TRAFFICKING AND NATIONAL REFERRAL MECHANISM Convention on Action against Trafficking in Human Beings 1. The Council of Europe adopted the Convention on Action against Trafficking in Human Beings (Convention) on 3 May 2005. It was signed by the UK Government on 23 March 2007 and ratified on 17 December 2008. The Convention came into force on 1 st April 2009. 2. The Convention applies to victims irrespective of their immigration status. The relevant provisions of the Convention include: Article 1 Purpose of the Convention The purposes of the Convention are: a) to prevent and combat trafficking in human beings, while guaranteeing gender equality; b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; c) to promote international cooperation on action against trafficking in human beings. Article 4 Definitions For the purposes of this Convention: a. Trafficking in human beings shall mean 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of slavery, servitude or the removal of organs; b. The consent of a victim of trafficking in human beings to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any means set forth in subparagraph (a) have been used; 1 P a g e
c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article; d. "Child" shall mean any person under eighteen years of age; e. Victim shall mean any natural person who is subject to trafficking in human beings as defined in this article. Article 10 Identification of the victims 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 and children 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 a victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as a victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that the person receives the assistance for in Article 12, paragraphs 1 and 2. The Explanatory report to the Convention states: To protect and assist trafficking victims it is of paramount importance to identify them correctly and Identification of victims is crucial, is often tricky and necessitates detailed enquiries. The explanatory report further notes that a failure to identify a victim correctly will probably mean that victims are denied their fundamental rights and the prosecution denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings. Article 12 Assistance to victims 2 P a g e
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance; b access to emergency medical treatment; d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand; e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders. 2. Each Party shall take due account of the victim s safety and protection needs. 3. In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help. 4. Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education. 5. Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims. 6. Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness. 7. For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care. Article 13 Recovery and reflection period Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that a person 3 P a g e
concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. The UK Government has decided to grant reflection periods of 45 days, with further periods if necessary. Article 14 Residence permit 1. Each Party shall issue a renewable residence permit to victims, in one or the two following situations or in both: a. the competent authority considers that their stay is necessary owing to their own personal situation; 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. Article 15 Compensation and legal redress 1. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand. 2. Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. 3. Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. 4. Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23. Article 26 Non-punishment provision 4 P a g e
Each Party shall, in accordance with the basic principles of its legal system provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so. Policy Instructions 3. In addition to public and parliamentary statements concerning the Convention the UK Government published the Asylum Process Guidance (hereafter APG ): Victims of Trafficking. This published guidance refers to the aims of the CoE Convention, and states: The Convention requires us to take a victim-centred approach to tackling all types of trafficking. As an international treaty it places binding obligations across statuary agencies. Human trafficking involves criminal offences and may be linked to organised crime. One of the primary principles of the UK s approach to tackle human trafficking (including ratifying the Convention) is to provide services to help victims access justice and address the impact of the crimes to assist in their recovery. The Convention is relevant to UKBA because human trafficking frequently overlaps with existing areas of responsibility such as asylum and human rights and their associated processes. 4. The UKBA has published Guidance for Competent Authorities. This considers whether historical victims are entitled to benefit from the Convention. The current guidance has been diluted following numerous legal challenges, which UKBA conceded where it was argued that if a person has not recently been in a trafficking situation, they are a historical victim and are not eligible for the provisions of the Convention. 5. The current Guidance states: a. Very few trafficked persons are still in trafficking situations 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; b. Many victims will continue to suffer the effects of their ordeal long after they left it. A gap is therefore seen as normal; c. If the Competent Authority believes someone may have been a victim of trafficking, but at the time their case is referred, concludes on the facts that the person is no longer in need of the protection or assistance offered under the Convention because the circumstances have changed so much since the trafficking occurred, a negative decision would not deny they were a victim in the past simply that at the time of the assessment they did not meet the Convention criteria or need the protection or assistance that it can afford. 5 P a g e
The Process of Victim Identification The National Referral Mechanism 6. The National Referral Mechanism is the system that has been set up by the State in order to meet the obligations for identifying victims of trafficking under Article 10 of the Convention. 7. The Convention has a two-stage process for identifying victims. The first stage is the reasonable grounds (RG) test, which acts as a filter. Once a positive RG decision is made, the potential victim of trafficking the PVoT is granted a 45 reflection period. Within this period, a conclusive decision should be made. The Process 8. The NRM procedure envisages that victims will be identified or come to the attention of first responders who if they think that there are indicators of trafficking and the individual consents, can refer to the Competent Authority who will carry out the identification process. 9. Under the scheme, the UK Human Trafficking Centre (if there are no immigration issues) and UK Border Agency (UKBA) (if there are immigration issues are designated as the competent authority. 10. First Responders for adults are defined as public bodies or government sponsored support providers (APG). For children, first responders are social services or exceptionally other specialist organisations. Solicitors are not allowed to put forward their clients as trafficking victims. 11. A first responder makes a referral is made on a form which can be found on this site: http://www.homeoffice.gov.uk/publications/crime/referral-forms-humantrafficking/?view=standard&pubid=826523. 12. The form contains tick boxes to show the indicators that trafficking is present. Referrals are made to the Competent Authority based in the UKHTC. These are forwarded to UKBA where there are immigration issues. 13. The CA has five days from the receipt of the referral to reach a decision on whether there are reasonable grounds to believe that the individual is a potential VoT a PVoT. B. The Test 6 P a g e
