Modern Slavery Bill Report Stage Briefing House of Commons, November Victim Protection and the National Referral Mechanism (NRM)

Transcription

1 Modern Slavery Bill Report Stage Briefing House of Commons, November 2014 Victim Protection and the National Referral Mechanism (NRM) Introduction: Part 4 of the Modern Slavery Bill ( Protection of Victims ) is a welcome addition to the Modern Slavery Bill. However, the provisions contained within it are presently inadequate to both guarantee victims the support and protection they are entitled to, and ensure that those who fail to identify and assist victims will be held to account. If the government wants to effectively tackle modern slavery and be true to its claim to put the plight of victims at the heart of their work 1, this part of the Bill requires strengthening through, at a minimum, the following measures: - Inclusion of a duty on public authorities to identify and assist victims - Inclusion of the minimum standards for protection and support - Provision for the establishment of the NRM and the key principles which underpin it, including the principle of non-discrimination and the right to recourse against erroneous decision-making - Inclusion of protection provisions for migrant domestic workers on the Overseas Domestic Workers visa; at a minimum, the right to change employer and to apply to renew their visa while in full time employment as a domestic worker. Duty on public authorities to identify and assist victims Clause 44 of the Bill states that the Secretary of State must issue guidance to appropriate public authorities and persons on victim identification indicators, and assistance and support arrangement for victims. Although such guidance is welcome, it provides no guarantee that those who fail to take all reasonable steps to identify and assist victims, and those who fail to adequately support and protect victims will be held accountable. Such failures have resulted in further traumatisation for victims who have received erroneous decisions, led to victims being further exploited or retrafficked, and resulted in victims being detained or prosecuted for crimes that were integral to or consequent on their exploitation. The two case studies below illustrates the consequences for a victim when they fail to be identified. Placing a statutory duty on public authorities will serve to raise awareness of modern slavery and ensure that victim identification and assistance is prioritised across the board. Case Study A: An East African woman was trafficked to the Middle East as a minor where she was forced to work in domestic servitude. She was regularly sexually abused, beaten and at one point lost 1 Draft Modern Slavery Bill, December 2013, Foreword by the Home Secretary: Available at: ery_bill.pdf

2 hearing in one ear due to the beatings she would get at the hands of the couple that controlled her. She suffers extreme gastrological problems as she was not permitted to eat regularly and had access to food sporadically. She took her chance to escape from the trafficking situation when the couple took her with them to the UK. She came to the attention of immigration authorities via the police she reported the crime to. She recounts that she tried to tell officials about the abuse she suffered, including the sexual exploitation she endured, but she claims she found it difficult to speak about her experiences, not only because they were painful but that anytime she tried to do so, she was repeatedly told to stick to the immigration questions she was being asked. She was placed in immigration detention and an initial decision letter on her trafficking claim noted that she was a stranger to the truth - quoting an immigration tribunal judge who dismissed her trafficking claim as opportunistic, noting that the victim had invented a story to prevent her return [to her country of origin]. Following strong advocacy from the Poppy Project, who took on her case, she was released from detention. The Poppy Project accommodated her for 10 months (approximately 260 days more than available through government funded schemes), gained her trust and supported her in regaining her health. The project supported her in speaking to the police who have recently located her trafficker. Without advocacy functions of civil society organisations such as the Poppy project in the identification process, many victims will not be identified due to a culture of disbelief. Case Study B: The following is a statement given by a West African woman trafficked into the UK for commercial sexual exploitation. I began to be allowed out to the shops and one day I ran away and managed to get a bus to London. When I tried to get on a bus to France and I showed my ID the Police were called. I was arrested and taken to a police station. I had to appear in court and I was sentenced for 12 months in prison for having a false document. I was too scared and ashamed to tell anyone what had really happened to me. The police in my country hurt women and I thought they would do the same in the UK. I found prison very difficult and some of the other prisoners frightened me. I claimed asylum while I was in prison. I had two interviews about my asylum claim but they were both conducted by men. I didn t know I could ask to talk to a woman. The men asked me lots of questions which I found hard to answer. I didn t tell them about what happened to me in France and the UK. I thought they would judge me and that I would get into more trouble. I felt like I was a criminal. What the Madam in London told me was true - the Police did arrest me and take me to prison. I was scared that I would be in prison even longer if I told them about the prostitution. Minimum standards of victim support and protection The UK is bound by international legislation, including the 2005 Council of Europe Convention on Action against Trafficking 2 and the 2011 EU Trafficking Directive 3, to provide minimum standards of protection and support for victims. These include, amongst others, appropriate and secure 2 Council of Europe Convention on Action against Trafficking in Human Beings, Available at: 3 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA

