Recently on OurKingdom I wrote about the shocking plight of adults and children who are forced into sexual or labour exploitation and criminality here in the UK. My piece was headlined Is she a victim or an illegal immigrant? The UK Border Agency decides. Drawing upon a Centre for Social Justice report I highlighted the absurdity of the situation: the Border Agency is judged by how many people it ejects from Britain, and it is responsible for identifying victims of trafficking.
Lately I've been wrestling with how on earth we have managed to make protecting trafficking victims so very complicated. If we can identify the knots, we might begin to untangle them.
Trafficking in human beings is an abomination and no-one would dispute the need for its urgent elimination. The requirements of border control are less straightforward and much more contentious. The two sit uncomfortably together, but since most trafficking victims will be illegal entrants or overstayers there are inevitable conflicts in recognising the rights of apparent immigration offenders. I've found a few places where conflating border control, asylum and trafficking protection, acts to the detriment of the victim in such a way that the UK fails to provide a human rights based, victim-centred approach.
The burden of proof
Let's start with the burden of proof: the duty to prove or disprove a disputed fact. In immigration and asylum cases the burden rests on the applicant. An asylum seeker must prove that she is at risk. In trafficking cases the burden is on the authorities. Essentially, the authorities must be satisfied that the victim is not at risk.
The standard of proof, the amount of evidence required to prove or disprove something, is also different:
In immigration cases it is a 'balance of probabilities' ('more likely than not').
In asylum cases the standard is 'a reasonable degree of likelihood' (a 'reasonable chance').
And in trafficking cases the standard begins as 'I suspect but cannot prove' at the first stage (called the 'reasonable grounds' stage). Then a more rigorous examination takes place on 'a balance of probabilities' at the 'conclusive decision' stage.
The reasonable grounds test has a low threshold (less than prima facie) and does not require facts to be established. When the conclusive decision is taken, the threshold rises to above that applied to asylum claims and equal to that applied in immigration cases, but the burden of proof still rests on the authorities, not the victim. Decision makers should be satisfied that, on the evidence available, trafficking is more likely to have happened than not, but they do not need to be certain that trafficking did occur.
Why is this important? An asylum application is determined by considering future risk, i.e. that there is a real risk that she will be persecuted in the future. Establishing that a person is a trafficking victim requires consideration of whether she is one now. This is obviously confusing, but also rather odd since the EU Group of Experts on Action Against Trafficking in Human Beings (GRETA) has made it clear that in order to prevent re-trafficking the Border Agency officials making these decisions (called 'competent authorities') are required to consider future risk.
Next, in making a conclusive decision the competent authority must be satisfied that the victim is credible. "Credibility" is not a notion that sits easily with victim identification, requiring as it does an assessment of their circumstances and the statements they have made and bearing in mind that the burden of proof rests on the State. In other words, if an individual says or shows signs that she has been trafficked a decision must be taken as to whether it is more likely than not that she has.
Bearing this in mind, staff undertaking this difficult work are given quite extraordinary advice by the Home Office (in PDF form 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 is also reasonable to assume, subject to mitigating circumstances," the Home Office goes on, "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."
This advice, upon which officials make decisions, sometimes involving life and death, is based on assumptions about human behaviour that are at best confused, and, for the most part, unfounded.
In real life, it can be difficult for a victim of trafficking to tell her story in rich and vivid detail and a "broadly consistent manner", given her experiences of violence and trauma.
Trafficking is defined in the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) and its explanatory report as the movement of people by deception or coercion.
It often involves international transactions, about which the victim may know or understand little or nothing. There may be language barriers, compounded with the desperation of poverty.
Traffickers target their victims because they recognise their vulnerability. The issue has been extensively studied and described. Take this, from the United Nations Inter-Agency Project on Human Trafficking:
"Vulnerability to being trafficked can be conceived as consisting of external and internal factors. External factors may include household, social, economic, and criminal variables within a household and community, while internal factors are essentially a person’s mindset and receptivity to entering themselves or family members into what may be considered a risky situation, in order to gain a perceived economic and/or social return within a certain timeframe." UNIAP report, Targeting Endemic Vulnerability Factors to Human Trafficking, Thailand 2007. (PDF)
What then is it "reasonable to assume" when we know that trafficking victims are always in a highly vulnerable position and that getting them to testify is difficult at the best of times because they are often terrified of reprisals if they tell the truth?
They may also be afraid that their families will be exposed to blackmail or violence. Many victims from West Africa have been subjected to terrifying rituals involving blood oaths breaking which, they have been convinced, will result in their deaths or the deaths of loved ones.
The section on credibility in the Border Agency guidance to officials comes, more or less word for word, from the agency's guidance on asylum applications. While there are overlaps between asylum and trafficking, there are also, as we have seen, significant differences. This guidance is, to put it kindly, not fit for purpose. It fails to place the victim at the centre of the process or seek to identify her rights and needs.
Mitigating circumstances (an odd phrase when you think about it) says the Home Office Guidance, include, "mental, psychological, or emotional trauma, inability to articulate, mistrust of authorities, feelings of shame, painful memories particularly those of a sexual nature."
All of this is obviously pertinent, but the problem with this approach is that it puts the cart before the horse by assuming that these circumstances are exceptional and failing therefore to focus on the needs and concerns of victims themselves, but rather giving priority to the detection of abuse. Victims "will be consistent" unless they are liars. A truly victim-centred approach would include an expectation that the above list was likely to be present unless the contrary were established. "Mitigating circumstances" strongly implies an exception to the general rule rather than the other way round.
Trafficking Victim or Refugee?
The Home Office advises: "In all circumstances Competent Authorities should attempt to gather all available information before deciding to interview and should not normally conduct a [trafficking] interview during the first 30 days of the recovery and reflection period, unless there are strong reasons why this would be appropriate.”
But where an applicant has made an asylum claim "they should be interviewed as early as possible about their claim in line with asylum process timescales." Conflating asylum and trafficking decisions is common because only the asylum process (according to the Border Agency) can give rise to consideration of future risk on return to one's home country.
What is a trafficking decision about? Is it recognising that a person is or was a victim and/or that they need protection, or all three?
In one significant case (the reference is 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. The judge held that, because she had not been trafficked into the UK (she had been trafficked to Sweden, had escaped to Norway and then, after being refused asylum there, came of her own volition to re-claim asylum in the UK), the Secretary of State had not asked herself the right question in finding that the claimant was not a victim of trafficking.
In the case of Y  EWHC 1075 (Admin) the judge was asked to consider whether it is possible to decide that someone had been a victim, but at the time their case was considered their specific circumstances do not engage the Convention? The judge decided that this approach was wrong. The Home Office did not regard Y as a victim of trafficking at the time of decision because Article 4(e) of the Convention defines a victim as someone who is subject to trafficking, which the Home Office interpreted as meaning "is" currently, right now, a victim of trafficking. Article 10(2) refers to a person "who has been a victim of trafficking to ensure that she receives the assistance provided for in Article 12 to assist victims in their physical, psychological and social recovery."
The judge commented 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 required by Article 13 is triggered when there are reasonable grounds to believe that the person is a victim.
"The differences in tense are explicable by different consequences," said the judge. "After the recovery and reflection period, the assistance and protection is not absolute or never-ending, but is limited to the need to assist victims in their physical, psychological and social recovery and must be tailored to their personal situation."
Thus the Convention, far from prohibiting consideration of the victim's current circumstances at the reasonable grounds stage when those circumstances appear to have significantly changed (i.e. trafficking has become ‘historic’), requires purposive consideration to take place in order to comply with the duties under the Convention. Again, the Border Agency approach was not victim centred and failed to consider the victim's needs and the fact that although a person survives they may never return to precisely who they were.
Words slip, slide
What then should be taken into account in considering victims' needs? The Convention provides that victims shall be issued with renewable residence permits "as necessary owing to their personal situation." The 2012 GRETA report on the UK said that it was "unclear" in the UK just what the criteria for consideration of 'personal situation' are. (PDF)
The Convention's explanatory report describes the issues to be taken into account in some detail including, "fear of reprisals by the traffickers, either against the victims themselves or against family or friends in the country of origin" and cover "a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account."
By contrast, the Border Agency's guidance for officials effectively limits consideration for stay in the UK to that which "may be necessary due to their personal circumstances, such as family and health needs" and this is limited to their personal circumstances here in the UK, not upon return.
Thus decisions including "lengthy consideration ... to facts immaterial to the trafficking claim" or consideration to "future fear on return" which is "not the purpose" of the trafficking decision will be criticised upon audit.
In other words, officials are told they must open an asylum claim file if any matters relate to future fear on return and, as we have seen, the burden of proving that future fear rests on the victim. This is contrary to the spirit, if not the letter of the Convention. — I said it was complicated.
Furthermore, the threshold in an asylum claim is high. There is no threshold for determining whether or not to take any particular personal situation into account under the Trafficking Convention. There must be a risk to 'life or liberty' under article 31 of the 1951 Refugee Convention. This enormously narrows the issues which are 'relevant' and it is unsurprising therefore that the asylum claims of so many trafficking victims fail.
Residence permits do not exist as such in the UK so officials are expected to consider discretionary leave but "in line with existing policy". Except that 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."
Also, "it is not necessary to reconsider a grant of Discretionary Leave if this has already been considered in conjunction with a related claim, such as asylum.” So you don't get two bites of the cherry but, as above, the basis upon which asylum is granted is quite different from considerations taken into account in trafficking cases. For an example of the threshold applied — see these comments about returning cancer victims from the Border Agency's then chief executive Lin Homer.
No right of appeal
A refusal of asylum carries a right of appeal but a negative reasonable grounds or conclusive decision in trafficking cases does not. This is one of the reasons why advisors recommend that victims of trafficking should apply for asylum as well as seeking to be identified under the Border Agency's anti-trafficking procedures.
Another reason, since 1 April 2013, is the issue of legal aid. Asylum seekers are entitled to legal aid as soon as they are acknowledged as such by their lawyer. Victims of trafficking are entitled to legal aid only when there are reasonable grounds to believe that the individual is a victim and only as long as that decision is maintained.
In other words, unlike the asylum seeker, a victim of trafficking is not a victim until the Border Agency 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. Hard to believe, but true.
I did not set out to resolve the complications, only to set some of them out. They are a product of the way in which anti-trafficking measures have been established in the UK. The government rarely consults with civil society in the UK on anti-trafficking matters and largely discusses such things behind closed doors. There is no quick fix. We may need to start again.
Images by Laura Carlin. Courtesy of Helen Bamber Foundation.
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