VICTIMS OF TRAFFICKING IMMIGRATION LAW

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1 VICTIMS OF TRAFFICKING IMMIGRATION LAW This paper reviews immigration issues and the crossover between status recognition under the refugee convention, protection under the ECHR and protection and identification under the Trafficking Convention. In this paper we concentrate on current issues facing victims of trafficking who are subject to immigration control and have no leave to remain. Snapshot where are we now? The Council of Europe Convention on Action against Trafficking in Human Beings has now been in force in the UK for 2 years. The Convention s aims are threefold: preventing trafficking, protecting victims and promoting international cooperation. The principal obligations in the Convention in terms of victim protection are : 1. Their identification, and once identified a commitment that a victim should not be removed from the territory until the identification is complete (article 10) 2. Assistance for victims (article 12) 3. A reflection and recovery period during the two stages of the identification process (article 13) 4. Residence permits in specified circumstances for identified victims of trafficking (article 14) 5. Legal assistance and compensation for victims (article 15) Identification as a victim of trafficking In terms of identification, Article 10 of the Trafficking Convention provides in detail: 1 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the 1 P a g e

2 competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age. 4. As soon as an unaccompanied child is identified as a victim, each Party shall: a) provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child; b) take the necessary steps to establish his/her identity and nationality; c) make every effort to locate his/her family when this is in the best interests of the child. The gateway to protection and support as a victim of trafficking is identification as a victim. The only organisation that can make that decision is the UKBA competent authority. If a judge (criminal or civil) finds that a victim has been trafficked, it will make no difference. Although the victim may get protection under ECHR or recognised as a refugee, they will not get protection under the trafficking convention unless recognised by the UKBA competent authority. (There is no statutory appeal against refusal to recognise a victim of trafficking and there have as yet been no judicial review decisions in England of challenges to NRM decisions and no JR decisions clarifying whether historical victims remain victims of trafficking and whether they can benefit from the protection of the trafficking convention) In terms of the identification process, it appears that UKBA has equated identification with decision-making. UKBA has appointed caseworkers as competent authorities and introduced a measure of training (e-learning) throughout the institution. UKBA has stated existing legislation needed no amendment to comply with the Convention. Section 1 of article 10 however contains an obligation for collaboration between different authorities and support organisations in the identification of victims, which must imply a duty to investigate in cooperation with other bodies. It also contains an obligation that the special situation of women and children should be taken into account. UKBA purports to do this through policy documents. 1 To be referred to the NRM for identification as a victim of trafficking requires referral by a first responder. These are (currently): Local Authorities UK Border Agency (UKBA) 1 Victims of Trafficking: Guidance for competent authorities and Victims of trafficking: Guidance for frontline UK Border Agency Staff available here: cialcases/ 2 P a g e

3 Police Serious Organised Crime Agency (SOCA) POPPY TARA Migrant Helpline Kalayaan Gangmasters Licensing Authority Medaille Trust Salvation Army Social services or the police refer to UKHTC in the first instance and the matter is referred on to UKBA. Although legal representatives and other organisations and NGOs are not first responders, experience shows that if sufficiently robust representations are made, UKBA will usually make a referral to the UKBA competent authority. Our experience suggests front loading a claim results in a greater likelihood of positive identification. The obligations of UKBA to make a referral to the UKBA competent authority are set out in their Asylum Process Guidance for frontline staff. The guidance for frontline staff makes it clear that where screening officers find there are indicators of trafficking they should discuss making a referral to the NRM with their senior officer. It also anticipates that identification as a PVOT will have occurred prior to any substantive asylum interview indicating that screening officers bear a heavy responsibility for referral. This suggests not only that a screening officer cannot make a referral to the NRM without the authority of a senior officer but also they cannot make a decision not to refer without authority. Practitioners still report difficulties in getting cases referred and identified as potential trafficking cases at screening. Practitioners across the legal system continue to fail to identify that their clients are potential victims of trafficking. Children and adults continue to be prosecuted for cannabis cultivation and petty criminality without their defence lawyers investigating how the person became involved in such activities. Quite often the indicators are stark e.g. in one police interview in respect of cultivation of cannabis the accused Vietnamese national was asked if he had gone voluntarily to the factory and said no. There was no further investigation at interview or trial. The problems are exacerbated by over reliance by UKBA on self-identification and despite the fact that the APGs are explicit that self identification is neither required nor (in many cases) likely UKBA continues to struggle with the concept that there is a freestanding duty on the UK to investigate and therefore take proactive measures to identify victims. As UKBA is involved with criminal investigations into traffickers and trafficking networks intelligence information is available to the authorities which is apparently not applied in the identification process. Clear examples of this have been thrown up in the asylum process in respect of known traffickers. 3 P a g e

