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Important guidance case for trafficking litigation

Important guidance case for trafficking litigation

MS -v- SSHD AA/07855/2013

Useful note from Kalvir Kaur at the Anti Trafficking and Labour Exploitation Unit (ATLEU). Thanks for circulating, Kalvir:

In a strongly worded judgment, The Hon. Mr Justice McCloskey, President and Upper Tribunal Judge Blum held that the tribunal has jurisdiction to make their own decision on whether an appellant is a victim of trafficking and to consider if a negative trafficking decision has been reached in breach of the Secretary of State’s policy guidance. It also found that tribunals may be better equipped than a Competent Authority to make pertinent findings related to trafficking. This case lays down important guidance in trafficking cases. 

Overturning the decisions of the First-tier Tribunal, the Upper Tribunal held that MS was a victim of trafficking, a status which is current and enduring. It went on to make important observations and findings on the following issues:

(a) Violation of human dignity and fundamental freedom of a child who was bereft of parental and family support

(b) Control and subtle, psychological compulsion

(c) Free will and mobility to change employment, and exploitation

(d) Economic necessity and exploitation

(e) Perversity of Competent Authority decisions

(f) Article 4 breaches by the State

(g) The impact of a trafficking finding on a removal decision

(h) The Secretary of State’s continuing obligations under Article 12-14 of the Trafficking Convention and Art 16 considerations upon removal.

The Tribunal also gave instruction that those engaging expert witnesses should ensure that the expert be provided with a copy of a section appearing at Annex A from the case of MOJ & Others, as a matter of course, at the initial stage of receiving instructions.

The Tribunal however considered the asylum claim to be defeated owing to availability of internal flight alternative.

Both parties have applied for permission to appeal to the Court of Appeal: MS challenging the asylum decision and the Secretary of State challenging the jurisdiction of the Tribunal concerning the Trafficking Convention and the State’s non-immigration related duties under Article 4 of the European Convention of Human Rights.

Read our note on the judgment.

Read the full judgment.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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