Modern Slavery Bill

Written evidence submitted by Hope for Justice (MS 35)

1. ABOUT HOPE FOR JUSTICE

Hope for Justice is an anti-trafficking organisation that identifies and rescues victims, advocates on their behalf, provides restorative care which rebuilds lives and trains frontline professionals to tackle slavery. We work from five offices across three continents including the UK and operate a multi-disciplinary model based on years of combined experience.

In the UK between 1st January 2013 and 31st December 2013 Hope for Justice assisted 104 victims of human trafficking.

2. EXECUTIVE SUMMARY

Hope for Justice welcomes the enactment of a Modern Slavery Bill and the willingness of the government to scrutinize policy and legislation to ensure that trafficking is prevented, perpetrators are prosecuted and victims protected. However Hope for Justice remains concerned at the lack of focus on support and protection of victims which will directly impact on the effectiveness of the bill in practice.

3. GENERAL NOTE

Where possible, the relevant section, comment and possible amendment have been included in this analysis with the main changes from the original text detailed in red. If a section has been excluded Hope for Justice has no specific comments. If an amendment has not been detailed it is because the comment lists a number of possible routes for amendment.

4. PART 1: OFFENCES

4.1 SECTION 1: SLAVERY SERVITUDE, FORCED/COMPULSORY LABOUR

Comment

Section 1 (1)

This is part ly reflective of the curren t legislation contained in Section 71 Coroners and Justices Act 2009.

Section (1) ( 2 )

The issue or confusion for prosecutors is less around the mechanism of the offence as contained in Section (1) (1) but around the definition of what is slavery, servitude or forced or compulsory labour. Reference is made to Article 4 of the Human Righ ts Convention (Section 1 (2)). However , Article 4 doesn’t define slavery, servitude or forced or compulsory labour , merely what it isn’t (Article 4 (3)). Defi nition s for these types of situations are detailed in other Conventions (Article 29 International Labour Organisation Convention 29 or in case law).

The lack of u nderstanding of how such things as forced labour are defined causes confusion and myths for front line agencies , especially law enforcement agencies , as to what are the constituents of slavery, servitude, or forced or compulsory labour – e.g. a common myth amongst police officers faced by Hope for Justice is that victims have to be locked up in order to be in forced labour. Another issue with the definition is that forced or compulsory labour requires some element of compulsion. This is a key issue that defence barristers use to attack cases as often victims are psychologically controlled or merely placed in a situation of dependency and can often physically walk freely. Another reason a person might stay is as a result of a dependency issue and fear of a worse situation of destitution. This is not readily u nderstood by jurors or judges.

The definition could be widened to catch all types of exploitation as defined in paragraph (3) , " meaning of exploitation " . This means that even when the "human trafficking" element is not proven , holding someone in all forms of exploitation will constitute an offence. This also takes into account the entrepreneurial ways in which traffickers exploit , e.g. this is not ju st limited to labour but also increasingly financial fraud , sham marriages . This also catches forced labour/servitude type scenarios which would fall short of international definitions yet which are, in effect , modern day slavery.

Sections 1 ( 3 ) and ( 4 )

It is useful to encapsulate common circumstances to determine whether a person is in slavery, servitude or forced/compulsory labour.

T here are common personal circumstances which are not listed such as a position of dependency, language skills , disability (note that disability is referred to i n section 39 (2) of the bill) . These are common themes to many cases of servitude and forced labour. Hope for Justice would have concerns that this is not sufficiently clear ; these elements aren’t defined and additionally common themes should be included such as position of dependency. Also , the term "may" as oppose d to " shall " imposes an element of legislative uncertainty as to whether personal circumstances should be taken into account.

Suggested Amend ment to Section 1

1. Holding a Person in Slavery, servitude and forced labour, compulsory labour or other forms of exploitation.

(1) A person commits an offence if-

(a) the person holds another person in slavery or servitude and the

circumstances are such that the person knows or ought to know that the

other person is held in slavery or servitude, or

(b) the person requires another person to perform forced or compulsory

labour and the circumstances are such that the person knows or ought

to know that the other person is being required to perform forced or

compulsory labour.

(2) In subsection (1) the references to holding a person in slavery or servitude or

requiring a person to perform forced or compulsory labour or other forms of exploitation are to be construed in accordance with Article 4 of the Human Rights Conv ention and/or any of the types of exploitation listed in section 3 of this Act.

(3) In determining whether a person is being held in slavery or servitude or

required to perform forced or compulsory labour , or other forms of exploitation , regard shall be had to all the circumstances.

(4) For example, regard shall be had to any of the person’s circumstances ; this shall include , but not be limited to ; age, family relationships, disability, position of dependency, language skills and any mental or physical illness which may make the person more vulnerable than other persons.

