Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 60-79)

MS NADINE FINCH, MISS STEPHANIE BIDEN AND MS POONAM JOSHI

5 JUNE 2006

  Q60  Lord Campbell of Alloway: You have given us a fantastic and rather sad basis for a constructive resolution of this problem. The area of distress is all but unimaginable, but are you not pointing to something which arose on another occasion which always worried me? You cannot really deal with this on a case-by-case basis. You have to have some form of discipline control and I think you said legal provisions for entry. I refer to the port of entry. As to that, and it is the subject matter of another question I was going to ask later and I will not ask it again, because it arises in crucial perspective from what you have said now, what can we do at the port of entry? What should we do to try and deal with this because we read in the papers that in, I think it is Bosnia or somewhere, parents are selling their children to the drug traffickers for a down payment and for a sort of annuity on the proceeds of prostitution. I do not know whether it is true or not but what on earth can we do?

  Ms Joshi: I can comment more on adults in forced prostitution and I know Nadine can add around children. Operation Pentameter, a recent police operation, did look at ports and as part of that I think had posters and training of immigration and police officers which gave them profiles of what a trafficking victim might look like. In terms of how successful that training was I do not know. I guess the only key thing that we could advocate is that as long as the same immigration officers know that they have targets to meet in terms of removal, rather than risk-assess victims coming through ports, their priority would be to check the immigration status and, as we know, many people will not disclose in the first 48 hours. Even if they ask direct questions like, "Are you trafficked?", the likelihood is that those people will not be picked up. They may gain entry into the UK where, if they have not already been trafficked, they are then likely to be sexually exploited and trafficked once they come into the UK. Once again I would say that there has to be that ability both for the police and immigration officers to say, "Okay, we have spotted somebody who fits the profile but this person is an illegal entrant. We now have the ability to give this person some time and access to support so that we can make a conclusive identification that this is a trafficked person". I think immigration and police authorities at ports are just not going to have enough time to identify all of the trafficked people who come through.

  Q61  Lord Campbell of Alloway: What do we do? What can we do?

  Ms Joshi: Once again I would say the provision of reflection periods in the first instance and a binding mechanism of identification so that all agencies are working to the same definitions and a UK-wide system of support. For example, police officers have quite frequently said to us, "If we pick a number of people up at a port or in a brothel we do not have anywhere to send them to to get that support and accommodation. We suspect they are trafficked. They are not telling us they are trafficked. What do we do?". In many cases the police are having to go to their own budgets to accommodate and support women, which we say is an incorrect use of police resources, and trafficking is one of those crimes for which the police do not have performance indicators and are loath to divert the resources outside of the specialist anti-trafficking unit. They will just not have the time and the resources to make that identification. I would go back to saying those resources have to come from central government. Those systems have to be led by the Home Office or other departments to create a system in which police and immigration and social services can make those identifications, be it at courts or once people have come into the country.

  Lord Campbell of Alloway: Thank you very much indeed.

  Q62  Chairman: Nadine, do you want to add something?

  Ms Finch: Yes. In terms of children, there was a good operation done at Heathrow called Operation Paladin where they did profile nationalities and ages of children who were not met at ports and then they asked social services to go and look into those children and see what was happening to them and they did pick up a number of trafficked children. What they also identified was that many of these children come into what are called private fostering arrangements. At the moment the local authorities have some control and do monitor these arrangements but registration of private fostering is not mandatory, so therefore families will get these children coming in to join them who may well be trafficked children who are exploited. I spoke recently at a meeting in Brent where the local authority are very concerned about the number of children in private fostering arrangements which may well be something else. If the Government were to make private fostering arrangements mandatorily monitored by local authorities it might get another layer of children coming who are definitely being trafficked. Also remember that the immigration officers and the police at ports—and there are child protection police officers at ports now looking at children and profiling them—tend to ignore the children coming in with families. These children come on other people's passports. Some people do not notice one African child from another. If they come in on a passport they are presumed to be a child of the family, so quite often it is after entry that you have to look for them and local authorities again are in a good position sometimes to find these children, especially if they had to go and look at every household that had certainly another child in who was not a related child. Also, in terms of a pull factor, many of the families who are buying into these services for traffickers are not able to get the kind of help they need domestically because there is obviously a shortage of domestic labour because we are not having a migration strand which brings in low-paid workers to be nannies or housekeepers at a lower level. If those people were allowed to come in legally there would not be so much demand for traffickers to feed off.

