GETTING IT RIGHT
By Keith Best
Monday, April 13, 2009.
I applaud the commitment of the British Government on Action Against Trafficking in Human Beings, which comes to effect this April. I also congratulate the UK Human Trafficking Centre in Sheffield for its sympathetic approach towards victims and training all 55 police forces in trying to identify such victims.
But strong words and rhetoric in themselves will not guarantee the safety of one victim of trafficking – we need to see how the relevant agencies will apply the provisions” he said. He quoted the example of a victim who gave evidence in a trial which resulting in her trafficker going to jail for 26 years.
Yet she was refused asylum on credibility grounds, her appeal dismissed and she had to go to a panel/Country Guidance hearing, which required oral evidence from several police officers. What a waste of public money! There needs to be a more joined-up approach. Rather than putting a victim through further misery the evidence of persecution in the police witness statements should be enough to grant asylum.
Once victims are identified generally they are advised to make an asylum application but the Home Office does not deal with these applicants in any special way. For example, there is insufficient liaison between the Home Office and the police. There is no recognition of the dangerous position such women have put themselves into by agreeing to give evidence, etc. They are even subjected to the same careless assumptions of incredibility which other asylum-seekers are subject to, even though their evidence has been used in court in cases requiring a standard of proof of beyond reasonable doubt.
We ask the Government to make it clear how the Convention will be applied in practice. If, despite the fine words and intentions, there is no greater protection for victims then it will be to the eternal discredit of the Government. Unfortunately, this measure seems to have been victim to the same lack of analysis and assessment of human and financial resources necessary that we have seen in other ventures: there is no extra provision for legal aid to assist victims; the Government’s view is that victims of trafficking merit no greater access to legal advice nor to lawyers who specialise in such cases beyond what is provided for any asylum seeker (yet such victims are often not asylum seekers when they are identified).
The following measures should be put in place:
It is essential that those who are identified as victims should be given access to a panel of immigration advisers specialising in trafficking cases. It should not be a lottery as to whether early access to legal advice is available or not.
There has been no corresponding increase in legal aid provision for the real likelihood of a greater number of identified victims seeking legal assistance despite the right to legal representation being a right protected by the Convention. If other institutions such as the police have dealt with the person as trafficked, then the UK Border Agency should refer their asylum application directly to a senior caseworker who should not waste time and money disbelieving facts already tested in court or through witness statements obtained by the police.
For women claiming asylum without having been picked up by the police who assert trafficking they should be dealt with sympathetically in practice by the UK Border Agency and not with the culture of careless and contemptuous disbelief which is often applied in other cases.
Under the Convention a National Referral Mechanism (NRM) will be established as the process of identifying and referring victims of trafficking for assistance. The rights protected under the NRM include rights to legal counselling, data protection, privacy, access to housing, reflection periods and temporary or permanent residency.
The Government intention is to have a two stage NRM with the first stage being conducted by questionnaire and then, if there are reasonable grounds to believe that the person is a victim, to refer in the second stage to the “competent authority” – in this case the United Kingdom Human Trafficking Centre (UKHTC). The criteria for determining if a person is a victim will involve input from different agencies but it is how those criteria are applied that will matter. That should be made clear.
The competent authority has to decide within 5 days whether the individual is a victim. If so, the victim will be afforded a 45 day reflection period in the UK (more than the minimum 30 days set out in the Convention), which can be extended in special circumstances (which the Government has not specified), at the end of which the competent authority will decide conclusively if the individual is a victim or not. As Vera Baird confirmed, there will be no right of appeal against an adverse finding. There should be, otherwise the only recourse would be to apply for judicial review on the basis that the decision was unreasonable.
If the decision is to find that the person is a victim then, depending on whether or not the victim is co-operating with the police or due to their particular circumstances they will be granted 12 months Discretionary Leave to Remain in the United Kingdom.
We have several concerns:
Issues of concern
Ø It remains unclear what kind of evidence will be required within the 5 day period to ascertain whether an individual is a victim or not. Much emphasis seems to be placed on the initial questionnaire that will be completed by the first referrer ie the police, local authority, UK Border Agency etc.
Ø It is not known whether this questionnaire will be disclosed to legal representatives which could be essential to the claim.
Ø It is questionable whether such a lengthy questionnaire is best conducted following initial first contact with a potential victim in areas that may not be conducive to privacy and establishing a relationship of trust .
Ø We do not know whether such questionnaires will be relied upon by the UK Border Agency as evidence despite the huge potential of these being “tainted evidence.”
Ø It is unclear whether the 12 months Discretionary Leave to Remain lies outside the asylum regime.
Ø It is unclear if a victim is granted 12 months Discretionary Leave to Remain and then goes on to claim asylum whether this will be considered as a late and opportunistic claim.
Ø The fact that the Discretionary Leave to Remain is likely to be for 12 months only means that there is no right of appeal against it.
Ø For child victims the first referral will probably be the local authority – there has been no real discussion of how the Convention will work in harmony with already existing legislation such as s.47 Children Act 1989.
Ø “Particular circumstances” remains unclear.
The Government needs to sort out these matters as one of urgency.
Keith Best is head of Immigration Advisory Service UK, a charity working for the welfare of immigrants.