4.2 SECTION 2: HUMAN TRAFFICKING

Comment

Section (2 ) (2)

This section states that it is irrelevant if a person consents to the travel. However , there is nothing to indicate that consent to exploitation is irrelevant. Article 4 (2) of The European Convention on Human Trafficking (CETS 197) , hereafter referred to as the "Trafficking Convention" , and Article (2) (4) of the European Directive on Human Trafficking (2011/36/EU) , hereafter referred to as the "Trafficking Directive" , both state that consent to the exploitation is irrelevant where the means set out , e.g. deception , are shown. In this particular section there is no requirement in terms of means , merely the act , e.g. arranging or facilitating and exploitation to have occurred. It may therefore be useful to state at paragraph (2) (2) that it is irrelevant whether V consents to the travel and/or exploitation.

Section (2) (3)

The addition of Section 2(3) is helpful as this brings the definition more readily into line with the European Convention and Directive. As stated by Hope for Justice in previous consultations , traffickers will use different people in the chain who can be loosely and not easily e videntially connected , traditionally making it more difficult to prove the offence of trafficking. The addition of section (3) should close some of these loopholes and capture each perpetrator in the chain; the recruiter, transporter, receiver, exploiter, employee or agent of a business knowingly using labourers who are being exploited.

Additional Suggested Clause

Increasingly , Hope for Justice is seeing the involvement of agencies and businesses working with traffickers ; a provision which specifically encapsulates criminal liability in these circumstances would be helpful. It may also lead to companies becoming more responsible in terms of their duties to weed out trafficking in business.

Further provision relating to business

(6) A person commits an offence if P is the Director, Employee, Occupier and/or concerned in the management of any premises or business and he knowingly permits or suffers any of the activ ities detailed in Sections (1) and (2) to take place on those premises.

4.3 SECTION 3 MEANING OF EXPLOITATION

Comment

Section ( 3) (2)

It would be more useful to define such things as forced labour clearly within this section which then applies to " holding a person in exploitation" and also to "human trafficking." It is often the definitions of exploitation which cause the most confusion . Furthermore , it is useful to include some of the international definitions of such things as slavery to ensure that th ere is no incompatibility issue but slightly widen the scope of defi nitions in other sections , e.g. s ection (3) (5). This is useful because Hope for Justice does have cases which fall short of such things as forced labour but would still be considered exploitation within the European Convention or EU Directiv e definition. For instance , Article 2 of the Trafficking Directive includes "exploitation of criminal activities" within its definition. Increasingly this is a key way that traffickers are exploiting , e.g. cannabis cultivation, sham marriages, benefit fraud.

Section (3) (5) and (6)

Although many types of exploitation of criminal activities , e.g. forced begging , would fall within the definition of forced labour or securing services by force, threats or deception , some are not so clear ; two examples are listed below:

Case Study 1

An Eastern European National is recruited to come to the UK on the false promise of an offer of work. W hen he arrives the work doesn’t materialise but on arrival the trafficker takes the victim’s identity documents for criminal activities such as benefits fraud, opening bank accounts, taking out mobile telephone contracts and o pening up credit card accounts. The victim has been exploited for "criminal activities" ; however this may fall short of a definition of forced labour as it may well not be construed as " all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." Service could possibly be construed as the use of identity documents for the fraudulent activity , but may not be sufficiently clear to secure a conviction in the criminal courts.

Case Study 2

A mother has been recruited and brought to the UK with her children for the purposes of exploitation. The parent is in a situation of forced labour. The children are not working but their identity documents have been taken by the trafficker for fraudulent purposes , i.e. for child benefit fraud. The offence is clearer against the parent but in terms of the children they have been clearly recruited and transported for the purpose of exploitation , but independently this would fall short of a definition of forced labour and would not fall within the category of subsection (5) , as it would be difficult to show an 18 month old child had been forced, threatened or deceived unless it is made clear that this element doesn’t have to be shown for children and vulnerable persons in paragraph (6).

Section (3) ( 6 )

The use of the term young person is not easily defined. Using the term child would be clearer.

Suggested Amendments

(1) For the purposes of Sections 1 and 2 a person is exploited only if one or more of the following subsections apply in relation to the person:

Slavery

(2) (a) Is defined by reference to Article (1) (1) of Slavery Convention 1926 as:

t he status or condition of a person over whom any or all of the powers attaching to the r ight of ownership are exercised;

Servitude

(2 ) (b) Is defined as:

(i) an obligation to provide certain services to another; and

(ii) the obligation on the "serf" to live on the other's property; and

(iii) the impos sibility of changing his or her status .

" Impossibility of changing status " shall refer to a position where V is psychologically, physically or legally controlled , leading the person to have a belief that there is an impossibility of changing his or her status.

Forced or Compulsory Labour

(2 ) (c) Is defined by reference to Article (1) (1) of the International Labour Organisation Convention 29 as:

All work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

Debt Bondage

Is defined by reference to the Supplementary Convention on the Abolition of Slavery, The Slave Trade and Institutions and Practices Similar to Slavery 1953 article 1 (b) as:

the status or condition arising from a pledge by a debtor or his or her personal services or of those of a person under his or her control as security for a debt if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length of those services are not respectively limited and defined.

