Immigration Bill

Written evidence submitted by the Anti-Trafficking and Labour Exploitation Unit (ATLEU) (IB 28)

House of Commons Committee Stage of the Immigration Bill 2015

About ATLEU

The Anti Trafficking and Labour Exploitation Unit ("ATLEU") was founded by five lawyers who had developed a niche practice working with victims of trafficking. They established ATLEU to provide a sustainable, comprehensive and dedicated legal service to help victims of trafficking and labour exploitation ("victims") to obtain safety, recovery and redress and to develop policy and jurisprudence to enhance victims’ rights. ATLEU has been operating since November 2012, initially in partnership with Islington Law Centre, and since April 2013 as an independent charity. Its charitable objects are to promote the interests of those who have suffered and who suffer abuses of human rights, in particular trafficking, through legal representation and strategic casework. ATLEU’s registered charity number is 1151675.

General comments

We have had sight of the briefing prepared by the Immigration Law Practitioners’ Association for the second reading of the bill and endorse their conclusions and amendments.

We are concerned that provisions in the Immigration Bill jeopardise the stability available to victims, potentially discouraging them from staying away from situations that could lead to exploitation and endangering their long term recovery. The Bill therefore has the potential to run counter to the government’s stated aim to combat modern slavery and the UK’s obligations under international law that seeks to protect victims of trafficking.

Part 1 – Labour Market and Illegal Working

We agree with the comments of ILPA about the potential for this bill to be used to ensure better protection for migrant domestic workers. We attach our submission to the review of the Overseas Domestic Worker visa containing case studies relevant to this area for more background. We ask parliamentarians to seek assurances about the timing of the review and publication so that it can be considered during the passage of this Bill.

Part 2 – Access to services and Part 3 – Enforcement (Section 3c leave)

One of the stated aims of the Council of Europe Convention on Action Against Trafficking in Human Beings is to protect victims. This arises from an acceptance of the factors that make them more at risk from harm, for example, poor mental health, physical ill health, lack of ability to self determine. The Explanatory Report to the Convention explains particular needs of victims of trafficking and why stability is so important for people recognized as victims of trafficking for example:

· Victims who break free of their traffickers’ control generally find themselves in a position of great insecurity and vulnerability.

· Victims should have standards of living capable of ensuring their subsistence through measures such as appropriate and secure accommodation, psychological and material assistance.

· Psychological assistance is needed to help the victim overcome the trauma they have been through and get back to reintegration into society. The Convention provides for material assistance because many victims, once out of the traffickers’ hands, are totally without material resources.

· Two common features of victims’ situations are helplessness and submissiveness to the traffickers due to fear and lack of information about how to escape their situation.

· Access to the labour market, vocational training and education helps victims reintegrate socially and take greater charge of their lives.

· The greater victims’ confidence that their rights and interests are protected, the better the information they will give. Availability of residence permits is a measure calculated to encourage them to cooperate.

(The report is available in full here: www.coe.int/t/dghl/monitoring/trafficking/Source/PDF_Conv_197_Trafficking_Erev.pdf ).

Risks to our client group from these parts:

· Individuals who have just escaped a situation of exploitation may have no documentation on them. This could be because it has been withheld or destroyed by their employer or they took the chance to flee without having time to locate paperwork. This Bill has the potential for discrimination against potential victims of trafficking who do not have documents to prove their status or identity.

Case study 1

A support organisation for domestic workers contacted us with their concern about how they would find shelter for individuals attending their drop in after they had just escaped exploitation. A responsible organisation like this one views it as important that any referral into the NRM is done with the informed consent of an individual, and assistance from an interpreter if needed. A woman arrived at this organisation’s drop in on the weekend when there was only one member of staff and a full waiting room. Her case could not be discussed in detail that day and an immediate NRM referral could not physically be done by the staff member or explained to the client, even if this was appropriate. The staff member felt that if the Immigration Bill had been enacted at that time she may have been unable to find any hostel willing to accommodate this woman overnight, but did not want to make an inappropriate or uninformed NRM referral. She would have had nowhere to house this woman if she was turned away because of lack of documents.

