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Council of Europe’s expert group on human trafficking highlights how UK immigration policy negatively impacts victims’ access to justice

Summary:

New evaluation report on access to justice and effective remedies for victims of trafficking

Date of Publication:
25 October 2021

Council of Europe’s expert group on human trafficking highlights how UK immigration policy negatively impacts victims’ access to justice

25 October 2021
EIN

The Council of Europe's Group of Experts on Action against Trafficking in Human Beings (GRETA) last week published its latest report on the UK.

Report coverThe 107-page report can be downloaded here.

It evaluates the UK's implementation of the Council of Europe's anti-trafficking convention, with a particular focus on access to justice and effective remedies for victims of trafficking in human beings.

The report also provides an overview of the current situation of human trafficking in the UK, and recent developments in the legislative, institutional and policy framework for action against it.

GRETA notes that the number of possible victims of trafficking in human beings referred to National Referral Mechanism (NRM) has grown considerably over the years: from 1,182 in 2012 to 10,627 in 2019.

Among the report's recommendations for improving access to justice is that legal aid should be provided to trafficking victims across the UK.

GRETA states in its report: "There is no Government data on how many victims of modern slavery and human trafficking have received legal aid. According to NGOs and lawyers, the system for granting legal aid is bureaucratic, and decision-making is inconsistent and obstructive. As a result, many victims are unable to get legal advice when they need it, and the litigation against traffickers is protracted. This is due to three main factors. First, a dearth of trusted legal advisors to take on cases. Secondly, a lack of timeliness in the advice, as legal aid is provided only once a survivor enters the NRM, but not before. Thirdly, the reduced scope of the current legal aid programmes, which exclude key remedies such as state compensation or welfare rights claims."

The report also notes: "Immigration cases with a trafficking element are considered financially unviable by many legal aid providers due to their length and the lack of clarity around whether the work will be funded. As a result, many providers are deterred from undertaking this work, which leaves victims and support workers struggling to secure lawyers. The UN Committee on Rights of the Child found that the reduction in legal aid in UK had a negative impact on the right of children to be heard in judicial and administrative proceedings affecting them. GRETA highlights the importance of providing trafficked children with legal assistance in order to ensure their identification and effective access to justice."

Noting that access to legal assistance and free legal aid is essential for victims' access to justice, GRETA urges the UK authorities to take further steps to ensure that:

  • victims, and in particular children, receive legal assistance during the identification process and are properly informed of their rights and options before entering the NRM;
  • access to free legal aid is ensured across the UK and is granted in a timely manner;
  • the assistance of a lawyer is ensured for state compensation proceedings, by making the Exceptional Case Funding scheme accessible in practice to victims seeking compensation before the Criminal Injuries Compensation Authority.

GRETA also highlights the negative impacts of Brexit and the Government's hostile environment immigration policy on victims of trafficking.

The report says: "Notwithstanding the UK authorities' explicit determination to tackle trafficking in human beings, a number of GRETA's interlocutors raised concerns about the impact of the UK's exit from the European Union. In July 2017, the Anti-Trafficking Monitoring Group (ATMG) produced a briefing on the impact of Brexit on the UK's fight against modern slavery, highlighting that a significant proportion of the UK's legislation on working rights and the rights of trafficking survivors stem directly or are closely linked to EU legislation. At the same time, there are concerns that Brexit might result in the UK being cut off from European security and criminal justice co-operation mechanism and result in loss of access to Europol, the European Investigation Order and the European Arrest Warrant. Interlocutors in Northern Ireland raised concerns about the impact of Brexit on data access and sharing for tackling organised crime, stressing the importance of keeping close partnerships. In December 2020, the Human Trafficking Foundation raised concerns regarding the potential loss of access to EU tools for prosecuting traffickers and the risk of heightened labour abuse and exploitation for EU migrant workers in the UK following changes in their legal and administrative status. These concerns have been shared by the IASC [Independent Anti-Slavery Commissioner]."

It adds: "Other political and legislative initiatives risk increasing vulnerabilities to human trafficking and having a detrimental impact on the situation of victims. In February 2020, the UK government announced plans for a new points-based immigration system that will apply to both EEA and non-EEA migrants, prioritising high-skilled workers. Frontline and migrant organisations have noted that the offence of illegal working, part of the UK's hostile environment for undocumented migrants, acts as a major driver of exploitation and barrier to justice, as exploitative employers are able to use threat of immigration and criminal repercussions towards workers who challenge precarious working conditions, propagating impunity for cases of human trafficking for labour exploitation. A study commissioned by the IASC has shown that the homeless population in Britain is extremely vulnerable to exploitation. This vulnerability is compounded for EU nationals by threat of removal and makes them much more likely than UK nationals to enter unsafe work and end up in situations of exploitation. Civil society respondents have reported an increased reluctance of victims from EU countries to enter the NRM system for fear of removal and deportation."

Similar concerns are raised in the report over the Government's New Plan for Immigration. The report explains: "GRETA is concerned that the planned legislative and policy measures risk increasing the vulnerability of victims of trafficking who are undocumented migrants, as they may be reluctant to approach the authorities for fear of being prosecuted for immigration-related offences, resulting in failure to identify them as victims, provide them with the necessary assistance, and investigate human trafficking offences.

GRETA stresses that the implementation of the New Plan for Immigration must be done in compliance with the obligations arising from the Council of Europe Anti-Trafficking Convention, in particular the obligations to identify victims of trafficking, including among asylum seekers, and to refer them to assistance. GRETA also reminds the Government of the need to comply with the non-punishment provision contained in Article 26 of the Convention.

In response to the report, a Home Office spokesperson was quoted by the Guardian as saying: "Modern slavery and human trafficking have absolutely no place in our society and we remain committed to tackling these heinous crimes. The UK has led the world in protecting victims of modern slavery and we continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers."