authority’s decision. An appeal was lodged in the Tribunal.
On 17 May 2018, the Helen Bamber Foundation provided two medico- legal reports. One of the reports diagnosed YA with PTSD and major Depressive Disorder. It dated the PTSD to YA ‘s claimed traumatic history in Nigeria and indicated that her symptoms had been exacerbated by forced prostitution. The report stated that YA’s presentation was in keeping with that of other victims of sexual abuse and trafficking. It was argued on YA’s behalf that this report was not susceptible to criticisms that had been made by the competent authority of a previous psychiatric report.
Immigration Judge J R Neville noted that in his assessment the two reports had the potential to carry great weight in determining YA’s credibility of her account of being a victim of trafficking.
On 7 June 2018, YA’s representatives wrote to request that the decision of the competent authority be reconsidered in light of the new evidence.
The application that was made before Immigration Judge J R Neville was to adjourn the substantive hearing behind YA’s representative’s efforts to have the conclusive grounds decision reconsidered as there had not yet been any response from the competent authority.
Counsel’s submissions in support of the adjournment request were as follows in summary:
Her central theme was fairness. If the Tribunal is bound by the negative conclusive grounds decision- argued as to the effect of MS(Pakistan)- then YA has been denied the right to argue her appeal fairly. The negative decision was not alleged to be perverse, irrational or one which was not open to the competent authority at the time the decision was made. The unfairness arose from the standard of proof it applies then being used to decide an asylum appeal and the Tribunal’s inability to consider post decision evidence. If the adjournment were granted, then YA would attempt to secure a reconsideration of the negative conclusive grounds decision.
Immigration Judge J R Neville concluded as follows in brief:
Counsel for YA was right to place YA’s right to a fair hearing at the centre of her argument.
It could be seen by reference to the way in which the appeal was being argued that Relevant Facts are fundamental to YA’s stated fear on return and thus the Tribunal’s conclusions on the appeal. If the hearing proceeded and the Relevant Facts rejected in line with the conclusive grounds decision then YA had not established the risk factors of vulnerability and previous trafficking.
Where the Relevant Facts go to the core of the protection claim, YA’s inability to re-argue them deprived her of a fair hearing.
Immigration Judge J R Neville stated that part of the fact- finding in the appeal had been delegated to the Secretary of Sate. That caused unfairness between the parties , one of them having the ability to constrain the factual argument that can be put forward to the other.
It is relevant to fairness, in respect of the equality of arms and overriding objective that one party to the appeal had limited the other’s arguments.
YA was acutely disadvantaged. She had evidence going to the core of her protection claim that she wished to be considered by the Tribunal, yet this could not happen because the evidence post- dates the decision of the competent authority.
For as long as the negative conclusive grounds decision is maintained, without regard to the later evidence, the Tribunal cannot fulfil its function of fairly deciding if removal would be in breach of the UK ‘s obligations.
YA’s appeal was adjourned with a direction that no later than 10 September 2018, her representatives notify the Tribunal and the Secretary of State as to the progress of their attempts to obtain reconsideration of the negative conclusive grounds decision of 23rd March 2017 and request any further time or directions.