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Challenging the Treatment of Victims of Trafficking in Immigration and Criminal Proceedings in the UK (10 August 2012)

Date: 10/08/2012
Duncan Lewis, Public Law Solicitors, Challenging the Treatment of Victims of Trafficking in Immigration and Criminal Proceedings in the UK

By Fiona Iliff

This article considers the current status of victims of trafficking under UK Immigration and Criminal law. It addresses the fact that, while significant progress has been made in terms of the identification of victims of trafficking by the authorities, and several guidance documents have been issued for the CPS and UKBA in relation to the identification and treatment of victims, trafficking victims continue to be detained, prosecuted and harshly punished for offences which arose directly from their situation of trafficking.

Defining Victims of Trafficking

The Council of Europe Convention on Action against Trafficking in Human Beings (the Trafficking Convention), implemented in the UK on 1 April 2009, was enacted to prohibit and prevent trafficking in persons; to investigate, prosecute and punish traffickers; and to protect victims of trafficking. Article 4 of this Convention defines trafficking as ‘the recruitment, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation or the prostitution of others or other forms of slavery, servitude, or the removal of organs’. For the purposes of the Convention, Article 4 (5) defines a ‘victim’ as ‘any natural person who is subject to trafficking in human beings as defined in this article’.

The Obligation to Protect

The Trafficking Convention brought in positive obligations on the UK authorities to identify victims of trafficking (Article 10) and to investigate any claims of trafficking for the purposes of providing protection and support (Article 1(1)(b) and Article 27). In the case of R v O[2008] EWCA Crim 2835, the Court of Appeal held that it is the duty of the prosecutor to be pro-active in causing enquiries to be made about the suspect and the circumstances in which they were apprehended. It provides that both prosecutors and defence lawyers are ‘to make proper enquiries’ in criminal prosecutions involving individuals who may be victims of trafficking, in line with the findings of the Parliamentary Joint Committee on Human Rights report on Human Trafficking, and that there must be coordinated law enforcement in protecting the rights of victims of trafficking.

In Rantsev v Cyprus and Russian (Application no. 25965/04, adopted on 7 January 2010), the ECtHR also found that there are positive obligations on state parties to protect victims of trafficking and to investigate potential trafficking situations. It held that the state obligation extends beyond criminal law, to include protection measures for victims and persons at risk. The State is required to take ‘immediate practical victim protection measures’ where it is aware, or ought to have been aware, of a credible suspicion of a risk of trafficking.

In O,O,O and others v Commissioners of the Metropolitan Police [2011] EWHC 1246 (QB), the Court held that there had been a violation of Articles 3 and 4 ECHR where officers had failed to undertake any investigation into allegations that the claimants were subjected to inhuman and degrading treatment and that they were held in slavery or servitude.

Identification and Protection Measures

In order to implement its international obligations, the UK has now introduced a system known as the National Referral Mechanism, whereby a potential trafficking victim is referred to the relevant competent authority to reach a decision on whether or not they accept a claim that an individual is a victim of trafficking. A positive decision that an individual is indeed a trafficking victim is likely now to significantly improve the individual’s treatment by the authorities and the potential outcome of immigration and criminal proceedings.

Chapter 9 of the UKBA Enforcement Instructions and Guidance (EIGs) sets out indicators of trafficking that should be identified by ‘first responders’, the first UK officials to come into contact with victims. It sets out the important principle that, ‘During operations, enquiries into whether a person is a victim of trafficking should take precedence over enquiries into the individual’s immigration status. Officers should be aware that victims of trafficking are likely to be classified as vulnerable persons and detention will not normally be appropriate.’ The UKBA’s guidance ‘Victims of Trafficking: guidance for frontline staff’ provides guidance in relation to the National Referral Mechanism, as ‘a victim identification and support process which is designed to make it easier for all the different agencies that could be involved in a trafficking case – e.g. police, UKBA, local authorities and NGOs – to co-operate; to share information about potential victims and facilitate their access to advice, accommodation and support.’

This Mechanism can have a hugely positive impact in immigration proceedings as the above UKBA guidance (implementing Article 14 of the Trafficking Convention), provides that where a victim of trafficking has been identified they are likely to be granted at minimum 1 year’s discretionary leave in light of their circumstances and the need for ongoing investigation. If they would be at risk of persecution or ill treatment on return as a result of their trafficking situation, they may also be granted five years Leave to Remain as a Refugee or under Humanitarian Protection.

The recently released CPS guidance, ‘Human Trafficking and Smuggling: Legal Guidance: The Crown Prosecution Service’, describes the National Referral Mechanism as involving ‘first responders (which may include police, UKBA, local authorities and certain NGOs) [referring] all suspected victims of trafficking to a Competent Authority for a decision to be made within 48 hours. A first responder will complete a referral form recording their encounter with a potential victim. Sufficient information will be included to enable a decision on whether the subject has "reasonable grounds" for being treated as a victim of trafficking.’ If victims are identified and held to be victims of trafficking, the Guidance then provides for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.

