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Five British lawyers attend meeting for specialised anti-trafficking lawyers and NGOs in Strasbourg on European Anti-Trafficking Day
(Part 2) 

In the UK, 17,004 potential survivors of modern slavery were referred to the Home Office in 2023. The most common nationality referred this year was UK nationals (25%; 4,299), whose numbers were at their highest for any year since the NRM began; the second most commonly referred nationality was Albanian (24%; 4,052) and third was Vietnamese (6%; 991). British survivors face significant difficulties accessing tailored-specific support under the National Referral Mechanism, in particular child survivors and young adult survivors exploited by county lines or cuckooing (where someone forcibly occupies a person’s home to carry out illegal activity.) Many are not identified and supported as survivors of human trafficking when they first come into touch with the authorities and may face criminal proceedings as a result, they have difficulties accessing legal aid and other sources of State support. The NRM does not provide a pathway to help survivors to remove criminal records that they obtained under modern slavery duress.  

Swiss lawyer Olivier Peter from Peter & Moreau referred to some of the recent case law in Switzerland which is pending in Strasbourg, including the case of JDG v Switzerland (41506/23) and NR v Switzerland (1026/24), where two Filipino domestic workers who were exploited by diplomats were denied legal aid because they were told the merits of their cases were poor because of their traffickers’ immunity. The Claimants lost their cases in the Swiss Constitutional court and claims were filed in Strasbourg. A decision on admissibility is pending.  

It was agreed by all during the meeting that survivors should not be subject to means testing for the purposes of eligibility for legal aid. Many survivors start working once they feel safe enough to do so. Well remunerated work is an important part of their recovery, but it often makes them ineligible for legal aid, which puts them at risk of further harm.  

Good practices were found in other countries, where all survivors could access legal aid. For example, in Moldova there is a presumption that all survivors will be entitled to free legal aid regardless of their income and regardless of the stage and level of their identification.  The recent amendments to the  Civil and Criminal Legal Aid Financial Resources Regulations finally make clear the Modern Slavery Victim Care Contract payments will be disregarded for the purposes of assessing income and capital and on 20 November 2024 the guidance was updated to reflect this. This is a welcome development but a lot more needs to be done to ensure survivors are able to access legal aid. 

Failure to investigate

Other recent Strasbourg cases were discussed during the meeting, including the case of T.V. v Spain (Application no. 22512/21), a case concerning a survivor who was trafficked from Nigeria to Spain. She was exploited between 2003 and 2007. She managed to escape her traffickers and brought a criminal complaint in 2011. The Spanish authorities’ investigation into her criminal complaint of human trafficking and sexual exploitation had been wholly inadequate. The Court found that: no measures had been taken at all in the first two years of the investigation; the investigators had failed to pursue obvious lines of enquiry; and the decisions to provisionally dismiss her case in 2017 had been superficial and insufficiently reasoned. Such shortcomings showed a blatant disregard for the duty to investigate serious allegations of human trafficking and breached T.V’s Article 4 ECHR rights.  

The Strasbourg Court handed down another judgment on 24 October 2024 in the case of  B.B. v. Slovakia (Application no. 48587/21). This decision focused on the procedural (investigative) limb of Article 4. This is another case where the State concerned failed to carry out an effective investigation into the complaint of trafficking. Again, the state’s failure to appreciate the abuse of the survivors’ position of vulnerability fed into the unlawful conduct of the state. Further, the Court was critical of the Slovakian authorities pursuit of the lesser offence of pimping as opposed to human trafficking which would attract a higher, and arguably deterrent, criminal sanction. The claim for EUR 109,500 in financial damages and EUR 50,000 for non-financial damage was rejected and instead an award of EUR 26,000 euros was made for the latter.  

Conclusion

The meeting was an important reminder of the benefits of working collaboratively with colleagues, peers, survivors, NGOs, and others in the sector to try and challenge repeat failures on behalf of the State and ensure survivors get the protection, support and the compensation they are entitled to.  