· Victims have particular support needs - A number of our clients are granted residence permits as victims of trafficking on leaving a situation of exploitation, once recognized with this trafficking status by the Home Office. This can be before a protection claim is decided or even when there is no protection claim made. Applications to extend these short term residence permits can take time to be decided and because of their experiences, victims of exploitation are particularly in need of a safety net for their support and security in the gap between obtaining a final decision on their case.

Case study 2

Our client is from Tanzania and began work for her trafficker at the age of 15 in her home country. She is illiterate and has worked in domestic service all her life. She has been diagnosed by a psychologist as having post traumatic stress disorder, as being of low average intelligence and having the social functioning age of a 12 year old. She entered the UK on a domestic worker visa valid from October 2006 to work for the same individual she had worked for in Tanzania. She was subject to very poor conditions which she endured only on the understanding that her employer would pay money into an account in Tanzania that could be used for her daughter (which was not done after 2008). She was assisted by the police to leave her employer in March 2010 and referred to the UK Home Office to be considered as a victim of trafficking in September 2010. She was then confirmed as a potential victim of trafficking by the Home Office the same month. In November 2011 the Home Office decided conclusively that our client was a victim of trafficking and granted her a residence permit valid to 4 November 2011. In October 2011 our client applied for leave to remain as a refugee and this was refused on 2 November 2011. On 4 November 2011 our client made an in time application for further leave to remain as a victim of trafficking under Home Office policies for discretionary leave to remain for this group of individuals. This was considered to be out of time by the Home Office and they wrongly told the DWP that our client had no leave to remain leading to her in destitution with her benefits stopped. Our client faced huge arrears of rent with no housing benefit in payment. A support organisation was so concerned they helped her apply for two small charitable grants but our client did not even have the bus fare to come and collect the money. The support worker wrote:

"She is consequently in a position where in spite of her entitlement to benefits having been clearly established, still one month later, having no income, inadequate food and being in large rent arrears. She does not seem to be able to take responsibility to look after her basic needs without direct individual support from someone she trusts… When talking about planning her basic needs (even a few days ahead) she has again used the phase ‘one by one’ with me. It appears to me she does not plan for or think about her medium or long term prospects."

Eventually she gained the support of the local authority. A judicial review was issued challenging among other things the Home Office conclusion that the application was out of time. It was not until June 2013 that a consent order was signed by solicitors for the Home Office agreeing that our client’s leave to remain would be considered to be continuously valid from 4 November 2011 and a new decision be made on her application. On 2 July 2014 the Home Office ostensibly refused our client’s application for further leave to remain. She appealed against this decision and a hearing took place in March 2015. The judge issued a decision in April 2015 stating that our client had not formally been refused leave to remain yet by the Home Office so this matter needed to be reconsidered by them. Therefore her application for further leave to remain remains outstanding although we have nothing from the Home Office in writing to confirm this. We have recently had to make representations on behalf of our client to ensure she could continue to access public funds and education as she could provide no documents that were expected of her by the DWP or the college to show her entitlements. It was the opinion of a psychologist in 2015 that she had been traumatised by both her experiences in the UK and Tanzania.

This case highlights:

Ø Examples of vulnerabilities that are not uncommon in the subjects of exploitation.

Ø How errors can arise within the Home Office while an application is considered.

Ø The lengthy process for making a decision on an application and going through the appellate system.

Ø If central government gives up its responsibility to support those who are in need then this can fall on the local authority, ultimately saving no public money, merely shifting the cost burden elsewhere. This makes no financial sense in our view and we fear local authorities will be in the same position as with this client if the provision about continuing leave is removed by the Immigration Bill. We are most concerned about those who may feel they can no longer cope if financial support is not available to them via legal channels. This would leave them with fewer choices, and make it more likely that they could return to a situation of exploitation simply to ensure they have shelter and food.

· Security is essential for recovery - Having access to basic services and a recognition of continuing leave in order to do so (via section 3c of the Immigration Act 1971) is vital to ensure that our clients are given security of accommodation and financial support to allow them to recover from their experiences while they are waiting for extensions of leave to be decided or for court cases about any such application to be determined if initially refused by the Home Office. If the Bill allows the Home Office to cancel continuing leave after an application for an extension of leave is submitted, or requires service providers such as banks to check immigration status (and request documentary proof of continuing status) then individuals whose original documents are with the Home Office will be put in an invidious position. They will be disproportionately affected by the resulting sense of insecurity and lack of support because they often do not have the personal resources to assert their rights to people in positions of authority. Many of our clients are from poor backgrounds and are without the benefit of any or advanced education, and often have been subject to treatment that leave them in a submissive mindset or affected by trauma that takes many years to recover from. If they are unable to easily access a source of financial support while they are in this stage of recovery they can be re-traumatised by the resulting insecurity, and could be liable to re-exploitation as a means of supporting themselves.