Securing S ervices etc. by force, threats or deception

(5 ) The person is subjected to either threat, force, threats, deception, coercion, abduction, fraud, abuse of power, position of vulnerability, position of dependency or psychological control designed to induce him or

her-

(a) to provide services of any kind,

(b) to provide another person with benefits of any kind, or

(c) to enable another person t o acquire benefits of any kind or

(d) to commit criminal activities which provide another person with benefits of any kind ,

(e) to enable another person to commit criminal activities which provide benefits of any kind .

Securing services etc. from children and vulnerable persons

(6 ) Another person uses or attempts to use the person for a purpose within

paragraph (a), (b) (c) or (d) of subsection (5 ), having chosen him or her for that

purpose on the grounds that-

(a) he or she is mentally or physically ill or disabled, is a child or has a

family relationship with a particular person, and

(b) a person without the illness, disability, being a child or family relationship

would be likely to refuse to be used for that purpose.

4.5 SECTION 5 : PENALTIES

General Comment

If the definitions of exploitation are widened then it does need to be recognised that there is a scale , with some cases more extreme than others and some ca se s very nearly crossing into la bour exploitation. For the offences with fewer aggravating features it would be quite extreme for a judge to sentence someone to life on indictment , e.g. where the actual abu se for instance is more limited. I f the definition of exploitation were widened then there would need to be scales of sentence for each type of offence. This could include a section listing the aggravating features (listed below) in determining a sentence. Lord Morrow’s Bill (Section 4) has a minimum sentence within the provisions which is of some assistance. [1]

Furthermore , Hope for Justice ha s had no case that has been tried in the Magistrates Court for trafficking or forced labour offences as they are usually very serious and also very complex cases. They ought for these reasons to be indictable only offences.

Comment

Section 5 (3)

The aggravating features are limited. O n the majority of the cases Hope for Justice deal s wit h you would not be able to show kidnapping or false imprisonment . T his would severely restrict the use of a life sentence in this provision . Wider aggravating features should be taken into account which reflect the type of o ffence being committed and the e ffect on victims. Examples of aggravating features which could be taken into account when deciding whether someone should have a 10 year or life sentence should reflect the seriousness of the offence and in particular the physical, mental and financial harm caused to the victim. A good reference point is the UNODC Anti-Human Trafficking Manual for Criminal Justice Practitioners ; this lists a number of other relevant aggravating features [2]

Additionally where the victim is a child or a vulnerable adult this should be classed as an aggravating feature.

4.6 SECTION 7 CONFISCATION OF ASSETS

General Comment

Hope for Justice welcome s the addition of all Modern Slavery Offences as lifestyle offences reflecting the need to ensure that perpetrators are financially held accountable, hitting directly the profits from trafficking. It may be additionally useful to ring fence confiscated assets that have not been used as part of a compensation or reparation order specifically for policing on human trafficking.

4.7 SECTION 8 POWER TO MAKE SLAVERY AND TRAFFICKING REPARATION ORDERS

General Comment

Hope for Justice welcomes the addition of reparation orders to the Bill. Currently compensation orders are rarely requested by prosecutors . Hope for Justice welcomes both the addition of this particular measure and also the provision in section (8 ) (7) which ensures the court must give reason why it hasn’t made such an order . It is important that victims of modern slavery receive justice at every level for what has happened to them ; financial justice in the form of restitution can be helpful to enable victims to rebuild their lives.

5. PART 2 PREVENTION ORDERS

General Comment

The order is on conviction and current conviction rates remain low. Also the conviction is on a slavery or human trafficking offence. However , if you have particularly vulnerable witnesses , e.g. a sex trafficking case , it may be that although there is a strong element of trafficking the case is prosecuted under other provisions such as money laundering. The perpetrator is effectively still a trafficker but this provision could not be used.

Also it would be useful to ensure that an order could be made even if the person is acquitted per se similar to the provisions in respect of restraining orders as prescribed by Domestic Violence Crime and V ictims Act 2004 Section 5 (A), a provision which allows a restraining order in a harassment case even if the perpetrator is acquitted.

Any prevention orders on such things as forced labour ought also to include a provision that the person is not allowed to recruit or employ a person as this is the key thing to preventing further incidents of such things as forced labour.

6. PART 3

6.1 SECTION 34 THE ANTI SLAVERY COMMISSIONER

General Comment

Hope for Justice welcome s the appointment of an Anti-Slavery Commissioner. However , the Commissioner ’ s role , in order to fulfil its functions well , should be independent. This is also the very essence of a Commissioner , e.g. the Children ’ s Commissioner is independent.