Five British lawyers attend meeting for specialised anti-trafficking lawyers and NGOs in Strasbourg on European Anti-Trafficking Day
(Part 1) 

In the past 15 years, there have been a number of developments in law and practice reflecting a commitment on the part of the UK government to abolish modern y slavery. This has included the introduction of a National Referral Mechanism (NRM), the introduction of the Modern Slavery Act 2015, new offences of labour exploitation, CPS guidance on non-punishment of certain survivors,  and new statutory guidance on identifying and supporting them. 

However, in most practical ways, survivors are still being failed because: 

  • Survivors entering the NRM have significant difficulties accessing legal aid and specialist legal advice
  • A higher threshold for reasonable grounds decisions is preventing entry into the NRM
  • The new NRM reconsideration process has made it even more difficult for survivors to seek reconsiderations of negative trafficking decisions
  • Access to compensation is still a distant hope for many survivors
  • Very low numbers of temporary residence permits are issued to survivors, to enable them to start recovering from their trafficking experiences. 

Against this backdrop, it is important to touch base with practitioners and charities from all over Europe to strengthen partnerships and find new ways of ensuring survivors get the redress they need.   

On 17 and 18 October 2024, Silvia Nicolaou Garcia from Bindmans’ public law and human rights team, Victoria Marks and Kulvinder Gill from the Anti Trafficking Labour Exploitation Unit, Catherine Meredith from Doughty Street Chambers and Parosha Chandran from 1 Pump Court  attended the fifth meeting of the Council of Europe Network of specialised lawyers and NGOs providing legal assistance to survivors of human trafficking in Strasbourg.   

The meeting was organised by GRETA (Group of Experts on Action against Trafficking in Human Beings), the Council of Europe body in charge of monitoring the implementation of the  Anti-Trafficking Convention, and coincided with the European Anti-Trafficking Day. It brought together lawyers and NGOs across the State Parties to the Anti-Trafficking Convention and served as an opportunity to exchange experiences on good practice and innovations in supporting survivors to enforce their legal rights. In this first blog we’ll look at the issues around compensation.

Difficulties accessing compensation  

It was widely accepted by all participants that survivors still face significant hurdles when trying to secure compensation from their traffickers and from the State, which include: 

  • Not being able to access legal aid to bring these claims
  • Difficulties in identifying the perpetrator or perpetrator being without assets or with diplomatic immunity
  • Difficulties and delays accessing  compensation from State compensation schemes
  • Not being able to claim compensation for the full extent of their losses, including loss of earnings from the period of exploitation
  • Becoming ineligible for State support once compensation is received.  

Swiss lawyer Olivier Peter from Peter & Moreau reminded us of the positive obligation on States to acknowledge and redress the suffering by survivors of human trafficking and labour exploitation. This should be an obligation of result, not just an obligation of means. Survivors should have the right to obtain compensation, not just to claim compensation. Whilst this may seem obviously consistent with the principle of effectiveness, the Strasbourg Court has not yet recognised this. 

The case of Krachunova v Bulgaria (Application no. 18269/18) concerned the right to claim compensation. Ms Krachunova was a 26 year old Bulgarian woman who was groomed by X (a 31 year old pimp) and trafficked to work as a prostitute on Sofia’s ring road in 2012 – 2013.  She sought non-pecuniary damages of 4,090 Euros. In their judgment on 5 December 2017, the Sofia City Court did not award this to her, as the sums earned by her as a prostitute that X took from her, ‘are not to be returned to [her], since they were obtained in *an immoral manner* that is prohibited by the law, as laid down in Article 329 §1 of the Criminal Code (emphasis added).’ Article 329 §1 of the Bulgarian Criminal Code criminalised obtaining income obtained in an “immoral manner”. The Strasbourg Court found Article 4 of the ECHR imposes a positive obligation on Contracting States to enable survivors of trafficking to claim compensation from their traffickers in respect of lost earnings and that Ms Krachunova was entitled to compensation to cover what she would have earned during her period of exploitation.  

