Victims of Trafficking: Status recognition and protection IDENTIFICATION DECISION MAKING ISSUES IN IDENTIFICATION OBLIGATION TO INVESTIGATE

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1 Victims of Trafficking: Status recognition and protection Council of Europe Convention on Action Against Trafficking in Human Beings Victims of Trafficking: Status recognition and protection 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 IDENTIFICATION ARTICLE 10 DECISION MADE BY COMPETENT AUTHORITY IDENTIFICATION=DECISION MAKING? COLLABORATION- ROUTINELY DOESN T HAPPEN FIRST RESPONDER REFERRAL FAILURES TO IDENTIFY OVER-RELIANCE ON SELF IDENTIFICATION 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. OBLIGATION TO INVESTIGATE GATHERING FURTHER INFORMATION SOURCES-POLICE, UKBA INTELLIGENCE, CLIENT, OBJECTIVE INFORMATION APG ENABLES UKBA TO DISCUSS CASE WITH OTHERS WHO HAVE PROVIDED INFORMATION BEFORE VOT IS INFORMED OF DECISION AND WITHOUT CAPACITY TO MAKE FURTHER REPRESENTATIONS ISSUES IN IDENTIFICATION COOPERATION WITH THE POLICE NO EXPLOITATION OCCURRED (PARTICULAR PROBLEM WHERE VICTIM INTERCEPTED AT PORT) POTENTIAL PROSECUTION-DUTY NOT TO DAMAGE POTENTIAL PROSECUTION) 1

2 ISSUES IN IDENTIFICATION FAILURE TO SELF IDENTIFY CONFLICT CHILDREN CHILDREN Obligations arising under the Convention on the Rights of the Child; Section 55 of the UK Borders Act 2009 and UKBA policy; The immigration rules relating to children at paragraphs including the requirement to place more weight on the objective indications of risk; Home Office policy on Processing an asylum application for a child UNHCR Handbook at Adjudicator Guidance Note No. 8 April 2004 PROSECUTION OF VICTIMS ARTICLE 26 CPS GUIDANCE R V ML AND ORS [2010] EWCA CRIM 2327 R V O EWCA CIV CRIM 2835 HISTORICAL VICTIMS Y v SSHD [2012] EWHC 1075 (Admin) IS THE PERSON A VICTIM OF TRAFFICKING? DO THEY REQUIRE THE PROTECTION OF THE CONVENTION DUBLIN CASES DUBLIN CASES UKBA GUIDANCE SUGGESTS CONVENTION NOT RELEVANT BUT CONVENTION DOES NOT REMOVE RESPONSIBILITY IN THIRD COUNTRY CASES STATE RESPONSIBILITY TO IDENTIFY RECOVERY AND REFLECTION ENTITLEMENT TO RESIDENCE PERMIT REMOVAL IN SAFETY AND DIGNITY IDENTIFICATION OF THIRD COUNTRY DECISION ON ANY HUMAN RIGHTS CLAIM SHOULD NOT BE CERTIFIED PENDING TRAFFICKING DECISION IF POSITIVE REASONABLE AND/OR CONCLUSIVE DECISION HUMAN RIGHTS CLAIM SHOULD NOT BE CERTIFIED IF NEGATIVE CAN CERTIFY AND REMOVE UNDER DUBLIN (QUERY CAN THIS BE CHALLENGED?) QUERY INVESTIGATION WITH AUTHORITIES IN COUNTRY TO WHICH VOT BEING RETURNED? 2

3 RESIDENCE PERMITS ASSISTING POLICE PERSONAL CIRCUMSTANCES RESIDENCE PERMITS JURISDICTION OF AIT OTHERWISE NOT IN ACCORDANCE WITH THE LAW = REMITTAL DOES THE DISCRETIONARY LEAVE POLICY ADEQUATELY COVER A TRAFFICKING VICTIM S PERSONAL CIRCUMSTANCES? ARTICLE 4 ECHR- failure to investigate Siliadin v France (Application no /01) Rantsev v. Cyprus and Russia, Application no / 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. RANTSEV 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,traffickedor 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 FAILURE TO INVESTIGATE The failure to investigate and article 4 ECHR can also be relied on in immigration proceedings. If there are clear indicators of trafficking and they have not been investigated removal would place the UK in breach of article 4. In cases where this has been run it has resulted in remittal of the matter to the SSHD. FAILURE TO PROTECT In April this year, the SSHD agreed damages to a Moldovan woman trafficked to the UK for prostitution who was removed to Moldova in 2003 where she was re-trafficked to the UK and forcibly exploited again. The history of this woman s treatment by her traffickers is appalling and having been recognised as a refugee in the UK, she pursued a claim under article 3 and 4 for damages for failing to protect her from inhuman treatment and torture and slavery. Again damages were agreed shortly before the case was to be heard by the High Court. 3