Suggested Amendment

34. The Anti-slavery Commissioner

(1)The Secretary of State must appoint an independent person as the Anti-slavery Commissioner  

6.2 SECTION 35 GENERAL FUNCTIONS OF THE COMMISSIONER

General Comment

The relevant functions of the Commissioner should be reflective of Article 21 of the Trafficking Directive which includ es "carrying out of assessments of trends in trafficking in human beings, the measuring of results of anti-trafficking actions, including the gathering of statistics in close cooperation with relevant civil society organisations active in this field and reporting." [1] Furthermore , essential to the prosecution of perpetrators is not just the identification of victims but appropriate support for victims before , during and after the prosecution process. [2] Therefore the functions of the Commissioner should include monitoring government policy and compliance with relevant legislation.

It is also paramount that the Anti-Slavery Commissioner gathers data from all organisations active in the field to inform of the nationwide picture of Modern Day Slavery. Currently data is heavily focused on those identified in the National Referral Mechanism. This doesn’t reflect the full picture as victims may choose not to go through this system , for instance because they are fearful of authorities and/or they may be illegal and fearful of deportation. Furthermore , a person can be a victim of modern day slavery but not necessarily fall within the definition of human trafficking , e.g. forced labour victim.

Suggested Amendment

(1) The Commissioner must encourage good practice in-

(a) the prevention, detection, investigation and prosecution of offences  
under sections 1, 2 and 4;

Modern Slavery Bill Page 25

(b) the identification of victims of those offences ,

(c) the protect i on and support of victims .

(2) The things that the Commissioner may do in pursuance of subsection   (1)  
include-

(a) making reports to the Secretary of State on any permitted matter;

(b) making recommendations to any public authority about the exercise of  
its functions in England and Wales;

(c) undertaking or supporting (financially or otherwise) the carrying out of  
research including gathering statistics on the extent of and trends in human trafficking ;

(d) providing information, education or training;

( e) c onsulting people;

(f) co-operating with or working jointly with other persons, in the United  
Kingdom or elsewhere.

(g) monitoring compliance and effectiveness of government policy ;

(h) monitoring in England and Wales implementation and compliance with its obligations under relevant legislat ion including but not limited to The Trafficking Convention (CETS 197) and Trafficking Directive (2011/36/EU) ;

(i) consider the potential effect on the rights of victims of human trafficking of government policy proposals and government proposals for legislation.

(3) In subsection   (2)(a)   "permitted matter" means a matter which-

(a) the Secretary of State has authorised the Commissioner to report on, or

(b) the current strategic plan, approved by the Secretary of State under  
section 36 (6) , states is a matter the Commissioner proposes to report on.

(4) The Commissioner must (after ascertaining whether the Secretary of State  
wishes to exercise the power conferred by subsection   (5) ) publish each report  
made to the Secretary of State under subsection   (2)(a) .

(5) The Secretary of State may direct the Commissioner to omit from any report  
before publication any material whose publication the Secretary of State  
thinks-

(a) would be against the interests of national security,

(b) might jeopardise the safety of any person, or

c) might prejudice the investigation or prosecution of an offence.

(6) Where a report contains recommendations about the exercise by a person of functions of a public nature, the Commissioner may require that person to state in writing within such period as the Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations.

7. PART 4 PROTECTION OF VICTIMS

7.1 SECTION 39 DEFENCE

General Comment

Hope for Justice welcome s a statutory provision on non - prosecution ; reference is made to non- prosecution of victims in Article 26 of the Trafficking Convention and Article 8 2011/36/EU. Furthermore , although there is good guidance from the CPS on non-prosecution of victims this has failed to prevent victims, especially children , being prosecuted. However , Hope for Justice has concerns that this provision would be too difficult to enforce with its current form , in particular the clause a ppears to have a 3 part test as follows:

1. Compulsion to do an act (Section 39 (1) (a)) ;

2. Directly related to trafficking (Section 39 (1)(b) ) ;

3. A reasonable person in the same situation as the person and having the  
person’s relevant characteristics would have no realistic alternative to  
doing that act (Section 39 (1) (c) ).

Comment

Section 39 (1) (a)

In the first part compulsion needs to be clearly defined as there could be a tendenc y to relate compulsion to a context of a criminal defence of duress. Trafficked people often fall short of the requirements for a defence of duress which is focused heavily on a coercive element , i.e. physical compulsion via direct harm or serious threats . In the matter of LM and Ors [ 2010] EWCA 2327 this was recognised in the judgement at paragraph 11 – "Article 26 which is clear, uses the word "compelled" in a general sense appropriate to an international instrument and is not limited to circumstances in which the English common law defences would be established."

It is Hope for Justice’s experience that traffickers cho o se victims well, often because of existing vulnerabilities e.g. economic, mental health issues, alcoholism or cultural factors and poor language skills. Furthermore , they are masters of psychological manipulation , often placing victims in a situatio n of dependency, grooming them and / or psychologically manipulating the victims into believing they have no reasonable choices.

Section 39 (1) (b)

This is reflective of existing elements of international con ventions e.g. Article 26 of the Trafficking Convention and Article 8 of the Trafficking Directive.

