Accessing compensation for trafficking victims
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Administrator
Keina Yoshida and Silvia Nicolaou Garcia look at some recent cases and explore what international and regional remedies are available for victims of trafficking, in particular for female victims of domestic servitude.
Practitioners should not be deterred from using international mechanisms.
According to a research paper from the charity Focus on Labour Exploitation (FLEX) (Access to compensation for victims of human trafficking, July 2016), even after the UK’s Modern Slavery Act 2015 (MSA) was passed into law, victims of trafficking and slavery still face significant legal and practical barriers to obtaining compensation for the abuses committed against them.
Article 17 of the EU Trafficking Directive (Directive 2011/36/EU) requires member states to ensure that victims of human trafficking have access to existing schemes of compensation. In the UK, victims can obtain redress through a number of mechanisms; however, there are ongoing obstacles that currently undermine these rights to compensation.
Difficulties accessing remedies
Victims of trafficking may apply to the Criminal Injuries Compensation Authority (CICA) for compensation. Access to CICA for victims of trafficking is crucial, particularly in cases where it is not possible to bring compensation claims against the perpetrator (because, for example, the perpetrator cannot be identified, has diplomatic immunity, has no assets, etc). Unfortunately, the CICA scheme is problematic for a number of reasons. Some of the difficulties with the CICA scheme are that:
legal aid is not generally available for the purpose of completing CICA applications;
victims are required to have co-operated sufficiently with the police;1See C v CICA CI011/00026, 26 November 2015, a summary of which is available here. and
victims with unspent convictions leading to a custodial/community sentence at the time of the application to CICA are not eligible to apply, and this includes convictions for offences committed as a result of being trafficked.2See R (McNiece) v CICA and Lord Chancellor; R (Subatkis and Subatkis) v CICA and Lord Chancellor [2017] EWHC 2 (Admin).
A number of recent cases have highlighted the hurdles victims of trafficking still face when trying to secure compensation. On the issue of access to legal advice, for example, the case of R (Anti Trafficking and Labour Exploitation Unit) v Lord Chancellor CO/4231/20153See 'ATLEU judicial review leads to government urgently reviewing legal aid to victims of modern slavery and trafficking', ATLEU news release 21 March 2016. challenged the adequacy of legal aid for victims of trafficking wishing to bring compensation cases against their traffickers following changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The case settled in March 2016 after the government agreed to conduct a review of legal aid provision for victims of modern slavery and trafficking by June 2016. This resulted in an increase of legal help matter starts to bring legal aid compensation cases against traffickers under the civil legal aid contract from five to 10 per year.
The MSA included the ability for courts to make ‘slavery and trafficking reparation orders’ following the conviction of exploiters, but made no provision for the many cases in which prosecutions or convictions are not possible (see ss8–12). For a victim to obtain compensation through a slavery and trafficking reparation order, the perpetrator must have been convicted under the MSA and a confiscation order must have been made against him/her. Many victims of trafficking may not want to co-operate in a police investigation into their trafficking for a number of reasons, including fear of reprisals, so this avenue is only available to a limited number of people.
The above list is non-exhaustive, but serves to illustrate the ongoing problems amidst the tremendous efforts from the anti-trafficking sector to help ensure that victims of trafficking can bring compensation claims more easily.4These include claims under the Human Rights Act 1998, claims in the employment tribunal (see Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31), civil private law claims against corporate entities (see Galdikas and others v DJ Houghton Catching Services Ltd and others [2016] EWHC 1376 (QB)), cases in the European Court of Human Rights (see Chowdury and others v Greece App No 21884/15, 30 March 2017) and compensation awarded under Powers of Criminal Courts (Sentencing) Act 2000 s130. It is also apparent that the system of support for securing remedies for victims of trafficking is still quite fragmented.