4 HUMAN RIGHTS ACT DAMAGES SECTION 7 HRA 1998 DAMAGES Section 8(4): In determining -(a) whether to award damages, or (b) the amount of an award, the court must take in account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. COMPENSATION DECLARATION ASYLUM DECISIONS AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC) Particular weight must therefore be given to the mental state of a victim of trafficking not only when considering whether or not a victim of trafficking might face persecution in her home area but also when considering issues such as internal relocation or her Article 8 rights. ASYLUM DECISIONS PO(Nigeria) v SSHD [2011] EWCA Civ132 Ability and Willingness of the Nigerian Authorities to offer Protection to Victims of Trafficking Our consideration of the background materials clearly demonstrates to us that in general the government of Nigeria is both able and willing to discharge its own duty to protect its own nationals from people traffickers. In particular: (a) The Danish Information Service Report: The Protection of Victims of Trafficking in Nigeria: a Fact Finding Mission to Lagos, Benin City and Abuja, 9/26 September 2007(April 2008) points out that the government of Nigeria have recognised the problem of traffickers and, since 2003, the legal and institutional foundation for combating trafficking and, equally important, support for victims of trafficking, have been in place in Nigeria. (b) The National Agency for the Prohibition of Traffic in Persons and other related matters (NAPTIP) is the principal organisation created by the Nigerian government to combat trafficking. The Trafficking in Persons (Prohibition) Law Enforcement Administration Act, 2003established NAPTIP and was enacted as a direct result of Nigeria wishing to fulfil its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Risk to Victims of Trafficking in being Re-trafficked on Return to Nigeria (c) NAPTIP's own Legal and Prosecution Department were said in the April 2008 report, to have concluded six cases and another five were said to be pending. 58 victims of trafficking have been rehabilitated, while another 24 were waiting rehabilitation. We accept that with more funds, NAPTIP could do more to help victims, but the same could be said of any government agency with a finite budget. (d) The US State Department Report suggests that whilst Nigeria is not complying with minimum standards, it is "making significant efforts" to do so and has "demonstrated a solid commitment to eradicating trafficking". It also spoke of NAPTIP making solid efforts to investigate and prosecute trafficking cases, although the numbers of convicted traffickers remained low. There are clearly several reasons for that, but not, on the evidence before us, any lack of governmental effort or desire. It must be born in mind, however, that a claimant may still have a well-founded fear of persecution if she can show that the Nigerian authorities know or ought to know of circumstances particular to her case giving rise to his fear, but are unlikely to provide the additional protection her particular circumstances reasonably require. To that end: (a) A very careful examination of the circumstances in which the victim was first trafficked must be undertaken and careful findings made. If a victim has been told that she is required to earn a particular sum of money ("target earnings") forthe trafficker or gang, before being free of any obligation to the trafficker or gang, then, if the victim should escape before earning the target sums, there may well be a risk to the victim that on return to Nigeria she may be re-trafficked if found. The extent of the risk of the trafficking will very much depend on the circumstances in which the victim was originally trafficked. 4

5 (b) It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her traffickers before earning the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim's family, to seek reprisals. (c) In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim. Within trafficking gangs, individual members perform different roles. One might, for example, be a photographer who takes the photograph which is used within the victim's passport, whether or not the passport is a genuine one. One gang member may, for example, be a forger who is involved in the preparation of false passports or other documents for use by the victim; one might be a corrupt police official, or a border guard, whose role is to assist in facilitating the victim's passage in some way. Gang members may perform any number of different roles but it is essential to bear in mind that if a victim has been trafficked by a gang of traffickers, as opposed to a single trafficker, then the risk of re-trafficking may be greater for someone who escapes before earning the target earnings set by the trafficker, because the individual gang members will have expected to receive a share of the target sum and will, therefore, be anxious to ensure that they do receive that share or seek retribution if they do not. PROTECTION TEST SUFFICIENT OR EFFECTIVE PROTECTION WILLINGNESS OR ABILITY OF STATE REASONABLE LEVEL OF PROTECTION LAW CRIMINALISING HARM WHAT IS THE SYSTEM? HOW IS IT IMPLEMENTED? WHAT EFFECT DOES IT HAVE IN PRACTICE? PROTECTION TEST SYSTEMIC ABILITY TO DETER/PREVENT HARM NOT SIMPLY PUNISHMENT AFTER THE EVENT HEIGHTENED DUTY WHERE AUTHORITIES KNOW OR OUGHT TO KNOW OF CIRCUMSTANCES PARTICULAR TO CASE GIVING RISE TO RISK WHERE, DESPITE SYSTEM ABILITY TO PROTECT, THE ADDITIONAL PROTECTION REQUIRED WILL NOT BE FORTHCOMING NOTSUFFICIENT OR EFFECTIVE 5