Case study 3

Our client is from Sri Lanka. She was a victim of domestic violence with psychological damage from her past experiences. She was subject to trafficking into the UK. She was recognized as such by the UK government. She has had a residence permit granted in 2011 to enable her to remain in the UK and pursue a compensation claim but a further extension was refused in October 2014 as it was deemed there was no need for her to be present in the UK while enforcement proceedings for the compensation claim took place. She had an appeal hearing against the refusal in May 2015 but a judge held the appeal could not proceed since our client had not been served with reasons for refusal by the Home Office. The Home Office then did this and the appeal was lodged again. A request for reconsideration was made to the Home Office which has not been answered. The case is complex and relies on our client’s right to reparation for past breaches of Article 4 ECHR against her, Article 8 ECHR and Article 15 of the Convention on Action Against Trafficking regarding her ability to guarantee compensation for damage caused. Our client has outstanding continuing leave but because she has no recognized documentary proof of this from the Home Office due to the way her case has progressed (the Home Office failed to issue her with the biometric residence permit she was entitled to) she has been unable to secure a job and relies on benefits. She has been diagnosed by a clinical psychologist as having depression and post traumatic stress disorder and as requiring a stable, secure environment to recover from her experiences, including financial security and access to choices of employment where her employment rights will be respected. The psychologist said her mental health is unlikely to improve without a high level of support from the authorities and in her personal life.

This case highlights:

Ø How financial security and support is part of the recovery package for victims of trafficking.

Ø How gaps in support already occur and are not adequately remedied by the authorities for those who need help most.

Ø Misunderstandings among the wider public about legal entitlements in the absence of clear documentary evidence to this effect.

· Victims unable to advocate for themselves – We already deal with requests to prove immigration status for clients who have faced demands for documentation from the DWP after an application to extend their leave has gone in. Sometimes no acknowledgment letter arrives from the Home Office after an application is submitted, or the letter that does arrive is silent about continuing entitlement to work or access public funds. Receiving such requests already leaves our clients panicked at the prospect of their support ceasing if they cannot provide the explanations required. The number of specialist providers of free legal advice is reducing and we already have more referrals than we can handle so the government should not rely on the assumption that there will always be legally aided immigration advisers to help people explain their entitlements. Answering these requests is in any case done out of goodwill as it is not something you can charge to the Legal Aid Agency. We can only anticipate this situation getting worse, to the detriment of the health and wellbeing of our clients, if the Immigration Bill is enacted in its current form.

Part 4 - Appeals

Risks to our client by this part:

· Arguments engaging Article 4 and 8 ECHR often arise in cases involving victims of trafficking, even where there is no protection argument raised. It would be incredibly difficult to mount a challenge to a negative human rights decision made by the Home Office if our client was overseas. Our client group would be unlikely to have the resources or familiarity with modern technology to allow us to take instructions by skype or keep in regular contact with them. As many clients who fall into exploitation have little or no education they could not be expected to maintain any written communication with us or to draft any documents needed for an appeal themselves. Victims of trafficking are often submissive, frightened of authority figures and find it hard to establish relationships of trust. Face to face relationships are essential when working with individuals who have been subject to abuse and exploitation, especially to maintain hard won confidence and trust, which can easily be eroded if someone feels insecure again.

Case study 4

This is from the reported case of EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC) ( www.bailii.org/uk/cases/UKUT/IAC/2013/00313_ukut_iac_2013_ek_tanzania.html)

Our client was a woman from Tanzania trafficked to the UK as a domestic servant and then internally trafficked after escaping from her first employers. She became very ill as a result of an untreated pulmonary condition while she was living with her trafficker. The government made a decision to remove our client in July 2010 but she was able to appeal within this country. Her case was initially unsuccessful at the First Tier Tribunal and her asylum claim was dismissed. However it was successful at the Upper Tribunal on Article 4 grounds in June 2013 with the Tribunal holding as follows:

" In our view, it is appropriate to start from the appreciation that the appellant’s medical condition is linked to the breach of her rights under Article 4 of the Conve n tion, in other words that the State should recognise a degree of responsibility for it.  From this starting point it is difficult to see that to remove the appellant at this stage, when she suffers from such serious physical and mental health problems, from the care of the medical regime which she presently benefits from, and to r e turn her to a country where facilities for the proper care of her present and likely needs are absent, to the extent that her life expectancy will be greatly reduced, can be seen as a return with due regard for her dignity. The reality of the appellant’s situation is that she is a very ill woman who will require on-going care of a specia l ised nature and is likely to have to undergo major surgery of a dangerous sort. It is now clear, from the combined evidence of Dr Davidson and Ms Lees, that the sort of specialist care which the appellant will definitely require on an on-going basis, as well as the specialist care which she is likely to need on an emergency basis to combat life threatening infection and the specialist care which she is likely to need in the context of the anticipated major surgery, is unlikely to be available to her in Tanzania. For the same reasons, it is equally difficult to resist the conclusion that, having regard to the appellant’s personal situation, it would be unreasonable to compel her to leave the United Kingdom at this time. "

This case highlights:

Ø Applications will rely on arguments brought under the ECHR and these may not engage Article 3 ECHR even if a medical condition is raised. Our client did raise asylum arguments that would now allow her still to have an in country right of appeal. But the case shows how Article 4 ECHR is one of the most effective gateways to support for victims of trafficking.

Ø Individuals could endanger their own wellbeing and that of their children if removed from a country of security while they are recovering from exploitation.

Case study 4

· Article 15 of the Convention on Action Against Trafficking sets out the provision that victims should be enabled to obtain compensation for damage suffered. It is our experience that where victims are hindered in their ability to pursue claims for compensation while in the UK, for example because of an inability to access legal aid, and subsequently return to a country of origin, efforts to pursue the claim go no further as it is so hard to maintain contact with them when the individual is separated from support networks and communication systems in this country.

Case study 5

Our client was trafficked to the UK for the purposes of labour exploitation. The client was subjected to both physical and verbal abuse. The client was refused legal aid on the basis that he had not demonstrated that he could not obtain advice and assistance on a no-win-no fee basis. The client had limited English and was traumatized and vulnerable as a result of his experiences, his ability to locate an advisor able to act on a no-win-no fee basis and pay disbursements as and when they fell due was therefore extremely limited. The client returned to his country of origin whilst efforts continued to obtain legal aid. Only after 6 months of written representations was the Legal Aid Agency willing to concede that the client was entitled to legal advice and assistance. However, without the client being present in the UK pursuing a complaint was not possible. The client’s means in his home country were such that he became homeless and therefore unable to access a telephone or computer by which to make contact and provide instructions to pursue his matter.

Although part 4 relates to immigration appeals this case highlights:

Ø Problems that can arise with victims of exploitation when they are unable to pursue a face to face relationship with an adviser or be within a support network in the UK.

October 2015

ANNEX

Review of the Overseas Domestic Workers ("ODW") Visa

We were requested to provide any further evidence we may have in respect of the proposition that ODWs with safe and secure alternative employment are:

(a) more likely to engage in bringing a former abusive employer to account under the Civil Law; and

(b) more likely to be effective witnesses in criminal proceedings.

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Civil claims

In our view, good evidence that ODWs who are safe and secure in alternative employment are more likely to bring abusive employers to account is to be found in the track record of victims of trafficking and modern slavery who have brought claims against their traffickers and exploiters. The great majority of compensation claims brought in the UK against traffickers by victims of human trafficking (whether or not held in domestic servitude) have been brought by an ODW present in the UK on a visa which permitted her, once released from the exploitation, to obtain safe and secure alternative employment.

Civil compensation claims by victims of trafficking and modern slavery outside of domestic servitude are rare. The only judgment in favour of a non-ODW victim of which we are aware is AT and ors v Dulghrieru and ors [2009] All ER (D) 194 (Feb), a sex trafficking case.

Whilst it might be argued that enforcement or tracing are more difficult in other forms of trafficking, this, in our view, cannot account for the remarkable fact that ODWs have brought the very great majority of UK claims. It is no coincidence that victims of trafficking who, until recently, enjoyed relatively secure immigration status and the ability to engage in lawful employment, were the victims who were able to pursue abusive employers in the courts.

Solicitors at the Anti-Trafficking and Labour Exploitation Unit have brought well over a hundred cases for victims of modern slavery and human trafficking into domestic servitude. To illustrate, between May 2009 and April 2012 inclusive, we assisted a total of 105 domestic workers. The great majority of these workers were able to lawfully engage in alternative employment because of their visa status.

The experience of ALTEU lawyers is that the mental state and behaviour of clients on a tied visa is very different from that of clients brought in under a visa whereby they may change employers and obtain safe and secure new employment. Even where it proves possible to assist a "tied" worker to work with the police and/or bring a claim, the inherent uncertainty and insecurity of their situation too often renders it impossible in practice for them to pursue matters.

For an abused ODW to give evidence against her former employer in criminal proceedings or to bring a civil claim against them requires very considerable courage and tenacity. Abused workers have frequently been told by their employers that they have no possibility of bringing the employer to account, and that they will be imprisoned or deported if they challenge or seek to leave the employer. The confidence of abusive employers in making these threats is illustrated by the number of such threats which have been made in writing, often in the form of supposedly contractual documents. In one case, such was the employer’s confidence in their position that they sought to rely on such a document before an Employment Tribunal to "prove" that the employee had no right of redress.

For an ODW to be able to participate in criminal or civil proceedings they accordingly need considerable levels of support and to be in a safe and secure situation. If a worker may not lawfully obtain alternative employment, experience shows that this is hard to achieve. In ATLEU’s experience, even for those in the National Referral Mechanism, the strain can prove too much and proceedings have to be discontinued.

Further, it is important to understand that leaving an abusive employer is difficult (emotionally and/or physically) and sometimes dangerous. In our experience, many ODWs with the right to change employer are unaware of this right; their employers deliberately mislead them. It is when they discover that they are permitted to lawfully change employer that they can be supported to leave. In contrast, ODWs on a tied visa do not have this option. They can be advised of the National Referral Mechanism (if they are victims of trafficking) in order to give them confidence to leave. However, in our experience ODWs understand and relate to the concept of lawfully obtaining alternative employment. By contrast, they find the NRM very difficult to understand and, in any event, it may involve one or more changes in location and the accommodation is only temporary; it does not give them the same confidence to risk leaving.

Criminal prosecutions

Civil compensation claim can also be an important route into criminal prosecutions. ALTEU has run several cases where a successful civil claim has been the catalyst for a police investigation. For instance, in one case the police attended the Employment Tribunal to gauge the prospects for a potential prosecution of the employer/ trafficker.

The advantage of safe and secure alternative employment for ODWs assisting the police in prosecutions is that they are able to source employment with accommodation. We are frequently contacted by organisations nationwide seeking our advice in respect of victims of trafficking who are witnesses in criminal prosecutions but who have no accommodation after the 45 day period. Whilst in our experience some witnesses are housed via police contacts or ad hoc charitable assistance, this is by no means standard in all areas. Criminal prosecutions for slavery and trafficking cases are lengthy and the victim will need accommodation for a long period. Without safe accommodation – or indeed any accommodation – the ability of a victim to give evidence is dramatically reduced. Witnesses can be at grave risk of intimidation and violence from traffickers during the criminal process.

In the extensive experience of all lawyers working for ATLEU, almost every victim who has been involved in a criminal trial was present in the United Kingdom under a visa whereby they could change employer.

Case Studies

We enclose case studies of a) ODWs on a visa which permitted them to change employers lawfully and b) ODWs on a visa who were not permitted to change employers lawfully. These cases are representative of our experience and illustrate the differences in the women’s approach to civil proceedings against their traffickers and their ability to assist the police. It is notable that most of the ODWs on a tied visa were accepted into the National Referral Mechanism.

ODWs with the right to change employer

Case A

An African woman kept in domestic servitude and subjected to violence by her employer. Her employer knowingly misled her that she was not permitted to obtain alternative employment; she was told that if she challenged the employer or sought to leave her employment she would be imprisoned. Her employer told her that the employer controlled the UK police.

