Memorandum submitted by Amnesty International
UK
1. Amnesty International (AI) is a world-wide
membership movement. Amnesty International's vision is of a world
in which every person enjoys all of the human rights enshrined
in the Universal Declaration of Human Rights and other international
human rights instruments. In pursuit of this vision, Amnesty International's
mission is to undertake research and action focused on preventing
and ending grave abuses of these rights.
2. The United Kingdom national section of
Amnesty International (AIUK) has prepared this submission. AIUK
welcomes the decision of the Home Affairs Select Committee to
undertake an inquiry into trafficking.
3. AI has been working on the issue of trafficking
for a number of years and has produced several reports on trafficking
in Russia, Israel, Kosovo and Indonesia. It was also involved
in the development of the Council of Europe Convention Against
Trafficking in Human Beings. AIUK has been working on trafficking
in the UK since 2004. AIUK has been a member of the NGO Stakeholder
Group on Human Trafficking since the end of 2005 and sits on an
advisory group to the UK Human Trafficking Centre.
4. Trafficking in persons is a worldwide
phenomenon. It affects men and boys, as well as women and girls,
and victims can be trafficked for a range of exploitative purposes.
As most of the work that AIUK has done on trafficking has been
in the context of our Stop Violence Against Women Campaign the
scope of this submission is largely limited to the treatment and
protection of women and girls who are trafficked into the UK for
the purpose of sexual exploitation and domestic servitude. However
many of the problems and needs identified and recommendations
made in this submission are relevant to all trafficked persons.
Trafficked children are particularly vulnerable and will require
additional safeguards in relation to their identification, support
and protection which we do not address in this submission.
5. The findings in this submission are based
on research and interviews conducted with legal practitioners,
service providers and NGOs from December 2006 to March 2007 and
have been updated in January 2008. A list of case summaries is
annexed to the submission illustrating our findings.
6. AIUK welcomed the signature of Council
of Europe Convention on Action against Trafficking in Human Beings
(henceforth referred to as ECAT) in March 2007 and recognises
the efforts of the UK Government to prepare for ratification of
ECAT by the end of 2008 including the development of the UK Action
Plan on Tackling Human Trafficking (March 2007). This submission
will review Government measures relating to the treatment of victims
(identification, support and accommodation, immigration and asylum
protection and non punishment) and to what degree these meet the
standards of protection required under ECAT.
THE SCALE
AND TYPE
OF ACTIVITY
7. As other organisations will provide the
Committee with an overview of current statistics on trafficking
in the UK we do not intend to duplicate that information here.
We refer the Committee to AIUK's 2006 submission to the Joint
Committee of Human Rights Inquiry into Trafficking of Human Beings
in which we set out detailed information on the profile of women
and girls trafficked into sexual exploitation, the methods that
traffickers use to control victims and the impact of trafficking
on the physical and mental health of victims.
8. AIUK is concerned about the continuing
paucity of reliable statistics across all forms of trafficking
particularly forced labour and domestic servitude and the disproportionate
focus on trafficking as a form of organised immigration crime.
AIUK believes that the appointment of a National Rapporteur would
lead to an improvement in data collection and research across
all forms of trafficking. A National Rapporteur should have powers
to request information from public bodies, review the impact of
anti-trafficking plans on victims and make policy recommendations.
A similar model has been used in the Netherlands and Sweden.
IDENTIFICATION
9. Correct identification and referral of
victims to appropriate support services lies at the heart of any
system to protect trafficked persons. Under ECAT identification
by competent authorities acts as the passport to a range of rights
intended to help a trafficked person escape from the influence
of traffickers and begin a process of recovery through access
to healthcare, support and accommodation and access to legal advice.
Conversely a failure to be identified will lead to a denial of
basic support and in the case of those with irregular immigration
status could also lead to immigration detention, criminalisation
and removal back to the country of origin without any risk assessment
as to the risk of harm or re-trafficking on return.
10. AIUK recognizes that both the police
and immigration authorities have made considerable efforts to
improve identification rates through the training of staff, the
development of guidance on indicators and the creation of specialist
anti-trafficking units. However, practitioners AIUK has interviewed
continue to raise concerns about the failure of a wide range of
authorities including immigration, police and social services
to identify trafficked persons. Some of the failures have been
by officials with expertise on trafficking.