This case is also significant because it is the first Strasbourg Article 4 ECHR brought on behalf of a national survivor of human trafficking. In relation to the ‘means’ element of the trafficking definition, the Court found that even though there was no evidence that X had resorted to violence or threats of violence to make Ms Krachunova engage in sex work for his benefit, international law makes clear that the abuse is sometimes carried out by subtler means, such as deception, psychological pressure and the abuse of a vulnerability. In this case, Ms Krachunova was younger than X, who had a criminal record and had been routinely engaging in professional dealings with sex workers and was deriving all of his income from such dealings, and was associating with pimps. Ms Krachunova was living in his house with himself and his wife and children. X instructed her on how to engage in sex work and posed as her “protector”. The Court found that “it is not far-fetched to infer from all this that she felt sufficiently dependent on him to not overtly oppose him. X’s taking away a substantial portion of the applicant’s earnings …. must have also led to her having a level of dependency on him” [paragraphs 148-149]. Abuse of a position of vulnerability is an integral part of legal test for the means element for trafficking and well known but sometimes overlooked by decision makers. The 2012 UNDOC guidance note makes the point clear.

The second part of this blog will look at key trends in the UK and the difficulties survivors still face in obtaining legal aid to help them secure prompt identification and long-term protection. 

November 2021

When a First Responder refers a survivor of modern slavery into the NRM they confirm they have understood the content of the Home Office’s Privacy Information Notice. But how often does the First Responder and the individual being referred into the NRM fully understand the implications of the privacy information notice? And, if they do fully understand, would they still consent to their referral into the NRM?

In this blog we explore the extent to which the Home Office privacy information notice is compliant with the relevant UK law. We have also produced a fuller legal briefing.

When processing personal data, organisations are required to comply with the UK’s data protection laws, and this includes the Home Office. There is a question as to whether the Home Office privacy information notice complies with these data protection laws. In spite of the notice having been recently updated, a number of concerns remain around the notice for victims of trafficking:

  • Lack of transparency: It is unknown to what extent victims who consent to entering the NRM are made aware of the privacy information notice and its content. Many victims do not speak English as their first language and it is not clear whether efforts are made to translate the notice. Are First Responders translating the notice in full and checking a victim’s understanding before making a referral?
  • Unclear data sharing practices: The practices of the Home Office in relation to the personal data of the victim once they have entered into the NRM are vague. The privacy information statement does not clearly state what legal bases for processing a victim’s data they rely upon. Victims are often unaware having consented to enter the NRM their consent is not required by the Home Office to process the personal data that they provide upon referral and while in the NRM.
  • Lawful sharing: Victims are often not told in advance that, by entering the NRM, their data may be lawfully shared with other governments and international partners of the Home Office, including, potentially the authorities in their home country. This is a prospect many victims would be uncomfortable with as they may be at risk from those authorities. Articles 13 and 14 of the GDPR require the Home Office to tell victims who they share personal data with (either in terms of the recipients or categories of recipients of the personal data) in a way that they can understand.

While consent may not be required for the processing of personal data under UK data protection laws, a First Responder must obtain the informed consent of an adult victim before making a referral into the NRM. ‘The Slavery and Trafficking Care Standards’, which have been adopted by the Home Office, state:

‘If personal information is required from someone, the reason for seeking that information, who is going to be using the information, and how their personal information is going to be kept must be explained to them.

‘Obtaining informed consent successfully requires individuals to feel confident that they can ask questions and have information explained or clarified repeatedly if needed.’

Unfortunately, it seems that First Responders are rarely given the necessary tools and training to ensure that the privacy information notice is clearly and transparently communicated to victims so that their informed consent is obtained.

It is essential that advisers help and support victims by explaining the notice to them. If a victim does not wish their data to be shared, as indicated by the privacy information notice (for example, with a foreign government), the advisor should write to the Home Office objecting to the processing of personal data concerning him/her under Article 21 of the General Data Protection Regulation (GDPR). We have prepared a precedent letter that you can adapt for these purposes.