Following a beating, the victim was advised by a neighbour that in fact she could lawfully change her employer and that leaving the abusive situation would not render her unlawful. She then ran away from the abuser.

She was still too scared to sustain a police complaint.

However, after the intervention of a support organisation and ATLEU lawyers, she was reassured of her lawful residency. She was then able to reapply to the police to investigate her former abuser.

The police refused to investigate the matter. However, the victim was able to successfully bring a claim for compensation against her employer in the Employment Tribunal.

Using the Tribunal findings of fact, it was possible to judicially review the police's failure to investigate, which directly led to the police investigating the matter and then the prosecution of the employer. It was the knowledge that - contrary to the threats made by the abuser – she could (and later did) obtain new employment that enabled the victim to bring a claim for compensation and then to ensure that the police took action. (It is to be hoped that following the Modern Slavery Act, the police would today be willing to take action without the threat of judicial review.)

Case B

A North African woman was trafficked into the United Kingdom and subjected to violence.

Following her escape with the assistance of a support agency and ATLEU lawyers, she was able to understand that she was lawfully present in the United Kingdom and might obtain alternative employment. With our assistance she was referred to the police to make a complaint.

Although the police did not act upon this complaint, it was on record. Once civil proceedings were commenced against the traffickers, they made an allegation to the police of theft against the worker. When the police sought to investigate the allegation against the worker, the fact that she already made an allegation of trafficking against the traffickers led to the police refusing to take the traffickers’ allegations further.

The victim was extremely scared of the authorities. The police in her native country were bribed by the traffickers to physically assault her brother in order to try to find her whereabouts in the United Kingdom.

The victim was able to assist the police in two separate criminal trials and is currently bringing a compensation claim in the Employment Tribunal against her traffickers.

Case C

A victim of trafficking from Southern Africa. During the employment the employer sent the worker a letter stating if she did not comply with the employer’s demands then she would be returned to her native land. This she believed.

Following escape from the trafficking situation, she was advised that she could be lawfully resident in the United Kingdom and obtain alternative employment. With the victim’s active assistance, the police brought the first prosecution for the offence of trafficking into the United Kingdom for exploitation, contrary to section 4(1) and (5) of the Asylum and Immigration (Treatment of Claimants) Act 2004. The victim is currently pursuing an Employment Tribunal claim against the traffickers.

ODWs without the right to change employer

Case D

A young woman was trafficked via the Gulf. In the Gulf and in the UK she was subjected to serious sexual violence.

Although she was conclusively recognised as a victim of trafficking and was housed under the National Referral Mechanism, she remained extremely vulnerable. As is not uncommon, she was moved a number of times around the country. She was also housed in areas where she was socially isolated and there were few or no members of her own community and who spoke her language. She was acutely aware that she had no right to remain in the United Kingdom save via a residence permit to bring a claim against her former trafficker.

ATLEU lawyers became concerned following reports from the support agency that she was vulnerable to exploitation from members of her own community on whom she was dependent and she then disappeared. Accordingly, no civil claim could be brought and there was no realistic opportunity to request that the police investigate the matter further.

Case E

An ODW was conclusively recognised as a victim of trafficking and she brought court proceedings for compensation against her trafficker. However, she was refused a residence permit and was removed from the UK by immigration authorities during the proceedings, which accordingly had to be discontinued. This was of particular concern as her trafficker was known to have trafficked at least one other woman into domestic servitude on a previous occasion and it was therefore highly desirable that this trafficker be brought to account.

Case F

An ODW who was recognised as a victim of trafficking brought civil proceedings against her trafficker. She had brought an asylum claim that would have permitted her to remain in the UK. However, this had been refused in circumstances where ATLEU lawyers had overturned other similar refusals successfully on appeal and there were accordingly good prospects of the client being granted asylum in time.

She was offered employment and accommodation in a private household – on an illegal basis –, which she felt unable to refuse. ATLEU lawyers were accordingly concerned at the risk of her being further exploited.

She later advised ATLEU that she was unable to meet with her lawyers to pursue her claims because she was unable to leave the house where she was currently working because her employers were on holiday and she was locked in with no key. Her claim could therefore not be pursued and her immigration status could not be regularised.

Prepared 3rd November 2015