  Q63  Mary Creagh: I was interested, and this question is to ILPA, to read that you note the insufficiency of the current legal framework to deal with those who employ and exploit migrants illegally, and you talk about the very low levels of both prosecutions and investigations and successful prosecutions in that area. I wonder if you could say a little bit about that. Also, could you talk a little bit about the use of guardians in children's trafficking cases and the fact that they cannot be used and what implications that has in terms of the protection and successful representation of the potentially trafficked child going through the Home Office and the legal process?

  Ms Finch: There have been very few prosecutions as yet of any traffickers. They have mainly been high profile sexual exploitation cases. They mainly have involved at least one or two under age, 15 or 16-year olds, but there have been no prosecutions of people bringing children in for domestic labour, domestic slavery, which, of course, is much more difficult to pinpoint. Although it may on the surface appear to be a one-off arrangement, I have been in enough cases now to realise that there must be some connection because if you are a person in Lambeth how do you know how to find a child in some remote district in Nigeria? There must be some linkage, there must be some agency there, there must be some gang bringing people in, and they have not penetrated that in any way. As much as research is difficult it is very important. We need much more research. I think there is a basis in the NGOs, in the local authorities, in academics to have broadly an idea of what is happening from which then to pick some pilot areas, like Brent or Greenwich, which are already reporting instances, and use pilot areas to look seriously at exactly what is happening and why it is happening in those communities. In terms of guardians, ironically, the children who are probably the most abused are these trafficked children and yet they do not have any adult who has legal responsibility for them. Most of them are accommodated by the local authority under section 20 when they are resident and that does not give them any parental responsibility. At the moment I have a small child who may have been trafficked who we think is seven or eight and who has to give me and the solicitor instructions because there is nobody who can give instructions for him, which is a farcical situation. He is not capable of understanding the process he is going through. If, like in family proceedings, these children were given a legal guardian who stood vis-a"-vis the court to give an explanation of what the child's needs were to the court in a way the child could not, that would be extremely helpful, especially in trafficking cases because, as I said, a lot of these children do not or cannot comprehend the fact that they have been trafficked by family members and quite often there is a bit of a farce in the way myself, the Home Office and the immigration authorities know they have been trafficked. I have even had evidence from social services in one case where a child got trafficked at Ireland, then in here, and the second household who bought her actually told social services they had gone back to Africa and paid money to her parents, and that was in a recorded interview with a child protection officer, so we know it happens. A guardian can actually talk to the court and say, "Look: I have talked to the child. The child is too young to comprehend what is happening but this is my experience", and the court will then take notice, as they do in family proceedings, of what is in the child's best interests, so I think it would be a key thing to do.

  Q64  Mary Creagh: You also submit that victims of trafficking are more likely to receive protection in the UK under the Human Rights Act than under the Refugee Convention. Why do you think that is?

  Ms Finch: Let me try and simplify it. It is quite complicated. Under the Refugee Convention there are only certain categories of people who can be protected by the Refugee Convention. It was drawn up in 1951. Things were different then. On the whole it does not deal with economic and social inequalities which quite often lie at the basis of being trafficked, but there is a catch-all category of a particular social group which was put in there precisely to recognise that things would change in the future. You have to show that there is some broad category that they fit under. There was a case called Islam v Secretary of State for the Home Department[1] in the House of Lords a few years ago which defined a working methodology for looking at these cases. If you were, say, a woman in Nigeria, the courts have found that women in Nigeria are a particular social group because in law, in society, and in culture there women are discriminated against; therefore there is a socially constructed group called women in Nigeria who do not get the protection they should from the society around them. Therefore, a woman in Nigeria could say, "The Convention applies to me and the persecution I have suffered is trafficking"—and all that goes with trafficking, rape or assault—and they could then get some protection from the Refugee Convention. The problem is if you were in another country where you were not discriminated against in law, society, culture, you would not have the same ability to seek protection under the Refugee Convention but you could fall back on the European Convention on Human Rights which does not require you to be in any particular group. It just requires you to show there would be a serious risk if you went back to your country of origin that you would be retrafficked, you would be punished or that you would be socially ostracised. It is important to remember that these people who have been trafficked are commodities; therefore something will happen when they go back because they have not accrued their investment for the trafficker. There is a very useful case recently called Sillidian v France[2] in the European court which recognises that a person who was trafficked into domestic slavery was a breach of Article 4. Article 4 of the European Convention is absolutely the same as Article 3. That is a very useful case because it means that now people who were in that category of domestic slavery can say, "That is a breach of my Article 4 rights". It is a very clear authority now which is very useful for people.