Section 39 (1) (c)

This imposes an objective element interspersed with a subjective element. Howeve r , none of the non- prosecution clauses contained in Article 26 of the Trafficking Convention or Article 8 of the Trafficking Directive use such terminology , merely that there should be non- prosecution where trafficked people have been compelled to commit a crime. It is also problematic in terms of directing a jury to place themselves in exactly the same position as the victim. The clause in effect is unnecessary and causes greater confusion.

Section 39 (2)

The list o f char acteristics is relevant but non- exhaustive , which means that it misses many common characteristics relevant to trafficking cases – for instance ethnicity, economic and religious factors . It may be better to include either a wider list or to draft the section in a way which indicates that it is non- exhaustive.

Section 39 (3)

The circumstances of trafficked victims are so very far from that of a normal person, their perceptions and judgements of situations are extremely distorted and their psychiatric stability will be severely diminished. These are factors that should be taken into account in a concept of "compulsion."

Helpfully, Section 39 (3) does state that " compelled " can be via a person’s circumstances. It may be helpful to go further and define more clearly or include examples of what is meant by "personal circumstance." The O rganisation for S ecurity and C ooperation in E urope ("OSCE") produced a document entitled Policy and Legislative Recommendations Towards the E ffective Implementation of the Non-Punishment Provision With R egard to V i ctims of T rafficking. [3] At paragraph 12 the Special Commissioner comments , "the non-punishment provision should be interpreted in light of the definition of trafficking in human beings, especially with regard to compulsion. A comprehensive understanding of compulsion includes all the means of trafficking: threat/use of force, other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability. Being "compelled" to commit a crime thus includes the full array of factual circumstances in which victims of trafficking lose the possibility to act with free will; not only under the threat of physical violence or emotional abuse but also in the devastating prevalent scenarios wherein traffickers exploit victims by abuse of a position of vulnerability." [4] In particular the Bill currently introduced in Northern Ireland is much more simplistic and does take into account these kinds of factors when assessing the concept of " compelled " . [5]

Section 39 (4)

The clause relates directly to conduct which constitutes an offence under Section (1) or (3) of the bill. However, in practice it may be difficult to apply the concept directly relating to a criminal standard of the offence, e.g. would there have to be a prosecution/conviction for the relevant trafficking offence against the trafficker? If so this defence could fail on many cases as traffickers are prosecuted for other offences which can be lesser offences. This clause should focus on whether a victim has been trafficked or subjected to slavery, forced or compulsory labour, exploitation and/or human trafficking rather than whether a criminal standard of an offence is met.

Also the clause doesn’t take into account the special and unique vulnerabilities of children and it may be that a separate non-prosecution clause that relates to children ought to be drafted.

Section 39 (7)

The provision is lessened by the addition of this clause as Schedule 3 contains a large list of exempted offences. The explanatory notes at paragraph 146 advise that the defence will not apply to "certain serious offences." This is reiterated at paragraph 153 which states "certain serious offences, mainly serious sexual or violent offences…" However, Schedule 3 includes offences which are not necessarily serious or sexual offences as prescribed in the explanatory notes, for instance in section 38 (assault with intent to resist arrest) a mere struggle would be sufficient to make out the offence which could be relatively minor in nature. It also includes at paragraph 36 offences relating to the Modern Slavery Act; this would mean (as can be the case) the victim has assisted in the exploitation of others whilst compelled to do, so they ironically would not be able to avail themselves of the defence.

Furthermore, the issue is that they have been compelled, so the offence is irrelevant to that as the victim had no real choice. The common law defence of duress has limited exemptions – murder, attempted murder, accessory to murder and treason or the harm is disproportionate.

General Comments on Standard of Proof

There is no clause that relates to standard of proof. It certainly would be worth inserting a clause which operates similarly to the common law defence of duress, namely that the defence raise the defence to an evidential standard; the burden then shifts to the prosecution to demonstrate that it doesn’t apply to a standard that is beyond reasonable doubt. A similar provision was contained in the Joint Committee Report on the Modern Day Slavery Bill at section 22 (3) [6] .

Furthermore, The Anti-Trafficking Monitoring Group has drafted an alternative bill. Section 15 of that bill is in line with the comments detailed above. [7]

7.2 SECTION 41 CHILD TRAFFICKING ADVOCATES

General Comment

Hope for Jus tice welcomes the addition to the Modern Slavery Bill of child advocates. This is clearly required as statistics estimate that approximately 60% of those suspected to be child trafficking victims go missing in local authority care with two thirds never found. [8] Advocacy is essential in ensuring that child trafficking victims receive appropriate care and support.

Comment Section 41 (1)

The provision is not mandatory. If assistance and support to child trafficking victims is to be consistent across the country this provision needs to be mandatory.

