This month’s leading article is written by Raggi Kotak, Co-ordinator of the Anti Trafficking Legal Project (ATLeP). Raggi is a practising barrister specialising in women's asylum and immigration claims, including those that have been trafficked. The Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) came into force in the UK
on the 1st April 2009, aiming to prevent and combat trafficking in human beings; identify and protect victims of trafficking and safeguard their rights; and promote international co-operation against trafficking. The Convention applies to all victims of trafficking (women, men and children) and to all forms of exploitation, including trafficking for sexual and/or labour exploitation. It also covers both internal and cross-national trafficking, that is, people who have been trafficked within their home country or across international borders. However, The Anti Trafficking Legal Project (ATLeP) is concerned that the manner in which the Convention is to be implemented by the UK Government will lead to a serious failure in the provision of
some protection measures. These concerns, which relate to implementation
of the main provisions of the Convention, are discussed below.
The Main Provisions
The three provisions set to provide the greatest protection for victims are:
___ Article 10 – Identification of Victims ___ Article 13 – Recovery and Reflection Period ___ Article 14 - Residence Permit Article 10 Provides that each party to the Convention must ensure that their ‘competent authorities’ have trained individuals to identify victims of trafficking. If the competent authority has reasonable grounds to believe that a person is a victim of trafficking, that person should not be removed from the country until the
identification process is complete. The UK Government has named the
‘competent authority’ as the designated staff within the UK Border Agency (UKBA) where there are immigration and asylum issues and the UK Human Trafficking Centre (UKHTC – a UK multi agency centre led by the Police) if no such issues are present. In addition, a National Referral Mechanism has been established to provide a framework for identification. Professionals will be required to refer individuals who they believe may be victims of human trafficking to the designated competent authority, who will then make an assessment on whether that individual is a ‘genuine’ victim. It is believed that in designating the UKBA and the UKHTC as the only competent
authorities, the UK Government has failed to recognise that the term is widely used in both international law and in other parts of UK law to describe the State. Thus the Convention envisages that all organs of the State will incorporate the protection of trafficking victims into their duties and
responsibilities. The difficulties created by the UK Government’s failure to recognise this can be clearly seen in cases involving children. Under UK law, child protection teams in Social Services Departments have responsibility for the identification and protection of children at risk of trafficking. Under the National Referral Mechanism, however, these teams will be obliged to
refer such cases to the UKHTC (who will forward the case to the UKBA caseworkers if there are asylum/immigration issues) to determine whether there are reasonable grounds for believing that the child has been trafficked. This will create the situation where child protection specialists holding most information about individual cases will be required to refer on to those with less specialist knowledge and experience. Regardless of the decision of the
‘competent authority’, the child protection teams will still retain all their
responsibilities toward these children under UK legislation. That is, where the
specialist children’s worker believes that a child is the victim of trafficking, they must act accordingly whether or not this belief is upheld by the competent authority’. That is, a negative decision from the UKBA or UKHTC does not release them from their obligations under UK child protection law. This will create a confusing context within which child protection teams will
potentially be providing care to victims of trafficking where the UK government refuses to acknowledge them as such. Potentially the most serious flaw in the system for the identification of victims of trafficking is the UK Government’s failure to establish an appeal system to challenge negative decisions. In addition, there is no provision for vulnerable victims of
trafficking to be represented or given access to the records that are used to
make decisions regarding their case. These anomalies have been clearly
identified by Anthony Steen MP, Chair of the All-Party Parliamentary Group on Trafficking in Women and Children, who commented in a recent parliamentary debate: “... article 10 [of the Council of Europe Convention] deals with the identification of victims. [It...] suggests that international
good practice is that there is no lead department—a single competent
authority—and that decision making should be devolved across a range of
authorities at a regional and local level, so that it is closest to the location of the victim...Support services could then be agreed, co-ordinated and provided quickly. For children, that would be through local authority children’s services … the Government propose to make the UK Human Trafficking Centre in Sheffield the single competent authority, with decisions
made by UK Border Agency staff inside the UK Human Trafficking Centre.. ...
decisions will not be transparent. There is now a groundswell of opinion
from nearly every non-governmental agency that that is precisely the wrong
way to proceed...There will be no appeals process, so nobody will know what is going on....all local authorities, the police, the UK Border Agency and the UK Human Trafficking Centre should all be competent authorities. ...If the UK Human Trafficking Centre is the sole competent authority, there will also be operational problems....”1
Article 13
Provides for a 45-day reflection period for those who have been identified as victims of trafficking. The aim of this is to allow for a victim to get the assistance she needs without being put under pressure to make an immigration or asylum claim or co-operate with the Police. However, this
reflection period does not fit with the Detained Fast Track system for asylum
claims, where initial decisions are often made within a week of the claim. The
UKBA is only prohibited from fast-tracking a claim involving a potential victim of trafficking where evidence is provided from a reputable source such as the Poppy Project, a leading NGO supporting victims of trafficking at the time of the decision to fast track i.e. when an asylum claim is made. This system appears to be at odds with the possibility of a reflection period within the Convention. Yet we are aware that cases involving victims of trafficking
continue to be fast-tracked, without provisions within the system to prevent
this.
Article 14
Provides for a one-year renewable residence permit to be granted to a victim
of trafficking if the victim co-operates with a police investigation or if their personal circumstances warrant it. It is not yet clear how ‘personal circumstances’ are to be interpreted. This is expected to run alongside current provisions for asylum or humanitarian protection. The difficulty
with this is that if a victim is granted the residence permit but refused asylum or humanitarian protection under the Human Rights Act, they are prevented from appealing against this latter refusal as UK law prohibits the bringing of an appeal if a person is granted leave for a year or less.2 Many victims of trafficking will be entitled to refugee status or humanitarian
protection. If granted such status, a victim will be eligible to stay in the UK for an initial period of five years, rather than the one-year granted under the residence permit. With refugee status they will also benefit from a number of other provisions such as family reunion with dependants left at home or a free education.
However, in order to benefit from the possibility of a residence permit, a victim of trafficking may be forced to give up more extensive protection measures until after their residence permit has expired. For example, ‘Christina’ is granted a oneyear residence permit as a victim of trafficking. Her application for asylum has been refused because it is said that she will receive adequate protection from the State in her home country. Christina is
prevented from appealing against the refusal for refugee status as she has been granted a one year residence permit to remain in the UK. She is also prevented from applying for her daughter to join her in the UK. She can only appeal against this refusal at the end of her one-year. While it is very positive that the Convention has come into force in the UK, the above-mentioned flaws in its implementation mean that many of the provisions will fail to provide the protection that vulnerable victims so urgently need and deserve.
