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Is she a victim or an illegal immigrant? The UK Border Agency decides

Officials who identify victims of trafficking are being judged by how many people they eject from Britain. Is that wise?

“How can you have an organisation making decisions on a victim of trafficking when they have a performance indicator that marks them on how many people they get to leave the country?” Huw Watkins, a former Detective Inspector, Gwent Police, quoted in a new report from the Centre for Social Justice, nails one fatal flaw in the process for identifying victims of trafficking. The UK Border Agency is responsible for identifying victims, the UK Border Agency judges claims for asylum, and staff are under pressure to reduce immigration.

The report, It Happens Here: Equipping the United Kingdom to Fight Modern Slavery, published last week, follows two years’ research and detailed interviews exposing the shocking plight of adults and children from the UK and abroad who are sexually exploited, in forced labour and criminality, and behind closed doors as domestic servants.

The UK Border Agency is found wanting, its duty to identify trafficking victims incompatible with its duty to assess asylum claims. Indeed there is a “fundamental conflict of interest” says the report, arguing that a single authority should determine whether a person has been trafficked into exploitation, regardless of their immigration status, to ensure that the UK’s response is victim-centred and compassionate.

One Border Agency source told the researchers that if an asylum claim on trafficking grounds is refused, but the final decision on a trafficking claim is allowed, this is “not going to be helpful”.

The report found that Border Agency staff try to balance their heavy caseload of asylum claims with the important decision of whether a person has been trafficked, “It’s difficult if you’re working on asylum cases to get the other work done … you’re constantly interrupted,” one anonymous staffer told the researchers. 

As a result the first stage decision on whether there are Reasonable Grounds to identify trafficking, which should take five days to complete, often takes much longer. The second stage decision which is supposed to be made within a 45 day ‘reflection period’ took 14 months in one case.

Immigration detainees are in a vulnerable position, potential victims of trafficking particularly so, yet one charity told the researchers that detainees’ cases were especially prone to delay because the individuals “weren’t going anywhere”. 

The report found that current delays "run completely counter to a victim-centred approach, and highlight the enduring issues of awareness of victim rights and the need for speedy decisions regardless of the immigration status".  

Delays are perhaps inevitable because Border Agency staff are also full-time asylum case owners who spend most of their time working on asylum issues and "combining the two roles is not a natural fit." It is essential that the issue of trafficking does not become unhelpfully conflated with issues of asylum. While there may be some information and evidence overlap, the two decisions should be kept separate.  

In some cases, staff are unclear about how to make a decision on human trafficking, because the standard of proof for making these decisions is not as clearly outlined as that for asylum decisions.  Staff highlighted a gap in the guidance needed to help them assess the credibility of a trafficking victim’s experience, which left them ill-equipped to make decisions.

Even if guidance could be improved, the report considers that the division of cases on grounds of immigration status between the UK Border Agency and the UK Human Trafficking Centre (a division of the Serious Organised Crime Agency whose partners include the Border Agency) is "wrong and unfair".  National efforts to fight trafficking are undermined by requiring a potential victim to describe their personal situation to the agency who may at the same time be considering their immigration status.  The report considers this to be a denial of the right to have an independent decision as to whether they have been trafficked.

Some victims from outside of the EU are frightened of being referred into the National Referral Mechanism, the official process for identifying victims, because they worry that their immigration status will play a part in the decision. The very idea of being referred to the immigration authorities can be terrifying for victims; the researchers heard evidence that some NGOs advise victims against referring for that reason. For someone who may have been trapped in slavery through threats related to their immigration status and deportation or prison, a referral to the Border Agency is wholly contradictory to the UK’s aims to put victims first.

“You’d think the victim would be the most important thing but that’s not always the case,” said a senior police officer who did not wish to be named. Thus, for those identified by the Border Agency either at a port of entry or once they have entered the country – through a raid for example – the obvious immigration issues may overwhelm more subtle trafficking indicators. In the short term, the report recommends, staff training should focus on enhancing the understanding of human trafficking to ensure that staff understand that a victim is not, first and foremost, an illegal immigrant.

Some practitioners have expressed a particular fear that for children, who are also subject to immigration proceedings, links between the National Referral Mechanism and immigration authorities can lead to an unfair decision for the child.

Andy Elvin, chief executive officer of Children and Families Across Borders, told the researchers: “At the moment you are in a situation where children’s services are having to try and feed in the child protection elements to the UKBA . . .and UKBA staff are not fully trained to deal with children.” (In fact, as OurKingdom readers may recall, UK Border Agency staff are trained in ‘Keeping Children Safe’ by G4S.)

Elvin went on: “First and foremost child trafficking is a child protection issue so UKBA should feed into a decision which is essentially made by child protection professionals. The present system is immigration first and that is wrong.” 

Police officers told the researchers that when a potential victim – adult or child – has forged documents or no documents, the immigration offence takes precedence over the fact that they are a victim of crime. They may then be passed on to the Border Agency to enforce immigration restrictions before the consequences of their victimisation are considered or even recognised. 