  Q65 Dan Norris: You have all stated in your own ways how important it is to identify the victims of trafficking at an early stage. How successful do you think the UK authorities are in identifying the very early stages? You also say that the failure to identify victims of trafficking then goes on to lead to violations and denials of those people's human rights. Can you explain how that comes about and why you draw that conclusion?

  Ms Joshi: There are a number of agencies that should be involved in the identification of victims—the police and immigration but also social services. I also include in that health professionals, prison officers, probation, the CPS, but the main focus tends to be on the success of the police in identifying trafficked women. As far as the specialist anti-trafficking units go, so Operation Reflex, Clubs and Vice Unit of the Metropolitan Police and Operation Pentameter, we are certainly getting better at understanding the profile and also the obstacles to disclosure and better at identifying trafficked women and girls. However, more widely within the police force I would not say that that success is consistent because a lot of the police forces will not have access to the knowledge, information and training. Operation Reflex conducted a series of national briefings but that is not necessarily going to be monitored further. Another key obstacle is police resources. Trafficking is a very high resource crime to investigate and you also have to support the victim. If that support is not accessible, for example, through POPPY, you have to support those victims out of your own budget or you have to place them with voluntary organisations and you have to take the time to do that. Therefore, for non-specialist police forces our anecdotal information is that when trafficked victims have self-referred to the police their complaints have not been pursued and actually they are more likely to have been criminalised and have their immigration status investigated. We had a case that came to our attention of a 19-year old west African woman who had been in the UK for six years as a child prostitute and was encountered by the police trying to leave the UK on a false instrument. Initially she did not disclose to the police but eventually disclosed the full story of what had happened and she ended up being prosecuted, convicted and getting a ten-month custodial sentence, but when she said to the police, "I think there are other children who are prostituted; I can tell you where the trafficker is", the police did not pursue it. It was finally brought to the attention of the Vice Squad because the Victims Unit at the Home Office became involved because the immigration solicitor contacted them and said, "Who do you contact?", and you should not have to rely upon your solicitor having that kind of information to get a positive response from the police. Another common problem, and this is across agencies, would be attitudes to people who are trafficked. I think people like to think of trafficking victims as the innocent, the abducted, and when people do not fit into those categories, for example, if they initially were aware that they were going into prostitution or if they had clearly been working in breach of their status, our anecdotal information suggests that many police and immigration officers label them primarily as illegal entrants and prostitutes rather than as victims first. In terms of immigration the obstacles are around the targets, and we understand that the immigration services are under pressure to meet their removal targets and that that is going to be their primary purpose when they encounter people who may be trafficked and they are to going to have the time or the inclination and that is reflected in that. The POPPY Project was evaluated by the Home Office last year.

  Q66  Lord Campbell of Alloway: Yes, I know.

  Ms Joshi: In total I think there were something like 387 referrals. Of those only 16 were made by immigration. The vast majority were by the police and NGOs but you would have thought that far more trafficking victims would have come to the attention of the immigration services rather than some of the agencies who referred. I know Nadine will probably have recommendations in terms of what social services should be doing but what we would advocate is a UK-wide system of identification and referrals, which is what the OSCE recommends, and I know the OSCE visited the UK and spoke with the Government about setting up such a mechanism but we have not heard any further about why such a mechanism is not in place and in the UK Action Plan there are not any proposals for such an identification mechanism. The second solution would be to then have a support and protection system in place. If you are a police officer and someone comes and refers and says what has happened to them or someone complains about a child and says, "I think this person may have been trafficked", if you do not have the support agencies to refer those women and children to you are in a bind as to exactly what to do. That is what we would advocate.

  Ms Finch: There are a number of guidance documents, some of which are quite good. The Crime Prevention Unit of the Home Office has a good anti-trafficking toolkit. Anti-Slavery has produced a very good toolkit about how to spot a trafficked person, and actually, interestingly enough, the immigration services' recent Children Arriving in the UK document is very good at describing what trafficking is and which countries are likely to use trafficked children, but then there is a holding process, so at the moment if these children and adults get seen at the airport or at the port of entry they may well come into the category of trafficking but no-one is actually nationally collecting together a database of those people. The real problem is that the next part of the Immigration and Nationality Directorate which makes the decisions is not at all interested, it appears, in trafficking as an issue of protection. Therefore, things come to a halt at that point and people just go back into the illegal entry route, as Poonam was saying. It is interesting to note that of the POPPY Project women who, of course, all were known to the Home Office, none got granted asylum when they first applied for it but many of them were granted it on appeal. I represented a number of Nigerian girls a few years ago, all of whom had been trafficked with the same modus operandi cuts, that is, ritual abuse. None of those got granted asylum to start with by the Immigration Department but they did all subsequently in their appeals, so there is a real problem when people make application for protection. They are not getting protection at that initial point. The break in the links gives the impression that in the Immigration and Nationality Directorate the case workers make the decisions and they appear to be the people who are not pulling their weight with the police and the immigration service, who quite often are very keen to do things.

