House of Commons - Home Affairs Committee

The Trade in Human Beings: Human Trafficking in the UK - Home Affairs Committee Contents

Memorandum submitted by Dr Tomoya Obokata

ABOUT THE AUTHOR OF THIS SUBMISSION

1. The author of this submission is the Assistant Director at the Human Rights Centre, Queen's University Belfast. He has extensive experience of conducting research on the subject (over eight years), and currently serves as the Specialist Adviser to the Parliamentary Joint Committee on Human Rights. He was previously an independent expert for a joint Council of Europe/European Union project on trafficking. His recent publications include a book entitled Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach.

2. In this submission, the author will comment on a few key areas highlighted by the Home Affairs Committee. It should be stressed from the outset that the views expressed are his alone, and do not necessarily reflect those of the Joint Committee on Human Rights.

SUMMARY

3. The UK Government has taken some steps to prevent and punish trafficking in persons and protect victims of trafficking in recent times, and some good practices are evident in this regard. However, compared to other European counterparts, much more is needed. In the submission below, the author lists various recommendations so as to improve the effective fight against trafficking while placing the human rights of victims at the core of the UK's anti-trafficking strategy.

THE SCALE OF TRAFFICKING IN THE UK

4. Due to the clandestine nature of trafficking, it is extremely difficult, if not impossible, to obtain the accurate data on the number of trafficked victims in the UK. The vast majority of those individuals and organisations who submitted evidence to the JCHR inquiry on trafficking also highlighted this problem.[6]

5. The Home Office study conducted in 2000 estimated that up to 1,400 women are trafficked for sexual exploitation.[7] More recently in 2003, the Home Office stated that up to 4, 000 women were trafficked for sexual exploitation in that year.[8] The author of this submission believes that this is a very conservative estimate. Given that around 800,000 people are trafficked world-wide annually,[9] the number of those trafficked into the UK is likely to be much higher. Further, there has been a consistent lack of consideration in the UK for trafficking for labour exploitation, and the statistical information thus far does not even include victims (including boys and adult men) who were trafficked for purposes other than sexual exploitation.

6. The JCHR has highlighted this problem when it conducted its inquiry on trafficking in 2006, and recommended to the Government that it should conduct a comprehensive research into the extent of trafficking in the UK.[10] However, this has not been done to date. Understanding the nature and extent of problem is essential in mobilising available resources and devising a strategy for effective prevention and prosecution of the offence and protection of victims. The lack of knowledge is particularly acute in other parts of the UK. From the author's experience in talking to members of civil society in Northern Ireland, it became apparent that the authorities did not consider that trafficking was a big problem as yet. Such a mentality can hinder the fight against trafficking of human beings as adequate human, financial and other resources to deal with the problem will not be allocated. The author of this submission therefore recommends that the UK Government should obtain clearer picture of the extent of the problem as a matter of urgency.

IDENTIFICATION OF VICTIMS OF TRAFFICKING

7. As the JCHR pointed out in its report, identification of victims is "not only the first step towards generating better intelligence and securing the criminal prosecution of traffickers and exploiters, it is also essential to ensuring that victims' human rights are protected."[11] States have the primary responsibility in this regard, and the obligation to identify victims is stipulated, among others, in Article 10 of the Council of Europe Convention on Trafficking. Compared to other European countries such as Italy and the Netherlands, the UK has been lagging behind in this regard. One positive step taken recently is the initiation of Operation Pentameter 2. The Government has initiated a pilot project on national referral system. Under this scheme, victims are referred to the Competent Authorities, and NGOs, such as the Eaves Housing for Women, which administers the Poppy Project, are contacted to assist them in identifying victims.[12]

8. Although such an effort should be commended, much effort has been put into London and its vicinity, and the rest of the UK, such as Scotland, Wales and Northern Ireland are ignored. A potential problem with this is that traffickers will move victims to these areas as the risk of detection is relatively low, thereby furthering the victimisation. Therefore, the Government must implement a similar project to the rest of the UK.

9. There are other issues which need to be highlighted. Firstly, there has been a lack of adequate training for those who are likely to be the first port of contact (police or the immigration authorities). These victims have been treated as offenders of immigration regulations, and are often deported back to their own countries. The problem is especially acute outside of England, as trafficking may not be recognised as a problem as noted above.

10. It should be stressed at this point that the practice of deportation runs the risk of breaching the well-established principle of non-refoulement or non-return. This applies in particular to refugees in accordance with Article 33 of the Convention Relating to the Status of Refugees 1951. Within the framework of the European Convention on Human Rights (ECHR), this principle is often invoked in conjunction with Article 3 (prohibition on torture). As the Home Affairs Committee might be aware, the cases such as Soering v United Kingdom[13] and Chahal v United Kingdom[14] have established that if someone faces the risk of torture or other inhuman or degrading treatment in a country of his/her origin, Member States, including the UK, cannot return that person. This principle equally applies to cases where victims may face torture, inhuman or degrading treatments by trafficker if they are deported back to their countries of origin.[15]

11. Another acute problem is unwillingness of victims to approach law enforcement authorities. Many of them firstly fear law enforcement actions against them. The Government now assists some victims of trafficking by granting reflection periods and other assistance through the Home Office funded Poppy Project. While this is a significant step forward for identifying and protecting victims, a similar project does not exist in other parts of the UK (except for Glasgow). This can result in traffickers moving victims to these parts where law enforcement and other authorities are not able to conduct proper identification. In addition, assistance is only given to women who are trafficked for sexual exploitation, and does not extend to other victims. Further, these assistance measures are provided on the condition that victims co-operate with law enforcement authorities. In the view this author, this is problematic as victims are used as a tool for law enforcement, and their human rights are regarded as secondary concern. This will make it difficult for victims to build a sense of trust and come forward freely to co-operate. The primary consideration therefore should be given to the welfare and the best interest of victims.

12. Secondly, victims are also afraid of a reprisal against themselves and/or their families back home, as traffickers often threaten victims with death and violence if they approach law enforcement authorities. These factors effectively prevent them from approaching the law enforcement authorities in the UK.

TREATMENT VICTIMS OF TRAFFICKING

13. Once someone is identified as a victim of trafficking, then adequate protection should be provided to him/her. This is enshrined in, among others, Articles 12, 13 and 14 of the Council of Europe Convention. To begin with, victims require a certain period of time to recover from their ordeal. In order to allow this to happen, Article 13 of the Council of Europe Convention obliges State Parties to provide a reflection period. The Convention itself recommends a minimum of 30 days for this purpose, but the JCHR has recommended that a minimum of 3 months should be granted, given the depth of trauma and suffering victims experience.[16] The author of this submission fully supports the JCHR and other members of civil society on this point as the emphasis will be placed upon protection of victims.

14. A related to this is the grant of temporary residence permit. Article 14 of the Council of Europe Convention obliges State Parties to provide a renewable residence permit of at least 6 months. Article provides that residence permits should be given not only to facilitate prosecution against traffickers, but also to protect victims. Therefore, a human rights approach is evident. The Home Affairs Committee might find an approach adopted by Italy useful. The JCHR has visited Italy in 2006 to find out more about how they deal with trafficking. In Italy, there are two paths through which victims can obtain temporary residence permits of six months (renewable). One, known as a "judicial path", requires victims to co-operate with law enforcement by providing testimony and other assistance.[17] The other, known as a "social path," is less formal and the emphasis is placed upon protection of victims.[18] In looking at this arrangement and other forms of protection provided to victims, the JCHR concluded that Italy puts victims protection at the centre of anti-trafficking strategy, and recommended that the UK Government should adopt a similar approach.[19]

15. While the UK Government has been providing these measures on a discretionary basis, it has simultaneously been reluctant to incorporate this into national legislation for the fear that reflection periods and temporary residence permits will serve as a pull-factor. However, in reviewing evidence submitted by members of civil society and visiting Italy, the JCHR concluded that the Government's position is difficult to sustain.[20] The author of this submission supports the JCHR's finding and recommends that provision of reflection periods and temporary residence permits should be incorporated into national legislation to ensure their implementation and establish accountability for non-compliance.

