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Human trafficking: is our system for combating it fit for purpose?

Written by Alasdair Henderson, UK Human Rights Blog, 02 October 2018

Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It's also one of the most widespread and fastest-growing.

The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.

Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.

Admirably, the UK has been at the forefront of international efforts to crack down on human trafficking. More than £150m of development aid has been committed to tackle modern slavery, and the British government has been vocal in diplomatic efforts and foreign policy about doing more to address the problem. Domestically there has been new legislation to consolidate criminal offences for various forms of trafficking or exploitation, with the Modern Slavery Act 2015 (and similar legislation for the devolved administrations — the Human Trafficking and Exploitation Acts in Northern Ireland and Scotland).

In addition, in order to implement our international obligations under the ECHR and the Council of Europe's Convention on Action against Trafficking in Human Beings, the UK has set up something called the National Referral Mechanism (NRM). This is a system for identifying victims of trafficking and supporting them. Anyone suspected of being a victim of trafficking (VOT) can be referred to the NRM, whether by the Home Office, police, a local authority or a range of recognised charities with expertise in the area of trafficking (such as the Salvation Army, Medaille Trust or Unseen).

The 'Competent Authority' (one of a group of trained decision-makers, drawn mainly from the Home Office, but also from other public authorities) then decides whether there are reasonable grounds on the evidence available for believing the person referred might be a VOT.

If there are, that person is given a minimum 45-day recovery and reflection period. During this time they are entitled to secure accommodation and financial support, and the Competent Authority then makes a 'conclusive grounds' final decision on whether the person is actually a VOT, on the balance of probabilities (i.e. more likely than not). If the conclusive grounds decision is positive, the VOT gets further support and leave to remain in the UK.

But the NRM isn't working quite as intended.

First, there is a problem of lack of resources and delays in the system. In 2017 there were 5,145 referrals, but by the end of the year only 665 had led to a positive conclusive grounds decision and 1,049 a negative decision, with 3,273 still waiting.

To its credit, the Government has tried to tackle this backlog. In 2014 the then Home Secretary (now Prime Minister) Theresa May reviewed the NRM and suggested various changes to speed up the process. A 2017 National Audit Office report found that the Home Office had not implemented the 2014 recommendations quickly enough, and so in October 2017 a package of reforms were announced, including an extended period of support, up to six months of 'follow-up' services for those transferring out of the NRM, and the creation of a single expert unit to make decisions on all cases, separate from immigration control.

Second, the NRM system sometimes isn't triggered even where it is pretty obvious to anyone paying attention that it should be. In R (TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395, the Court of Appeal considered a claim on behalf of a young Vietnamese man who was found in the back of a lorry in Kent on 8 September 2015 and detained pending removal to Vietnam. He was seen at the Immigration Removal Centre (IRC) by a solicitor, who wrote a pre-action protocol letter to the Home Office noting that he was potentially under 18 and showed all the hallmarks of being a potential VOT . The letter proposed that he be released into safe and secure accommodation, to be provided by the local authority, pending assessment. The local authority immediately responded saying they were willing to take him, but the Home Office failed to respond.

On 8 November 2015, the same day that judicial review proceedings were issued, the claimant was released from immigration detention on condition that he reside at an address in south London, which turned out to be not a residential home but a Buddhist temple. He then disappeared, almost certainly having been captured once again by his traffickers.

It was successfully argued that he was released without adequate measures to protect him from being re-trafficked, constituting a breach of article 4 ECHR. Strikingly, the skeleton argument submitted on his behalf stated that this was not a one-off error by the Secretary of State (see para 88 of the judgment). The Court of Appeal commented that this "is a sorry story" and criticised the Home Office in rather blistering terms:

The Brook House [IRC] staff and the [Home Office] team appear to have proceeded with their plan to release the Appellant in total disregard of the terms of the pre-action protocol letter…even though they were certainly aware of it and, separately, of the fact that his age was disputed…

Third, even where the NRM decision-making process itself is effective, the support provided to VOTs is inconsistent in quality and local authorities can make bad mistakes. This was highlighted in the recent case of XPQ v London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB), which was a claim for damages brought by a refugee from Ghana.

The Competent Authority had decided conclusively that she had been trafficked into forced prostitution, but the defendant local authority then placed her into accommodation which she shared with 5 men. She raised a concern about this, but was ignored. Subsequently, she alleged that one of the men sexually harassed her. Given her background she was particularly vulnerable and felt very scared and traumatised by this experience.

Unsurprisingly she was awarded compensation under the Trafficking Directive, the Human Rights Act 1998, the Housing Act 1996 and basic common law duties of care.

Fourth, there can be major failures to share information between public authorities, leading to VOTs being lost and re-trafficked, even after they have been identified by the system which is supposed to protect them. A recent story in the Evening Standard highlighted the appalling case of a woman with learning difficulties who was rescued from a garden shed in a house in east London, only for Barking and Dagenham Council to then allow her to be handed back over to the care of her stepfather, who was suspected of being her trafficker. She then promptly disappeared. The frontline staff who had found her were appalled at what had happened, and the local authority has conducted an internal investigation, but it has all come too late for the victim herself.

So whilst the UK is committed to stopping human trafficking or modern day slavery, and has made good progress in creating a system designed to identify and support victims, there is still much work to be done. Lord McColl currently has a private member's Bill before Parliament which aims to improve the help provided for VOTs and better link up the mechanisms of support. It is due its second reading in the House of Commons in late November, and will hopefully pass into law.

Ultimately, though, however good the legal framework is (and it is pretty good already) the real challenge is implementation. If we are to defeat the scourge of human trafficking and modern day slavery, and ensure the UK is a safe haven for victims and an unsafe place for traffickers, we will need more attention to detail and more joined-up thinking from local authorities and police than has been evident in the three cases outlined above. Given how overstretched police and council budgets have become, and how overworked many police officers and social workers are, this is no small ask. But the stakes are too high for victims of trafficking: it must be a higher priority to get this right.

About the author: Alasdair Henderson is a barrister at One Crown Office Row.
This post by Alasdair Henderson first appeared on the UK Human Rights Blog by One Crown Office Row chambers and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN