It is 10 years since the Council of Europe Convention on Action against Trafficking in Human Beings
came into force in the UK. The convention sets out a comprehensive framework for the prevention of trafficking, prosecution of traffickers and the protection of victims. Requirements include the identification of victims, a ‘recovery and reflection period’, support and material assistance to promote victims’ physical, psychological and social recovery, and access to legal advice, compensation and a residence permit.
The past decade has seen the numbers of potential victims of trafficking identified increasing from just 535 in 20091Review of the National Referral Mechanism for victims of human trafficking, Home Office, November 2014, figure 2, page 15.
to 6,993 in 2018,2National Referral Mechanism statistics – end of year summary 2018, version 1.0, National Crime Agency, 20 March 2019, page 1.
with this set to increase further this year. Public awareness is at an all-time high. The Supreme Court recently considered for the first time the scope of article 4 of the European Convention on Human Rights
(ECHR) in an immigration context (MS (Pakistan) v Secretary of State for the Home Department UKSC 2018/0159
). Much of the hearing was concerned with the relationship between ECHR article 4 and the anti-trafficking convention. As such, the judgment will have significant implications for thousands of trafficking victims in the UK.
While recent years have seen politicians pledge support to combat trafficking, the reality of the National Referral Mechanism (NRM, the system that the government has implemented to identify and protect victims) falls a long way short of the ‘comprehensive legal framework for the protection of victims’ envisaged.3Explanatory report to the Council of Europe Convention on Action against Trafficking in Human Beings, 2005, para 51, page 10.
This is largely due to the UK’s commitment to the hostile environment. With the Home Office responsible for both the identification of victims and immigration decisions, victims of trafficking find themselves caught in a policy clash, with positive anti-trafficking initiatives undermined at every turn by immigration policy.
The number of victims who receive a grant of leave is woefully low; in 2015, just 12 per cent of all victims of modern slavery were granted discretionary leave.4Letter to Frank Field MP from Sarah Newton MP, 17 February 2017, page 13.
The human and financial cost of the hostile environment is unacceptable. Recent research revealed that, had all confirmed victims of trafficking referred in 2017 been supported for 12 months, through a grant of leave, it would have had an estimated direct financial benefit to the UK of between £15.4m and £21.3m (equivalent to between £12,500 and £15,500 per conclusive victim) across two categories: relief of homelessness services and improved employability.5Dr Andrea Nicholson et al, The Modern Slavery (Victim Support) Bill: a cost-benefit analysis, Rights Lab, University of Nottingham, July 2019, page 4.
Victims are unable to access immigration advice at an early stage, due to the lack of legal aid pre-NRM, leaving them uncertain whether to enter; fear of detention and removal if they identify themselves to the authorities remains a powerful reason for many to remain hidden. The NRM system itself is flawed: it is hostile, bureaucratic and disempowering for victims, and divorced from other statutory frameworks. It is apparent from this lack of integration that little thought has been given to how to meet the long-term recovery needs of victims.
The NRM plunges victims into uncertainty and limbo. Having escaped situations where all aspects of their lives were controlled by their traffickers, they are again trapped in poverty and robbed of their agency, this time by a state system. In the NRM, victims are often unable to access healthcare, appropriate mental health treatment or legal representation. Most suffer from fragile and deteriorating mental health during the years of waiting. Victims face immense practical pressures to work, due to the very factors that made them vulnerable to trafficking in the first place, and many are pushed back into exploitation when in the NRM as they still have debts, medical bills and dependent family members to support.
On exiting the NRM, victims are highly likely to suffer further exploitation. Many have no leave to remain and face destitution. Those with leave struggle to access support, housing, benefits and decent employment. Most statutory agencies remain unfamiliar with trafficking, and fail to take into account victims’ specific vulnerabilities and circumstances.
Compensation has been shown to play an important role in assisting victims to hold those responsible to account, provide for their families and rebuild their lives.8Real people, real lives: ten years of advocacy for victims of slavery in the UK, Anti-Slavery International for the Anti-Trafficking Monitoring Group, September 2019, page 23.
Accessing legal aid is so problematic that legal rights to compensation remain illusory for most victims. Many victims require legal assistance to just obtain an award from the Criminal Injuries Compensation Authority
(CICA). These are routinely refused by CICA as the act of trafficking is not considered a crime of violence; a victim must provide evidence of a diagnosable mental or physical injury. Where a victim has been through the NRM and information has been passed to the police, this is insufficient to meet the CICA requirement to report to the police. Both result in victims being shut out of compensation where there is no legal representative to challenge this decision, and this is only accessible via the exceptional case funding regime.
The past 10 years have seen significant improvements in law and policy in the UK for victims of trafficking and many of these changes have been driven by litigation. In practice, victims need legal advice and representation: to be identified as a victim of trafficking, to regularise their immigration status, to secure support and accommodation appropriate for their needs, and to access compensation and redress. Legal aid lawyers have a key role to play in securing tangible improvements for victims in the future.
Legal Action will be publishing a series of articles by ATLEU in 2020.