11. Past research has shown that immigration
officials and to a lesser degree police officers are less likely
to make positive identifications of trafficked persons than NGOs
and front line practitioners.[165]
This is because of problems trafficked persons face in disclosing
what has happened to them but also problems with the capacity
and willingness of the police and immigration officers to make
identifications. For trafficked persons difficulties including
physical and mental health problems, shame, fear of removal from
the UK, fear of being criminalized, fear of traffickers and of
the authorities may prevent victims from recognizing they have
been trafficked or from disclosing that they are trafficked especially
to the police and immigration. In case information that AIUK has
received trafficked persons have explicitly stated that they would
not approach the police as they do not believe that they will
help them and also fear being arrested.
12. On the part of the authorities there
are several factors that make it more difficult for police and
immigration officers to make positive identifications. Failures
are often rooted in a lack of awareness about diagnostic indicators,
especially those relating to non—sexual exploitation. For
example Kalayaan, the leading NGO that supports migrant domestic
workers, has found that when workers report the theft of their
passports by employers (a key indicator of forced labour/trafficking)
police are more interested in the immigration status of the victim
rather than investigation the theft of the passport. However the
failure to identify can also be rooted in a culture of disbelief
where officials are less likely to believe that persons with illegal
or irregular immigration status are credible. In these cases officials
are more likely to identify the victim as an illegal entrant,
worker or prostitute rather than as a trafficked person, even
if they have knowledge on trafficking. Police may also be reluctant
to refer on potential trafficked persons to support services for
fearing of losing intelligence or a possible prosecution witness.
When these factors are combined with the pressures that police
and immigration officials face to meet targets for intelligence,
prosecutions and removals the signs that a person is trafficked
may be overlooked or disregarded.[166]
(see Cases 1 and 2).
13. AIUK welcomes the intention of the UK
Government to exceed the standards on identification in ECAT through
its commitment to develop a nationwide system of identification
and referrals based on the OSCE National Referral Mechanism (NRM)
model.[167]
Currently the Home Office is piloting an NRM within the anti trafficking
police operation, Pentameter 2. The NRM model requires the designation
of a Competent Authority which is responsible for making preliminary
identifications that enable the grants of reflection periods and
access to support services and definitive identifications which
may enable trafficked persons to qualify for residence permits.
Under the pilot the role of the Competent Authority has been split
between the UK Human Trafficking Centre (UKHTC) and the Border
and Immigration Agency (BIA) along geographical lines. The UK
Government is yet to make a final decision on which agency will
take on the role of the Competent Authority in the future. AIUK
believes that whilst both the law enforcement and immigration
authorities have a key role to play in identification, for the
reasons set out above the role of the Competent Authority should
not be left solely to either agency and that front line professionals
(such as medical professionals) and NGOs with a track record of
working with trafficked persons such as the POPPY Project and
Kalayaan should have a formal role to play in the identification
of trafficked persons.
14. AIUK recommends that:
— The UK Government devises and implements
a National Referral Mechanism in line with its commitment in the
UK Action Plan. The UK Government should ensure key tasks in relation
to identification and referrals are undertaken by trained and
qualified persons within all the relevant agencies.
— That the operation of the Competent
Authority should be based on a multi-agency model, where law enforcement
and immigration officials share the function of identification
with other relevant agencies, professionals and NGOs with expertise
across all forms of trafficking in order to reduce the risk of
missed identifications.
— When trafficked persons who are reasonably
suspected of having been subjected to sexual violence or sexual
exploitation are interviewed to establish identification they
should be entitled to the same "best practice" procedures
from the police as other victims of rape and sexual violence in
the UK, for example female victims should only be interviewed
by female officers.
— The Competent Authority must refer
on presumed or identified victims to appropriate support services
without undue delay.
15. Although police raids provide a useful
function in disrupting the control of traffickers over persons
and enabling prosecutions of traffickers such an approach is not
always the most appropriate for the purpose of identifying and
protecting victims. For example raids will be inappropriate for
identifying victims of child and domestic labour who are more
likely to have been trafficked by individuals into family homes
or victims of forced labour that work alone or in care settings
such as care homes. Raids may also be frightening for the victims
rescued. AIUK notes the success of Government funded outreach
services in identifying and supporting trafficked women. Since
2004 the Scottish Executive has funded the TARA project which
provides a range of direct support and assistance to meet the
needs of women who are trafficked. Since 2007 the Home Office
has funded the POPPY Project to deliver outreach services, and
victims have been identified and supported through the service
in a number of locations including prisons and detention centres.