Additional hurdles faced by female victims of domestic servitude
A case heard in the Supreme Court in May 2017 (Reyes v Al-Malki and another)5This is an appeal of the Court of Appeal decision in Reyes and Suryadi v Mr and Mrs Al-Malki [2015] EWCA Civ 32. The Anti Trafficking and Labour Exploitation Unit acted for the appellant in the Supreme Court and the NGO Kalayaan intervened in the case. highlighted the additional hurdles that migrant domestic workers (MDWs), who accompany diplomatic employers to the UK in order to work in the diplomat’s private household, face. Even if the domestic worker manages to escape6This has proven difficult following the introduction of the tied visa system in April 2012. See 'Overseas Domestic Workers left in the dark by the Immigration Act 2016', Kalayaan news release, 28 June 2016. and is found to have been trafficked, she is left without any effective access to compensation or redress for her exploitation because diplomatic immunity operates as a procedural bar to such claims.
The appeal heard by the Supreme Court in Reyes will determine whether diplomats responsible for the trafficking of MDWs should be able to rely on diplomatic immunity under article 31(1)(c) of the 1961 Vienna Convention on Diplomatic Relations (VCDR)7Enacted in UK law via incorporation in Diplomatic Privileges Act 1964 Sch 1. to avoid civil claims brought by their victims of trafficking. The case was brought by a female MDW who was trafficked to the UK as a domestic worker to work for a Saudi Arabian diplomat and his wife. After escaping her trafficking situation, she brought a civil (employment law) claim against her trafficker and although she won her claim in the employment tribunal, the diplomat won on appeal, relying on his immunity from suit under the VCDR/Diplomatic Privileges Act 1964.
The reliance on diplomatic immunity to defeat a claim for compensation where the basis of the claim is entirely unconnected with the diplomat’s functions is a real cause for concern. In situations where the law effectively bars compensation claims, what can victims of trafficking do and where can they go to obtain redress?
The feminisation of domestic work
The section above demonstrates that obtaining compensation and redress for victims of human trafficking can be extremely challenging. In this section, we look to some alternative mechanisms that could assist in providing some form of redress to victims of domestic servitude. Bearing in mind that domestic servitude is a highly feminised form of exploitation (according to the International Labour Office, 83 per cent of domestic workers worldwide are female, while in some European countries about 90 per cent of the domestic labour workforce is composed of women (Domestic workers across the world: global and regional statistics and the extent of legal protection, 9 January 2013, pages 19, 21 and 35)), this section focuses on some mechanisms that are specific to women and girls, in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).8This section builds on a paper given by Keina Yoshida and Gema Fernandez Rodriguez de Lievana at Doughty Street Chambers on Trafficking and CEDAW on 6 June 2017.
Why CEDAW?
There are a number of international treaty bodies that accept individual communications. CEDAW is an international human rights treaty dedicated to women and girls. The convention has a number of general recommendations (GRs) that ensure it is a dynamic and living instrument. There is also an optional protocol to CEDAW that came into force in 2000 (it came into force in the UK in 2005).
Following exhaustion of domestic remedies, an application can be brought to the CEDAW committee for violations of convention rights, much like it would to other bodies or to the European Court of Human Rights (ECtHR). There are a number of reasons why a communication to CEDAW should be considered when seeking to obtain redress for female victims of trafficking or domestic servitude. The first is that CEDAW expressly prohibits trafficking under article 6. This provides that states parties shall take all appropriate measures, including legislation, to suppress all forms of trafficking in women and exploitation of prostitution of women.
Second, GR No 19 on violence against women (1992) elaborated on trafficking as a form of violence against women and highlighted ‘new forms of sexual exploitation’ including ‘sex tourism, the recruitment of domestic labour from developing countries … and organized marriages between women from developing countries and foreign nationals’ (para 14). This is probably not to be read as an exhaustive list.