Comment Section 41 (2)

Hope for Justice welcomes the provision to ensure that the advocate is independent of persons making a decision about the child. This will allow an advocate the ability to advocate in situations where the child is not being provided with appropriate services and support.

Comment Section 41 (4)

Hope for Justice welcome s the provision of further regulations detailing the role and responsibilities of a child advocate pending the outcome of pilot schemes. Hope for Justice would suggest that given the complex nature of child trafficking and the extensive legal avenues that a child trafficker is likely to pursue that any child advocate would need to have some legal authority to make decisions on behalf of the child. Also a child advocate would require fairly extensive training and a person with a legal background , e.g. a child care solicitor who has both a background in care proceedings but also general law would be an appropriate person to appoint to the se highly specialised positions , given that it i s likely that such an advocate would have to negotiate through a variety of different legal systems including immigration, care proceedings, civil proceedings and criminal proceedings.

Also such an advocate would need to be appointed as soon as there is reasonable suspicion that a child is a victim of human trafficking in order to prevent the type of scenario seen where children go missing very quickly in local authority care.

7.3 SECTION 42 GUIDANCE ABOUT IDENTIFYING AND SUPPORTING VICTIMS

General Comment

Currently it i s unclear as to which Secretary of State will be responsible for the provisions or indeed whether a number of Secretary of State s should do so given that trafficking is relevant to a number of different departments. Also it should be made clear that the Secretary of States for different departments have to cooperate regarding the issue of human trafficking. This may avoid some of the policies decisions in other department e.g. D epartment of Work and Pensions (DWP) which are detrimental to the sup po rt and assistance for victims after the 45 day recovery and reflection period.

7.4 SECTION 43 PRESUMPTION ABOUT AGE

General Comment

The provision is an attempt to transpose into national law the provisions of the UK’s European obligations pursuant to Article (10) (3) of the Trafficking Convention and Article 13 (2) of the Trafficking Directive. However , there are significant issues and conflicts that arise in terms of verification of age , for instance Hope for Justice have recently had a case where a local authority verified the age of a victim of trafficking as an adult , yet an expert report verified that the victim of trafficking was in fact a child during litigation. Despite there being an expert report on the issue another local authority insisted that they had to do a further age assessment.

In order to be effective the provision needs to :

1. Extend the lega l presumption to all victims of modern slavery not just trafficking victims ;

2. Needs to apply to all public bodies – as this will ensure that across all bodies there is consistency in treatment e.g. immigration and social services ;

3. The legal presumption should be in place pending final outcomes of age , e.g. where there is a dispute with an expert report for instance there should continue to be a legal presumption that the victim is a child pending any final determination of age , e.g. including any litigation procedure .

Also S ection 41 (2) seems to assume that an age assessment will be carried out by a local authority. However , there is no such obligation and there should be no requirement imposing such an obligation. If a child states they are a certain age and there is no strong evidence to the contrary , this presumption should be accepted instead of putting an often disorientated and traumatised child through further unnecessary assessments. Furthermore , if there is a thorough independent expert report on the issue there should be no need for conducting further age assessments.

Research by the Immigration Legal Practitioners Association (ILPA) entitled "When is a Child Not a Child" highlights these issues and in particular recommends a more holistic approach using a principle of a legal presumption that a child is a child if this is what they state unless proven otherwise , the establishment of independent age assessment centres, better understanding and training for practitioners and improvements to the age assessment process. [9]

7.5 SECTION 44: DUTY TO NOTIFY NCA ABOUT A SUSPECTED VICTIM OF SLAVERY OR HUMAN TRAFFICKING

General Comment

A duty to notify could be helpful in understanding the wider picture of human trafficking , particularly capturing statistics where the victim doesn’t enter the NRM system. However , it needs to be made clear that notification should only be made where the victim isn’t going to enter the NRM system as this will result in duplication of statistics. Furthermore , the collation of reasonable statistics on the wider picture is dependent on ensuring that all front line agencies have training on indicators of trafficking , otherwise they will not be able to identify victims in the first place.

8. VICTIM CARE ISSUES AND SUGGESTED ADDITIONAL CLAUSES

8.1 Legal Assistance for Victims

Current proposed changes to Legal Aid will have a devastating effect on a victim’s ability to obtain legal representation in all aspects of their case. There are particular concerns around the residency test and also proposed changes to judicial review where there will be no legal funding prior to the payment for permission stage. Many victims of trafficking have had their documents taken and whilst in their exploitative situation cannot prove residence or may not have been resident in the country 12 months. Of those rescued by Hope for Justice between April 2012 and March 2013, 70% of the victims (EU Citizens) had been lawfully in the country less than 12 months. In this situation the victims would not satisfy the residency test and would be out of time after 12 months for some legal actions; for instance, judicial review applications have a maximum limitation period of just 3 months and also have to be made promptly.