3 accommodation, counselling, necessary medical treatment, protection throughout criminal investigation and proceedings, material assistance, translation and interpretation services, access to legal assistance, protection and access to compensation. Although the provision of assistance and support should not be made conditional on the victim s willingness to cooperate with police 4, there is a well-recognised link between the support a victim receives and their ability and willingness to cooperate with the police. Only an individual who feels adequately supported and protected will be confident enough to disclose their experiences and information about their exploiters, and take part in often protracted criminal proceedings. Victims may need prolonged counselling before they feel safe enough to do so. A person s cultural background, including religious beliefs and the use of juju and oath rituals, often seen in some narratives of trafficked victims from Africa, can potentially further hinder a victim from disclosing and should be taken into consideration by authorities. To include these minimum standards in the Bill would send a strong message to both the victims and the perpetrators of modern slavery. A statutory basis for victim identification and support The failings of the current NRM have been well-documented. ATMG research 5 has identified systematic errors in decision-making due to misunderstandings of the trafficking definition, a conflation of immigration and trafficking identification processes, a lack of information at the time of referral or inappropriate questioning of the victim s credibility. Case study 2 below illustrates an example where such an error in decision-making was made. It is also clear that the current system is not responsive or sensitive enough to the particular needs, vulnerabilities and developmental stages of potential child victims of trafficking. The standards of support and protection offered to victims through the NRM has also been patchy, depending on their geographical location and the services accessed. The ATMG has therefore welcomed and engaged with the current review of the NRM, providing written evidence to it which reiterates the ATMG s research findings over 5 years, and hopes that the review s recommendations will respond to these concerns and result in improved victim identification and support. The government has, however, stated 6 that they are unwilling to set out the roles and functions of the NRM, currently a creature of policy, in the Bill until the Home Office s internal NRM review report has been published. Such a delay is unnecessary. Regardless of the specific details of how such a system will be established and work in practice, the key principles that underpin it are enshrined in existing international legislation 7 to which the UK is bound, and therefore should remain the same. These accepted core principles include: 4 See Article 12 (6) of the Council of Europe Trafficking Convention and Article 11(3) of the 2011 EU Trafficking Directive. 5 See ATMG, Hidden in Plain Sight, Hansard, 18 th October 2014, Public Bill Committee, Modern Slavery Bill, Column Both the Council of Europe Trafficking Convention and the EU Trafficking Directive set out the basic principles of the system of victim identification and assistance that States should adopt. See Chapter III of the Trafficking Convention ( Measures to protect and promote the rights of victims ).

4 - Victims of modern slavery should be protected and supported in a manner that discharges the Government s international obligations under the Council of Europe Trafficking Convention and EU Trafficking Directive on victim identification and protection. - The system should adopt a human-rights based approach which has victim s best interests at its heart. - A person should give their free and informed consent to being referred into the NRM. - The individual should have the right to appeal decisions in the NRM process. - The system should be non-discriminatory: Immigration and asylum authorities should have no responsibility for deciding whether a person is a victim of modern slavery. - The system should take into account the particular rights, needs and vulnerabilities of children. The minutiae of how this system will be established and operate can be included in guidance but its central principles should be included in statute. The Modern Slavery Bill presents a key opportunity to ensure long-term stability in the standards of victim identification and support in the UK. Such action would ensure accountability within the system. As it stands, despite five years of operation in the UK, the ATMG has found that the NRM is relatively unknown among practitioners and underused. It is regarded as a non-mandatory process, on which there is no training or scrutiny of decisions to not refer, even for children within the child protection system. Without a statutory underpinning of victims rights to identification and specialist support, practitioners will continue to disregard the NRM entirely or see it solely as best practice, as opposed to something that victims have a right to. Referral into the NRM can be hugely significant for victims. Those who have a positive NRM decision may also have a higher likelihood of a prosecution against them being dropped if they have been trafficked and forced to commit a crime. In turn, positive NRM decisions are used by police in prosecutions against traffickers. Specialist support and accommodation, and access to legal aid, are also often dependent on a positive decision within the NRM. Therefore, it is vital that we embed victim rights in our legislation and ensure accountability of those tasked with identification and providing support. Case study C: The following, provided by the Poppy Project, is an excerpt taken from a NRM decision letter issued by the Home Office Competent Authority: It is considered that your claim to have been given a regular wage is not consistent with your claim that you had been sold to the owners of the massage parlour, and that you were living there against your will. This was one of the key justifications for a negative trafficking identification decision by an immigration official assessing a trafficking claim. The claim was made on behalf of a child victim of trafficking who had been paid approximately and forced to masturbate male adults in a massage parlour. When she refused to do so she would be starved for days. She was closely guarded and not permitted to leave the brothel. The fact that she was a child, that she was a victim of child abuse, that all international legislation and policy practice notes that a child cannot consent to their own exploitation, was not considered. Protection for migrant domestic workers on the Overseas Domestic Worker visa: In 1998, in response to the widespread and documented abuse of migrant domestic workers in the UK, the Government introduced important protections for migrant domestic workers in the form of the original Overseas Domestic Worker (ODW) visa. This recognised them as a worker, and allowed them to change employer and so escape abuse. This protection kept migrant domestic workers

