Modern Slavery (Victim Support) Bill

Briefing for Second Reading: Friday 8th September 2017

“I was thinking the worst, I even thought about committing suicide. To be in the UK and end up homeless without any friends and family is the worst feeling”

Victim of Modern Slavery

Introduction

Great strides have been taken by the UK to combat modern slavery. The Prime Minister commented “Last year I introduced the world-leading Modern Slavery Act to send the strongest possible signal that i victims were not alone and that those responsible for this vile exploitation would face justice.”

Whilst the Modern Slavery Act 2015 (MSA), covering England and Wales, is a landmark piece of legislation and a great step forward in the fight against modern slavery, it is one of many steps necessary to make the UK a hostile environment for exploiters. Central to efforts to combat this crime is the long term protection and support of victims, many of whom play a vital role in ensuring exploiters are brought to justice.

The Importance of the Bill

The Bill is important for a number of reasons, listed below:

1. Guaranteed support and protection to meet at least minimum international obligations

This legislation is a vital step in enhancing existing provisions in the MSA, bringing England and Wales closer to fulfilling the UK’s international obligations contained within the Council of European Convention on ii Action against Trafficking in Human Beings 2005 (ECAT) and the European Directive on Human iii Trafficking (Directive 2011/36/EU).

2. Northern Ireland and Scotland have enshrined basic support provisions in legislation.

Current legislation and policy in England and Wales has considerable gaps in the provision of support and assistance to victims. Legislation in Scotland and Northern Ireland, namely the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act Northern Ireland 2015 and the Human Trafficking and Exploitation (Scotland) Act 2015, has gone much further in ensuring that support and assistance for victims is enshrined in domestic law, reflecting UK international obligations. Whilst the MSA creates some protections for victims - e.g. a statutory defence (section 45) and special measures for victims giving evidence at court (section 46) - it does not stipulate basic support provisions or protections within it. The Act only requires the Secretary of State to produce guidance (see section 49) and creates the power to introduce regulations (see section 50). To date no such guidance or regulations have been produced, and as the numbers of victims increase year on year there is an urgency in ensuring that when victims are identified they are appropriately protected and cared for.

3. The Brexit Effect

The ability of victims rescued post-Brexit to rely upon wider aspects of European law, such as the European Directive on Human Trafficking, is unclear. This will invariably depend upon how the government proceeds with the incorporation of established European legislation into domestic law including specific victim rights. A briefing by ATLEU highlights the potential impact of the loss of EU law on the rights of victims in respect of immigration, housing and compensation; as well as the wider implications for law enforcement in tackling this crime.iv A recent briefing paper by the Anti Trafficking Monitoring Group “Brexit and the UK’s fight against modern slavery” recommended that “Given the additional rights to support and assistance the EU Trafficking Directive provides to victims in England and Wales, rights would be lost if the Directive is repealed post Brexit, primary legislation must be introduced without delay to transpose the Directives support and protection provisions.”vvi

4. Victims require safety, stability and long-term support in order to recover from their experience and integrate into society

As one victim rescued by Hope for Justice commented:

“The number one thing that should be provided for victims of trafficking is stable housing. I don’t think that they should have to work for three months because you need time to adjust to your new circumstances, reintegrate into normal society, recover and learn how to trust people.”

a) Victims of modern slavery are currently entitled to a 45-day recovery and reflection period, which can be extended in some circumstances. However, once a victim receives a positive Conclusive Grounds decision from the government, specialist support ends. Victims have no clear ongoing entitlements and no clear pathway for support. This is despite clear international vii obligations. Many victims subsequently fall through the gaps. In Hope for Justice’s experience, there is not just one “cliff drop” of support out of the current system; the lack of clear entitlements embodied in legislation in England and Wales creates confusion for statutory and non-statutory viii agencies and means there are numerous “cliff drops.” For instance, between January 2013 and 17th July 2015 70% of victims Hope for Justice provided advocacy to had issues around housing, homelessness and welfare placing them at risk of homelessness, destitution and re-trafficking.

ix The issues with support provisions are widely reported and were echoed in evidence provided to x the House of Commons Work and Pensions Committee enquiry into Victims of Modern Slavery. The enquiry concluded: “Treating confirmed victims of modern slavery of different nationalities differently, has created a confused landscape that is poorly understood by victims and professionals alike. As a result, victims face destitution or even return to their enslavers because they have no ongoing access to support. We recommend that all confirmed victims of modern slavery be given at least one year’s leave to xi remain with recourse to benefits and services.”

Additionally, the enquiry recommended:

“…all victims of modern slavery be given a personal plan which details their road to recovery, and xii acts as a passport to support, for at least the 12 month period of discretionary leave.” b) In order for victims to recover from their experience and be in a position to make positive choices about their lives, including whether to cooperate with a criminal investigation or pursue civil compensation, they require a safe and stable environment. In Hope for Justice’s experience, constant risks and threats of homelessness devastate victims’ ability to recover. For instance, in cases where Hope for Justice has had to provide constant advocacy and assistance to prevent homelessness and destitution, Hope for Justice has observed the following symptoms exhibited by victims: a sense of hopelessness, anxiety, fear (particularly fear of homelessness and destitution), poor sleep, agitation, depression, distrust of authorities and organisations trying to assist them, suicidal thoughts and attempts at suicide.

