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Home Office concedes that their 45 day policy for providing support for victims of trafficking is unlawful (28 June 2019)

Date: 28/06/2019
Duncan Lewis, Main Solicitors, Home Office concedes that their 45 day policy for providing support for victims of trafficking is unlawful

Our clients NN and LP have settled their claims with the Secretary of State after the Home Office conceded that their policy - which allows identified victims of trafficking to receive support for only 45 days following a conclusive grounds decision - is unlawful and incompatible with the European Convention on Human Trafficking (ECAT).




Background

Article 12 ECAT – which came into force in the UK in 2009 - requires states to adopt legislative or other measures which may be necessary in order to provide assistance and support to persons following a decision that there are reasonable grounds to believe that they are victims of trafficking. This is to assist victims with their physical, psychological and social recovery.

Additionally, Article 11 of the Trafficking Directive requires support and assistance to be provided for victims of trafficking. The National Referral Mechanism (“the NRM”) is the United Kingdom’s framework for identifying victims of trafficking and ensuring that they receive appropriate assistance and support.

By 2013, the Home Office published their first version of their policy ‘Victims of human trafficking – competent authorities’ guidance, which makes clear that victims of trafficking are entitled to various support under Article 12 ECAT. The policy developed to allow victims support for 14 further days after a conclusive decision was made that they were indeed a victim of trafficking.

Following the cut-off in support, victims would either have to find support from charities, or friends. If they were asylum seekers, they could potentially access asylum support, but this does not require the same level of support as trafficking support. Victims with leave to remain might also have been able to access local authority support, but again this would not be tailored to their needs as victims. Many victims would not be able to access further support, and some would become homeless or destitute.

However, reports from various organisations, including the Human Trafficking Foundation, argued that 14 days were inadequate, and that victims required further support and assistance, pointing out that they would be susceptible to re-trafficking without this support. In 2017 government ministers announced that the support period would extend to 45 days. Concerns remained that this was not sufficient to allow victims to recover, or to protect them from re-trafficking.



Victims of Trafficking: LP and NN

On 13 March 2019, Duncan Lewis issued claims on behalf of two victims of trafficking, NN and LP. Both clients had been conclusively found by the Home Office to be victims of trafficking.

LP was trafficked to the UK from Albania and was forced into sex trafficking. In January 2019 the Home Office made a conclusive grounds decision that LP is a victim of trafficking. She was then told by her support worker that she had only a further 45 days of support. LP has a young daughter and relied on her support worker for both emotional support and financial assistance. She was distraught at hearing her support would stop.

NN was trafficked from Vietnam to the UK, where he was trafficked into cannabis cultivation. He was beaten by his traffickers and suffers from several mental health conditions. In February 2019 the Home Office made a conclusive grounds decision that NN is a victim of trafficking. He too relied heavily on his support worker and the financial assistance provided to victims of trafficking, and was very worried about his ability to cope without this support.

Duncan Lewis identified that the cessation of the LP and NN’s trafficking support was in clear breach of the Trafficking Convention and Directive and that there was a failure to assess their needs before deciding to terminate support.

As such, NN and LP issued judicial review challenges to the Home Office’s unlawful decisions and policy in breach of the Trafficking Convention, the Trafficking Directive, and articles 4, 14 and Protocol 1 of the European Convention on Human Rights. They argued that the Trafficking Convention requires support to be provided for as long as the victim needs and wants it, or until the victim leaves the UK’s jurisdiction.

The lack of policy on when extension requests should be granted was also challenged and the Claimants made an interim relief application for their support to remain pending the determination of these issues. On 15th March 2019 the court ordered that LP and NN’s support continue pending an interim relief hearing which was heard the following week.

Following the interim relief hearing, Mr Justice Julian Knowles ordered that the Claimants’ support not be stopped pending final determination of their judicial review matter, and notably, that the Home Office should not refuse any other confirmed victim of trafficking’s support on the basis of the length of time since the conclusive grounds decision, or the length of time for which they have been receiving support pending a further hearing. (Full judgment can be read here.)

Following a further interim relief hearing in April, the court ordered that its previous order continue pending determination of these claims. (Full judgment can be read here.)



Outcome

On 6th June 2019 the Secretary of State for the Home Department (SSHD) conceded in his defence that the temporal ambit of Article 12 ECAT is not limited to the period before a positive conclusive grounds decision, and that the Secretary of State will amend his policy accordingly. A witness statement from Rachel Devlin from the Modern Slavery unit at the Home Office confirmed that following the Claimants’ challenge, the Secretary of State has reviewed how the current support system for victims of trafficking works and identified aspects that he considers unsatisfactory.

She added that the Secretary of State recognised that what Article 12 ECAT contemplates as necessary to assist with recovery may vary between individuals, and should not be delimited by time alone. An interim policy will be brought out that will not restrict support for confirmed victims by reference only to the date of their conclusive grounds decision or length of time the support has been provided. The Secretary of State will then work with expert stakeholders to design a new needs-based system of support.

On 28th June 2019, NN and LP settled their claim with the Secretary of State. A consent order and statement of reasons were agreed and filed in court. The Home Office conceded that their 45-day policy is unlawful and incompatible with the Trafficking Convention and that support should be provided in reference to the individual’s needs rather than by any reference to how long the individual has been supported, as set out in the Convention.

The Home Office further committed to formulating a sustainable needs-based system for supporting victims of trafficking which will be developed with the input of expert stakeholders. Pending completion, the Home Office will publish an interim policy making clear that trafficking support will not be restricted by reference only to the date of the conclusive grounds decision or the length of time for which such support has been provided.
In the meanwhile, the Home Office will not reapply the 45-day rule or reintroduce any provision restricting support by reference to a date or length of time.



Representation

The Claimants are represented by director Ahmed Aydeed, and caseworkers Karen Staunton and Harvey Slade of the Birmingham Public Law department at Duncan Lewis. Chris Buttler and Zoe McCallum of Matrix Chambers and Miranda Butler of Garden Court Chambers were instructed in the case.





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