As part of implementing the Council of Europe Convention on Action against Trafficking in Human Beings (2005 Trafficking Convention), the UK government created the National Referral Mechanism (NRM). The NRM is a victim identification and support process which is designed to make it easier for the agencies involved in trafficking cases to cooperate.
Decisions about who is a victim of trafficking are made by competent authorities. In the UK the competent authorities are the UK Human Trafficking Centre (UKHTC) and the Home Office.
Article 10 of the Trafficking Convention sets out a two stage process for identifying victims of trafficking: the reasonable grounds test acts as a quick initial filter before the fuller conclusive decision. It has consequences for the potential victim in terms of protection and potential further stay in the UK given that under Article 11 of the Anti-Trafficking Directive (Directive 2011/36/EU) the obligation to provide support is triggered ‘as soon as the authorities have a reasonable-grounds indication’, which is unconnected with criminal proceedings, and other provisions. Following a positive reasonable grounds decision, the competent authority is then required to make a second identification decision to conclusively decide if the person is a victim of trafficking.
You can listen to the Aire Centre’s Radio 4 appeal here. Dinah Rose tells the story of Maria, a victim of trafficking who was brought to the UK and forced into prostitution. Maria was one of many victims of trafficking that come to the Aire Centre’s for help because they have been subject to unfair and incorrect decision-making by the authorities (here)
MODERN SLAVERY IN NUMBERS
10,000: Home Office estimates that there are between 10,000 and 13,000 victims of modern-day slavery in the UK.
100: 100 children could be trafficked every week into the UK.
25%: Nearly 25% of all trafficking victims are children.
34%: The National Crime Agency has reported a 34% rise in potential trafficking victims in 2014 compared with a year earlier. Adults are predominantly trafficked for sexual exploitation
Minors are exploited for labour.
58%: Of the trafficked children who have disappeared, the NSPCC reported in its 2012 all-party parliamentary group report that 58% were being exploited for criminal activity
96%: Anti-Slavery International says that of the potential trafficking victims who were forced to cultivate cannabis, 96% were from Vietnam and 81% of those were children.
£30,000: Victims are being sold on, along with their debt, for as much as £30,000, to other traffickers for multiple exploitation, including sex trafficking, domestic servitude, cannabis cultivation.
The burden of proof
This is the duty to prove or disprove a disputed fact. In trafficking cases the burden is on the authorities to show that the victim is not at risk.
The reasonable grounds test has a low threshold (less than prima facie) and does not require facts to be established. The competent authority considers whether this statement holds true: ‘From the information available so far I believe but cannot prove’ that the person is a victim of trafficking. Once the decision has been reached (usually within five working days of referral), the competent authority will notify the first responder (the referring agency) and the potential victim of trafficking (via their appointed representative).
If the competent authority finds there are reasonable grounds, the potential victim is granted a minimum of 45 days for recovery and reflection. No detention or removal action should be taken against the person during this time.
The competent authority will then consider whether, on the balance of probabilities (essentially whether trafficking is more likely to have happened than not) there is sufficient information to conclude that the person has been trafficked. The burden of proof still rests on the authorities, not the victim and the decision is usually made within 45 days of the reasonable grounds decision.
Is the trafficking decision about recognising that a person is or was a victim and/or that they need protection, or all three?
In E  EWHC 1927 (Admin), the judge concluded that that the question to be answered in the conclusive decision is the same as in the reasonable grounds decision, namely whether the person has been a victim of trafficking.
In the case of Y  EWHC 1075 (Admin) the Court held that the Home Office cannot know what particular measures are required to assist the victim without considering the extent of her physical, psychological or social recovery and that the recovery and reflection period is triggered when there are reasonable grounds to believe that the person is a victim. A purposive interpretation is therefore required.
In making a conclusive decision the competent authority must be satisfied that the victim is credible. Staff undertaking this work are given advice by the Home Office (here).
‘It is reasonable to assume, subject to mitigating circumstances,’ says the Home Office, ‘that a Potential Victim of Trafficking relating an experience that occurred to them will be more expressive and include sensory details such as what they saw, heard, felt or thought about an event, than someone who has not had this experience.’
It goes on to say that ‘that a potential victim who has experienced an event will be able to recount the central elements in a broadly consistent manner. A potential victim’s inability to remain consistent throughout their written and oral accounts of past and current events may lead the decision maker not to believe the claim’.
Mitigating circumstances includes, ‘mental, psychological, or emotional trauma, inability to articulate, mistrust of authorities, feelings of shame, painful memories particularly those of a sexual nature’.
The advice to staff as it currently stands strongly implies an exception to the general rule rather than the other way round. Also of course in real life it can be difficult for a victim of trafficking to tell their story in rich and vivid detail and in a ‘broadly consistent manner’, given the violence and trauma many have experienced. Victims are also often targeted because of their vulnerability (see United Nations Inter-Agency Project on Human Trafficking)” and many are terrified of reprisals if they tell the truth. A review of the NRM process was conducted in 2014 which looked at a number of these issues and made various recommendations. (here) .
What happens next?
The victim may be granted discretionary leave to remain in the UK for one year to allow them to co-operate fully in any police investigation and subsequent prosecution. The period of discretionary leave can be extended if required. However discretionary leave has a very high threshold and is described as “rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option.”
If a victim of trafficking is not involved in the criminal justice process, UKBA may consider a grant of discretionary leave to remain in the UK, dependent on the victim’s personal circumstances.
If the victim is from outside the European Economic Area, the victim can receive help and financial assistance to return home through the UK Border Agency Assisted Voluntary Return of Irregular Migrants (AVRIM) process. If they are an EEA national, UKHTC will put them in touch with their embassy and any relevant NGOs who may be able to help.
If the person is not deemed to be a victim of trafficking then they may be referred to the appropriate law enforcement agency – the relevant police force or the UK Border Agency – and will be offered support to voluntarily return to their country of origin
Conflict of interest
The designation of UKBA and UKHTC as the competent authorities – creates obvious difficulties.
Most victims of trafficking from outside of the EU will either be illegal entrants or over-stayers and there are clear conflicts for UKBA in recognising the rights of apparent immigration ‘offenders’. There are further conflicts when a single competent authority conducts one interview with the applicant which will form the basis of identification as a victim of trafficking (a decision which examines past persecution) as well as refugee status recognition (a decision which looks at prospective risk of future persecution). There are also issues around the burden of proof in these cases, because unlike trafficking cases, asylum applicants bear the burden of proving their case.
No right of appeal
There is no statutory right of appeal in respect of a negative reasonable grounds or conclusive decision in trafficking cases (though reconsideration can take pace if the competent authority believes there are grounds to do so) – in contrast to say refusal of asylum. The decisions can be challenged in the courts through judicial review. Where other applications have been made, and refused, trafficking issues may be raised in the Immigration Tribunal in relation to these appeals.
Also, since 1 April 2013, victims of trafficking are entitled to legal aid only when there are reasonable grounds to believe that the individual is a victim and for only as long as that decision is maintained.
In other words, a victim of trafficking is not a victim until the Border Agency say has identified them as such and, once identified, may lose their legal aid at the very point when they need it most because they have received a negative conclusive decision.
The AIRE Centre runs specific projects providing advice and assistance to victims of human trafficking including representing victims before the European Court of Human Rights
Author: Matt Evans
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.