AIUK welcomes the funding of these outreach services and recommends
that the Government continue the funding of POPPY and look at
how the outreach service can be expanded or in the context of
domestic servitude and forced labour replicated.
ACCESS TO
HEALTHCARE, SUPPORT
AND ACCOMMODATION
16. The physical and psychological health
needs and safety requirements of trafficked victims are extensive.
A study conducted by researchers at the London School of Hygiene
& Tropical Medicine[168]
on the physical and psychological health of women trafficked into
forced prostitution or sexual exploitation in the context of forced
domestic work found that they suffered numerous physical and mental
health problems which required urgent, as well as longer-term
care. The study found that physical health problems were prevalent
and concurrent within the first 14 days after a trafficking experience.
Over 63% of women experienced more than 11 physical symptoms that
caused them pain or discomfort. Psychological reactions were severe
and prevalent, and compared to or surpassed symptoms recorded
for torture victims. It is only after almost three months that
women's mental health showed signs of significant improvement,
although this is improvement that is relative to past symptom
status, which does not indicate that they regained a healthy psychological
state compared to the average female population.
17. AIUK has also received enquiries relating
to male and female victims of forced labour and domestic servitude
where the victims have suffered physical injuries due to overwork
and breaches in health and safety regulations. Medical practitioners
who have spoken with AIUK are sure that they have seen patients
with injuries from forced labour but are unaware how to act upon
this information.
18. Due to their illegal status in the UK,
trafficked persons who are not within the asylum process have
no recourse to medical care other than that which is for an "immediately
necessary and life threatening problem" for which they
will be treated and then charged. Those trafficked persons within
the asylum process may also experience significant difficulty
in obtaining access to appropriate healthcare.[169]
AIUK recommends that the UK Government provide immediate, dedicated
and ongoing support services for victims of trafficking that include
comprehensive physical and psychological health care for the duration
of a reflection delay period in order to give victims sufficient
time to recover, and to gain an improved level of physical and
psychological health.
19. In addition the majority of adults trafficked
into the UK do not have recourse to public funds.[170]
This is not only the case for those with irregular status but
also for many who are lawfully in the UK including A8 nationals
and workers with valid work permits. Persons subject to the restriction
on public funds are not entitled to benefits (which are needed
to fund spaces in domestic violence refuges) or local authority
emergency accommodation for homeless persons. As a result most
victims who have escaped their traffickers are vulnerable to destitution,
further abuse and exploitation. (see Case 3).
20. It is due to this physical, psychological
and material vulnerability that Article 12 of ECAT requires member
states to provide such measures as may be necessary "to assist
victims in their physical, psychological and social recovery"
and as a minimum to provide standards of living necessary for
subsistence including appropriate and secure accommodation, psychological
and material assistance, access to emergency medical treatment
and information on rights and legal advice. In the explanatory
report to ECAT the Council of Europe notes that protected shelters
are especially suitable for trafficking victims as they provide
24 hour care, stability and security particularly in cases where
traffickers may try and gain control. The report states that detention
centres are not suitable for children.[171]
21. The only project in the UK that currently
meets this criteria is the Home Office funded POPPY Project which
is run by Eaves Housing for Women. The Home Office entered into
a two year funding agreement with POPPY in 2006 for £2.4
million. The UK Government has expanded services through a combination
of funding existing domestic violence refuges and relying on free
support and accommodation provided by voluntary faith based organisations.[172]
The UKHTC operates a working group on victim care which has a
sub group for service providers. In 2007 the POPPY Project developed
minimum standards for organisations providing support and accommodation
to trafficked victims but it is not mandatory for organisations
to comply with these standards. Currently there is no support
and accommodation for victims of non commercial sexual exploitation.
22. Whilst AIUK acknowledges the efforts
to expand support services the practitioners we interviewed are
concerned that many women and girls are being detained, dispersed
or placed by the authorities in inappropriate and/or unsafe accommodation,
often without access to support services either because they have
not been identified as trafficked or due to the lack of sufficient
specialist accommodation and support services for trafficked persons
in the UK. This can result in the deterioration of the health
and well-being of victims, who have already had their physical
and psychological health severely compromised. It also leaves
them vulnerable to reprisals from traffickers. Examples of inappropriate
or unsafe accommodation include:
— The incarceration of trafficked
victims in immigration detention or prisons: For victims of
trafficking, detention or imprisonment can be extremely traumatic.