New diversity action plan for the anti trafficking sector

November 2021

The events of 2020 and the death of George Floyd raised for many of us the importance of restating a commitment to anti-racism and equality, both within our own organisations and the wider anti-trafficking sector. 

The survivors that we work with are from diverse backgrounds with a multitude of experiences. Yet this is not mirrored within the organisations and professionals working with survivors of trafficking and modern slavery.  

Those that work directly with survivors, while seeking to do their best for them, often fail to serve their needs due to a lack of cultural awareness and understanding. Similarly, how survivors fare within the systems they are subject to, can often be negatively influenced by their race and nationality. However, this is generally not acknowledged or seen as an issue that cannot be solved. 

In one case it was suggested that the survivor must either be lying, or have learning difficulties, as he asserted that he had no surname and did not know his date of birth. Understanding that the survivor was from a part of the world which did not use surnames and did not mark births by date was key to being able to present his case. Until that he was simply seen to lack credibility as his account had been considered through the lens of a white western experience. 

Over the past year many organisations have sought to acknowledge the varied inequalities within the anti-trafficking sector and the impact on its beneficiaries, resulting in the UK BME Anti-Slavery Network (BASNET) being established. BASNET is the first network in the UK and indeed Europe, dedicated to promoting equality, inclusion and diversity in the anti-trafficking and anti-slavery sector and ATLEU is proud to be a member.

BASNET aims to strengthen and diversify the voices of those working with survivors of trafficking and modern slavery by:

  • Advocating for wider diversity and inclusion in the work of organisations engaging with survivors of trafficking and modern slavery
  • Advocating for wider diversity and inclusion within the statutory bodies encountering survivors of trafficking and modern slavery
  • Encouraging partnerships with grass roots community organisations who encounter survivors of trafficking and modern slavery
  • Commissioning and supporting research into factors impacting on equality and diversity within the anti trafficking sector.  
  • Influencing law, policy and procedure

Full details of BASNET’s activities can be found here. 

BASNET has launched an action plan for the sector with the support of the Anti-Slavery Commissioner. We urge you to adopt the plan.

BASNET is also inviting membership and we again encourage those organisations working with survivors of trafficking and modern slavery, to join the network.

Working with The Salvation Army as a First Responder

December 2020

This is an update to the blog below Working with First Responders that we published in November 2020 in which we discussed the barriers that survivors of trafficking and slavery were encountering when seeking to be referred into the National Referral Mechanism (NRM) and what you could do to assist them when this happens.

Since then we have received further information about the situation from both the Home Office and The Salvation Army.

The Salvation Army continue to be a designated First Responder organisation and as such, where they suspect that an individual may be a potential victim of modern slavery, they have a responsibility to identify potential victims and refer cases to the Single Competent Authority.

The Salvation Army also continues to provide a 24-hour, seven day a week referral line for individuals who require immediate accommodation at the point of referral to the NRM. First Responders can contact The Salvation Army on 0800 808 3733 when they identify those in need of this support. If you are working with someone who is in immediate need of support you should call this number.

However, The Salvation Army has clarified that the referral line will not fill the role of First Responder to the NRM. Apparently staff on the line will signpost callers to the government website where details of all First Responders, including The Salvation Army Volunteer First Responder Service, can be found. This volunteer First Responder Service is only available during office hours.

We are extremely concerned about this change in practice which will potentially cause confusion among survivors, and the frontline workers assisting them, and prevent them from being identified. Referral into the NRM and subsequent identification and support is an essential part of the UK’s framework for combating trafficking. It is therefore crucial that this process be simple and accessible and easily navigated by victims. If it is not and referrals are delayed, or not made, the safety of survivors is endangered.

While statutory First Responders like the police, Home Office and local authorities, are required to act as First Responders, in practice, their systems are often confusing to navigate, without easily accessible points of contact. Many potential victims are also fearful of contacting these authorities.