4 There is little attempt to cross-refer between known information. CEOP produce detailed Strategic Threat Assessment: Child Trafficking Reports giving details of known methods of trafficking, anecdotal evidence and intelligence and SOCA produce reports on Organised Crime. An example of how this information could be proactively used to identify potential victims is given below: i) child arrives with a student visa; ii) visa issuing agency is known to UKBA and under investigation for immigration offences; iii) CEOP records that there is intelligence to suggest a growth in Tier 4 abuse as a means of trafficking. The failure to identify means that the potential victim does not receive the reflection period and is then placed in a situation of uncertainty regarding their future. This has a strong negative impact on their ability and willingness to disclose. Whilst this affects that victim it also hampers efforts to ensure that others in a similar situation of exploitation are not discovered. Situations experienced in practice include a victim providing the address she was kept at for the purposes of prostitution with other trafficked women and girls. Her account was disbelieved by UKBA and no attempt was made to follow up the address. This leads to the possibility that the girls and women she was held with remain in a situation of sexual exploitation. Decision-making The current practice is that decisions (reasonable grounds and conclusive decisions) are made by the UKBA competent authority on the basis of: The contents of an asylum interview (perhaps supported by a witness statement) or other interview conducted by the immigration service Representations by a support organisation and/or legal representative Information from social services Information from the police. The obligation to investigate UKBA Asylum Process guidance for competent authorities states: Gathering further information In some cases an initial referral may contain insufficient evidence. The Competent Authority should proactively seek out information that could prove useful in establishing if there are reasonable grounds. The Competent Authority should discuss the case with the relevant agencies and establish plans to gather more information, including via interview. 4 P a g e

5 When deciding children s cases it is essential for the Competent Authority to develop good working relations with local authority social workers and other practitioners who have worked on the referral. As soon as there is sufficient information for a Competent Authority to make a decision that reasonable grounds exist for treating a person as a trafficking victim then a decision should be made, even if it is likely further information will be available at a later stage.... Seeking out information Competent Authorities should understand that many exploited persons do not trust or are afraid of the police or other organisations purporting to assist them. They may therefore not be willing to provide statements to the police. In such circumstances NGOs may be able to provide more information on the individual s situation and due weight should be given to this supporting evidence. It is important that decision makers collaborate with all relevant agencies that have dealings with the potential victim in order to gather all the relevant information.... Gathering information During the 45 day reflection period the CA should carry out any evidence gathering and further enquiries required. The CA must consult with any relevant agencies, such as the police, children s services, and the support provider, to reach a conclusive decision on whether the person has been trafficked. Although police and intelligence reports certainly strengthen a claim, due weight should also be given to reports submitted by recognised support providers and children s services. The CA should also take into account any medical reports submitted, particularly those from qualified health practitioners. The APGs also state that referrals to the police must be made where trafficking victims are identified. However recent experience suggests that UKBA will not elicit information from the police or an expert opinion on whether a person has been trafficked. It has to be provided to them by the potential victim, their support organisation or their legal representative. Experience also suggests that referrals to the police are not being made, except in some port cases, and in port cases involving children. Note that the APGs create a right for UKBA to discuss client s cases and the trafficking decisions if putatively negative with authorities and organisations who have provided evidence in the decision BEFORE the trafficking victim has been informed of the decision and without the victim being invited to make further representations. Be aware that if you have provided medical or country expert views to UKBA, the caseowner may try to contact these experts to discuss their evidence and the proposed decision in advance of the decision being served, giving rise to issues of confidentiality and disclosure to third parties. From the APGs 5 P a g e

6 If the Competent Authority concludes that the person is not considered to be a victim of trafficking, before releasing the decision the CA must discuss the decision with interested parties such as the support provider, police, First Responder or Local Authority (in the case of children) to ensure that all information has been gathered. Issues in identification 1. Cooperation with the police Identification of victims remains a huge issue. The APGs state that whether or not a victim is providing evidence to the police or is cooperating with the police is not determinative of their identification as a victim of trafficking. In practice, many negative NRM decisions state that a person is not a victim of trafficking because either the police have not investigated their claim or have investigated but are no longer pursuing the investigation. Victims may be unwilling to cooperate with the police for many different reasons and their fear of a police investigation itself may be a barrier to disclosure. This can present problems in practice. For example where it is clear that a victim is not disclosing what has happened to him/her it is usually worth exploring what they are frightened of before trying to ascertain what they are not disclosing. In some cases it has become apparent that the victim does not wish information that they give to be passed to the police because this may prompt an investigation which in itself could result in risk to the victim or their family abroad. It is possible, although difficult, to persuade UKBA not to pass on that information. Strategies for dealing with this situation could include: i) lawyers reminding their clients of the duty of confidentiality and the benefits to the client of disclosing to the lawyer so that they can be properly advised; ii) limited disclosure in very general terms being made without any identifying details that could lead to an investigation. Note this could be difficult where a trafficker is already suspected; iii) Direct communication with UKBA to assess the possibilities of keeping the information confidential and not further disclosing- UKBA have been persuaded to do this in the past. Their concerns relate to whether the information disclosed involves the client being personally involved in a criminal offence. In light of the issues relating to confidentiality referred to above in respect of other agencies it may well be that this issue should be explored in the first instance in the absence of support workers. Additionally there are real problems for many victims in disclosing information through interpreters. Vietnamese nationals in particular may be reluctant to disclosure through an interpreter because of fears the information will get back to the trafficker. Vietnamese interpreters have reported that many of them will no longer do police work because they are being threatened by traffickers. Women can be extremely reluctant to disclose sexual abuse in 6 P a g e

7 the presence of members of their own communities. Whilst it goes against all known advice about enabling a person to communicate in their mother tongue, if a victim can communicate at all in English it is often worth seeing them without an interpreter. 2. No exploitation occurred Although the Palermo Protocol makes it clear in the definition of victim of trafficking that a person is a victim of trafficking if the intention behind their recruitment and movement was exploitation, even if the exploitation did not take place, in reality the police will not investigate or provide a supporting statement to the effect that a victim was trafficked if they are unable to pursue a prosecution. The police may state that a victim was not trafficked because they weren t exploited in the UK. This is a particular problem in children s cases as they are more likely to be stopped at the port of entry. The APG Guidance for competent authorities states however that: It should also be remembered that the Convention envisages that a person is a victim even if the exploitation has not yet occurred (e.g. because of a police raid before this happens). This is because, under the definition of trafficking, trafficking occurs once certain acts are carried out for the purpose of exploitation. Therefore, it is the purpose which is key, rather than whether or not exploitation is actually present. Even if we are able to intervene and prevent exploitation from taking place in the UK, victims may have experienced serious trauma in their home country or en route to the UK and may still be in need of support. The guidance further states: 3. Potential prosecution of trafficker Whether an alleged trafficker is being prosecuted may be of relevance but the decision to identify a victim (either preliminary or conclusively) is not dependent on there being a criminal investigation, or on whether or not the victim cooperates in the criminal proceedings. [This section also contains guidance on disclosure which stresses that the NRM referral forms will be disclosable to the defence in any subsequent prosecution of the traffickers. Hence a need to ensure accurate information on the forms and that the victim being referred has read the contents of the form and agrees with those details when giving consent for referral. Decision makers need to be aware that any deliberations that are made could be subject to disclosure in any subsequent prosecution for trafficking. Where an individual is being treated by the police as a potential victim and/or witness, decision makers should ensure lines of communication with the Senior Investigating Officer (police) are kept open. The decision as to whether there is enough evidence to prove that an individual is a victim rests with the Competent Authority but officers must be alert to the impact that the decision may have not only on the victim but on a criminal investigation and the criminal justice process.] 7 P a g e

8 4. Victims who don t identify themselves as victims / Conflicts in instructions and best interests of applicant/ Guardianship A further problem in identifying victims of trafficking is that potential victims of trafficking either through perceptions of stigma or shame, through lack of knowledge of the full picture or because they are still in the control of their traffickers may deny they have been trafficked. This presents difficulties for legal representatives and support organisations as it is difficult to obtain the appropriate protection for these potential victims while acting according to their instructions particularly when acting against their instructions but according to their best interests will breach professional rules. The risks of failing to identify these people as victims are that they may disappear back into a situation of exploitation. In children s cases, if a representative considers that a child is in danger, they may in certain circumstances act contrary to their client s instructions. Otherwise, it will be a question of establishing trust in the hope that eventually the true story and instructions will emerge. UKBA recognises that victims have difficulties identifying themselves as victims of trafficking. See this from the Guidance for competent authorities. Self-identification Self-identification might be difficult, especially in cases where a position of social vulnerability has been abused by traffickers. In addition, there are many barriers for victims to come forward such as fear for reprisals against them or their children or families, fear for deportation, or the situation of dependency in which they find themselves. Stigma is recognised as an obstacle to self-identification. Knowledge and understanding of trafficking is limited and most individuals will associate the term trafficking with prostitution. It is important to recognise that many victims of trafficking do not perceive themselves as victims but rather as migrants who happen to be in a difficult situation. Anti-Slavery International stated in 2002 that Wrong expectations of how a victim should behave often leads to misinterpretations by both the authorities and service providers, which may often shift blame on to the trafficked person.30 Victim of human trafficking within the identification context is a legal concept that triggers certain rights and measures under the Council of Europe Convention. It is not a quality, condition or attribute of a person. It is the authorities who have the responsibility of verifying a person as a victim of human trafficking and it should not be expected that the person himself or herself must feel or behave as a victim (in the sense of being totally dependent on help and protection from someone else).31 Officers should not be wholly reliant on someone who is adamant they are not a victim of trafficking. Self-identification or otherwise should be considered with the factual evidence within which that individual was found. Officers should therefore avoid direct questions such as Are you a victim of trafficking and rely on investigative lines of questioning to establish the likelihood that the individual has been trafficked. 8 P a g e

9 The difficulties are however that UKBA and the police frequently decline to refer cases or investigate cases on the basis that the victim states they were not trafficked even where there are substantial objective indicators. In adult cases, this may be an insurmountable problem as adults must consent to be referred to the NRM to be identified as potential victims of trafficking. However in children s cases, UKBA does not require consent to be obtained. Although clearly it would always be good practice for children to have consented to referral, this may permit the identification of children who have been trafficked where fear of their traffickers has prevented their acknowledging the fact. Practitioners dealing with children and adults can, and we think should, identify to their client the objective indicators of trafficking present in their case. The client could be asked to agree that those issues are put to UKBA to consider. In previous cases clients have agreed for example to include in their statement something to the effect of My solicitor/social worker thinks that I have been trafficked. I do not agree. This has served to protect the position of the client in cases where they have eventually disclosed. This brings us on to the issue of guardianship. Article 10.4 of the Convention requires States to provide child victims of trafficking with representation by a legal guardian or an organisation or authority which shall act in the best interests of that child. The Government maintains that it is complying with this requirement because children will have a social worker but many nongovernmental organisations working with trafficked children believe that there is a need for a specific guardianship system to assist these very vulnerable children. Whilst it is true that child victims of trafficking (and unaccompanied asylum seeking children in general) are being accommodated by local authorities under Section 20 of the Children Act 1989 this does not invest any parental responsibility for them in children s services. The role of their solicitors or barristers is to act on their instructions and not to undertake an independent assessment of what actions would be in their best interests. The Refugee Council s Children s Panel can represent some unaccompanied trafficked children but does not have the personnel or remit to do much more than ensure that they are referred to the appropriate local authority and obtain legal representation. Although they can make representations in relation to the many issues which may arise in relation to legal status, accommodation and support, physical and psychological health, they don t have the authority to ensure that decisions made are in their best interests. As a consequence there is an unmet need for an adult who acts as a guardian for a trafficked child and who is a central point of reference for other professionals and who can take a strategic view of the steps to be taken to ensure that the trafficked child receives the optimum protection and apply a consistent best interests test. This is particularly important when there are different applications a trafficked child could make to obtain protection and where as minors they cannot be expected to make an informed decision on their own. In Scotland the Refugee Council and Abelaur Trust have been running a pilot project providing guardians for UASCs including child victims of trafficking, which reports success in supporting children through the asylum process. 9 P a g e