Detention is likely to be detrimental to the physical and mental
health of trafficked victims, especially those suffering from
post traumatic stress disorder as a result of being trafficked.
A forthcoming report[173]
by the POPPY Project on the treatment of trafficked women in detention
found that the whilst all the women displayed varying degrees
of mental distress including depression, suicidal ideation and
insomnia only 15% received medical treatment in the inadequate
form of painkillers or sleeping pills. Other problems victims
may face in detention include a heightened fear of others from
their country, feeling unable to communicate with those who share
their language and perceived or real intimidation by traffickers
or informers for traffickers who they believe are detained along
with them. Victims who are transferred from captivity at the hands
of a trafficker to confinement by the UK authorities will find
it even more difficult to recover from their experience, to fully
disclose their situation or to find the trust necessary to identify
others who can help them. The motivation for co-operation on prosecutions
is also lost through lack of identification and the detention
environment. AIUK believes that victims who have been trafficked
into the UK should never be detained, or suffer imprisonment for
any reason which is a direct or indirect result of their situation
as a victim of trafficking.
— Provision of NASS accommodation
and dispersal of adult victims of trafficking who have claimed
asylum: Adult victims of trafficking who are able to claim
asylum and who are not transferred into immigration detention
may qualify for support and accommodation from the National Asylum
Support Service (NASS). However, NASS accommodation is basic and
does not meet any standard of safe housing for victims of trafficking.
The policy of dispersing asylum applicants to different parts
of the country can put victims at risk from traffickers who operate
in the UK. It also isolates vulnerable women and can remove them
from essential contact with their solicitor and specialist medical
and/or other services. The Home Office are in the process of setting
up a pilot for tailored accommodation for trafficked victims with
BIA procurement. AIUK does not have sufficient information about
the pilot to assess whether accommodation and support provided
under the pilot will meet the safety and support needs of trafficked
victims. Until the results of this pilot are known AIUK recommends
that trafficked persons should be entitled to NASS funded spaces
in refuges in accordance with the precedent whereby NASS are able
to fund places in domestic violence refuges for asylum applicants
or their dependants who are fleeing abuse (see NASS Policy Bulletin
70 for this guidance)
— Short-term provision through voluntary
sector and charitable sector organisations: AIUK recognises
that any support that enables women to leave their traffickers
is important, and that the POPPY Project has developed guidance
on the minimum standards that service providers should comply
with if they accommodate trafficked victims. However these standards
are not binding and organisations do not need to sign up to the
standards in order to receive referrals from the authorities to
accommodate trafficked victims. AIUK believes that all trafficked
victims of sexual violence should be entitled to the same standards
of security, support and care that are available to UK nationals
and residents who experience domestic and/or sexual violence.
Further AIUK recommends that the Home Office should continue it
current policy of only funding organisations that have proven
long-term experience in sheltering and assisting women who are
victims of gender based violence including domestic violence,
sexual violence and trafficking/enforced prostitution.
IMMIGRATION PROTECTION
23. Under Article 13 of ECAT the UK Government
will be required to provide a minimum of 30 days for reflection
and recovery where there are "reasonable grounds" to
believe that the person is a victim. In its explanatory report
the Council of Europe states that the purpose of the reflection
period is to enable victims to physically and psychologically
recover and escape from the influence of traffickers and to also
enable them to make an informed decision about whether they wish
to co-operate with the authorities. It is recommended that the
duration of the reflection period must be compatible with this
purpose.
24. There is persuasive evidence to show
that the trafficking victims who have been subjected to sexual
exploitation or sexual violence within forced prostitution or
domestic labour can require up to 3 months to recover from physical
and mental trauma to reach a stage where they are able to make
informed decisions about their future and whether to co-operate
with the authorities. AIUK recommends that the UK Government should
provide trafficking victims with a 90-day reflection period in
line with the recommendations of the Joint Committee of Human
Rights, research on the medical needs of victims of trafficking
and best practice.[174]
25. Under Article 14 of ECAT the UK Government
will be required to issue renewable residence permits to trafficked
persons where the stay is necessary either due to the their personal
circumstances or for them to co-operate with a criminal investigation
or prosecution. Some may never be in a position to co-operate
with the authorities due to trauma and fear of reprisals. Trafficked
persons should be treated primarily as victims of crime and the
UK Government should have the option of granting residence permits
where the physical, mental health and security needs of the victim
require an extended stay in the UK beyond the reflection period.