What you can do

Finally, we are monitoring the situation so please do get in touch if you experience difficulties with assisting potential victims to access the NRM by emailing us at londonlegalproject@atleu.org.uk.

Working with first responders

November 2020

The Salvation Army is the prime contractor for the Home Office Modern Slavery Victim Care Contract (MSVCC) and a designated first responder. They provide a 24/7 Referral Helpline and as they also provide support under the MSVCC, the Home Office recommend The Salvation Army as the most direct and efficient way to access support for an individual with indicators of modern slavery.

However, both ATLEU and Anti-Slavery International have received multiple reports this month from frontline organisations assisting individuals to enter the NRM that The Salvation Army is currently unable to assist them with a referral. Frontline organisations have reported that: 

  1. They have been told there is a wait time of up to six weeks for The Salvation Army to be able to act as first responder and refer an individual into the NRM
  2. Where a potential victim remains in their place of exploitation, The Salvation Army has said that they are unable to act as first responder.
  3. The Salvation Army has said that it is unable to act as a first responder in circumstances where there is an alternative first responder available, such as the police, Home Office or a local authority. 

The Home Office has confirmed that there has been no change of policy in respect of The Salvation Army operating as a first responder organisation. The Salvation Army has also stated that it will continue to facilitate NRM interviews for self-referrals and those from organisations who are not first responders but, because of the high number of referrals they are receiving, that there may be delays.

Consequential issues

We are concerned that these issues are causing unidentified victims of trafficking and modern slavery to be left at risk of harm, destitution and further exploitation, unable to access the support they are entitled to. Many victims will feel fearful and uncomfortable contacting a statutory first responder, or may not know how to do this. Signposting them to the police, Home Office or local authority, at a time they have come forward seeking help, is likely to lead to many disengaging and being shut out from help when they need it most. 

What you can do

If you encounter a first responder organisation who refuses to refer an individual with indicators of trafficking/modern slavery into the NRM, here are some steps you can take. These steps are designed to be used where the first responder organisation is either a public authority or a Home Office prime contractor:

  • Write to the first responder organisation setting out their responsibilities and legal obligations. We have developed a precedent letter for frontline organisations to use if a first responder organisation refuses, or delays, to act as first responder. Where possible, copy the letter to their legal department. This letter is designed to be used where the first responder is either a public authority or a Home Office contractor.
    Failure to act as a first responder precedent letter.
  • Refer your client to a public lawyer. This is a type of lawyer who can advise on whether there is the basis for judicial review proceedings against the first responder because of their failure to act. The state has duties to prevent trafficking, and identify and protect potential victims. However, whether these duties have been breached will come down to the individual facts of a case. The facts of the case will also determine who the defendant(s) is, the grounds of challenge and the prospects of a successful challenge.  This is why it is important to refer your client for legal advice and representation as soon as possible, so these matters can be looked into. You can find a legal aid lawyer by posting a referral on ATLEU’s referral portal and searching for public law here: https://find-legal-advice.justice.gov.uk

Unidentified victims of trafficking may be in a situation of significant risk should a first responder organisation fail to act on its responsibilities. Do not delay in referring your client for legal advice and representation if this is the case.  

Remember that there are also a number of non-statutory voluntary first responders. Although their capacity may be limited, potential victims may feel more comfortable approaching them. It is worth seeing if they might be able to help. 

What are first responder organisations?

A ‘first responder organisation’ is, in England and Wales, an authority that is authorised and has responsibility to refer a potential victim of modern slavery into the National Referral Mechanism (NRM). The NRM is the system for identifying and supporting potential (and confirmed) victims of modern slavery. 

The role of a first responder organisation is to: 

  1. Identify potential victims of modern slavery and recognise the indicators of modern slavery. 
  2. Gather information in order to understand what has happened to them. 
  3. Refer victims into the NRM (informed consent must be obtained to refer an adult). In England and Wales statutory organisations should notify the Home Office if an adult victim doesn’t consent to being referred. Both can be done via the Modern Slavery Portal. 
  4. Provide a point of contact for the Single Competent Authority (SCA) to assist with the Reasonable Grounds and Conclusive Grounds decisions and to request a reconsideration of negative decisions.