  Q67  Chairman: Miss Biden, do you want to add anything?

  Miss Biden: We do agree with that.

  Ms Joshi: In our submission we concentrate on women forced into prostitution and that is the focus, certainly in terms of women, of the agencies. Even though the other forms of trafficking are criminalised, I think there were severe problems because in the minds of, say, the police, trafficking is concerned with forced prostitution and I think there is a lack of recognition of someone who is a domestic worker in forced labour who may well also have been sexually abused or exploited, but that would be seen as a migrant or employment dispute, not as someone who is trafficked. It would be interesting to see how many prosecutions come about under the gangmasters' legislation or the other trafficking legislation.

  Q68  Dan Norris: You have argued that UK laws and practices add to the abuse suffered by victims of trafficking on occasion. That is quite a serious claim, as you appreciate. Can you give concrete examples of that?

  Ms Joshi: In our submission we talk about the raid on the Cuddles massage parlour that took place in September of last year. That was a situation where the police had intelligence that the women at these premises were being trafficked. They entered the premises and recovered 19 women, six of whom had uncertain immigration status, so the first point to make is that those other 13 women who were also potentially trafficked women, because of the conflation of organised immigration and trafficking they appear to have missed that there were 13 potential victims of trafficking who were quickly debriefed and then just sent away without any advice in terms of their rights. The assumption was, "They are legally in the country. They have not committed a crime". The focus is on in a sense whether they were criminals rather than what kind of protection they needed. We do not know but it is likely that those 13 women may have been then at risk of re-trafficking. There is nothing that indicates that the police did anything that would have changed the circumstances in which they ended up in the brothel in the first place. In fact, they might be more vulnerable because traffickers would have known those women had spoken to the police. Those women may not have said anything to the police but in terms of their vulnerability to the traffickers that would have increased. In terms of the other six women who were Albanian, Moldovan, Thai, this is where our immigration laws compounded the abuses that they suffered. What we would advocate is if you have someone who is a suspected victim of trafficking you need to treat them in the same way as any other rape victim within the UK. You have to offer them the same best practice models so, for example, take them to a sexual assault referral centre, make sure you have got their informed consent when you take forensic examples or when you advise them on possible prosecutions, but what happened to this group of women was that they were fingerprinted, they were photographed, they were locked up in cells. They were given access to legal representation but the information that we got from the POPPY Project who interviewed those women was that the duty solicitor was not really in a position to give them much advice or guidance. There was not any assessment of whether an appropriate adult might be needed for women who were clearly quite vulnerable and intimidated whether or not a positive identification had been made. They were repeatedly interviewed by both male and female officers although we would have advocated female officers. They were then taken into immigration detention and were uncertain about what was going to happen to them and it was only through the intervention of a number of NGOs that those removal proceedings were stayed. It was only after a period of almost a week that they were given access to the POPPY Project. The POPPY Project has said to us that the women that they met are in a continuous state of crisis as a result of what happened to them. Those women felt that they were criminalised and punished and they could not distinguish between immigration detention, for example, and prison. That is an extreme example and I note that the police have taken on board those concerns, but for those women who are not picked up by the police but, say, for example, by the immigration services, we do not have statistics but we have evidence anecdotally that a lot of women and girls will end up in immigration detention where they will not have access to specialist support. They will be fearful, they will be traumatised. POPPY and other agencies have said to us that those women and girls can be vulnerable to encountering associates of the people who trafficked them in immigration detention. They are very frightened and less likely to disclose as a result. Those are the kinds of practices. The other key area for us would be around access to health care. Certainly there are many trafficked people who are denied access to anything other than emergency health care because of their immigration status. We are aware of a forthcoming report from the London School of Hygiene and Tropical Medicine which did a study of women and girls trafficked into forced prostitution but also those who were sexually abused and exploited in the context of domestic work. They found that in the two weeks after escaping traffickers these women and girls exhibited up to 11 symptoms of ill health and post-traumatic stress disorder that was consistent with that of torture victims. If you are denying that basic health care to those victims, if you have no-one who is going to give you emergency health care, we say that is a major denial of rights and it is compounding the abuses that they have already suffered.

