Two steps forward for victims of trafficking
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Louise Heath
Eve French and Silvia Nicolaou Garcia discuss two positive developments for victims of trafficking: a new Home Office redress scheme and legal aid potentially becoming more widely available.
On 9 March 2022, the Home Office announced a new redress scheme to compensate victims of trafficking who did not receive financial support between 1 April 2015 and 30 November 2019 as a result of receiving alternative sources of income. Victims of trafficking are entitled to receive financial support to help them with their recovery and protect them from re-exploitation. However, between April 2015 and November 2019, many survivors did not receive any financial support, including our client Emily Vaughn, a survivor of human trafficking and author of the best-selling book, Enslaved: My True Story of Survival.
The underpayment of trafficking support
There is a two-stage system for recognising and supporting victims of trafficking in the UK, which is triggered by a referral into the National Referral Mechanism (NRM). The first step is to decide whether there are reasonable grounds to believe that an individual may be a victim of trafficking. If the decision is positive, potential victims of trafficking remain in the NRM and are entitled to support pending the conclusive determination. Support might also be available for a period of time after this conclusive determination, once a recovery needs assessment (RNA) is carried out.
The provision of support that potential victims of trafficking receive is contained in policy and in the terms of a contract between the Home Office and the Salvation Army: the Adult Victim of Modern Slavery Contract (the AVMS contract). The contract in force from 1 April 2015 can be found online. A new contract came into force on 29 June 2020 and was published on 13 April 2021.
Between 2015 and 2019, victims of human trafficking were entitled to £35 or £65 of weekly subsistence payments in cash.1Additional support for child dependants used to be available to some victims of trafficking in the NRM (see MD and EH v Secretary of State for the Home Department [2022] EWCA Civ 336, 16 March 2022). The AVMS contract did not distinguish between victims’ entitlement on the basis of nationality. In the case of R (K and AM) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), the parties were in agreement that the entitlement to this weekly level of financial support was non-means-tested. This was confirmed by Mostyn J at para 13: ‘[T]he entitlement is non-means-tested. The victim of trafficking gets these sums irrespective of whether he or she is receiving, for example, voluntary payments from a kindly relative.’
For some reason that remains unclear to us, many trafficked individuals from Britain and the European Economic Area (EEA), domestic workers and others with leave to remain received no financial support at all while they were in the NRM between April 2015 and November 2019. Although we are aware anecdotally that some EEA nationals, in particular those supported at safehouses, may have received the correct level of financial support, many did not. Most British victims of trafficking and domestic workers whom we have encountered, who had access to benefits and/or the right to work and were in the NRM between 2015 and 2019, did not receive financial support. This is staggering given that, by the end of 2019, the most common nationality of all referrals into the NRM was British, accounting for 27 per cent (2,836) of all potential victims. The second most commonly referred nationality was Albanian (1,705), followed by Vietnamese (887).
British victims of trafficking continue to make up the largest cohort, as set out in the government’s annual modern slavery referral data. UK nationals now account for 31 per cent (3,952) of all potential victims. Kalayaan, the charity supporting migrant domestic workers, noted that in 2017–18, 72 per cent of workers who registered for advice and support presented with indicators of trafficking.
Emily’s case and legal challenge
Emily was one of the British victims who was left in limbo and without support. After a three-month delay in getting NRM support, when she was eventually assigned to a support worker, Emily was told that she was not entitled to free legal aid or a lawyer. She also did not receive any financial support at all for many months, until 18 March 2020. As a result of this, she was not able to pay for travel to attend her recovery-related appointments. Emily lives in a remote part of the country and was told that her NRM support worker could not travel to see her. Without adequate NRM financial support, Emily could not afford to meet her support worker face to face, which would have helped her to navigate the NRM and start recovering from her trafficking experiences. Instead, she felt isolated and at risk from further re-trafficking (she lives very close to where she was abused and exploited as a child). She also had to miss some counselling and other medical appointments because she could not afford to pay for childcare. This left Emily at risk, unprotected and unable to make a proper recovery from her trafficking ordeal.
In a pre-action protocol letter sent in August 2020, we argued on Emily’s behalf that the Single Competent Authority (which is a part of the Home Office) unlawfully withheld the financial support to which she was entitled under the AVMS contract. She argued that this breached her rights to support and assistance as a victim of human trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) articles 12 and 13 and European Convention on Human Rights (ECHR) article 1 of Protocol No 1 and article 4. Emily also said in her own words: ‘The NRM was supposed to be a period of healing and moving on but it feels as if it has done nothing but damage my mental health … I do not feel healed at all.’
In its initial response to Emily’s pre-action protocol letter on 25 August 2020, the Home Office accepted that in some cases financial support payments to victims of modern slavery may have been withheld as a result of the individual receiving alternative sources of income, in a way that may not have been consistent with the wording of the AVMS contract. The Home Office stated that it was working to establish who may have been affected by the issue and that any further queries could be made to: VCCbackpayment@homeoffice.gov.uk.
Difficulties accessing legal aid to issue proceedings