AIUK calls for the use of flexible residence permits after the
90-day reflection period that takes into account the trafficked
persons' circumstances or their involvement in continuing investigations.
26. AIUK is concerned about Government proposals
to remove immigration protection from a vulnerable group of migrant
workers that will make them vulnerable to trafficking. Prior to
1998 migrant domestic workers entered the UK on visas that tied
them to their employers and they were not formally recognised
as workers. Many of these workers, the majority of whom are women,
were being subjected to forced labour conditions. Those who escaped
their abusive employers became illegal entrants without recourse
to any rights, and vulnerable to further exploitation. In recognition
of this in 1998 the current government introduced one year renewable
visas that enable migrant domestic workers to change employers.
27. In spite of the protection migrant domestic
workers still face abuse and exploitation. For example research
from Kalayaan between April 2006 and March 2007 found that almost
70% of workers reported psychological abuse, 24% reported physical
abuse, 68% were not given any time off from their jobs and 32%
had had their passports withheld by their employers. The 1998
immigration rule is critical in helping domestic workers to leave
these types of abusive situations as they can leave knowing that
their immigration status in not irregular. Instead of retaining
the current protection the Home Office is proposing that migrant
domestic workers will only be allowed to enter the UK on six month
renewable visas and will not be allowed to change employers even
if subjected to abusive practices. Furthermore they will no longer
be recognised as workers but as "domestic assistants"
depriving them of rights under employment legislation. AIUK calls
upon the Government to retain the 1998 rule and the protections
it provides to migrant domestic workers in line with its commitment
to not only protect trafficked persons but to prevent trafficking.
ASYLUM PROTECTION
28. The UK asylum system is currently the
only legal mechanism which provides long term protection to victims
of trafficking who are able to show that they face the risk of
persecution/re-trafficking on return to their country of origin.
The concerns we raise in this section are relevant to all asylum
applicants in the UK but are outlined here in the context of their
significance for trafficked persons:
29. Problems in accessing legal advice
and representation: Trafficking cases are intrinsically complex,
and the lack of specialist services for trafficked women and girls
in the UK often means that the solicitor will be the only "support
person" who can liaise with other services on a client's
behalf. Access to quality legal advice and representation is essential
to enable asylum applicants to negotiate the complex UK asylum
system. However, the impact of the 2004 legal aid restrictions
has resulted in many reputable lawyers reducing or stopping the
provision of legally aided services. In practice this means that
many asylum applicants are unable to secure good quality legal
advice and representation. AIUK is concerned that the introduction
in October 2007 of a fixed fee system will mean that even fewer
practitioners will be prepared to take on vulnerable clients or
those with complex cases.
30. Poor quality decisions: In 2004
the AIUK report, Get it Right: How Home Office Decision-Making
Fails Refugees found that Home Office refusal decisions demonstrated
the use of inaccurate country information, unreasonable assertions
about individual credibility and inappropriate consideration of
torture and medical evidence.[175]
Since March 2007 all new asylum applications are dealt with under
the New Asylum Model which intends to address the history of poor
quality decision making on asylum claims by giving cases owners
responsibility for management of cases from the beginning to the
end of the asylum process. Practitioners have told AIUK that whilst
the new model is an improvement in terms of providing better communications
with the Home Office case-workers, there does not appear to be
any overall improvement in decision making.[176]
31. Asylum decision-making at appeals:
Appeals provide an independent review of flawed Home Office refusal
decisions and, according to lawyers who have spoken to AIUK, usually
represent the only realistic opportunity for trafficked persons
to secure refugee status in the UK. Practitioners have reported
examples of many cases where judges have arrived at negative decisions
based on a lack of understanding about the impact of trafficking
on victims, a lack of knowledge about the problems that victims
of sexual violence face in disclosing that violence (see Case
4), incorrect information about the support and protection available
in country of origin and a disregard for the particular vulnerability
of female trafficked victims to future harm and/or re-trafficking
(see Case 5).