  Q69  Mary Creagh: You talked earlier about the lack of enforcement against those who exploit trafficked people. What improvements would you suggest to deal with this both legal and also practical implementation down the line?

  Ms Finch: We have talked about identification but also in my view it is bringing the victims over the line into being on the side of people prosecuting, because otherwise is the victim also in danger of being detained or criminalised as many who are trafficking are? Once you have brought the victims on the side of prosecution it would be much easier to prosecute because, of course, the prosecution will fall or stand on testimony because these are hidden crimes. They are not being witnessed by other people who are going to give evidence. Therefore, it is essential that the victims themselves are willing to give evidence. We have complied with all the international obligations in terms of the crimes we have created. We have complied with the directives in terms of that. We have complied with the Palermo Protocol in terms of getting the right statutes on the right statute books, but practically we will not move any further forward until we utilise the victims, and to do that, as Poonam said, you are going to give them some status which is not that of an illegal entrant. Otherwise it is simply not going to work because they are going to end up being removed before you can do anything about it. There is a serious tension now between the police and some of the other agencies involved. I had a phone call from Thames Valley on Thursday saying could I suggest anything that could assist them to assist this child of 14 whom they wanted to assist because she was involved in a trafficking ring they were trying to break, and I had to say no. Apart from social services having their own Children Act duties there is practically no other help to support this child at the moment. That meant that they were not able to find her a safe place as they wanted to and they were fearful that the whole prosecution would be jeopardised. It is really that key looking at the victim because we have the laws but we do not have the practice at the moment which makes those laws in any way effective.

  Miss Biden: There is some evidence to suggest that linking co-operation with a prosecution to the support that victims get is actually counter-productive in terms of achieving prosecutions as well as the victim's own recovery, partly because it can be attacked by defence lawyers as an incentive to testify, whereas if victims are provided with the support they need totally independent of whether there is an ongoing prosecution then that possible attack is undermined. Also, the mental wellbeing of the victims in terms of their ability to give testimony is likely to be better when they are not feeling coerced into giving that testimony in order to continue to receive the support that they need.

  Q70  Mary Creagh: This question is to the Solicitors' International Human Rights Group. You argue that the principle of gender equality is not incorporated into the measures on trafficking, with the potential consequence that the UK risks breaching Article 14 of the Convention in conjunction with other Articles. Can you give us some examples to support that claim? What could be done about that?

  Miss Biden: Certainly we have examples of ways that we would expect to see gender equality principles incorporated just in recognition that trafficking tends to be a very gendered crime in that women are more likely than men to be victims of trafficking, particularly for the purposes of sexual exploitation but also in other contexts. One suggestion we have is that immigration routes which are linked to skills are likely to discriminate against women who are less likely to be able to have those skills and that one way to address that might be to introduce a quota that is gender based for migration visas for the UK and particularly to provide legal routes into areas such as domestic work, hospitality, personal care services and child care where they are likely to attract women in. Also, we would like to see public authorities using the gender guidelines when interviewing trafficking victims, recognise that trafficking is a form of violence against women and recognise some of the difficulties that have already been discussed about difficulties in disclosing what has happened to them. Also, we are concerned that if we cut off legal aid after a certain number of hours in investigating a woman's immigration claim that might also be discriminatory because the cases of trafficking tend to be more complicated and it takes longer to get the information from the individual, so that is likely to discriminate against women in that we will not be able to make as much progress with those cases.

  Q71  Chairman: Can I come back to the answer you gave to Mary about having an immigration quota which would allow women to come into domestic work and so forth? Presumably you are not advocating that anyone who came in on that basis should be employed on terms and conditions below the statutory minimum, like the minimum wage?

  Miss Biden: No, not at all.

  Q72  Chairman: Because I suspect that one of the real pulls which we are trying to combat here are people who are not prepared to pay the minimum wage to people who are available to do that sort of work in the UK already, so they can counter it by bringing people from their home countries where they can effectively pay them nothing or a pittance.

  Miss Biden: That may well be the case but in terms of the supply side of people coming over who are vulnerable to being trafficked, that would be reduced by having some legal form of migration route open to them.

