Memorandum submitted by The Trafficking
Law and Policy Forum
1. INTRODUCTION
1.1 The Trafficking Law and Policy Forum
was set up in early 2007 by three trafficking specialists based
in the UK, Klara Skrivankova of Anti-Slavery International and
two barristers, Parosha Chandran of 1 Pump Court and Nadine Finch
of Garden Court Chambers, in recognition of a need to bring together
individuals from NGOs working in the field of human trafficking
together with individuals working on trafficking issues in other
sectors of society. Through its regular meetings the Trafficking
Law and Policy Forum has created a platform for dialogue and knowledge-sharing,
information and expertise and the Forum continues to foster understanding
amongst professionals whose work includes matters related to trafficking.
The Forum has currently over 30 members, including individuals
from domestic and overseas NGOs, the UK judiciary, the legal and
medical professions, social services and academics.
1.2 Members of the Forum have been working
on cases of trafficking (both trafficking for forced labour and
sexual exploitation) for a several years in different professional
capacities, and they hold a wide range of experience, particularly
from the NGO field and the legal profession.
2. WHAT WE
KNOW ABOUT
TRAFFICKING IN
THE UK
2.1 We expect that the Committee will have
received a number of separate submissions from several of the
Forum members and the organisations they represent. For this reason
the Forum has decided to focus its evidence to Committee on two
specific themes within the terms of reference in order to utilise
the evidence and experience of several Forum members.
3. THE HOME
OFFICE INQUIRY'S
TERMS OF
REFERENCE
3.1 The two themes under the terms of reference
which are covered by the Forum's submission, and the sub-headings
under which submissions are made, are as follows:
(1) The treatment of those who have been trafficked
but have no legal right to remain in the UK, including the requirements
imposed by the Council of Europe Convention on Action against
Trafficking in Human Beings (hereafter Council of Europe Convention):
(i) Disclosure of trafficking experiences.
(ii) Risk of uninformed and ad hoc AIT decision-making.
(iii) The absence of regular reporting of
AIT decisions.
(v) Developments and gaps in protection:
asylum.
(2) The effectiveness of the co-ordination between
public authorities in the UK (Home Office, Foreign and Commonwealth
Office, police forces, Serious Organised Crime Agency, Border
and Immigration Agency, social services).
(i) Lack of co-ordination leading to gaps
in protection.
(ii) Victim Protection under current structures.
(iii) A Proposal for a Victims and Witnesses
Unit for victims of trafficking.
SUMMARY OF
RECOMMENDATIONS
The Trafficking Law and Policy Forum recommends
the following:
— The Forum recommends that the NAM
caseworkers are provided with information and training on the
mental health consequences of human trafficking on victims of
trafficking (para 4.8).
— The Forum recommends that a system
of reporting AIT trafficking-related determinations is introduced
in order to provide consistency in judicial decision-making (para
4.17).
— The Forum recommends that an intensive
programme in judicial training on trafficking is developed and
introduced without further delay. (para 4.19)
— The Forum recommends that the Home
Office gives serious consideration to advising the AIT to take
due account of the current procedural and protection-related recommendations
in the IAA Gender Guidelines, both when assessing child and adult
claims for asylum or human rights protection (para 4.21).
— The Forum recommends that guidance
be swiftly produced to ensure communication and co-operation between
the Police, CPS and the Home Office. The circumstances faced by
MM, EM and SB must serve as clear examples of the worst practice
in terms of communication between such groups and must serve as
bench marks for future better practice (para 5.6).
— The Forum recommends that the CPS
must ensure that victim witnesses are provided with comprehensive
protection safeguards when giving evidence during the criminal
process: there must be no short cuts when the protection of victims
of trafficking is one of the "paramount" concerns as
stated by the Council of Europe in the preamble to its Convention
of Action against Trafficking in Human beings (para 5.8).
— The Forum encourages the Home Office
to consider whether the protection schemes of the ICTY and ICTR
can serve as a useful model for the establishment of a "Victims
and Witnesses of Trafficking Protection Unit" in the UK (para
5.10).