These symptoms appear to replicate the well recognised symptoms of trauma experienced by victims during their experience of modern slavery. c) Currently all victims of modern slavery should be entitled to be considered for discretionary leave to remain for a minimum period of 12 months and a maximum period of 30 months on the basis of personal circumstances; cooperation with a police investigation; and/or if they are pursuing xiii a compensation claim, once they have received a positive Conclusive Grounds decision.

There are several issues with the current provisions, requiring the need for an automatic leave provision with recourse to public funds as detailed in this Bill:

(i) The Competent Authority Guidance is confusing as to the rights of EEA nationals and appears to consider that victims will only require a grant if they are not able to exercise treaty rights. However, this fails to take into account changes to welfare assistance for EEA nationals which provide very limited assistance even for those exercising treaty rights.

(ii) A grant pursuant to personal circumstances is defined as “compelling xiv circumstances” within the Competent Authority Guidance. However, this does not appear consistent with the Explanatory Report to the Council of European Convention on Action Against Trafficking in Human Beings which refers to the granting a residency permit in much xv wider circumstances: “on account of a victims need” and “…takes in a range of situations depending on whether it is the victims safety, state of health, family situation or some other xvi factor which has to be taken into account.”

(iii) Cuts to legal aid and the subsequent limited legal aid provision across the country means it takes far longer than 45 days for victims to obtain the legal support they require on a variety of different issues, including immigration. This in turn impacts on a victim’s long-term status and care. Hope for Justice have found that in some areas there are no legally aided immigration providers with any specialism in cases of modern slavery; whilst in other areas advisors do not have capacity, so it can take at least 4-8 weeks to obtain an initial appointment. In some areas it is far longer than this.

(iv) Current processing of applications simply takes too long and can be somewhere between 3 months to over 12 months. This results in a situation where a victim is in limbo and psychologically unable to move forward. Additionally, this can create problems in accessing more long-term assistance, such as welfare or housing via a local authority, leaving victims destitute and homeless. These issues have been highlighted in the recent consented judgement in the case of R (AK) v Bristol City Council (CO/1574/215), where the failure of a local authority to provide provision placed the victim at risk of having to subject herself to prostitution to xvii survive ; and in the case of Galdikas & Ors R (on the application of) v Secretary of State for the Home Department and Ors (Rev1) [2016] EWHC 942 (Admin) (26th April 2016).

(v) If victims have not yet been able to apply for leave - e.g. because they have not had legal advice - they then face the risk of removal.

5. Guaranteeing victims with longer term support, safety and stability is essential to increasing prosecution rates - a key purpose of Modern Slavery Act 2015

“This landmark legislation sends the strongest possible signal to criminals that if you are involved in this vile trade you will be arrested, you will be prosecuted and you will be locked up.” Theresa May, Prime xviii Minister

One of the key purposes of the Modern Slavery Act 2015 is to increase prosecution rates, making the whole of the UK a hostile environment for exploiters. Whilst encouragingly prosecution rates have increased, xix in 2015 there were 289 modern slavery offences prosecuted and 113 convictions. This contrasts xx with the 3,266 victims entering the NRM system in 2015 - a 40% increase from the previous year. In Hope for Justice’s experience of providing advocacy to victims, unless long-term safety and stability, including housing and support, can be achieved victims cannot make informed choices about whether to cooperate with a criminal investigation or pursue civil compensation, both of which are essential to perpetrator accountability. Additionally, often victims require far longer than 45 days to feel safe and make such decisions. Nor can victims easily cooperate with these processes if rendered destitute and homeless. The experience of West Yorkshire Police in their submissions to the DWP committee enquiry typifies the issues faced by victims and those investigating these crimes: “ The team have experienced many issues with the management and support of victims during investigations due to them becoming homeless and destitute, with no money for food. This has been caused mainly due to them having no recourse to public funds... One recent example was when a victim (a criminal prosecution and trial date has been set) who had exited the NRM with benefits, was intimidated by the people linked to the suspects, and as a result could not return to his address, and the local authority refused to re-house him, therefore leaving him homeless, vulnerable and potentially the police being unable to locate him when required as a witness in the criminal case. This was only alleviated when a charity agreed to step in with assistance.”xxi

Whilst the number of victimless prosecutions is increasing, victims of modern slavery often still provide the key intelligence and evidence needed to build successful prosecutions. Clear access to support is key to building trust and confidence in victims coming forward, being identified and supporting prosecution cases. As the Independent Anti Slavery Commissioner stated: “…if we are continually letting them down, how are we ever going to get prosecutions and the confidence of victims to come forward.”xxii In contrast, well supported victims are able to give their best evidence at court, enhancing conviction rates.

Such issues could be alleviated by ongoing and clear support provision for victims encapsulated in this Bill.

Push - Pull Factor

Whilst arguments have been raised that making an automatic leave provision would create a pull factor, the Work and Pensions Select Committee rejected this argument stating that “it makes little sense and is unsubstantiated by evidence.”xxiiiThere is good reason for this, first victims enter a system for identification following referrals from first responders, and subsequently their account is scrutinised by a Competent Authority. Secondly, countries such as the USA have a much more generous “T” visa allowing victims a ‘trafficking visa’ for up to 4 years with a possibility of adjusting status to lawful permanent residence after 3 years.xxiv However, in 2015 only 1062 of these visas were filed, well below the level granted by statute of up to 5,000. xxv This highlights that a more generous visa has not provided a push or pull factor.

Summary

Lord McColl’s Modern Slavery (Victim Support) Bill would go a long way in ensuring that England and Wales complies with its legal obligations to support and protect victims; and in doing so would facilitate the recovery and integration of victims, increasing prosecutions and making the UK a hostile environment for those who exploit. We would therefore urge you to support the Bill in its second reading in the House of Lords on 8th September 2017. If you have any queries regarding the briefing please contact Phillipa Roberts, Director of Legal Policy (Solicitor), Hope for Justice on 0300 008 8000 or [email protected]. i The Rt. Hon. Theresa May MP ‘Theresa May announces new crackdown on modern slavery’ The Independent, 30 July 2016, available at: http://www.independent.co.uk/news/uk/politics/theresa-may-announces-new-crackdown-on-modern-slavery-a7164611.html ii Available at: https://rm.coe.int/168008371d iii Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF ivATLEU (Sept 2016) ‘Implications of Brexit for victims of modern slavery’, pages 2, 3 and 5; available at: http://atleu.org.uk/news/2016/9/28/implications-of-brexit-for-victims-of-modern-slavery vATMG (July 2017) ‘Brexit and the UK’s fight against modern slavery’, para 3D page 20; available at: https://www.antislavery.org/wp- content/uploads/2017/07/ATMG-Brexit-paper.pdf vi vii See in particular Articles 12 and 13 of the Council of European Convention on Action Against Trafficking in Human Beings 2005 viii See Human Trafficking Foundation Report (July 2015)“Life Beyond the Safe House”, available at: http://www.humantraffickingfoundation.org/sites/default/files/Life%20Beyond%20the%20Safe%20House_0.pdf; and Human Trafficking Foundation Report (October 2016) “Day 46”, available at: http://www.humantraffickingfoundation.org/sites/default/files/Human%20Trafficking %20Foundation%20Report%202016%20Day%2046.PDF ix Ibid. x House of Commons Work and Pensions Committee Victims of modern slavery Twelfth Report of Session 2016-2017 https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/803/80302.htm HC 30th April 2017 xi House of Commons Work and Pensions Committee Victims of modern slavery Twelfth Report of Session 2016-2017 https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/803/80302.htm HC 30th April 2017 page 3, para 44 page 17 and para. 18 page 32 xii House of Commons Work and Pensions Committee Victims of modern slavery Twelfth Report of Session 2016-2017 https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/803/80302.htm HC 30th April 2017 page 4 and para. 79 page 28 and para. 18 page 32 xiii See Article 14 ECAT and https://www.gov.uk/government/publications/victims-of-trafficking-guidance-for-competent-bodies pages 74 - 77 xiv https://www.gov.uk/government/publications/victims-of-trafficking-guidance-for-competent-bodies pages 75

xv Explanatory Report to the Council of European Convention on Trafficking in Human Beings https://rm.coe.int/16800d3812 para. 182 xvi Explanatory Report to the Council of European Convention on Trafficking in Human Beings https://rm.coe.int/16800d3812 para. 184 xvii See further DPG (20 November 2015) ‘Ground-breaking Case on Local Authority Responsibilities for Supporting Victims of Trafficking’, available at: http://www.dpglaw.co.uk/ground-breaking-case-local-authority-responsibilities-supporting-victims-trafficking/ xviii https://www.gov.uk/government/news/historic-law-to-end-modern-slavery-passed xix The Modern Slavery Act Review, Caroline Haughey, 31 July 2016 https://www.gov.uk/government/publications/modern-slavery-act-2015- review-one-year-on page 13 xx The Modern Slavery Act Review, Caroline Haughey, 31 July 2016 https://www.gov.uk/government/publications/modern-slavery-act-2015- review-one-year-on xxi http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/victims-of-modern- slavery/written/43918.html xxii Select Committee Enquiry report para. 50 page 18 xxiii Select Committee Enquiry report para. 44 page 17

xxiv Department of Health and Human Services USA ‘Services Available to Victims of Human Trafficking’, page 10; available at: https://www.acf.hhs.gov/sites/default/files/orr/traffickingservices_0.pdf xxv GAO (June 2016) ‘Human Trafficking: Agencies Have Taken Steps to Assess Prevalence, Address Victim Issues and Avoid Grant Duplication’, table 12 page 55; available at: http://www.gao.gov/assets/680/678041.pdf