  Q73  Chairman: But would the problem not still remain that people would be trafficked illegally because those people were not prepared to pay the going rate, the minimum wage, and provide the basic employment rights that they would have to provide to somebody who is from the indigenous population?

  Miss Biden: That is true but then I think you need to look at things like prosecutions as being an effective deterrent to that form of exploiting people.

  Q74  Lord Judd: You have all been arguing that the UK Government is under an obligation to protect victims of trafficking from human rights violations. I suggest that for our report it will be important to have specific points of reference spelling out existing UK obligations under the Convention on Human Rights and other international instruments to which the UK is a party. I wonder if you could give us some such specific points of reference.

  Ms Joshi: As I said previously, a lot of the key Conventions, like UDHR, ECHR, international covenants focus more on political rights and on prohibition of slavery and trafficking. At the same time those treaties set out rights such as the right to life, the right to freedom from inhuman and degrading treatment, the right to bodily integrity, and all of those rights are breached in the trafficking and forced prostitution cases that we are coming across. As I previously said, as part of the state obligation when they sign a treaty it is not purely to not participate directly in the violations but also to create a system where those rights are protected and respected and fulfilled, so they have to prevent non-state actors from committing those abuses, they have to prosecute those non-state actors, they have to take preventive measures, they have to put the support, the protection, the recovery and rehabilitation in place. Looking at conventions like CEDAW, the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child, they go into a little bit more detail but not a great deal more, so CEDAW talks about states being obliged to eliminate discrimination and take appropriate measures to suppress all forms of trafficking in women, but does not actually state what those measures are. The Convention on the Rights of the Child specifies the different forms of exploitation and requires preventative measures but also measures aimed at ensuring recovery and rehabilitation of victims but does not necessarily then go into great detail about what the minimum standards are. The Palermo Protocol, the UN Protocol to prevent, suppress and punish trafficking of persons is also largely a law enforcement instrument but does require signatories to consider provision of support and assistance and temporary stay in the country, from which you could extrapolate protections like reflection periods and residence permits. There are also much older Conventions, like the Forced Labour Convention from 1930 and the Convention for the Suppression of the Trafficking of Persons and the Exploitation of Prostitution of Others from 1949, which do set out in some detail preventative measures and minimum standards in terms of how victims and workers should be treated. If you go to the soft law that really sets out what those measures should be. There is the Beijing Platform for Action which sets out almost an action plan on trafficking that goes through criminalisation, prevention, allocation of resources, the training of professionals, access to health care, but the key document that I would point you in the direction of which is a precursor to the Council of Europe Convention is the 2002 UN Principles and Guidelines on Human Rights and Trafficking which sets out in some detail the principles and guidelines that they believe states must comply with in order to uphold their obligations to trafficked people. At the centre of that they say that the primacy of human rights needs to be at the centre of all efforts to address trafficking and sets out in similar detail to the Council of Europe Convention the minimum standards around identification, support, accommodation, for example, makes it clear that trafficked people should not be in immigration detention, makes it clear that there needs to be risk assessment and that there should be return to country of origin monitoring, that there should be immigration and asylum protective measures if those people are not able to return to their country of origin.

  Q75  Lord Judd: That is a very full and helpful answer. You have mentioned yourself in what you have just said, and it has come up before, non-state actors. How would you deal with the argument that is sometimes deployed that when you are dealing with non-state actors, families, even as you have described, the human rights vocabulary, the human rights legislation that we normally talk about, is not altogether appropriate? It is quite clear that you feel it is but I wonder how you would deal with that argument which is sometimes deployed, and while dealing with that, you spelt out the importance of the Convention and the impact this will have in Britain. Do you think the Convention itself needs strengthening to be able to achieve all the things you want to achieve?