Furthermore, the government have conceded that victims of human trafficking should not have to pass a residency test; this is by reference to Schedule 1 Section 32 Legal Aid Sentencing and Punishment of Offenders Act 2012. This relates explicitly to immigration, civil actions, employment tribunal claims. However, many victims do require legal assistance for other aspects such as housing, welfare benefits and applications for judicial review if they receive a negative reasonable or conclusive grounds decision of trafficking, and family law issues, for instance sham marriages. Furthermore, victims of domestic servitude and forced labour outside the ambit of human trafficking referred after 1st April 2013 will not have the same right to legal representation in what can be highly complex cases.

Case Study 3

Hope for Justice received a referral from a homeless charity they had trained in indicators of trafficking in respect of an Eastern European couple with indicators of trafficking for forced labour. Hope for Justice met with them the same day and they were referred to the Salvation Army who placed them into the National Referral Mechanism. Both victims received positive Conclusive Grounds decisions of trafficking. Hope for Justice arranged a follow up visit and were advised initially that follow on accommodation had been arranged. Their biggest fear wasn’t the trafficker or engaging with the police investigation, it was being made homeless. However, subsequently without the knowledge of Hope for Justice the two victims were exited after their 45 days plus 14 days onto the streets. They had the day before been presented to the local council who had refused to accommodate them under homelessness provision. Hope for Justice managed to meet with them, re-presented them at the council and rigorously advocated for them to be housed. The council agreed to provide emergency accommodation whilst deciding whether they were in priority. Subsequently, Hope for Justice had to get a Housing Solicitor involved when the council decided they weren’t in priority need and ensure they weren’t made homeless whilst an appeal was lodged. The council had to be threatened with judicial review before they agreed to this. Subsequently Hope for Justice found follow on supported accommodation. Without Hope for Justice’s ongoing assistance these victims would be homeless and at risk of being re-trafficked. In their case this was a real risk as they had been trafficked to and then within the UK on at least 3 occasions prior to the involvement of Hope for Justice.

These victims would not have been able to obtain legal assistance under new changes as they would not be able to prove residency because of their repeated trafficking situation.

Case Study 4

Hope for Justice have recently had an enquiry about family law advice for victims of trafficking for sham marriage. The marriage is legal and thus these impoverished victims would require a family lawyer to intervene and obtain an annulment. This would not fall under the usual provisions under Section 32 and there are significant problems obtaining exceptional funding.

Legal challenges are essential to ensuring that policy and legislation protect the most vulnerable and guarantee equality before the law. Furthermore it ensures victims receive the correct support and assistance to allow them to stay in the country to pursue both criminal and civil actions. Legal support is essential for victim support and perpetrator accountability.

Also since the Schedule 1 Section 32 Legal Aid Sentencing and Punishment of Offenders Act 2012 came into force, for many of the civil cases, victims are being repeatedly denied legal aid to a level where legal representatives have to appeal decisions and subsequently pursue judicial review applications to ensure victims receive legal funding. This satellite litigation is substantially delaying assistance to victims on these matters. Furthermore, exceptional funding is not proving a useful method to allow victims to obtain legal support on other aspects of their case given that since LASPO was brought exceptional funding has only been granted in 35 cases.

A clause should be added amending Schedule 1 Section 32 Legal Aid Sentencing and Punishment of Offenders Act 2012 extending legal aid provision for victims of human trafficking and modern day slavery on "reasonable suspicion" (i.e. prior to a reasonable grounds decision) of being a victim regardless of length of time of residency and relating to all legal aspects of their case involving human trafficking. This should include but not be limited to judicial review applications, housing, welfare benefits, family law as well as civil proceedings, employment tribunal proceedings and immigration. This brings legal assistance for trafficked people into line with Article 12 of the Trafficking Directive. Furthermore this should prevent satellite litigation in the future which will ultimately prove costly for the government.

The alternative to this would be to set up a legal fund specifically for trafficked people embodied in this legislation. Such a clause was contained in paragraph 26 page 24 of the Joint Committee Report on the Modern Day Slavery Bill.

8.2 Welfare Assistance

From the 1st January 2014 the DWP brought in a more stringent habitual residency test. This includes a provision that an EEA national has to be resident in the country for a period of 3 months prior to being able to claim benefits. [10] Furthermore, as of 1st April 2014 EEA Nationals will not automatically receive Housing Benefit. [11] Eligibility will depend on whether they have worked including a minimum threshold of pay.

Many victims do have to claim benefits for a time to allow a period for them to recover from their trauma and ensure they have all the correct documentation in place to allow them to then seek work, e.g. applications for NINOs, new documentation. Although the victims we deal with do have positive Reasonable Grounds decisions, many, because of the exploitative nature of the situation and due to documents being retained by traffickers, do not have the proof required for eligibility for Job Seeker’s Allowance or Housing Benefit. This is proving problematic for those who wish to stay in the UK and look for work as well as cooperate with a criminal investigation. Although victims do have the option of applying for limited leave to remain (formerly discretionary leave to remain) this is often initially refused for EEA nationals and it can take UKVI many months to make a decision. This leaves a gap in the system placing prosecution witnesses without basic housing and subsistence which is in non-compliance with Article 11 of the Trafficking Directive.