10 When representing such children in the AIT the judge should be reminded of the following in all child cases: i) the obligations arising under the Convention on the Rights of the Child; ii) Section 55 of the UK Borders Act 2009 and UKBA policy; iii) The immigration rules relating to children at paragraphs including the requirement to place more weight on the objective indications of risk; iv) Home Office policy on Processing an asylum application for a child v) UNHCR Handbook at vi) Adjudicator Guidance Note No. 8 April Where victims are being prosecuted for criminal offences The CPS has issued several versions of their guidance on the prosecution of defendants charged with offences who may be trafficking victims. The April 2010 guide (attached) contains a positive obligation to make full and proper enquiries where trafficking has been raised. When reviewing such a case, it may come to the notice of the prosecutor that the suspect is a "credible" trafficked victim. For these purposes, "credible" means that the investigating officers have reason to believe that the person has been trafficked.. In complying with the judgment in R v O (see below), it is the duty of the prosecutor to be pro-active in causing enquiries to be made about the suspect and the circumstances in which they were apprehended. Where offences are prosecuted despite trafficking having been raised, there may be an opportunity to challenge any failure to investigate thoroughly under article 4 (see below). (Note though that there will need to be a causal nexus between the offence and the trafficking situation for a conviction to be overturned on appeal. [see R-v-Tijani [2010] EWCA Crim 2327] although the fact of trafficking may be mitigation in reducing any sentence). Victims of trafficking who have been sentenced may then be subject to deportation proceedings. Where the trafficking was not considered as part of the criminal proceedings immediate advice should be sought on the possibilities of overturning the conviction- even if out of time. The lack of knowledge within the criminal justice system of the relevance of trafficking was identified by the Court of Appeal when overturning the conviction in R v O [2008] EWCA Civ Crim 2835 in which Laws LJ referring to failures of both defence and prosecution to investigate and consider trafficking issues stated We hope that this case serves as a lesson to drive these messages home. Unfortunately it didn t and the Court of Appeal revisited the issue in Tijani with Lord Justice Hughes observing that It is apparent that at present the provisions of the convention, and particularly of Article 26, are not sufficiently known generally amongst the profession. 6. Historical victims This is a matter still being litigated before the High Court. UKBA has issued many trafficking victims with decisions stating that they are not trafficking victims because although they were 10 P a g e

11 trafficked, they no longer require the recovery and assistance available under the trafficking convention and therefore cannot be considered to be victims of trafficking. The UKBA APG on guidance for competent authorities provides for protection for victims who still require support however. When trafficking is distant in time/historic claims Very few trafficked persons are still in a trafficking situation at the time of referral into the NRM because in order to be referred they must have escaped or been rescued from the trafficking environment. Many victims will continue to suffer the effects of their ordeal long after they have left it. A gap between the trafficking situation and referral should therefore be seen as normal and is not in itself reason to conclude that an individual should not be treated as a victim. But there may be instances where a Competent Authority believes someone may have been a victim of trafficking, but at the time their case is referred, concludes on the facts of the case that the person is no longer in need of the protection or assistance offered under the Convention because the individual s circumstances have changed so much since the trafficking occurred. A negative decision in such cases would not be denying that someone may have been a victim of trafficking in the past, simply that at the time of assessment they did not meet the Convention criteria or need the protection or assistance that it can afford. There are two issues: i) is the person a victim of trafficking? ii) Do they require the protection of the convention now? More recently decisions from UKBA acting as the competent authority appear to have come closer to grasping this concept. Even if a person is a historical victim of trafficking this does not absolve the authorities from the duty to investigate and recent convictions have been obtained against traffickers who brought children into the UK as domestic slaves as far back as the 1990s who were only discovered when those children became adults and left the trafficking situation. It should always be remembered that the trafficker may still be active and perpetrating abuse on other victims. 7. Dublin Cases A further issue of concern arises in respect of victims who are subject to action under the Dublin Convention. Current UKBA guidance suggests that these victims do not fall to benefit from the protection of the Trafficking Convention: However it is entirely possible that someone who has fled to the UK to escape a current trafficking situation will still be traumatised by their experience and, unless the case meets Dublin II arrangements, will need to be afforded the help and protection in the UK that is offered under the Convention. (APG Special Cases: Guidance for the Competent Authorities 11 P a g e