16. In relation to other assistance, measures such as accommodations, medical assistances, subsistence, etc. are not adequately provided for in the UK at the current moment. For one, they are given on a discretionary basis, and on a condition that victims co-operate as noted above. Therefore, only a small number of victims benefit from them. Second, as highlighted above, much emphasis has been placed upon victims of sexual exploitation. Therefore, those exploited for other purposes are not in a position to receive any assistance. Finally, protection/assistance is not widely given in other parts of the UK other than London and Glasgow.

17. The current practice of the UK Government, therefore, might raise an issue of non-discrimination under Article 14 of the ECHR, in conjunction with other articles such as Article 3 (prohibition on torture) and 4 (prohibition on slavery). The author of this submission believes therefore that the Government should devise a comprehensive strategy to include all victims of trafficking regardless of age, gender, and types of exploitation they have experienced. One way to expand protection is to use proceeds of crime under the Proceeds of Crime Act 2002 and other related primary and secondary legislation.

18. Finally, compensation is an important part of victim protection. This is stipulated under Article 15 of the Council of Europe Convention. This obligation to provide compensation can also be inferred from Article 2(3) of the International Covenant on Civil and Political Rights, to which the UK is a party, which provides for a right to an effective remedy.[21] This is closely inter-linked to provision of temporary residence permits, as one cannot claim compensation without being in the UK physically. It is encouraging to see that in December 2007, a total of £140,000 were awarded to 4 victims of trafficking for sexual exploitation.[22] Another 10,000 victims are believed to be eligible under a new interpretation of the Criminal Injuries Compensation Authority guidelines.[23] More assistance should be given to victims of trafficking so that they can claim compensation for the trauma and suffering they have experienced, as any other victims of crime in the UK. Once again, the compensation can be derived from proceeds of crime of trafficking.

DEMAND FOR TRAFFICKED PEOPLE

19. While this is not specifically asked as part of the Committee's inquiry, the author of this submission finds it necessary to touch upon this. Destinations countries often blame source countries for sending victims. Nevertheless, it is important to keep in mind that traffickers would not transport people, were it not for the strong demand in sex and other industries in the UK. In order to reduce the flow of people, then, the UK Government must also deal with the demand in its own territory. One key measure to be taken is prohibition of slavery, forced labour and illegal working. The UK Government has taken some steps in this regard. Under the Gangmasters (Licensing) Act 2004, for example, the Gangmasters Licensing Authority operates a licensing system to discourage employers from exploiting migrants. The Immigration, Asylum and Nationality Act 2006 has also introduced a civil penalty regime for employers of illegal migrants and an offence of knowingly employing illegal migrants. These measures, however, are not necessarily known to employers. Therefore, legislative measures should be accompanied by rigorous information and awareness-raising campaign in order to reach out to potential employers and the general public.

20. An area of sexual exploitation is a difficult one, as there is no concrete evidence as to whether or not prohibition of buying of sex, as seen in Sweden, would actually curb the demand for prostitution and other sexual services. Arguably prohibition will drive the practice underground, and therefore promoting further victimisation. This should not, however, stop the UK Government from implementing some measures. It is worth noting in this regard that, as part of the original Operation Pentameter, the Government in the past engaged in an advertisement campaign in men's magazine and other sources warning about the danger of trafficking of human beings and sexual exploitation.[24] Such an innovative measure should be encouraged and continued so that potential clients are made aware of the whole issue.

THE CURRENT EUROPEAN UNION ACTION AGAINST TRAFFICKING

21. The EU action against trafficking has been implemented mainly under the Third Pillar (Justice and Home Affairs provision of the Treaty on European Union). The entry into force of the Treaty of Amsterdam is significant, as it has introduced a measure for approximation of national laws among Member States. This is achieved through the adoption, by the Council, of framework decisions in accordance with Article 34 of the Treaty on European Union as revised by the Treaty of Amsterdam. One relating to trafficking, Council Framework Decision on Combating Trafficking in Human Beings (Framework Decision)[25] was adopted in 2002.