SUBMISSIONS ON
THE TERMS
OF REFERENCE
4. Terms of reference (1): The treatment of
those who have been trafficked but have no legal right to remain
in the UK, including the requirements imposed by the Council of
Europe Convention (and the protection of trafficked persons through
the asylum procedure)
4.1 According to the UNHCR Trafficking Guidelines[143],
Article 1 A (2) of the Refugee Convention 1951 and/or 1967 Protocol
Relating to the Status of Refugees applies to both victims of
trafficking and to persons at risk of being trafficked.
4.2 While some trafficked persons do not
qualify for asylum, in a number of cases the trafficked persons
require international protection after they have escaped from
the trafficking situation. Often, they may be at risk of reprisals
from the traffickers or their criminal accomplices, severe discrimination
by their original communities or at risk of re-trafficking should
they be returned to their countries of origin.
4.3 According to the research the Poppy
Project carried in 2003-05 amongst women they have supported there
was only one instance in which a trafficked woman was granted
asylum in the first instance[144].
However, 80% of the applications were later allowed on appeal.
This statistic is indicative of the problems within the asylum
application procedure in terms of a lack of understanding and
knowledge by Home Office caseworkers regarding trafficking in
human being and its impact on trafficked persons. Moreover, there
are more systematic flaws in the asylum system, examples of which
are illustrated further.
Disclosure of trafficking experiences
4.4 Trafficked persons are often unable
to communicate effectively with the authorities and recall coherently
their story. This is due to the trauma and coercion suffered.
Traffickers also threaten their victims that if they disclose
to the authorities, they will harm them or their families.
4.5 The Home Office Policy Instructions
"Gender Issues in the Asylum Claim", published in October
2006, accept that there might be reasons for women who have suffered
abuse not to disclose information as a result of abuse. It is
also recognised that traumatic experiences lead to dissociation,
ie inability of a person recall the details of their abuse. These
factors affect both adult and child victims of trafficking. Although
these facts are known, the credibility of trafficked persons vis-a"-vis
the asylum system is often doubted precisely for the reason of
not being able to describe in detail from the outset what happened
to them and when.
4.6 A case example of this: a woman was
encouraged by a "friend" to leave Nigeria for the UK
where she hoped to attend college. This "friend" later
threatened to kill her if she did not repay the £40,000,
the cost of her travel arrangement to the UK. She was forced to
prostitution and managed to escape after 18 months. She obtained
legal advice and a psychological report was submitted with her
asylum claim. The Home Office refusal letter stated:
"It is noted that at your asylum interview
you were unsure of dates, which, if you claim were true ...should
have been firmly impressed in your memory. Failure to recollect
dates integral to your asylum claim seriously undermines credibility
and veracity of your account."
4.7 The reasons for refusal stated in the
quote above show absolute ignorance as to the impact of trauma
on person's memory and demonstrate lack of understanding of effects
of trafficking.
4.8 The Forum recommends that the NAM caseworkers
are provided with information and training on the mental health
consequences of human trafficking on victims of human trafficking.
A starting point for such awareness is to be found in the study
"Stolen Smiles" by Cathy Zimmerman of the London School
of Hygiene and Tropical Medicine and others[145].
Risk of uninformed and ad hoc AIT decision-making
4.9 A concerning trend in both Home Office
refusal letters and Appeal determinations from the Asylum and
Immigration Tribunal is the appearance of uninformed and ad hoc
decision making about whether a person is a victim of trafficking.
The impact of this on victims of trafficking cannot be underestimated.
There appears also to be little understanding as to how the issue
of consent is to be dealt with, both in claims brought by minors
and adults. For example, in relation to the case of a 12 year
old African female who was sexually exploited in prostitution
in her own country before being trafficked at the age of 15 to
the UK, The AIT stated in its Determination in 2007 that:
"We do not accept that she was `driven'
into prostitution; she clearly was not trafficked and went into
it of her own free will; her attempts to obtaining other employment
seemed to have been very superficial and there seemed to be no
serious attempt to obtain other employment."
4.10 The AIT's finding, above, which related
to the repeated sexual abuse in her own country at age 12 to 15,
shows no cognisance of either British or international legal frameworks
related to the protection of children from sexual exploitation
which underscore that children cannot consent to their own abuse[146].
It reduces to nil the abuse suffered by blaming the young person
for not attempting to get other employment. Even worse for this
young person is that the finding outright rejected that she was
a victim of trafficking based on the presumption that she did
not try hard enough "not" to be raped and exploited.
As with this case, other Home Office asylum rejections for victims
of trafficking have been grounded in a "culture of disbelief".
This is a concept that simply cannot be tolerated yet it is increasingly
present in the arguments put forward by the Home Office and by
immigration judges to reject the protection claims of victims
of trafficking, despite the Government's signature to the Council
of Europe Convention and the announcement of its intention to
ratify the treaty by the end of 2008.
4.11 The impact of these refusal letters
and determinations on victims of trafficking can be devastating.
Not only because of the implications for access to care, protection
or asylum but because this may be the first time the victim of
trafficking has had their traumatic experiences laid out before
representatives of the Home Office, legal professionals and the
judiciary to be discussed in minute detail. To be requested to
give so much information and then to be disbelieved can have catastrophic
impact on victims, especially on children. The same AIT determination
stated:
"We accept the evidence of the appellant,
specifically that her parents died..., she shared a room with
her cousin and both worked as prostitutes, we accept she was arrested
by [police] and was raped in their custody"
"...it must not be forgotten that the reason
she was raped was because she was working as a prostitute...if
she desists working as a prostitute there is no objective evidence
that she will be picked up by the authorities and raped as before...
"
4.12 After receiving this letter the young
person, at age 17, who had been orphaned with no family support
and who had been sexually exploited since she was 12 both in Africa
and the United Kingdom, withdrew from support services.
4.13 This exercise of judicial decision-making
by the AIT must be contrasted by the findings reached by more
experienced judges in the higher courts of England and Wales.
For example, in the recent Court of Appeal case of PO (Nigeria)
[2007] EWCA Civ 1183 Lord Justice Sedley was charged with the
duty of deciding whether to allow permission to appeal to the
Court of Appeal in a case involving an eighteen year-old victim
of trafficking from Nigeria. Introducing the case Sedley LJ stated
as follows:
"1. The applicant...is a young Nigerian
woman who was brought into this country by a man who I think can
be briefly and accurately described as a Nigerian gangster, for
the purposes of enforced prostitution. After months of repeated
rape she escaped and, with the help of the Poppy Project, sought
refuge and protection here. Her reward has been a decision of
the Home Office to send her back to Nigeria."
4.14 Having granted permission on the basis
of arguable legal errors operated by the immigration judge in
the AIT, Sedley LJ concluded:
"9. There is, however, in my judgment,
another reason for granting permission to appeal. This woman was
brought to this country by a criminal who should not have been
allowed in, and was compelled by force to provide sexual services
to men living here. Her reward, now that she has finally escaped,
is to be returned to a country where she will certainly be without
social or familial support, will be expected to move to a strange
region and try to find work there and might still be at risk from
the same predator. Some might think she is owed better than this.
This court is not a court of morals, but it is a court which,
in my view, will want to look with great care at an outcome such
as was arrived at here by a single immigration judge in sharp
contradiction to that of another immigration judge and at a hearing
which it appears was intended to be conducted by a two-judge panel,
one of them senior in status.
10. I would add this: The test applied by
the second immigration judge was the test of exceptionality which
is now known to be an incorrect application of article 8(2)....it
may be that the moral case which I have mentioned would have been
accorded rather more weight if the correct exercise of assessing
not exceptionality but proportionality had in fact been gone through."
4.15 The Court of Appeal ruling in PO introduces
into UK law the concept of "the moral case" that may
be necessary for the AIT to assess in deciding trafficking-related
protection claims. This is a rational legal development in the
field of trafficking law as it recognises both the absence of
will and consent of the victim to the trafficking scenario and
it also addresses the fact that the victim of trafficking is a
victim of crime. Had the AIT, when assessing the other claim of
the young African girl whose asylum appeal was rejected, causing
her to abandon social services, correctly understood that she
was an innocent victim of severe abuse and that in fact she was
incapable of consenting to the exploitation, the outcome may have
been different: the African girl might have succeeded in her appeal
before the AIT and she would have then been granted the legal
protection of "leave to remain in the UK" that was so
severely wanting in her case.
The absence of regular reporting of AIT decisions
4.16 A serious deficiency in the current
system of asylum appeals is also therefore the absence of the
regular reporting of trafficking-related asylum and human rights
decisions of the AIT. Where an appeal is well-prepared by the
legal representatives, and for example where expert country evidence
is provided to the AIT which refers directly to the risks on return
for a victim of trafficking, the AIT's determinations on the country
conditions ought to be reported. In fact reporting of trafficking-related
AIT determinations takes place only rarely at present. This absence
of reporting impacts heavily upon the fairness of the asylum appeals
system, with the result that individual immigration judges have
reached inconsistent decisions on similar-fact and similar-evidence
trafficking cases. Again, an example of this is the case of PO,
above, where the first immigration judge had allowed the asylum
appeal only for a second judge to refuse it on the almost the
same country evidence, but the second judge did this, in Sedley
LJ's view, arguably in error of law.
4.17 The Forum recommends that a system
of reporting the trafficking appeals that are heard in the AIT
is introduced in order to provide consistency in decision-making.
Judicial training on trafficking
4.18 In the Forum's view the inconsistency
in decision-making also highlights the current weaknesses in judicial
training on the assessment of trafficking-related asylum and human
rights claims. Indeed, two of the Forum's co-founders, when speaking
at the annual conference of the UK Association of Women Judges
(President: Baroness Hale) in February 2007 were made aware of
the need for such judicial training by many members of the Association
who sit as judges in the family law, immigration law and criminal
law courts. It is recalled that trafficking-related cases are
increasingly heard in the criminal courts in addition to the immigration
courts, both in cases where victims of trafficking are prosecuted
for immigration/passport offences and where victims of trafficking
appear as witnesses in the criminal prosecutions of the traffickers.
In the experience of the Forum members, it appears that Crown
Court judges also require assistance in understanding the many
complexities involved in dealing with both types of trafficking-victim
related cases, including cases where a decision is to be made
whether to recommend a victim of trafficking for deportation following
conviction.
4.19 The Forum recommends that an intensive
programme in judicial training on trafficking-related legal issues
is developed and introduced without further delay.
Developments and gaps in protection: asylum
4.20 The recently reported AIT panel decision
in SB (PSG-Protection Regulations-Art 6) Moldova CG [2008]
UKAIT 00002 has established that "former victims of trafficking"
and "former victims of trafficking for sex exploitation"
are capable of constituting a particular social group for the
purposes of the Refugee Convention 1951 and that asylum claims
by trafficked persons may be able to succeed in the UK. In so
finding the AIT has overturned previous Tribunal findings which
held that such a particular social group could not exist. Whilst
this decision, which is binding on the AIT when assessing particular
social group cases, is an encouraging and important development
in the field of trafficking and asylum law both in this country
and overseas, a gap remains in the AIT's treatment of victims
of trafficking whilst giving their evidence during asylum appeals.
The former IAA's Gender Guidelines are no longer applied by the
AIT in the course of appeal hearings and yet there remain special
needs for vulnerable child and adult victims of trafficking during
the appeal process which currently go unmet. There is no regular
operative guidance to provide inter alia anonymised determinations,
in camera hearings or child-friendly and victim-friendly informal
arrangements in court. Nor is there regular operative guidance
which takes into account the impact of fear or trauma in the disclosure
of evidence and the giving of testimony under examination in court.
It is understood that the IAA Gender Guidelines are in the process
of being updated. The Forum, through its Legal Sub-Committee,
is currently involved in consultations to produce "Recommended
Guidelines" for the AIT when assessing claims made by victims
of human trafficking and these will be available shortly.
4.21 Until such time as the Forum's Recommended
Guidelines are available for publication the Forum recommends
that the Home Office gives serious consideration to advising the
AIT to take due account of the procedural and protection recommendations
in the existing IAA Gender Guidelines, both when assessing child
and adult claims for asylum or human rights protection.
5. Terms of reference (2): Effectiveness of
the co-ordination between public authorities in the UK (Home Office,
FCO, police forces, Serious Organised Crime Agency, Border and
Immigration Agency, social services)
5.1 The Forum would like to comment upon
its experience on the lack of co-ordination between the Police,
the CPS and the Home Office in the setting of two concrete cases.
Lack of co-ordination leading to gaps in protection:
Case 1
5.2 The first case involved an asylum claim
by two Romanian sisters, MM and EM, who were trafficked into the
UK as minors and who were subjected to years of sexual abuse,
exploitation and violence at the hands of their trafficker and
his accomplices. Once they escaped from their trafficker they
were referred to the Poppy Project under whose care they remain
to date. Having claimed asylum and having, over many months, assisted
the police in their criminal investigations the two sisters gave
chief prosecution evidence at Snaresbrook Crown Court which led
to the successful conviction and sentence of the trafficker to
21 years imprisonment in November 2006. Despite the fact the sisters
gave their evidence unshielded and without witness protection
measures and their identities were disclosed during the trial
proceedings (all leading to the Crown Court Judge to issue a note
to the SSHD and the AIT that he was "in no doubt" as
the serious safety risks that would befall the sisters on return
to Romania), no apparent communication of the Judge's comments
and the reality of such risks to the sisters took place between
the Police (or the CPS) and the Home Office, which continued to
refuse the sisters' claims for protection. Eventually, following
a hearing at the AIT, the Home Office granted the sisters Humanitarian
Protection in the UK. No doubt the length of the criminal investigation
together with the trial proceedings and the intensification of
the sister's fears, following the trafficker's conviction, as
to the fate that might befall them at the hands of his criminal
accomplices on return to Romania may have caused the sisters,
in their unprotected position in the UK, lasting mental injury
and damage.
5.3 Subsequently, in the summer of 2007,
the sisters were the first successful trafficking survivors in
the UK to be granted awards of compensation by the Criminal Injuries
Compensation Authority (CICA) for the injuries they sustained
as a result of the sexual abuse they suffered and for the loss
of opportunity as enslaved victims of trafficking in the UK.
Case 2
5.4 The second example involves SB, the
Moldovan female whose asylum claim was allowed by the AIT in its
recently reported decision on particular social group, previously
referred to above[147].
In her case, having escaped her trafficker she also applied for
asylum and helped the police with their criminal investigations,
eventually giving chief prosecution evidence against her trafficker
which directly lead to her trafficker (a female) being convicted
and sentenced of seven years' imprisonment. Despite this and the
intensification of the risks to SB on return to Moldova, owing
to her successful involvement in the trafficker's conviction,
her asylum claim and all other protection claims were rejected
by the Home Office. The absence of any communication between the
Police (or the CPS) and the Home Office meant in her case that
over two and a half years passed before she was granted any protection.
In October 2006, just one month before her trafficker was released
from prison the Home Office granted SB humanitarian protection
following a hearing in court, but refused her asylum on the basis
that inter alia "former victims of trafficking" were
not entitled to asylum in the UK. This refusal was successfully
appealed, as the reported AIT determination in SB demonstrates.
5.5 Again, one cannot underestimate the
fear that SB must have felt as an unprotected person (ie without
any legal status in the UK) as a consequence of having assisted
in securing the Government's conviction of her trafficker. In
terms of delay, as stated above, her fear of being returned to
Moldova and facing the risk of reprisals from her trafficker's
criminal accomplices endured until just before her trafficker
was released from prison after the trafficker's sentence was served.
SB was, it could be said, a prisoner of the asylum system, unprotected
for years until so very late in the day. The lack of communication
in her case between the CPS, the Police and the Home Office arguably
amounts to an example of severe neglect by the relevant public
authorities in the UK.
5.6 The Forum recommends that guidance be
swiftly produced to ensure communication and co-operation between
the Police, CPS and the Home Office. The circumstances faced by
MM, EM and SB must serve as clear examples of the worst practice
in terms of communication between such public authorities and
must serve as bench marks for better practice.