Third, more recent GRs specifically address women migrant workers (GR No 26, 2008) and women’s access to justice (GR No 33, 2015). GR No 33 explicitly recognises trafficking as one of a number of intersecting factors that make it more difficult for women to gain access to justice. It is a very detailed document containing ‘innovative and transformative’ provisions including on remedies for victims. It states in para 19 that states parties should:
(b) Ensure that remedies are adequate, effective, promptly attributed, holistic and proportional to the gravity of the harm suffered. Remedies should include, as appropriate, restitution (reinstatement); compensation (whether provided in the form of money, goods or services); and rehabilitation (medical and psychological care and other social services). Remedies for civil damages and criminal sanctions should not be mutually exclusive; …
(d) Create women specific funds to ensure that women receive adequate reparation in situations in which the individuals or entities responsible for violating their human rights are unable or unwilling to provide such reparation;
The concluding observations of the CEDAW committee also make it clear that compensation should be available to trafficking victims.9See, for example, CEDAW/C/BGR/CO/4-7.
Some practical steps
Admissibility: The CEDAW committee has yet to find a violation of the convention in relation to the UK and it has never found a violation in a trafficking case. The committee adopts strict admissibility criteria and it is at this hurdle that previous communications have failed. However, this should not discourage potential applicants from looking to the CEDAW committee.
Funding: There is no funding for bringing cases to international treaty bodies. However, those seeking to bring a case to CEDAW could consider crowdfunding mechanisms to assist their preparation of the case. It is also important to note that the CEDAW committee does not award costs to lawyers if the state is found in violation of the convention. Further, unlike the ECtHR, the committee cannot order the government to pay compensation and enforce that order.
While these factors may seem discouraging, an individual communication to CEDAW has important potential in terms of affirming and strengthening international protections and states’ obligations in relation to human trafficking and domestic servitude. The convention is rooted in the need to eliminate discrimination against women, and the structural and root causes of violence against women, and other forms of human rights violations to which domestic workers are frequently subjected. This understanding, alongside GR No 33, makes CEDAW a viable and interesting option for lawyers who cannot or do not want to go to Strasbourg.
Conclusion
The most immediate priority for victims of trafficking is to escape from those exploiting them and recover their freedom, dignity and humanity. Once that has been achieved, access to remedies and compensation can enable the victims to promote their rehabilitation and play an important role in a survivor’s recovery. Practitioners should continue bringing challenges on behalf of victims of trafficking seeking compensation, and should not be deterred from using other international mechanisms such as CEDAW or from applying a gender lens beyond sexual exploitation when working on human trafficking cases involving women. It is the increased awareness of the significance and importance of these international mechanisms that can lead to an easier road for victims of trafficking seeking compensation in the UK.
 
1     See C v CICA CI011/00026, 26 November 2015, a summary of which is available here»
2     See R (McNiece) v CICA and Lord Chancellor; R (Subatkis and Subatkis) v CICA and Lord Chancellor [2017] EWHC 2 (Admin)»
4     These include claims under the Human Rights Act 1998, claims in the employment tribunal (see Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31), civil private law claims against corporate entities (see Galdikas and others v DJ Houghton Catching Services Ltd and others [2016] EWHC 1376 (QB)), cases in the European Court of Human Rights (see Chowdury and others v Greece App No 21884/15, 30 March 2017) and compensation awarded under Powers of Criminal Courts (Sentencing) Act 2000 s130. »
5     This is an appeal of the Court of Appeal decision in Reyes and Suryadi v Mr and Mrs Al-Malki [2015] EWCA Civ 32. The Anti Trafficking and Labour Exploitation Unit acted for the appellant in the Supreme Court and the NGO Kalayaan intervened in the case. »
6     This has proven difficult following the introduction of the tied visa system in April 2012. See 'Overseas Domestic Workers left in the dark by the Immigration Act 2016', Kalayaan news release, 28 June 2016. »
7     Enacted in UK law via incorporation in Diplomatic Privileges Act 1964 Sch 1. »
8     This section builds on a paper given by Keina Yoshida and Gema Fernandez Rodriguez de Lievana at Doughty Street Chambers on Trafficking and CEDAW on 6 June 2017. »
9     See, for example, CEDAW/C/BGR/CO/4-7»

About the author(s)

Keina Yoshida
Keina Yoshida is a barrister at Doughty Street Chambers.
Silvia Nicolaou Garcia
Silvia Nicolaou Garcia is a solicitor at Simpson Millar.