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Immigration Solicitors

Trafficking and Unlawful Detention (20 November 2012)

Date: 20/11/2012
Duncan Lewis, Immigration Solicitors, Trafficking and Unlawful Detention

Following our article dated 20 April 2012, on the Unlawful Detention of Chinese Foreign Nationals, permission to seek Judicial Review has now been granted for one of these cases.

This promising result follows several perturbing events that have emerged from the progression of the Judicial Review challenges to unlawful detention. The first is that with the Claimants languishing in detention for periods verging on 3 years, with no sign of release and no sign of removal, Judicial Review action has acted as a catalyst to the UKBA producing a travel document for the Claimant to return home.

Seemingly this is good news for our much maligned Claimants, who have all along asserted their willing to return to China. Unfortunately, the paradigm of issuing travel documents after litigation has commenced, also involves issuing the travel documents with incorrect, or at the very least, inconsistent details to the ones which have been repeatedly provided by the Claimant. No transparency has been offered by either the UKBA or the Chinese MPS as to how these details have been retrieved, or what goes on in the interview process, particularly the interviews immediately prior to the travel documents being issued.

Expert opinion has identified a number of risks to returning to China with a false identity. These centre around the methods of population control and monitoring using the hukou system. The Claimants returning on the incorrect information will be unable to avail themselves of this system and the benefits it entails; employment, access to social security, legal migration within the country and registration for education for their children. Without these benefits, the Claimants are in a position akin to those of the migrant work force, with the prospect of leaving them destitute if returned. They are also at risk of financial penalties and incarceration if returned.

The final problem relates to the Claimants histories and their mode of arrival to the UK. Some of the Claimants have displayed characteristics of historic abuse; either at the hands of family members or of those charged with their care, and then on to the agents that brought them to the UK with the promise of a better life, only to bond them with debts that are inconceivable for the Claimant to pay, coupled with forced labour in cannabis factories and takeaway venues. The Claimants are brought to the UK under, what appears to be, false premises and have then spent their time clearing the debts accrued through illegitimate means later leading to their prosecution for a criminal offence they were effectively forced to commit, resulting finally in their endless detention, with no prospect of removal, until the production of an incorrect travel document.

The background of the Claimants, suggests a strong likelihood of trafficking. Their social profiles within China, the means of their entry to the UK, and the subsequent offences they have committed are all common indicators of being a Potential Victim of Trafficking. The UKBA, as a competent authority have a duty to identify, and refer for further assessment those that could potentially have been trafficked to the UK to the National Referral Mechanism. As trafficking, by its very nature, is clandestine, and victims are likely to have issues with misplaced trust towards the authorities, fear of repercussions from the agents who are able to exercise continuing control over the Claimants, and emotions of shame or guilt, it may be difficult to discern whether trafficking has occurred. Caseowners, legal representatives, police and all others that come into contact with the Claimant need to be vigilant to the possibility of trafficking. The case of R v O [2008] EWCA Crim 2835 also places the duty on the prosecutor to be pro active in causing enquires to be made about the suspect and the circumstances in which they were apprehended. The UN Office on drugs and Crime: Human Trafficking Indicators 2010 provides a comprehensive list of factors to consider when dealing with possible victims.

Although the Claimants in this instance and, no doubt for many others, arrived in the UK several years ago, it should not be presumed that they are no longer under the control of their agents/traffickers, and they do not fall within the protection of the Trafficking Convention, and are no longer victims as defined at Article 4(5) ‘any natural person who is subject to trafficking in human beings as defined in this article’.

What these cases highlight, are that trafficking can be identified and dealt with at any stage following the Claimants arrival to the UK. In our cases, the Claimants have been detained unlawfully partly as a consequence of trafficking not having been realised at an earlier stage. In prosecuting them for offences of cannabis cultivation, minor offences under the Sexual Offences Act 2003 and for the use of false documentation, both the CPS and the UKBA have fallen foul of protecting these Claimants greatest needs. They are prosecuted for offences that could relate directly to their trafficking, and following imprisonment are detained under immigration powers, for what we have seen can be an excessive length of time, pending removal.

We have seen in recent history, the tragic effects of people smuggling and trafficking of Chinese nationals going unnoticed, with two prominent examples being that of the Morecambe Bay incident resulting in the death of at least 21 Chinese nationals who were illegal immigrants working as cockle pickers (2004), and the 58 Chinese immigrants who suffocated in the back of a lorry as they were being brought illegally to the UK (2001). Commonly, the people involved have been seduced by the prospect of a better life in the UK, as with our Claimant’s, and are unlikely to realise the life endangering situation they are putting themselves.

No consideration is given to the conditions of return, and the prospect of agents or traffickers regaining control or maintaining control during detention. The Court of Appeal have allowed for appeals on trafficking induced criminal offences, such as in R v G [2011] 2 Cr App R (S)-Sentencing.

Whilst the UK is signatory to many international conventions on trafficking, and has enacted domestic legislation to deal with victims of trafficking and guidance and policies have been issued by the government, these measures will be of no value if not followed. Practitioners are able to bring to the fore concerns of trafficking, even where it would appear that these concerns have become obsolete through the passage of time, and bring challenges to the UKBA in failing both to afford protection to Potential Victims of Trafficking, but then to keep them detained as though they are criminals.


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