32. Flawed decisions at any stage within
asylum procedures can result in the removal of asylum applicants
to countries where they face human rights violations, and in the
case of trafficked persons, the risk of re-trafficking. For individuals,
losing their case and being informed by the UK authorities, in
some cases, that they are calculatedly lying about their experiences
is extremely distressing. Medical and other professionals who
work with victims of trafficking have told AIUK that the rehabilitation
and recovery process for women and girls may be set back or even
halted.
33. Country information: Home Office
country reports are relied upon as authoritative evidence throughout
the asylum process by the BIA, but also at the appeal stage. AIUK
has received trafficking asylum cases of applicants from a range
of countries[177]
and do not agree that the Home Office "country reports"
provide accurate information that can be used to make decisions
on claims for trafficked persons. Whilst some reports outline
the extent of trafficking and the dangers to women, the same reports
overstate the intentions or the ability of governments to provide
protection and support to trafficked victims. Caseworkers and
judges then use this incorrect information as evidence that it
is safe to return trafficked women to the country in question.
34. "Safe" countries: The
"white list" of countries from which asylum claims are
presumed to be "clearly unfounded" undermines the principle
that every asylum claim should be considered on its individual
merits. It is wrong to presume that any country from which a woman
has been trafficked for sexual exploitation will be safe for her
to return to. Moldova and Albania are on the list, both of which
are major source and transit countries for traffickers and suffer
corruption to the extent that individual police officers are known
to have been involved in trafficking activities. This demonstrates
a failure to conduct a gender-based evaluation of "safety"
in terms of future risk and protection for trafficked women. AIUK
believes that many trafficked women who are forced to return to
these countries will face a serious risk of being re-trafficked
on their arrival.
35. Non-Suspensive Appeals Procedures:
Cases from so-called "safe-list" countries are usually
certified under non-suspensive appeals procedures. Applicants
whose cases are certified on refusal by the Home Office will not
have access to an appeal hearing from within the UK but are expected
to return to their country of origin and lodge an appeal from
there. The expectation that a person who fears persecution in
their country of origin should return there to appeal is, in many
cases, both dangerous and impractical.
36. The prohibitive time limits in the
fast-track and super-fast track systems: These are inappropriate
for the preparation and consideration of asylum cases, especially
those which are particularly complex and involve extremely vulnerable
applicants. The Home Office Detained Fast-Track Suitability List
makes no exemption for victims of trafficking and the Home Office
Victims of Trafficking Guidance makes provision only for those
adult women who fall within the restrictive criteria for the POPPY
Project. Although all victims of trafficking for sexual exploitation
should be classed as vulnerable, the Home Office policy not to
detain vulnerable persons has failed to prevent the fast-tracking
of trafficked women's asylum cases.[178]
37. The very restrictive time limits both
within and without fast-track asylum procedures can obstruct access
to legal representation and lead to gaps in the preparation of
asylum cases. It is essential that victims of trafficking are
given time to build up a relationship of trust with lawyers, interpreters
and medical and other professionals. There is no adequate provision
for allowing additional time to victims of trafficking for this
purpose at any stage within the asylum process.
38. AIUK believes that the asylum system
is an essential legal safeguard for victims of trafficking who
are able to make a claim. The problems that all asylum applicants
face with regard to access to procedures and decision-making must
be addressed in order to ensure a full and fair hearing of each
claim on its individual merits.
PROSECUTIONS OF
TRAFFICKED PERSONS
39. Under Article 16 of the ECAT the UK
Government is required to provide for the possibility of non-punishment
of victims that have been involved in unlawful activities arising
out of their situation as a trafficked person. Due to their uncertain
immigration status many trafficked persons may have inadvertently
broken the law either at the time of entry into the UK, by working
illegally, through being in possession of false documentation
or no documentation or through forced participation in criminal
activity. Such victims will be liable to prosecution and detention
either in police and/ or immigration custody. The threat of criminalisation
increases the coercive power of traffickers who are known to deter
victims from contacting the authorities by telling them that they
will be treated as criminals and risk facing imprisonment if they
go to the police to seek help.