12 Dublin II regulates the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the member states by a third country national. The CoE Convention does not provide for transfer of victims or responsibility to another member state. We are currently of the view that if a person is identified as a trafficking victim the obligations of the CoE take precedence over Dublin II procedures. This is for the following reasons: i) The obligations to identify and investigate apply to each state party and include a requirement that Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12 paragraphs 1 and 2. ii) once identified a victim is entitled to a recovery and reflection period of at least 30 days during which time it shall not be possible to enforce any expulsion order against him/her (article 13 CoE Convention); iii) Identified victims are entitled to a residence permit in accordance with Article 14; iv) Article 16 sets out the conditions for repatriation and return of victims and limits this to a party of which a victim is a national or in which that person had the right of permanent residence at the time of entry into the territory of the receiving state or another state When these provisions are read together it is clear that the responsibility under the Convention lies with the State in which the victim is present. They cannot therefore be removed to another state prior to examination under the trafficking convention. At first glance this sits uneasily with Dublin II in respect of those who additionally have an asylum claim. However given the explicit statement that the person shall not be removed from its territory until the identification process has been completed it is clear that the convention takes precedence over any removal measures- including Dublin II. If a person is positively identified the Convention requires provision of a residence permit if they are either assisting the police or because their personal circumstances require it. We therefore disagree with the statement that if a person is traumatised by their experiences but they meet Dublin II arrangements they are barred from receiving the help and protection of the UK. We are fortified in this conclusion by the provisions of Article 16 in relation to where and in what circumstances a victim can be repatriated or returned. Additionally, if a victim is accorded a residence permit under the Convention the UK would become the country responsible for determining the asylum claim under the provisions of Article 9(1) Council Regulation 343/2003/EC. 12 P a g e

13 It may be that UKBA considers that the personal circumstances of a victim can be adequately catered for in the safe third country and therefore a residence permit is not required. However given the interplay between article 14 and article 16, the preference for return to be voluntary and in safety or dignity and the likelihood that a victim will have developed a relationship with service providers it is unlikely that such a decision would be rational, proportionate or necessary in pursuance of the aims of a common asylum system and as such there are possibilities for distinguishing current third country jurisprudence. It is also notable that there is simply no suggestion within the convention that a victim could be transferred to another member state for the protection of the Convention to be applied. It is further notable that EU Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims replacing Council Framework Decision 2002/629/JHA is also silent on transfer of victims to other member states and reinforces a conclusion that the state in which the victim is identified has responsibility for identification, investigation and assistance and support. In particular Article 11 explicitly provides for information to be given to the victim during the recovery period on the possibility of granting international protection. The UK has indicated that it will opt in to this Directive. We are therefore of the view that Dublin measures would be in breach of the convention if taken prior to considering obligations under the Convention. If it the convention obligations have been complied with and it is found that a person is not a victim of trafficking Dublin could then be applied. In practice this is likely to be problematic because of the timescales. Residence permits Having been identified conclusively as a victim of trafficking, The Trafficking Convention (article 14) provides for the issue of a 12 month residence permit to victims if: a the competent authority considers that their stay is necessary owing to their personal situation; b the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings. Under the National Referral Mechanism, it is the police who must apply for a residence permit for the VoT is s/he is cooperating with any investigation or any criminal proceedings. If the victim is not cooperating with an investigation then UKBA is to consider whether there are any compassionate factors warranting a grant of 12 months discretionary leave to remain in the UK. UKBA currently issues many decisions accepting that a person is a victim of trafficking but stating that there are no grounds for the grant of a residence permit. Three things to note: 13 P a g e