Months went by and the Home Office did not set up a back-payment scheme or even respond to the letters we sent to the email address above requesting the additional support. Emily was unfortunately not able to issue judicial review proceedings challenging the failure to set up a back-payment scheme because when she eventually started receiving the financial support, she became ineligible for legal aid. We acted pro bono on Emily’s behalf and sent a pre-action protocol letter to the Legal Aid Agency (LAA) and the lord chancellor challenging their failure to include NRM financial support as a ‘passported benefit’ under Civil Legal Aid (Financial Resources and Payment for Services) Regulations (CLA(FRPS) Regs) 2013 SI No 480 (as amended) reg 6(2). Reg 6 provides that the financial resources of individuals in receipt of certain support are such that they are automatically treated as eligible for all forms of civil legal aid. Under sub-section (2), this includes those in receipt of income support, income-based job seeker’s allowance, pension credit, income-related employment and support allowance, and universal credit. Reg 6(2) requires the director of legal aid to ‘determine that
the individual’s financial resources are such that the individual is eligible for all forms of civil legal services without paying (where applicable) any contributions’. These benefits are regarded as ‘passported benefits’, which automatically entitle an applicant to legal aid. It rightly recognises that those in receipt of passported benefits require those benefits for their basic subsistence.
In the alternative, we argued on Emily’s behalf that NRM payments should be treated as disregarded income under CLA(FRPS) Regs reg 24(1), which sets out the payments to be disregarded from the calculation of disposable income or gross income, for example, disability living allowance and severe disablement allowance.
We reminded the LAA and the lord chancellor that victims of trafficking receive financial support under the NRM for specific purposes: to aid their recovery from trafficking experiences and to protect them from further re-trafficking. By treating NRM subsistence as regular rather than disregarded income, the LAA deprives victims of trafficking of money that is intended for their protection, safety and recovery. We also reminded them that victims of trafficking are entitled to legal aid and legal assistance under ECHR articles 4, 8 and 13 and ECAT article 12, and that it is well established that access to legal aid is an important procedural safeguard to ensure a person is able to have effective access to legal remedies: R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor [2014] EWCA Civ 1622 (see, in particular, para 72). Emily issued proceedings protectively against both the LAA and the lord chancellor. Unfortunately, she had to withdraw her claim because of the difficulties in raising money to cover for a protective cost order and the cost risk to her if the claim did not succeed in court.
Legal Aid Means Test Review consultation
We are pleased to see that the Ministry of Justice’s (MoJ’s) Legal Aid Means Test Review consultation was finally published on 15 March 2022 and that it recommends (at para 131) that NRM payments and financial support received through an RNA (the system of support for confirmed victims of trafficking who exit the NRM) are disregarded ‘on a mandatory basis when assessing an applicant’s income for both the civil and criminal means tests, as these payments are intended for a specific purpose and we would not expect applicants for legal aid to use them to pay for legal services’. While this does not go as far as we would have liked, and does not make all victims of trafficking eligible for legal aid automatically, it is a step in the right direction. We recommend that practitioners and NGOs take part in this consultation and make submissions in response to question 7. The consultation closes on 7 June 2022.
We would like to thank the survivors of human trafficking, NGOs and others who brought the issue to the attention of the MoJ in the first place, including Emily Vaughn, Anti-Slavery International, The Human Trafficking Foundation and the Anti Trafficking and Labour Exploitation Unit (ATLEU).
The back-payment scheme
On 9 March 2022, the Home Office finally announced that it had set up a back-payment scheme. It is hoped that this scheme will support the recovery of trafficking survivors and help them get their independence back so they can move on with their lives. In response to the Home Office announcement, Emily Vaughn said: ‘After two years of continually fighting and being re-traumatised by the Home Office, it is pleasing to see that they are finally doing the right thing.’
To apply for a back payment, survivors and their representatives can email the Home Office at: VCCbackpayments@homeoffice.gov.uk or download the form online.
Work still to be done
Our next step is to monitor the scheme closely to check that it operates effectively and lawfully in practice. We are concerned that legal aid is not available to help trafficked individuals apply for a back payment. There has also been no offer of independent support to individuals who exited the NRM years ago and who do not have a support worker to complete the claim forms. The Legal Aid Means Test Review does not recommend that back payments received are included in the recently-announced disregarded payments, and also whether NRM payments will be disregarded for the capital as well as the income test.
Other recent worrying government proposals can be found in the Nationality and Borders Bill, which conflates immigration matters with trafficking and modern slavery, proposes to cut the recovery and reflection period from 45 to 30 days, and introduces ‘trauma deadlines’, by which time trafficking individuals should disclose their experiences. The back-payment scheme will be meaningless and will not help reduce trafficking in the UK if it becomes more difficult for survivors to be identified as victims of trafficking, and if their recovery period and the support they get during it are cut.
Emily Vaughn was represented by Shu Shin Luh from Doughty Street Chambers, instructed by Eve French, Elizabeth Smith and Silvia Nicolaou Garcia from Simpson Millar.
 
1     Additional support for child dependants used to be available to some victims of trafficking in the NRM (see MD and EH v Secretary of State for the Home Department [2022] EWCA Civ 336, 16 March 2022). »

About the author(s)

Description: Eve French - author
Eve French is a solicitor graduate in Simpson Millar's Public Law Team.
Description: Silvia Nicolaou Garcia
Silvia Nicolaou Garcia is a solicitor in Simpson Millar's Public Law Team.