Victim Protection under current structures
5.7 As the two case examples, above, demonstrate
it is clear that victims of trafficking in the UK may be at greater
risk of reprisals and re-trafficking in their home countries if
they assist the UK authorities in investigations and prosecutions
of their traffickers. If victims of trafficking are unprotected
they might be unwilling to provide such assistance and evidence
to the authorities as was provided by MM, EM and SB, all of whom
demonstrated exceptional courage. It is vital that the protection
needs of trafficking victims are addressed as soon as the police
become involved in seeking the assistance of the individual and
that such protection needs are swiftly communicated to the Home
Office so such matters can be acted upon. Again, once the trial
process is under way, the CPS must re-assess the risk factors
relevant to the trafficked persons and communicate these effectively
to the Home Office so as to ensure that the protection needs of
the victim are properly addressed. Moreover, prior to the trial
of the trafficker taking place, the Police and CPS must act effectively
together to ensure that appropriate victim and witness protection
measures are both applied for and operated in crown court proceedings
so as to reduce the obvious and heightened risks to the trafficked
persons whilst giving evidence.
5.8 The Forum recommends that the CPS must
ensure that victim witnesses are provided with comprehensive protection
safeguards during the criminal process: there must be no short
cuts when the protection of victims of trafficking is one of the
"paramount" concerns of the Council of Europe Convention.
A Proposal for a Victims and Witness Unit for victims
of trafficking
5.9 It is recalled that the UN International
Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague
established the world's first comprehensive Victims and Witnesses
Unit (VWU) which included a protection unit. This was closely
followed by the establishment of VWU by the UN's tribunal for
Rwanda (ICTR). Had there been no protection system it is unlikely
that many of the witnesses who gave evidence against the criminals
charged by the ICTY and ICTR of, for example, war crimes and crimes
against humanity would have been persuaded to, or felt able, to
do so safely. The establishment of a Victims and Witnesses Unit
is currently underway at the International Criminal Court (ICC)
in The Hague. In the Forum's view, the experiences learned by
the ICTY and ICTR concerning the operation of their VWUs and the
protection schemes within such units may lend support for the
establishment of a "Victims and Witnesses of Trafficking
Protection Unit" in the UK. Human Trafficking is a crime
which demands the most stringent safety precautions to be adopted
for the victims and witnesses. It is well-documented that there
is a direct correlation between the lack of many successful prosecutions
for trafficking and the absence of adequate victim protection
mechanisms in many countries, including the UK.
5.10 The Forum encourages the Home Office
to consider whether the protection schemes of the ICTY and ICTR
can serve as a useful model for the establishment of a `Victims
and Witnesses of Trafficking Protection Unit' in the UK.
5.11 In conclusion, we suggest the Committee
enquires of the Government as to what is being done to ensure
that the malpractice in the treatment of trafficked persons in
the asylum system as set out in the various case scenarios described
above[148],
is discontinued in the light of the obligations under the Council
of Europe Convention and in accordance with the Government's commitments
as stated in the UK Action Plan to Tackle Trafficking in Human
Beings.
21 February 2008
143 "Guidelines on International Protection: The
application of Article 1A(2) of the 1951 Convention and/or 1967
Protocol relating to the Status of Refugees to victims of trafficking
and persons at risk of being trafficked" published by the
UNHCR, April 2006 Back
144
Hope Betrayed: Eaves Housing for Women, London, 2006 Back
145
Stolen Smiles: the physical and psychological health consequences
of women and adolescents trafficked in Europe, 2006 Back
146
See, for example, the Explanatory Report to the Council of Europe
Convention on Action against the Trafficking of Human Beings at
para 98: "Under sub-paragraphs b. and c. of Article 4 taken
together, recruitment, transportation, transfer, harbouring and
receipt of a child for the purpose of exploitation are regarded
as trafficking in human beings. It is immaterial whether the means
refers to in sub paragraph a. have been used. It is also immaterial
whether or not the child consents to be exploited." Back
147
SB (PSG-Protection Regulations-Art 6) Moldova CG [2008]
UKAIT 00002 Back
148
All the case examples referred to in this document are cases in
which Forum members have been involved. Back
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