14 1. Where a victim of trafficking who would be eligible for a residence permit has also made an asylum application and succeeds either on those grounds, human rights grounds or humanitarian protection, they should be granted the highest form of leave available if they are cooperating with the police. This is in UKBA s policy: If a victim who is cooperating with the Police also qualifies for another form of leave then the more generous grant of leave should be issued. Cooperating with the police is not defined however and so concerns remain that if leave of one year is granted it would prevent a victim of trafficking pursuing an asylum appeal under s83 Nationality, Immigration and Asylum Act 2002 (1) where a person has made an asylum claim and his claim has been rejected by the Secretary of State, but he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate) 2. Where a person has not made an asylum claim, but has a positive conclusive grounds decision but has also received a decision that there are no personal factors meriting a residence permit, they will probably have a right of appeal against this decision. (Rely on articles 4 and 8 ECHR. Article 4 is covered later in this paper. There is huge scope to rely on article 8 private life in these appeals but we have insufficient time here to cover that). Experience suggests that UKBA are recognising a statutory limited appeal right presumably on the basis that a refusal to grant a residence permit is an immigration decision (under s82(2) of 2002 Act) even if the decision to identify a person as a victim of trafficking is not. This would accord with the obligation under article 16(2) of the trafficking convention which governs the return of victims to their country of origin. A human rights appeal may be brought under sub-sections 84(1) (c) or (g) of the 2002 Act if a breach of the European Convention on Human Rights (the ECHR ) would occur. (But note that raising article 3 ECHR will raise the claim to an asylum claim.) The APG Guidance for competent authorities states: Victims who are not assisting with Police enquiries and are not eligible for a grant of leave Individuals who are conclusively found to be victims trafficking, but who are not assisting with Police enquiries and are not eligible for a grant of leave, must still be issued with a positive conclusive grounds decision. 14 P a g e

15 We would expect victims who do not have a right to remain in the UK to then return home giving due regard to Article 16(2) of the Convention which states When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that 37 person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary. The CA should issue the positive conclusive decision to the victim (via their appointed representative) using UKBA NRM 07. The letter needs to explain the reasons why they do not qualify for leave. This letter will ask if there are any other reasons why the person should remain in the UK and if there are none, offer assistance in making a voluntary return. Normal immigration procedures will then apply and the case can be allocated to an appropriate case owner to conclude any immigration action. 3. UKBA are of the view that a decision that you are not a victim of trafficking can only be challenged by judicial review. We do not agree that a decision that you are not a victim of trafficking can only be challenged by judicial review and note that the Legal Services Commission has been refusing funding for such challenges by asserting that an alternative remedy to the AIT exists. If a person has claimed to be a victim of trafficking and this is rejected AND they have been issued with an appealable immigration decision it is possible to challenge the decision in the AIT. The grounds of appeal must include a statement that the decision is otherwise not in accordance with the law (section 84(e) 2002 Act). When determining whether a decision is otherwise not in accordance with the law the Tribunal is entitled to determine whether or not the decision has been taken on the correct factual basis and if not whether there are any policies and other international human rights obligations that could or should have applied to those facts. If the Tribunal reaches a different factual conclusion it is required to remit the matter back to the SSHD to reconsider under any relevant policies (see e.g. DS Abdi v SSHD ) As a fact finding Tribunal the First Tier Tribunal therefore has jurisdiction to make a finding of fact as to whether C is a victim of trafficking. Any such finding in her favour would be binding on the SSHD represented by UKBA in the proceedings. The fact that the SSHD has found that the A is not a victim of trafficking means that she has not considered whether article 14 of the CoE Convention and the API relating to trafficking should apply to the A. If it is accepted that she is in fact a victim of trafficking the appeal against the immigration decision should be allowed to 2 Abdi & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [1996] 1 WLR 298; [1996] 1 All ER 641; [1996] Imm AR 46 (HL); [1996] UKHL 9 (15 February 1996) available here: 15 P a g e

16 the extent that it is remitted back to the SSHD to reconsider whether a residence permit should be granted. In respect of personal circumstances that would warrant the grant of a residence permit under Article 14 consider the explanatory notes to the Convention which confirm that in respect of a potential victim of trafficking (as opposed to a conclusively determined VOT) recovery implies, for example healing of the wounds and recovery from the physical assault which they have suffered. That implies also that they have recovered a minimum of psychological stability. There are two things to note. Firstly if a person has not been accepted as victim of trafficking under the reasonable grounds test this is the one that you should ask to be applied. Secondly, if it was considered that there were reasonable grounds to conclude that the person was a victim of trafficking this satisfies the asylum standard and the SSHD should not be allowed to argue otherwise. If however, that person was not found to be a victim of trafficking to conclusive grounds standards AND the judge is likely to find no real risk of persecution they should be asked to consider whether on the balance of probabilities the person was a victim of trafficking as this is the test for the conclusive grounds stage and should result in reconsideration of the issue of whether a residence permit should be granted. Additionally we do not agree that the discretionary leave policy adequately covers the circumstances in which a trafficking victim s circumstances may require the issuance of a residence permit. In outline this is because i) a different approach to the balancing act (and in particular the requirements of immigration control) should be taken where a person has been trafficked as opposed to voluntary migration; ii) there are specific requirements under the trafficking convention for returns to be preferably voluntary and in any event in conditions of safety and dignity that do not apply to other irregular migrants; iii) the application of the discretionary leave provisions for those with mental health or other problems is an extremely high test that is inadequate to comply with the protection requirements of the convention. Using article 4 ECHR to challenge failures to investigate and failures to protect victims of trafficking There have been two significant judgments from the ECtHR reading article 4 and trafficking. In the first, Siliadin v France (Application no /01) the Court carried out an analysis of the various components of Article 4 and the standards which have to be met for there to be a violation of these. Article 4 provides: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. In the Siliadin case the Applicant was a fifteen year old girl who was brought from Togo to France by means of deceit for purposes of labour exploitation. The Court looked exclusively at France s failure to put in place adequate criminal-law provisions to prevent and punish the 16 P a g e