Unfortunately these guidance documents, while setting out important principles, do not always result in effective victim identification. Until recently, the CPS guidance in relation to trafficking victims was almost entirely unknown within the CPS. Recent training schemes have improved this, but general awareness is still poor. A report by John Vine, Independent Chief Inspector of the UK Border Agency, ‘Asylum: A thematic inspection of the Detained Fast Track’, July – September 2011 also identifies protection gaps within immigration and asylum proceedings. He points out that the current screening process for asylum seekers ‘[is] not tailored to capture information’ that could fully determine whether individuals are victims of trafficking and therefore unsuitable for detention, and there therefore remains a real ‘risk that the victims of torture or trafficking could be allocated to the detained fast track contrary to the Agency’s own policy.’

Non- Prosecution of Victims of Trafficking

Article 26 of the Trafficking Convention requires that states should ‘provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.’

Article 8 of the Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims replacing the Council Framework Decision 2002/629/JHA (the EU Trafficking Directive), to be brought into force in the UK in 2013, also provides that ‘Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being [trafficked]’.

The UN Commentary in relation to the transposition of the EU Directive on Trafficking further recommended the inclusion in domestic legislation of ‘a provision to ensure that (potential) victims of trafficking are not detained, charged or prosecuted or otherwise held responsible for acts and offences, committed by them as part of the crime of trafficking.’

In spite of this provision however, victims of trafficking continue to be prosecuted for offences resulting out of their situation of trafficking. This is largely due to the fact prosecutors and criminal defence lawyers are not well-versed in anti-trafficking legislation and guidance, and are also unaware of the available defences arising from situations of trafficking (duress for example, and s.31 of the Immigration Act 1999 where the person is fleeing persecution, R v Abdall Mohammed and others [2010] EWCA Crim 2400). Also, while UK law does now allow for discretion not to prosecute victims of trafficking, there are no substantive provisions setting out clear guidelines and obligations in relation to when not to prosecute.

Lack of Accountability

An Inquiry by Baroness Kennedy in relation to Human Trafficking further expressed concern that there is no formal right of appeal against decisions in relation to trafficking status, even though this is a decision that can have significant consequences for those that claim to be, or are regarded by others to be, victims of human trafficking (as set out above).

She recommended that a review be conducted in relation to whether ‘present arrangements are sufficiently independent, are overly centralised, lack accountability, have conflicts of interest in decision making, should provide a formal appeal process, and include the systematic analysis of NRM data which is then shared to enhance anti-trafficking practice across partner agencies’. This approach of adopting an accountability framework, and in particular an appeal process, was also recommended by the UN for the UK’s implementation of the EU Trafficking Directive (Human Trafficking: Joint UN Commentary on the EU Directive – A Human Rights-Based Approach).

Conclusions

Until the implementation of more effective legislative provisions and until more effective training is carried out on the current Guidance and international law obligations in relation to identification, non-prosecution and assistance to trafficking victims, serious concerns remain in relation to the treatment of victims of trafficking in immigration and criminal proceedings in the UK.

We are currently dealing with case of a Sudanese refugee, who fled to Nigeria, where she was trafficked to Italy and forced into prostitution. After two years, she fled from Italy to the UK, where she was apprehended and arrested on arrival for use of false documents. She claimed asylum shortly after arrival and notified the police and the UK Border Agency of the fact that she had fled forced prostitution in Italy. The CPS failed to consider whether her prosecution was in the public interest given that she was a victim of trafficking fleeing persecution, and charged her with use of false documents. Her criminal solicitors advised her that she had no defence. The Crown Court judge at her trial sentenced her to the maximum penalty for the offence, 12 months imprisonment, which resulted in her being considered for automatic deportation at the end of her sentence. Having served the mandatory element of her sentence, the prison authorities and UK Border Agency failed to release her and held her under immigration powers for a number of months in spite of the fact that she had been diagnosed with Post-Traumatic Stress Disorder and given birth to a child (conceived out of prostitution) who was suffering from sickle-cell anaemia. Four years after arrival in the UK, she is yet to receive a decision in her asylum application and is still being considered by the Criminal Casework Directorate for automatic deportation. She remains in NASS accommodation.

In relation to this case, we are now challenging her conviction and sentence retrospectively, applying the defences of duress and s.31 of the Immigration Act. We are also challenging the delay in consideration of her asylum application and her unlawful detention under immigration powers, which were caused by the consideration of her case by the UKBA Criminal Casework Directorate under the automatic deportation provisions. Having lodged her criminal appeal at the Court of Appeal, the UK Border Agency finally referred her case to the National Referral Mechanism, but the competent authority immediately rejected her claim that she is a victim of trafficking. We are therefore now challenging this decision as well, by way of Judicial Review given that there is currently no right of appeal, with the support of expert evidence from organisations such as the Poppy Project.

This case is just one in a huge number of such cases, of trafficking victims that have fallen into the protection gaps identified in this article. Encouragingly, the Criminal Cases Review Commission has now taken up the issue and announced a scheme aimed at reviewing wrongful convictions of trafficking victims for document offences due to poor or no legal advice, but they are unlikely to be able to reach all such victims. It now falls to those of us in the profession to continue to spread awareness, and to continue to challenge the authorities in relation to their ongoing failures to comply with their international obligations to protect such vulnerable individuals.


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