Treating trafficking as an immigration issue is also unhelpful not least because a large portion of documented cases in the UK involve UK nationals or people from EU member states, where immigration is not a concern.  By contrast, observed Assistant Chief Constable Olivia Pinkney, the Association of Chief Police Officers’ lead on Migration and Associated Matters: “If a foreign national is trafficked, unfortunately they often get the ‘immigration’ label.” A Deputy Chief Constable told the researchers:

“One girl escaped from a brothel and went to a police station to tell them that she had been trafficked. She had no passport. Under these confusing circumstances, we chose to arrest her for being an illegal immigrant.”

A police officer who did not want to be named added:

“So what do we do when we find them? We charge them; we nick them. Is that the best victim care?”

Evidence for differences in approach and outcomes may also be identified through the number of judicial reviews of UK Border Agency decisions on trafficking.  Every judicial review conducted in this area since the National Referral Mechanism was established in April 2009 has been against a UK Border Agency decision; there have been none for UK Human Trafficking Centre decisions.

Immigration issues can often overwhelm any more subtle trafficking indicators so that victims are missed. A quick reaction at the border can make the difference between whether or not a victim disappears into exploitation or is protected. Deceit employed by both trafficker and victim from the outset mean that indicators of human trafficking at airports, seaports or train stations will be very subtle.  Border authorities often may not pick up trafficking indicators upon arrival. Victims may arrive on a visa that appears to be legitimate, and show no signs of fear or distress because they are unaware of the reality of their situation. It is often only after entry into the UK that the true nature of the person’s experience comes to light, and by this time they may have disappeared.  

For many victims of trafficking the first contact with the authorities takes place at the UK Border Agency Asylum Screening Unit in Croydon. “You get such a range of people behind that wall of glass in Croydon, there’s a range of responses you can be given” a Medaille Trust staff member told the researchers. “It was the worst day of my working life, the day I had to accompany a trafficked girl to the Asylum Screening Unit for her asylum screening interview,” said Detective Constable Elaine O’Brien, Merseyside Police.

The Centre for Social Justice recommends that all aftercare agencies (who are often the victims' first contact in the UK) establish agreements to ensure that asylum screening interviews are conducted local to them and avoid Croydon. The Border Agency itself has recognised that the atmosphere at the Screening Unit in Croydon and the lack of privacy are unfriendly at best. Reforms are underway. It remains to be seen whether they will be victim-centred.

The researchers received evidence that individuals who receive a residence permit as a victim of trafficking and have also applied for asylum will not be allowed to appeal a subsequent refusal of asylum because section 83 of the Nationality, Immigration and Asylum Act 2002 states that the right to appeal asylum may only be given to persons who have “been granted leave to enter or remain in the United Kingdom for a period exceeding one year.” The Centre for Social Justice recommends that the duration of a residence permit be increased to at least one year and one day so as to provide a right to appeal their asylum decision.

Flaws in the process mean that many people are not identified as victims of trafficking within the criminal justice system.  The researchers found that, of the 43 migrant women interviewed who were identified by the researchers as possible trafficking victims in prisons and detention centres, 74 per cent were not processed through the National Referral Mechanism even though these women would have been in contact with the Border Agency and other agencies who have a responsibility for making referrals.

There was worrying evidence that trafficking victims in the criminal justice system are advised to plead guilty to, for example, immigration offences. However, in cases where a person has been trafficked, a guilty plea is both unjust and unhelpful; if defendants later wish to disclose that they have been trafficked, the guilty plea creates a substantial obstacle, and may add to the culture of disbelief prevalent among some law enforcement agencies. In many cases, defence solicitors who do not understand the complexities of trafficking, or are working with clients who have not disclosed anything, are advising clients to submit early guilty pleas for offences for which there is a valid defence; most commonly for reasons of speed and efficiency.

Return to their home country may meet the personal needs of some victims of trafficking best. However, the Centre for Social Justice discovered that there is no guaranteed assistance for those from outside the EU who are returning home through the Border Agency returns programme even when they are in dire need of better support in order to be protected from re-trafficking.

In order to eliminate the risk that immigration decisions and welfare concerns are confused, and to ensure continued transparency and independence within the National Referral Mechanism, the Centre for Social Justice recommends that the Border Agency should be relieved of its role as Competent Authority determining trafficking claims. A single authority under the UK Human Trafficking Centre should oversee all decisions. This would encourage greater trust and better engagement from agencies tasked with making referrals.  A single authority would then approach all agencies to gather information and make a decision on whether or not an individual has been trafficked.  This would ensure that the first decision is not related to a victim's immigration status, but is a based solely on their support needs.

Next month David Rhys Jones, policy advisor at the Helen Bamber Foundation, writes on how we’ve managed to make protecting victims of trafficking SO complicated. (Here it is).

About the author

David Rhys Jones is a policy advisor at the Helen Bamber Foundation. David has worked with refugees and asylum seekers for over 25 years. He has monitored the detention of torture survivors in the UK since the Detention Centre Rules were introduced in 2001. The Helen Bamber Foundation was founded in 2005 as a collective of human rights specialists who respond with compassion and creativity to the legacy of cruelty.


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