Case Study 5

Hope for Justice rescued a victim of human trafficking who is an EEA National. The victim is terrified to go home because of fears that he might be killed by the trafficker. In fact he has stated if he does have to return home he will not continue to cooperate with a police investigation because of his fears of reprisals. The victim applied for Job Seeker’s Allowance which was initially refused as he could not (because of his situation of exploitation) provide evidence that he had worked or had been in the country more than 3 months. Hope for Justice subsequently managed to get the decision overturned but it would be questionable as to entitlement to Housing Benefit under the changes to the rules. An application has been made for discretionary leave to remain but this has initially been refused by the UKVI on the basis that he has a right to reside. Despite the changes to the benefit laws being explained in a letter in support, the UKVI failed to take into account this situation and the victim’s lack of recourse to public funds, despite being an EEA national, following the changes. Although initially the Home Office have extended the period of aftercare under the contract for provision of services to trafficked people, with 2 working days notice they have now refused to fund any further assistance leaving the victim effectively homeless in 2 days.

The relevant regulations need urgent amendment. In reality, those who are victims of modern slavery should not have to pass a Habitual Residence Test under any circumstances. Eligibility for welfare assistance should be dependent on their status as victims. This is particularly important if the UK is to comply with its obligations under Article 11 of the Trafficking Directive.

8.3 Leave to remain

Currently because of the changes to welfare as above even EEA nationals are now having to apply for leave to remain. This can take months to sort out, leaving a gap between the end of the 45 day recovery and reflection period and the ability of trafficked people to access second phase support leaving victims at risk of homelessness and destitution. The uncertainty of the situation after the 45 day recovery and reflection period is causing a significant level of stress for victims and Hope for Justice are seeing victims with secondary symptoms of trauma as a result of the uncertainty about their future. These include a sense of hopelessness, anxiety, fear, poor sleep, agitation, depression, heavy drinking and a distrust of support organisations trying to assist. To create certainty and allow immediate access to all services it would be more beneficial to grant leave to remain for 1 year automatically if the victim receives a conclusive grounds decision of trafficking and needs to remain in the UK owing to personal circumstances, cooperation with a criminal investigation or pursuing a claim for compensation. Further extensions could then be made where necessary.

8.4 Housing

Currently if victims present as homeless they are not necessarily eligible or classed as being in priority need. It would be helpful to amend the Housing Act 1996 via an Order to include victims of modern day slavery as being eligible and in priority need, regardless of length of time in the country.

Case Study 6

Hope for Justice rescued an EEA national. As a result of a housing issue Hope for Justice had to present him and his family as homeless to a local authority. Despite being a key prosecution witness and Hope for Justice stating obligations under care provision as well as obligations of the Trafficking Convention and Directive the local authority rejected the application and advised that the family weren’t in priority need. As the parents were now homeless the local authority also threatened to remove the children, causing considerable distress to our victim. Hope for Justice instructed a housing solicitor to act on behalf of the victim in order to apply for judicial review. Due to the threat of judicial review the local authority backed down and housed the family pending appeal. Subsequently the local authority did agree that the family were in priority need based on Hope for Justice’s initial advocacy and written representations prior to appeal.

8.5 Minimum Wages and Workers Domestic Visa

Family Worker Exemption to the National Minimum Wage Regulations 1999 (Regulation (2) (2))

Currently the exemption coupled with judicial interpretation of Regulation (2) (2) makes it incredibly difficult for overseas domestic workers who may be subjected to forced labour/domestic servitude to claim back the min imum wage. ATLEU has brought a number of claims for vulnerable migrants and in each case the family worker exception was invoked by the respondent. [12] The impact of this is to:

· Strengthen the employers hand pre-litigation as the claimants entitlement to the national minimum wage is unclear

· Adds time to the preparation of the case and any public funding costs

· Places workers who are often working on their own at a disadvantage in giving evidence as they are often the only witness

· Renders it difficult for migrant domestic workers in abusive conditions to enforce their rights.

Workers Domestic Visa

Furthermore, s ince April 2012 new workers entering the UK on a domestic worker visa may only stay in th e UK for a maximum of 6 months. This is insufficient time for workers to escape and also make a criminal complaint or litigate cases in the employment tribunal. Furthermore , current measures tie the migrant workers to their employers preventing them from leaving. This only serves to reinforce exploitation. A recent report by Kalayaan indicates that there has been an 18% increase from 2012 in the number of referrals for domestic servitude into the National Referral Mechanism in 2013. [13] In order to protect workers against exploitation including conditions which amount to Modern Day Slavery , the Domestic Workers Visa needs to be re-instated in its entirety with the visa extended to diplomats.

Such clauses have been contained in section 19 of the Anti-Trafficking Monitoring Group alternative bill. [14]

October 2014