  Ms Joshi: In terms of whether the human rights language or framework is useful to look at the abuses committed by non-state actors, I accept your point that certainly in the UK context government officials have not been found to be complicit in the exploitation of trafficked people as they have done in many other source countries, for example. However, it is clear under international law, and it is not just been developed in this area but around the issue of violence against women and on corporate accountability, that there is established acceptance that states are not just responsible for abuses committed by their agents but also those committed by non-state actors. They are responsible for failures. They have to take reasonable steps to prevent an abuse, respond to an abuse and provide an effective remedy. Today we have given you examples of many state and UK government laws, policies and practices that compound abuses. There is a degree of state involvement perhaps not in the initial act of abuse but those abuses continue to be compounded. In terms of whether the Council of Europe Convention goes far enough, we certainly welcome the Council of Europe Convention. It is radical in that it does impose minimum standards that are binding upon states that will sign it. There are three areas where we would have liked the Convention to have gone further. We note that a number of parliamentary delegations would have also liked to see the Convention go further. The first is around the duration of the reflection period. We would like to see a minimum three month reflection period as opposed to one month. We believe that is supported by the medical evidence that is coming forward in terms of the time it takes victims to recover. The second point is around access to health care. The Convention only requires governments to give access to emergency health care. We would say necessary medical care which will vary across the different forms of trafficking, certainly for women trafficked into prostitution and minors who have been sexually abused or sexually exploited. I do not think we can restrict medical care just to emergency medical care. The final area would be around support and accommodation. The Convention does go into some detail about supporting accommodation measures but what it does not do is explicitly state that immigration detention cannot be used for adults. It prohibits it for children and we would like to have seen it prohibited for adults.

  Q76  Lord Judd: You will be more aware than most that the British government will argue that the problem with the reflection period and all that goes with it is that this could be a pull factor in terms of encouraging people who are unsuitable to come who do not have good grounds for coming because there is this opportunity. How do you meet that argument? Ms Finch, you would argue that there is absolutely no grey area in trafficking by non-state actors when it comes to what goes on between families?

  Ms Finch: If I can say something about the limit of the Convention to start with, although there are two routes to having a resident's permit—one is cooperation and the other is if it is necessary according to some personal circumstances of the victim—that is a good advance. It recognises this is something apart from being a refugee or having a breach of the ECHR, which might attract attention. In the United States they have what is called a T visa which is a recognition of a severe form of persecution—ie, severe trafficking. They recognise that sometimes the trauma of what has happened to the person means that it is not possible to send them back from where they came, even though they may not meet the test of the Refugee Convention. We need to look at the possibility for that Convention to create this new category. The category is necessary, in my view, because the Refugee Convention and the European Convention very much deal with civil and political rights. They do not deal with the economic and social conditions that make most of these people victims. Most of these people are street children or disadvantaged children. They are the child singled out in the family itself; they are the woman who has been hurt by a family; they are people at the edge of society. If they come here, fail to become recognised as a refugee and go back to their country of origin, they will be in exactly the same position they were in before, at the bottom of the pile socially, culturally and economically. They will again be potential victims of traffickers. We need to recognise that and one way to recognise it is to create something like the Americans have, a T visa, which recognises that these people are particularly vulnerable for more economic and social reasons than political reasons. In terms of the pull factor, there is a huge difference between being smuggled and being complicit in being smuggled and being trafficked. It is obviously clear with children who do not usually have any idea, but for many of the adults what may seem to us to be a grey area they probably do not understand. I have had so many adult victims tell me that they met a person; this person said, "We can help you out; you can do hair plaiting in Europe." That is not a story they would give; it is what they think because their social experience is so limited. They do really think that things happen in Europe, that European people are very rich, that they will be able to make a huge fortune on the streets. It is all black and white for them. There must be a minority of people who are more aware but they are coming from more sophisticated countries on the fringes of Europe—Russia, for instance—and they are not coming from the African countries where there is such a gap between living in a village with no electricity and nothing to being brought into a European capital. They cannot comprehend. It is just beyond what they understand. Therefore, the pull factor is not a good argument. They do not understand what is pulling them there, except they are being told that they can work. Also, it is down to the immigration authorities themselves to look at the evidence. People are not going to beat themselves up. If you get brought into this country by Albanians who control 80% of the trafficking in London, you are groomed before you get here. You are beaten up and raped on your way. They do not arrive in London in the state they were in originally in the village in Albania. That cannot be mimicked by somebody wishing to pretend that they are a trafficking victim. The girls who come from Nigeria who go through ritual ceremonies have razor cuts all down their bodies and arms. They are not going to do that themselves and pretend they have come through trafficking. In my view, it is down to the people making the decision to look at the evidence and decide. Once you look at the evidence, it is quite clear who has been smuggled and who has been trafficked.

  Q77  Lord Bowness: In your submission you talk about Article 3 and victims of trafficking being returned to countries of origin. If in those countries they are likely to suffer torture, inhuman or degrading treatment, it would be a breach of that Article. We all agree with that but can you give us any specific evidence which supports that contention?