22. In adopting this Framework Decision, the EU has recognised that merely seeking functional co-operation among Member States (police and judicial co-operation), which has been the main emphasis in the past, was not sufficient to deal with trafficking, as asymmetries in legislative frameworks among Member States meant that some traffickers received lesser penalties than others, depending on where they are prosecuted. Further, variation in the definitions of trafficking also resulted in many cases not recognised as trafficking ones. The main drive behind this Framework Decision, then, was to reduce these problems and seek a common EU approach to trafficking. It obliges Member States, including the UK, to adopt a common definition of the offence and a uniform threshold for minimum penalties.[26]

23. Another key legislation is the Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (Short-Term Residence Permits).[27] The legal basis of this measure is Article 63(3)(b) of the EC Treaty, not the Justice and Home Affairs provisions under the Treaty on European Union. This obliges Member States to provide reflection periods and temporary residence permits of at least six months to those who co-operate with law enforcement authorities. Again, an emphasis is placed upon approximation of national laws to seek a unified approach to trafficking. It should be noted, however, that the UK, Ireland and Denmark are not part of this legislation.

24. While the adoption of these measures is a significant step forward, there are areas of concern. To begin with, the key emphasis is placed upon a criminal justice approach without due consideration to the protection of victims. For example, support to victims may only be given during the criminal proceedings, and States can withdraw support once proceedings against traffickers are terminated or completed.[28] In addition, short-term residence permits can only be issued to victims who are willing to co-operate with authorities. Further, anti-trafficking measures are implemented in conjunction with restrictive immigration policies, which are designed to cut the flow of victims. They include, but are not limited to, visa requirements,[29] carrier sanctions,[30] removal/expulsion,[31] and establishment of airline liaison officers.[32]

25. While States are entitled to control its own borders as a matter of national and international law, these measures raise some serious concerns. For one, victims of trafficked are exploited in Member States of the EU, and therefore Member States should be under an obligation to provide protection instead of sending them home. Second, many of these victims escape from persecution in their source countries (and therefore qualify as refugees under the 1951 Refugee Convention) or other humanitarian crises including internal/international armed conflict. Finally, restrictive immigration polices and programmes are counter-productive in reality, because limited opportunities for legal migration will force potential victims to resort to traffickers, thereby furthering victimisation.

26. Therefore, the author of this submission argues that the current EU action against trafficking must incorporate a human rights approach.

KEY RECOMMENDATIONS

27. The UK Government should adopt a human rights approach to trafficking of human beings with particular emphasis placed upon protection of victims. In this regard, the Government should ratify the Council of Europe Convention as soon as possible.

28. The UK Government should conduct comprehensive research into the nature and extent of problem of trafficking of human beings in this country.

29. The UK Government should incorporate provision of reflection periods and temporary residence permits into national legislation.

30. The UK Government should extend protection to other part of the country (Scotland, Wales and Northern Ireland).

31. The UK Government must pay more attention to the demand for trafficked victims and devise an effective strategy to curb the demand for sex and other industries.

32. Protection and promotion of the human rights of victims should be the core of any EU action against trafficking.

4 February 2008

6 Joint Committee on Human Rights (JCHR), Human Trafficking: Twenty-Sixth Report of Session 2005-2006 (Volume I), at para. 78. Back

7 Liz Kelly and Linda Regan, Stopping Traffic: Exploring the Extent of, and Responses to, Trafficking in Women for Sexual Exploitation in the UK (Home Office Police Research Series Paper 125). Back

8 Home Office, UK Action Plan on Trafficking (March 2007), p. 14. Back

9 U.S. Department of State, Trafficking in Persons Report 2007, at http://www.state.gov/g/tip/rls/tiprpt/2007/82799.htm Back

10 JCHR, supra, para. 82. Back

11 Ibid., para. 139. Back

12 A presentation made by Mr. Rob Jones (Deputy Director, UK Immigration and Border Agency), at Council of Europe Seminar Action Against Trafficking in Human Beings: Measures to Protect and Promote the Rights of Victims (10-11 December 2007). Back

13 Application No. 14038/88, Judgment of 7 July 1989. Back

14 Application No. 22414/93, Judgment of 15 November 1996. Back

15 JCHR, supra, para.40. Back