14. The UKBA Guidance for Competent Authorities (p20) states: The reasonable grounds test has a low threshold. The test that should be applied is whether the statement I suspect but cannot prove would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision maker, there were reasonable grounds to believe that the individual concerned had been trafficked. Reasonable suspicion can never be supported on the basis of personal factors alone (e.g. the appearance of the suspected victim) without reliable supporting intelligence or information or some specific behaviour by the person concerned. It should normally be connected to precise and up to date intelligence/information. 15. The 5 days reasonable grounds decision, if positive will trigger a 45 day reflection and recovery period (Article 13 Convention). The purpose of the recovery and reflection period is to enable the PVoT to access the support and assistance necessary to escape and recover from the trafficking situation and also to take an informed decision on whether to cooperate with the authorities. 16. It may be argued that the reasonable grounds decision is more accurately equated to a screening that there is nothing of substance in the claim rather than the suspicion but not proof analogy adopted by UKBA. 17. The conclusive decision is to be decided on a balance of probabilities. The APG states: Decision makers should be satisfied that the trafficking conduct occurred if they consider that, on the evidence, the occurrence of the event is more likely to have happened than not. This standard of proof does not require the decision maker to be certain that the event did occur. The Difficulties with the Process 18. The NRM process has been heavily criticized due to the poor quality of the decision-making and the incorrect implementation of the Convention. 19. There have been numerous legal challenges to the process. Many of these have been conceded by UKBA. There are some cases pending. At present there has been no Court overview of the process although there is a case that is awaiting a decision in Northern Ireland. 7 P a g e
20. The Anti Trafficking Monitoring Group 1 produced a report in June 2010 called Wrong Kind of Victim one year on an analysis of UK measures to protect trafficked persons. The Report Summary states: The system appears to be relying excessively on the discretion of officials who receive minimal training to staff a mechanism supported by flawed legal guidance relating to who should be identified as victims of trafficking, and without a formal appeals process. This fails to consistently identify and assist people who have been trafficked. Furthermore, the system appears to be putting more emphasis on the immigration status of the presumed trafficked persons, rather than the alleged crime committed against them. This report argues that the term referral into the NRM has been misused to refer narrowly to a procedure for vetting whether individuals meet a bureaucratic standard for having been trafficked. In practice this often fails to meet the needs of people who have suffered abuse and trauma at the hands of those who trafficked and exploited them. In effect, in the UK referral means that the case of an individual is being submitted to a central government authority to decide on their status, not that they are being referred to a range of specialised services. When victims are wrongly identified this has serious consequences for the person concerned: it risks compounding the already traumatic experience of having been trafficked by setting back their recovery and removing any faith individuals may have had in the authorities and their ability to offer protection and assistance; thus undermining prosecutions and causing further breaches of individual s human rights. The NRM and the Asylum Process 21. The NRM and asylum process are intended to co-exist and run in parallel. A PVoT can still be interviewed about her asylum claim during the reflection 1 The nine organisations belonging to the Monitoring Group are: Amnesty International UK, Anti-Slavery International, ECPAT UK (End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes), Helen Bamber Foundation, Immigration Law Practitioners Association (ILPA), Kalayaan, POPPY Project (of Eaves), TARA (The Trafficking Awareness Rais- ing Alliance, of Glasgow Community and Safety Services), UNICEF UK. In addition, the Monitoring Group works closely with the Anti-Trafficking Legal Project (ATLeP). 8 P a g e
period. Those who are likely to receive a negative RG decision must be interviewed about their trafficking case. 22. In practice, sometimes where a VOT has claimed asylum, the asylum interview is being used to assess the trafficking case, which means firstly that RG decisions are not being made within the 5 day period. 23. Potential victims are often not getting the benefit of the reflection period as they are forced to comply with a set timetable in relation to the consideration of their asylum claim which means that the consideration and determination of their claims continues. The victim is forced to go through procedures such as asylum and appeal interviews where they have to repeatedly detail their experiences. 24. The conflicts inherent in reasonable grounds decisions being taken by the same authority that is charged with enforcing the removal of those illegally in the UK are evident. In each UKBA region, there are designated CA caseworkers charged with making the CA decisions. These caseworkers have been trained in trafficking issues. Where a VoT has also made an asylum claim, the asylum decision will be taken by the same CA caseworker. 25. Experience shows UKBA find it difficult to put to one side their immigration control role when exercising their functions as the competent authority. Despite asserting that the two processes are distinct and separate, in reality they have become conflated. The reasoning often used to dismiss the credibility of a victim of trafficking, often reflects that used in asylum determinations. 26. Examples of this reasoning includes the fact that the victim have come to the attention of the authorities late, late disclosure of details of sexual violence and inconsistencies in the account. These are all accepted as common problems with the initial evidence of victims of trafficking, yet these indicia of trafficking are the basis for adverse credibility findings by UKBA when acting as competent authority and an immigration officer. These grounds appear regularly in negative reasonable grounds and conclusive decisions. 27. This leads to implications for any investigation of the traffickers if the VoT is not accepted as a PVoT. It grossly undermines the purpose of the CofE if potential prosecutions of traffickers were rendered impossible because the credibility of the victim has been damaged by UKBA in the decision-making process. The APG stressed the point: 9 P a g e
Decision makers need to be aware that any deliberations that are made will be subject to rules of disclosure in ay 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 police are kept open. The decision as to whether there is enough evidence to prove that an individual is a victim rests with the CA 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. Challenges to CA decisions 28. A decision under the NRM is not an immigration decision. There is no statutory right of appeal. 29. UKBA s view is that the only remedy is by way of judicial review. In reality, there may be another appeal right for example, against the asylum decision in the Asylum and Immigration Chamber - and it may be preferable to challenge the decision here. A positive finding by an Immigration Judge will be binding on the Secretary of State. 30. The challenges to the NRM decisions by judicial review are beyond the scope of this paper. Raggi Kotak Joint Coordinator, Anti-Trafficking Legal Project (ATLeP) raggi@1pumpcourt.co.uk 23 rd May 2011 10 P a g e