Sadaf Mir explores the issues for victims of trafficking seeking local authority assistance under the Housing Act 1996.
Applications made by victims of trafficking for assistance under the Housing Act 1996 (HA) bring to the fore the limitations of the current homelessness legislation and statutory guidance. The National Crime Agency’s report published on 7 April 2017 (National referral mechanism statistics – end of year summary 2016
) states that 3,805 potential victims of trafficking and modern slavery were referred to the national referral mechanism (NRM) in 2016, a 17 per cent increase since 2015. Of the 3,805 referrals, 51 per cent of the victims were female, 48 per cent male and one per cent recorded as transgender. Minor exploitation referrals in the UK increased by 30 per cent to 1,278 in 2016, compared with 982 in 2015. However, the impetus to prosecute such crimes appears not to have resulted in amendments to legislation to make it easier for trafficking victims to access housing and other support.
The national framework is focused on providing support to victims until a conclusive grounds determination is made. After such a decision has been made, no specific legislation has been introduced in order for victims to access accommodation and support pending a grant of leave to remain from the Home Office. In such cases, victims of trafficking rely on articles 3 and 4 of the European Convention on Human Rights (ECHR) in addition to the residual discretion under Localism Act 2011 s1(1) in order to access housing assistance and support from the council (see R (AK) v Bristol City Council
CO/1574/2015, 16 November 2015; February 2016 Legal Action
45).1Housing: recent developments
The problems victims of trafficking face in accessing support from local authorities do not end once they obtain leave to remain.
Unfortunately, the problems victims of trafficking face in accessing support from local authorities do not end once they obtain leave to remain; in fact, some find that the consequence of making a homelessness application is being moved from gender-specific to mixed-sex hostel accommodation. The focus of this article is to explore problems faced at the stage when an applicant should be considered eligible for assistance under HA s185.
Priority need and vulnerability
HA s189(1)(c) states that an applicant may be vulnerable as a result of various factors including mental illness, physical disability or other special reason. Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No 197) sets out the definition of human trafficking as ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation’. Where a homeless applicant has satisfied the Home Office that his/her experiences meet the definition of trafficking, one would expect it to be a relatively straightforward task to satisfy the local authority that s/he may be vulnerable on grounds of ‘other special reason’. Unfortunately, the experiences of victims of trafficking making homelessness applications appear to be very different.
The initial decisions made in such cases may make reference to the applicant being a victim of trafficking but the focus is usually on considering whether the applicant is vulnerable by reason of physical or mental illness that has arisen as a consequence of being a victim of trafficking, as opposed to the status of the applicant as a trafficking victim being a potential ground for vulnerability in itself. In most cases where the point is raised that inadequate enquiries have been carried out into whether the applicant is vulnerable because of his/her status as a victim of trafficking, the approach adopted by local authorities is to invite the applicant for an interview and then proceed to ask probing and intrusive questions about traumatic experiences. Often, medico-legal reports obtained in support of immigration applications provide comprehensive details about those experiences and the effect they have had on that applicant’s mental health.
The justification provided by local authorities for asking such questions does ring somewhat hollow. It would be the most remarkable case where a housing officer could lawfully, in relation to a victim of trafficking who has obtained a conclusive grounds decision, go behind that decision and find that the applicant had not been through the traumatic experiences on the basis of which s/he has been recognised as a victim of trafficking.
The problem appears to be twofold: lack of comprehensive statutory guidance in this regard and a lack of implementation of the guidance where it does exist. The current Homelessness Code of Guidance for Local Authorities
(July 2006) provides guidance on dealing with applications made by refugees, including being aware that refugees ‘may be reluctant … or have difficulty’ discussing traumatic experiences (page 92, para 10.35). However, many applicants who are refugees complain of finding the interviews distressing, which exposes them to the risk of being re-traumatised. Requests under Equality Act 2010 (EA) s29(7) for reasonable adjustments to be made in this regard do appear to have the intended effect of a more sensitised approach being adopted, although it is difficult to request such an adjustment pre-emptively if it is not known what questions will be put to an applicant during an interview.