5 visible to the authorities as they would apply to renew their visa annually, allowing for employment conditions to be scrutinised. The possibility of changing employer went some way to address the power imbalance in the private household; conditions reported by workers on this visa improved significantly. In 2009 the Home Affairs Select Committee in its inquiry on trafficking found that to retain the migrant domestic worker visa and the protections it offers to workers is the single most important issue in preventing the forced labour and trafficking of such workers. 8 However in April 2012 the UK Government changed the ODW visa. Since then ODWs have entered on a 6 month long, non-renewable visa, on which they are not permitted to change employers. The Joint Committee for the Draft Modern Slavery Bill found that this change has unintentionally strengthened the hand of the slave master against the victim of trafficking and called for an urgent reversal to reinstate the original visa. All other evidence corroborates the Joint Committee s finding including reports by migrant domestic workers to Kalayaan in which abuse has increased significantly, research by Human Rights Watch 9 and initial findings from ongoing research by Dr Virginia Mantouvalou 10. The Bill must be amended to, at a minimum, allow migrant domestic workers to change employer and to apply to renew their visa while in full time employment as a domestic worker. Ideally it should include all the protections set out in the ATMG s Alternative Bill 11. Without a suitable amendment for ODWs the Bill as it stands would be condoning domestic servitude in private households. Case Study D: Martha sought help from Kalayaan having left her employment after 3 years in order to escape being raped by her male employer. She looked after his baby and his wife apparently knew nothing of the abuse she was vulnerable to. She did not want to tell her as she did not want to break up a family. As she wasn t working she was unable to send money home and explained that now her own children were unable to eat. Kalayaan had to explain to her that, due to the conditions of the current ODW visa, she was not permitted to find another employer in the UK or remain on her visa. Questions for the Minister: Will the Minister outline the reasons why the minimum standards of protection and support that victims are entitled to under international legislation are not included in the Modern Slavery Bill? 8 Home Affairs Select Committee. The Trade in Human Beings: Human Trafficking in the UK. Sixth report of Session Volume I. House of Commons, p Human Rights Watch, March 2014, Hidden Away: Abuses against Migrant Domestic Workers in the UK. 10 Dr Virginia Mantouvalou is Co-Director of the Institute for Human Rights and Reader in Human Rights and Labour Law, University College London (UCL). Her evidence to the Public Bill Committee on the Modern Slavery Bill details her preliminary research findings and can be read here: 11 ATMG, Modern Slavery, Human Trafficking and Human Exploitation Bill, See Clause and_human_exploitation_bill_03_10.pdf

6 Will the Minister explain why the underlying principles of the system of victim identification and support, set out in existing international legislation to which the UK is bound, can not be included in the Modern Slavery Bill? Will the Minister explain why the provisions for victim protection and support in this Bill do not go as far as those just passed in Northern Ireland? Could the Minister outline how officials who fail to assist or refer potential victims of modern slavery for identification will be held accountable? Will the Minister clarify the Government s reasoning for not introducing a right to appeal NRM decisions as a key safeguard to protect the rights of trafficking victims? Can the Minister outline what legal protections will be put in place for potential victims of modern slavery who are not able to provide informed consent due to circumstances, trauma or lack of capacity to enter into the NRM to ensure they can access specialist protection and support until they are sufficiently recovered to provide informed consent? Will any guidance issued on the protection and support for potential victims of modern slavery be considered secondary legislation? How will the application of such guidance be regulated to ensure compliance? Will the guidance include a definition of informed consent? Given the Governments stated commitments to protecting victims and to preventing trafficking, would the minster explain why the Government has dismissed the Joint Committee s recommendation to reverse the 2012 changes to the Overseas Domestic Worker visa? Please refer to the ATMG s Alternative Bill 12, specifically Clauses 16 ( Duty on Public Authorities and the National Referral Mechanism ), 18 ( Applications for Compensation and other Remedies ) and 19 ( Overseas Domestic Workers ) for suggested language for these protection provisions. The Anti-Trafficking Monitoring Group monitors the UK s compliance with, and implementation of, the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, as well as the EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The ten organisations belonging to the ATMG are: AFRUCA (Africans Unite Against Child Abuse) Amnesty International UK Anti-Slavery International Bawso ECPAT UK Helen Bamber Foundation Kalayaan POPPY Project (of Eaves Housing for Women) TARA project (Trafficking Awareness Raising Alliance, of Community Safety Glasgow (CSG)) UNICEF UK For further information, please contact: Vicky Brotherton, ATMG Coordinator, at v.brotherton@antislavery.org +44 (0) ATMG, Modern Slavery, Human Trafficking and Human Exploitation Bill, and_human_exploitation_bill_03_10.pdf