40. In December 2007 the Crown Prosecution
Service (CPS) issued revised guidance[179]
for prosecutors on how and when charges against trafficked persons
may be discontinued if a prosecution is not deemed to be in the
public interest. The guidance applies to adults charged with a
range of passport and identity documentation offences, and offences
relating to the criminal exploitation of children such as theft
and cultivation of cannabis. Prosecutors are advised to decide
whether on not a suspect/ defendant is considered to be a credible
trafficking victim on the basis of information or evidence from
the investigating immigration or police officer.
41. AIUK is aware of cases in which the
CPS has had ample opportunity to consider discontinuing prosecution
of a victim of trafficking on public interest grounds but refused
to do so or were advised not to do so by immigration or police
officials. The POPPY Project reports having to battle on a case
by case basis to convince prosecutors to discontinue prosecutions.
The POPPY Project are particularly concerned that the credibility
of victims is assessed not by specialists in trafficking but by
whoever the police or immigration officer is dealing with the
trafficked person's immigration or criminal case. In one case
the prosecution was discontinued not because the CPS accepted
that the woman was a victim of trafficking but because of evidence
from three different psychiatric reports that found that she was
not fit to plead. In a second case from the POPPY Project the
competent authority team at BIA had found that there was a reasonable
likelihood that the woman who had entered the UK on a false document
had been trafficked. However the UKHTC pushed for the continuation
of a prosecution because she had not been a victim of trafficking
in the UK.
42. Whilst AIUK welcomes the introduction
of the guidance from the CPS there are concerns at the inconsistencies
between the capacity and manner with which the authorities deal
with prosecutions of trafficked persons and the victim centred
approach that will be required under ECAT. AIUK recommends that
where there are grounds for suspecting that a suspect or defendant
has been trafficked in accordance with the definition of a trafficked
person under ECAT, a preliminary identification by the Competent
Authority should be sufficient grounds to discontinue a prosecution.
Decisions on credibility should not be made by officials who do
not have a track record of working with victims of trafficking.
CASE SUMMARIES
Failure of identification by immigration officials
Case 1: An immigration lawyer told AIUK about
a Ugandan woman who was six months pregnant and HIV- positive
who was in UK fast track system and removed from the UK. She had
not fully disclosed trafficking but had disclosed that she had
been raped by her agent and his associates. There was no further
investigation as to whether she had been trafficked, and medical
advice that she was not fit to travel was ignored.
Police attitudes to trafficked victims
Case 2: AIUK received three cases of child domestic
servitude who had worked in homes and were severely abused in
one particular community in London. In addition to carrying out
arduous housework the children were also required to as part of
their work serve food in a local church. There are indications
that other members of the community were aware of their existence
and situation. However these cases were approached with cynicism
by the police because although the victims were willing to disclose
their experiences in full, they were unwilling to act as prosecution
witnesses due to fear of reprisals and their own lack of immigration
protection. This reluctance was taken by the police to mean that
their cases lack credibility. To AIUK's knowledge no community
wide investigations into the allegations of trafficking resulted
from these victims coming forward.
Access to Support and Accommodation
Case 3: AIUK was contacted about the case of
a woman who was twenty weeks pregnant. The woman had escaped forced
domestic work only to end up in forced prostitution because of
destitution. The woman had to be treated in hospital and once
she was treated the plan was to release her back on the streets.
It was only because of the covert actions of one medical staff
member—who had been instructed not to get involved—that
she was accommodated by a religious charity. However this charity
was unable to offer appropriate accommodation for a woman in her
situation.
Asylum Protection—ignorance about the behaviour
and motivations of traffickers and victims
Case 4: Extract from an Asylum & Immigration
Tribunal (AIT) determination, October 2006:
If this appellant were genuinely trafficked
to the UK for prostitution, it is not credible that the trafficker
would wait a week before putting her to work. She stated that
he and his partner raped her regularly after her arrival in the
UK. At the hearing she advised that he had never acted improperly
towards her in Lagos. I do not find it credible that he would
act properly towards her in Nigeria but rape her in the UK where
there are laws against rape which are enforced. I find that she
was not trafficked for prostitution to the UK ... If this appellant
had genuinely been trafficked to the UK, held prisoner for a number
of months and forced to work as a prostitute, it is not credible
that she would fail to report her plight to the police in the
UK immediately after her escape simply because she did not know
the address where she was held captive.