Paragraph 6.17 of the Homelessness Code of Guidance (page 61) provides that, in cases involving violence, ‘the applicant may be in considerable distress and an officer trained in dealing with the particular circumstances should conduct the interview. Applicants should be given the option of being interviewed by an officer of the same sex if they so wish’. Aside from the current guidance being updated to include guidance on how applications made by victims of trafficking are investigated, it is difficult to think of other procedural safeguards that could effectively be put in place to prevent housing officers from asking applicants probing questions about traumatic experiences against the backdrop of a culture that appears anything but focused on the needs of the applicant.
Suitability of accommodation
Trafficking victims who have recently obtained leave to remain often find that they are moved from gender-specific to mixed-sex accommodation, including hostels with occupants who are ex-offenders and/or where there are reports of drug use and anti-social behaviour occurring within the premises. For applicants who have suffered domestic violence and are placed in hostel accommodation, the guidance states the accommodation may need to be gender-specific as well as have security measures in place (page 133, para 17.6). However, it does not make similar provisions for victims of trafficking or for applicants who have suffered other forms of gender-based violence.
Given that trafficking victims often suffer from mental or physical illness, duties owed under the EA can be of relevance to reviews concerning the suitability of accommodation. However, in light of the decision in Hackney LBC v Haque  EWCA Civ 4
; March 2017 Legal Action
42, where the Court of Appeal held that the four-stage approach to considering the public sector equality duty (EA s149) is concerned only with vulnerability, the additional duties owed under the Trafficking Directive (Directive 2011/36/EU
) to victims of trafficking could potentially play a more significant role.
The additional duties can be particularly relevant in the following situations:
•if the standard of accommodation is not of at least the same standard as that provided under the NRM;
•if an offer of accommodation in a different area disrupts an applicant’s ability to access medical treatment not easily available on the NHS or his/her existing support network; and
•if the applicant feels unsafe at the accommodation.
In my experience,2It has been difficult to gather statistics about how many trafficking victims who applied as homeless have requested reviews successfully.
when requests for review emphasise the duty to provide safe accommodation and to attend to the special needs of victims of trafficking, local authorities are quick to concede those reviews.
Accommodation for victims of trafficking under the NRM is provided in accordance with the obligations imposed by the Trafficking Directive (which has had direct effect in the UK since 6 April 2013) and the Trafficking Convention. Article 11(5) of the Trafficking Directive makes specific reference to the fact that assistance includes ‘provision of appropriate and safe accommodation and material assistance’ whereas article 11(7) imposes a duty to ‘attend to victims with special needs, where those needs derive, in particular, from whether they are pregnant, their health, a disability, a mental or psychological disorder they have, or a serious form of psychological, physical or sexual violence they have suffered’.
Victims of modern slavery – competent authority guidance
(version 3, 21 March 2016) states that accommodation should be given for a period of 45 days to provide the potential victim a sufficient period of time to recover and reflect, although extensions are requested, for example, when there has been a delay in obtaining leave to remain. The Trafficking Directive’s emphasis on safety and a need to focus on the special needs of victims should inform local authorities’ decisions regarding the standard of accommodation that should be considered suitable under HA Part 7.
Another example where additional duties owed can be particularly relevant is where the applicant continues to live in or around the same area as his/her abusers or s/he fears that other persons involved in similar criminal activity live in the vicinity of the accommodation provided. ECHR article 4 can be relevant in such cases because of the risk of re-trafficking.
Courts are reluctant to entertain arguments that the standard of suitability can be higher in light of the special needs of applicants.
In the current climate of austerity, with cuts being made to councils’ budgets, the tide appears to have turned against new ground being won by homeless applicants. Hackney LBC v Haque was a reminder that courts are reluctant to entertain arguments that the standard of suitability can be higher in light of the special needs of applicants. However, given the government’s stated commitment to fight against modern slavery and trafficking, and the issue of a lack of adequate social housing rising to the fore again, one hopes that meeting the need for victims of trafficking to be able to access housing assistance and support from councils should be an achievable objective. Many reviews concerning the needs of victims of trafficking are successful. Given that such issues are mostly resolved at the review stage, with local authorities preferring to concede the case rather than to contest it by way of a county court appeal, those cases go unreported. Nonetheless, there does appear to be a need for current homelessness legislation and practices to be amended to cater to the needs of victims of trafficking.