17 perpetrators of those acts. The judgment did not examine the positive obligations of States in relation to the protection of victims of trafficking. In assessing whether there had been a violation of Article 4 of the Convention, the Court made fine distinctions between slavery, servitude and forced or compulsory labour (all prohibited by Article 4) and held that an assessment needed to be made to determine whether the situation of the trafficked person fell into one or more of these three distinct prohibitions. In the second case, Rantsev v. Cyprus and Russia, Application no /04, from January 2010, the case was brought by the father of a victim of trafficking who had died in Cyprus having been trafficked from Russia. The Court found that Cyprus, the State of destination in this case, had not only failed to protect Ms Rantseva from being trafficked or from being unlawfully detained prior to her death, but had also failed to investigate her death. Russia, the state of origin, was found by the Court to have failed to investigate the way in which Ms Rantseva had been trafficked from Russia. The Court ordered the Cyprus to pay Oxana Rantseva s father the sum of Euro 40,000 in damages and the Russian Government to pay a sum of Euro 2,000. In its judgment, the Court clarified the obligations of states in relation to trafficking whether states of origin, transit or destination as well as noting the importance of cross border coordination in fighting trafficking. The court considered the case of Siliadin but decided that it was unnecessary to analyse which form of exploitation a victim had experienced to determine whether they fell within the scope of article 4, but that the trafficking itself was a breach of their human rights In light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes slavery, servitude or forced and compulsory labour. Instead, the Court considers that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. The most important development for victims of trafficking in the UK to come out of the Rantsev judgment relates to the findings that there are positive obligations to protect victims of trafficking and to investigate potential trafficking situations. 17 P a g e

18 286.In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk The court also noted at paragraph 320 that victims of trafficking often suffer severe physical and psychological consequences which render them too traumatised to present themselves as victims which increases the obligation of state authorities to investigate. The judgement is useful as it enables individuals to challenge a state s failure to investigate their trafficking allegation through the mechanism of the ECHR rather than the trafficking convention. Although as an international treaty the UK, as a signatory, is expected to be bound by its contents, the trafficking convention cannot be directly litigated in UK courts. Article 10 of the trafficking convention contains an obligation to investigate and to identify victims of trafficking by employing sufficiently trained individuals in the various authorities which will come into contact with victims of trafficking. When incorporating this Convention into domestic law, the UK excluded the Convention provisions on victim protection (Articles 10 to 17) However, following the Rantsev judgment, it is now possible to argue that many if not all of the victim-protection provisions in the Convention are also covered by the positive obligations States owe victims (or possible victims) of human trafficking under Article 4. This would include the obligation on competent authorities to identify victims of human trafficking (Art 10), the obligation to provide material support to victims present in the UK (Art 12) and the duty to return victims to other States with due regard for the rights, safety and dignity of that person (Art 16(2)). For the UK, the importance of bringing trafficking explicitly within Article 4 ECHR is great as this enables victims of trafficking to pursue their claims domestically under the Human Rights Act Relying on article 4 in the UK to seek redress for trafficking victims Failure to investigate AFRUCA in recent days brought a successful action against the Metropolitan Police (specifically Paladin) for failing to investigate 4 cases of child trafficking of African children for domestic servitude. The case was settled by way of compensation for the victims of 5000 each on the eve of the full court hearing. The children had all either reported their situation to the police or 18 P a g e