Asylum Protection—ignorance about the vulnerability
of victims of trafficking and disregard for medical evidence
Case 5: In an asylum case received by AIUK the
Asylum & Immigration Tribunal (AIT) reviewed specialist medical
reports which described a trafficked woman as having suffered
a brutal childhood and advised that returning her to Russia and
removing her from her support services in the UK would have a
catastrophic impact on her psychologically, making her extremely
vulnerable to being re-trafficked. The AIT found that because
this woman was deceived into being trafficked originally, "it
was inconceivable that she could be duped in the same way again"
and dismissed her appeal.
25 February 2008
165 For example of the 387 referrals received by the
POPPY Project between March 2003 and March 2006 only 16 were from
immigration officials. Back
166
See, Evaluation of the Victims of Trafficking Pilot Project-POPPY,
Gina Taylor, September 2005. The Evaluation found that the repatriation
of immigration offenders remained a primary issue for the Immigration
Service when working with POPPY and that they were adamant that
women who had been on the scheme needed to be returned to their
country of origin, p 54. Back
167
National Referral Mechanism, Joining Efforts to Protect the
Rights of Trafficked Persons: A Practical Handbook, OSCE,
ODIHR, 2004. Back
168
Stolen smiles: a summary report on the physical and psychological
health consequences of women and adolescents trafficked in Europe.
Preliminary findings on the prevalence of physical and mental
health consequences (2006) Cathy Zimmerman, Mazeda Hossain,
Kate Yun, Brenda Roche, Linda Morison, Rosa Angela Ciarrocchi,
Vasil Gajdadziev, Jana Genunchi, Viorel Gorceag, Natalia Guzun,
Silva Hove, Anna Johansson, Anna Kefurtova, Katarina Kukic, Irina
Lysenko, Olga Milinchuk, Sally Montier, Stefania Scodanibbio,
Simonne Sergeant, Jo Smith, Maria Tchomarova and Anne Vauthier
and Charlotte Watts. LSHTM/IOM/EU Daphne Programme. Back
169
See Making Women Visible: Strategies for a more woman-centred
asylum & refugee support system, British Refugee Council,
2005, page 12 and Briefing Paper: Proposals to exclude "overseas
visitors" from access to free NHS primary care services,
Dr. Paul Williams, Jan 2005: www.medact.org Back
170
Amnesty International UK will be publishing a report on the impact
of the no recourse to public funds rule on victims of gender based
violence in the UK in March 2008 and has submitted evidence to
the Home Affairs Select Committee enquiry to assess the implementation
of the Domestic Crime and Victims Act 2004. Back
171
Council of Europe Convention on Action Against Trafficking
in Human Beings, Explanatory Report, paragraph 155. Back
172
The Home Office has provided the POPPY Project with funds which
it can allocate to domestic violence refuges to provide accommodation
for trafficked women. Back
173
The report provides information on 55 women who were detained
between March 2003 and October 2007 in the UK under the Immigration
Act or by custodial powers between 2001 and 2007. Back
174
Italy is an example of best practice where trafficked persons
are granted renewable 6-month residence permits instead of reflection
periods. Back
175
Get it Right: How Home Office Decision-Making Fails Refugees,
Amnesty International, Feb 2004. Available at: www.amnesty.org.uk/action/camp/refugees/getitright.shtml Back
176
See, Overview and implications of the Government's new asylum
model, British Refugee Council [March 2007]: We are concerned
that to date, there has been little evidence of substantial improvements
in the quality of decision making, or of any profound change in
the underlying "culture of disbelief" that has permeated
Home Office decision making for many years. Feedback from voluntary
agencies involved in NAM implementation to date indicates that
Case Owners appear to be more concerned with adhering to rigid
timetables, than with exercising flexibility in the interests
of reaching an appropriate decision on an individual's asylum
claim. Back
177
Including China, Albania, Nigeria, Sierra Leone, Liberia, DRC,
Russian Federation, Ukraine, Kosovo, Vietnam, Cameroon and Romania. Back
178
A report by the NAM Quality Team looking at compliance with the
Gender API found that of the intake of cases at Yarlswood in February
2006 22 out of 45 cases referred were unsuitable for fast track.
Yarlswood Detained Fast Track Compliance with the Gender Asylum
Policy Instructions, NAM Quality Team, Home Office, August
2006. Back
179
"Prosecution of Defendants Charged with Immigration Offences
Who Might be Trafficked Victims". Crown Prosecution Service,
December 2007. Back
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