Helping victims of child trafficking challenge decisions by the Home Office

There were two key legal issues:

1. Whether an immigration tribunal is bound by a Home Office decision that a person is not a victim of trafficking when determining an appeal which turns on whether deportation will breach Art 4 ECHR (prohibition of slavery and forced labour) and,
2. Whether the requirements of the Council of Europe Anti-Trafficking Convention (ECAT) inform the positive obligations under Art 4 and whether breach of those positive obligations can lead to a deportation appeal succeeding. 

An immigration tribunal upheld the claimant’s appeal against deportation based on their finding that that the claimant had been trafficked to the UK as a child and return would prevent an investigation into his trafficking and potential prosecution as required by Article 4 ECHR, informed by the requirements of ECAT.

The Home Office had previously decided the claimant was not a child victim of trafficking

The immigration tribunal heard further evidence which supported their conclusion MS had been trafficked, but also found that the Home Office had been wrong to reject his claim of trafficking on the evidence that they had.

The Home Office successfully appealed this decision to the Court of Appeal.  The Court of Appeal held that the tribunal did not have the power to overturn the original HO decision, and in any event return would not breach MS’ human rights because the obligation under ECAT to investigate and prosecute trafficking did not form part of the positive obligations under Article 4, and only the obligation to ensure MS was not re-trafficked was relevant to the appeal.

After six years pursuing his appeal, the claimant was granted leave to remain and could not face further court proceedings.

We took over the role of the appellant in this Supreme Court case to ensure immigration tribunals can make their own decision as to whether a person has been a victim of trafficking in appeals against deportation, and are not bound by a previous Home Office decision.

We wanted to clarify the law and remove a serious barrier to justice for a large and particularly vulnerable group of people.

In particular, we sought to ensure effective access to justice for victims of trafficking.

We also wanted to clarify the law; this was an important case on extent of the positive obligations under Article 4, the relevance of other internal human rights conventions (ECAT) in interpreting those, and the relevance of breach of positive obligations in deportation appeals.

We intervened to take over as the appellant. We effectively acted as the appellant for the appeal to the Supreme Court.

We were successful on both points of law.  The Supreme Court ruled that an immigration tribunal is not bound by a negative Home Office decision when determining an appeal which turns on whether deportation will breach Art 4 ECHR.

It also ruled that the requirements of ECAT inform the positive obligations under Art 4, and breach of them can lead to a deportation appeal succeeding. 

The Home Office had conceded the first point shortly before the appeal hearing, but we believed it was important for the Supreme Court to make it clear that the Court of Appeal judgment was wrong.

This judgment will help any victim of trafficking who has received a negative Home Office decision on whether they are a victim, and wishes to appeal a deportation decision.

External lawyers estimate this issue affects around 3,000 – 5,000 people every year who are some of the most vulnerable in society.