  Ms Finch: There is a recent bit of research done by one of the main shelters established in Albania by the government which is dealing mainly with women who have been brought back from Italy. To their surprise, they found out that most of the women who are coming to their shelter have been retrafficked at least once or twice beforehand. Retrafficking clearly is persecution under Article 3 in terms of being degrading treatment. We are not talking about torture except in the most extreme trafficking cases. We certainly are talking about a complete lack of control that is demeaning people, that brings them to such a situation that it is an Article 3 breach. There is also research done by various NGOs in Vietnam about people from China and they found that many people have been retrafficked and retrafficked. Some of them have also faced retribution in the meantime in terms of themselves or their family but retrafficking is usually what makes the money for the traffickers.

  Miss Biden: In terms of people being returned from the UK we are aware from the POPPY Project that they have anecdotal evidence to suggest that there is a high vulnerability to retrafficking when people are returned from the UK. Approximately 20% of the women that they have been supporting they find are retrafficked. In one case a person was resold by her family within three days of being returned so there is certainly evidence emerging in returns specifically from the UK where retrafficking is a big problem.

  Lord Bowness: Is that a generalisation from wherever people come? I thought we had some evidence from somebody who suggested that there was not much evidence of retrafficking. I thought we were told that that was the case so far as people from eastern Europe were concerned.

  Q78  Chairman: We have had different evidence from different bodies.

  Ms Finch: The difficulty is there is not a lot of monitoring going on. There has been research done. For instance, Lynn Chitty, formerly a social worker in West Sussex, worked a lot with the police at Gatwick on an earlier operation which involved Nigerian girls. She did follow up on a number of girls who were abducted and taken because this was a gang which was transiting children to the UK and to Italy. She went to Italy and she is also in contact with three girls who were sent back to Nigeria. All those three girls disappeared. She went to Italy and talked to two girls who had been retrafficked into Italy so we know from small scale bits of research that it does happen.

  Ms Joshi: We are aware of anecdotal information of women being retrafficked from eastern European countries. We prepare statements in support of women who claim asylum, who are Moldovan and Albanian nationals. Having been in touch with the agencies that provide support in those countries, they have strongly suggested that there is a very high risk of retrafficking in those particular countries, starting with traffickers waiting for women at airports or waiting until they return to their home village or town, pursuing them and trying to retraffic them internally or externally again.

  Q79  Lord Bowness: You concluded in your evidence that the Refugee Convention and the ECHR cannot serve as the basis on which victims can stay in the UK. How do you think we could apply it differently to enable that to happen?

  Ms Finch: In terms of the ECHR, there is a recent case by the Court of Appeal called ID, which is about the detention of families and children in an immigration centre. What the judge said in that case is that when you look at the ECHR, to construe it properly, you need to look at a whole range of other European or international conventions which extend the range of the European Convention because it would then bring in the Convention on the Rights of the Child. In the view of ID, you would have to look at that Convention and apply it because you had to construe the European Convention by that method. That would strengthen it and bring in quite a lot of obligations which presently are not directly applicable here.

  Ms Joshi: In terms of the cases that we have seen at Amnesty, we certainly have come across successful applications where refugee status has been granted. Those are circumstances where those individuals have had excellent legal representation, support and counselling. The asylum process as it stands at the moment is problematic for asylum seekers across the board, but particularly for trafficked persons in terms of access to legal representation. There is a shortage of specialist immigration practitioners. In terms of the time for practitioners to prepare claims, it is even more problematic for trafficked people around problems of disclosure. In terms of flawed decision making, there are problems with the Home Office undermining credibility of asylum seekers and poor country information. We have found that the Home Office, for example, in the case of Moldova, cited the Moldovan Constitution to support that there was adequate protection for a particular woman to return. They did not look at the reality on the ground that there were not any laws to support one shelter which offered the maximum of three months' protection. We would certainly advocate a more gendered approach that reflects the problems that women and girls have at the time they are returned. They need the country information. Also there are those women who are deemed to be from safe countries and the Home Office should have more information on problems they will have if returned to, for example, Moldova or Albania.

  Ms Finch: The IND needs to start thinking about it afresh. I have looked at statistics which show which minors come from which countries. What was very striking was that normally there is a two-thirds/one-third split between males and females in children coming in. If you look at the west African countries that we know are sources for trafficking, you suddenly get a reversal. You get 50% female. There must be some connection between the sudden reversal and the trafficking, but the Home Office has never thought about it. They have never looked at their own statistics and asked why do more girls come from these countries. They need to go back to the drawing board and consider how they should look at these cases.


1   [1999] 2 AC 629. Back

2   Application No 73316/01 in the European Court of Human Rights. Back


 
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