Human trafficking: Upholding Rights! Early Legal Intervention

Over the last 2 years, LSA’s Women and Young Persons’ department has been involved in a policy project with law centres across Europe to publish and promote an ‘early legal intervention’ approach to benefit victims of human trafficking. This blog has been written by one of LSA’s solicitor involved, Andrew Sirel, and discusses the benefits of such an approach and how the project has progressed. 

 

Introduction

Human trafficking is a form of modern slavery. Vulnerable people are forcibly recruited and transported – sometimes on long and harrowing journeys across whole continents – for the purposes of exploitation.  This exploitation takes many forms, including sex-work, domestic servitude in private houses, farming (including cannabis production), construction, the list goes on.  Victims are often enticed by the promise of a better life and a well-paying career, before being held at the mercy of organised gangs through force, deception and debt bondage.  It is an insidious crime, operating in the shadows of society.

The problem is widespread throughout Europe. According to a 2013 report by the EU, more than 23,600 people were victims of trafficking in Europe from the period 2010-2013[1].  In the UK alone, 2,340 potential victims of trafficking were referred to the UK identification mechanism (see below) in 2014, an increase of 34% on 2013.[2]  Surprisingly, although there are an estimated 13,000 potential victims currently in the UK, there were just 130 convictions for trafficking-related offences in 2013-2014[3]. It is likely that the official figures are merely the tip of the iceberg.

Awareness of the problem is growing in the UK and internationally.  Whilst human trafficking is most commonly associated with foreign nationals being transported across borders, it is worth remembering that trafficking also occurs within the UK to UK citizens.  The child abuse-ring exposed in Rochdale in 2014 provided a stark reminder of this.

Given the hidden nature of this illegal industry paired with the increasingly complex measures that traffickers will go to in order to avoid discovery, it can be difficult to identify victims.  Being identified as a victim of trafficking is a very complex process and can often be confusing for a potential victim.  The identification process often runs alongside an asylum claim, and other factors such as trauma suffered play a key part in a potential victim being able to disclose the true extent of their experiences.  In order to effectively navigate the process, it is absolutely vital that a potential victim receive Early Legal Intervention (ELI).

 

The UK System of Identification

The National Referral Mechanism (NRM) for identification of victims of trafficking was established in 2009.  It acts as the backbone for the UK system of intervention in trafficking as a platform to identify and support victims of trafficking within the UK.  The NRM is in place as a result of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking (“Trafficking Convention”) as well as the EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (“EU Trafficking Directive”).

To be referred, potential victims must first be referred to one of the UK’s two competent authorities: (i) the UK Human Trafficking Centre (UKHTC), which deals with referrals from the police, local authorities and NGOS; or (ii) the Home Office, which deals with referrals from the immigration process. The referring authority – known as the ‘first responder’ – will handle the initial referral.  This can be the police, HO, Social Services or an NGO.[4]  The referral will then be passed on to the relevant Competent Authority.

The Competent Authority will then consider initially if there are Reasonable Grounds to believe that the individual is a potential victim.  This is dependent on whether there are basic indicators of trafficking having taken place, and operates to a low standard of proof.  A potential victim then has a 45-day period of ‘reflection and recovery’ before a Conclusive Decision follows as to whether the individual is a victim of human trafficking.

According to NRM statistics, during the period January to March 2015 there were 731 referrals comprising individuals from 64 countries of origin. Within this three month period, 161 of the 731 referrals were found conclusively to be victims of trafficking, whilst 332 of the referrals were still awaiting a conclusive decision.[5]

Potential victims can also be failed by the UK system – recently, a high court judge ruled that the Home Secretary failed to protect three potential victims of trafficking, who were wrongly being detained in immigration detention centres. Failure to correctly identify victims and a failure to make appropriate referrals to the competent authorities can contribute to these situations.

 

Early Legal Intervention

Clearly victims of trafficking are extremely vulnerable and can often be left confused and unaided by the UK asylum process.  Thus, the need for legal support is a pressing one. Indeed, legal support for victims of trafficking is an internationally-recognised concept, enshrined under Articles 6(2) and (3) of the UN Protocol from Palermo (2000), Article 12 of the Trafficking Convention, and Article 12(2) of the EU Trafficking Directive.

Early legal intervention (ELI) exists in order to protect and empower victims of trafficking. It is the provision of confidential, professional legal advice for potential victims of trafficking from their first encounter with the authorities. The importance of legal advice from first contact cannot be overstated.  Often victims are required to give statements to the authorities when they are at their most traumatised and vulnerable.  To be disclosing such information in this state can be damaging to them.  Early legal advice can help a victim regulate their contact with authorities on their own terms, and act as a gateway to immediate protection, improving their social recovery in the long-term.

 

Upholding Rights! Early Legal Intervention for Victims of Trafficking

Despite a number of international and European instruments highlighting new strategies to tackle the problem of trafficking, significant difficulties remain. Particularly, these difficulties manifest in the provision of proper legal advice detailing victims’ rights to assistance and health care, rights to a residence permit, labour rights, and their rights regarding access to justice.

To address this, LSA has partnered up with the Immigrant Council of Ireland (ICI) which is leading a transnational Project on ELI, entitled Upholding Rights! Early Legal Intervention’.   The Project – co-funded by the EU’s Prevention of and Fight Against Crime Programme – aims to promote best practice in securing the protection of victims in trafficking through ELI.  The Project goes beyond the drafting of best practice principles however; it has established a ‘pilot’ programme, with these ELI principles at their core, in Ireland, Bulgaria and Croatia.  Immigrant Council of Ireland (ICI), the Bulgarian Gender Research Foundation (BGRF), and Croatia’s Centre for Women War Victims – ROSA are running the pilots.  The pilot organisations work in partnership with LSA, the AIRE Centre (London) and KSPSC (Lithuania).

During the Project, a comparative report was produced which studied and analysed in detail the processes for victims of trafficking in Ireland, England & Wales, Scotland, Finland, Lithuania and Bulgaria.  Analysis of ELI practices in participating Member States considered whether they were meeting their obligations in implementing the Trafficking Directive; and also contributed towards the harmonisation of ‘best practice’ most fully complying with European and international human rights standards.  The report details a recognition on behalf of these EU countries that the fight against trafficking must “include a rights-based approach to protection of the victims and support the development of prompt collaboration between the State and civil society in upholding the rights of victims.”  This is reached through the provision of comprehensible legal information as soon as possible.

LSA’s Women and Young Persons department has been an integral part of the team. It has had a hand in developing and implementing the Project by using the Department’s legal expertise, grounded in its exemplary casework, to provide a practical template for what best practice ELI actually looks like.

 

Conclusion

The ELI message is clear: if you encounter an individual and there are indicators of trafficking, call a lawyer as soon as possible.

In order to sustain the spirit of the Project, this message must be recognised and put into practice.  LSA will continue to take a leading role in doing so.  Firstly, the Project’s findings will be disseminated to key stakeholders in each partner country.  Secondly, training stemming from the research will be delivered to front-line staff and state agencies to provide critical context to the issue and to reinforce the ELI message.  Again, LSA’s website will provide more details on this in due course.

The conclusion of this Project could not have come at a better time in Scotland.  The Human Trafficking and Exploitation (Scotland) Bill has recently passed the Stage Three in the Scottish Parliament and is now the Human Trafficking (Scotland) Act.  Whilst access to legal advice is mentioned in the Act, ELI is not specifically spelled out.  It is therefore critical for legal practitioners to stress the importance of ELI and make sure that it becomes embedded into anti-trafficking practice in Scotland.

 

[1] http://www.npr.org/sections/thetwo-way/2013/04/15/177326963/european-union-report-details-growth-of-human-trafficking
[2] National Crime Statistics, NRM End of Year Summary 2014, 19 January 2015, http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/502-national-referral-mechanism-statistics-end-of-year-summary-2014/file
[3] http://www.theguardian.com/global-development/2015/aug/17/modern-slavery-act-human-trafficking-development-agenda-just-beginning
[4] http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism
[5] http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/599-human-trafficking-national-referral-mechanism-statistics-january-to-march-2015/file
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