The role of first responder has been established in accordance with the state’s duties to potential victims of trafficking under the the EU Anti-Trafficking Directive (2011/36/EU) (‘the Directive’), the Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 16.V.2005 (ECAT) and the European Convention of Human Rights (‘ECHR’).

Further information about the referral process and a full list of first responder organisations, both statutory and voluntary, can be found on the government’s website.

Advising survivors of trafficking remotely

by Jamila Duncan-Bosu

June 2020

For many clients, dealing with their solicitor by telephone and email is not easy. The situation has been further exacerbated by the current public health measures and is something that we all have to deal with. We have a great deal of experience of working with vulnerable individuals remotely and below is some of our learning.

Client contract

Practitioners will be familiar with the notion of a retainer between themselves and their clients. Generally, this will set out the legal work that will be undertaken and how that work will be funded. However, it is also a good idea to enter into a ‘contract’ setting out how you are going to communicate with the client. For example, ‘You will hear from me by telephone and email. I will only post documents if I have to and I will let you know first’.

Ask the client how they record important information and dates, are they writing things in a diary, calendar, etc?

Many clients have a number of solicitors dealing with different aspects of their trafficking experience and may have recounted their experience to different authorities. It is worth clarifying with the client, exactly what work you are doing and the name of your organisation, so that they can relay this to others if necessary.

Explain when they are likely to hear from you. If you will only be in touch when there is an action, make sure they understand this. Often clients become upset at not being contacted monthly to see how they are. Make sure that they understand that they can contact you at any time and that they know how to do this.

For those clients who do not have English as a first language, do they have an English speaking friend or support worker who can let you know the client wants to speak to you? Explain that you do not have interpreters on site, so the client understands that you might not be able to speak to them straight away when they call.

Finally, does the client know your name and can they repeat it to you? Clients who have a number of people assisting them can struggle with this, so it’s worth making sure they are able to confirm who you are and the work you are doing for them, or know where this information is.

Emails

How often does the client check their email account? Will they agree with you to check their email for example, once a week at a particular time, to see if any correspondence from you has come through? How are they actually accessing email? Is it via a smartphone or do they have access to another device? Who else has access to the email? Many clients will want to use a friend’s email so they need to be clear that this means their information won’t be confidential.

Phone calls

Many clients will not answer a call from an unknown number. Can you agree a code so that they know it is you calling? For example, can you explain that your number will always come up withheld, but that you will ring twice and hang up so that they know it is you calling and answer on the third attempt? If they have a support worker, can they contact the client if they will not pick up calls from you?

Once you have entered into an agreement regarding communication, as well as setting it out in writing, telephone the client and go through the agreement with them again. Where the client feels that you are working together as a team, they are more likely to be communicative and respond. It is often a good idea to set out what your different jobs are going to be, so for the client their job will be to provide instructions, check documents, respond to your calls, emails and letters. Your job will be making the application or advising on the specific issues.

Don’t record the agreement in the standard client care letters or documents, set it out separately, ring the client, make sure they have understood it and they can repeat back to you what the agreement is. You have a deal.

Support workers

Do not underestimate how useful the support worker can be in assisting communication. For example, can you get an agreement from the client at the outset that correspondence will be copied to the support worker as well?

Many support workers do not understand that confidentiality means that they will not receive information about the client’s case unless the client has expressly agreed to this. It is worth clarifying the support worker’s understanding of how much they expect to be involved and updated about the case.

It is worth checking the position of the support provider if they are taking and recording notes. Some victim support organisations require that notes are taken, shared on a main system and then disclosed to the Home Office etc, if requested to do so. If there is a risk that the support worker may disclose to third parties, then the client needs to be advised accordingly and the support worker’s role limited to administrative assistance to enable the client to give instructions.

Taking instructions

Before making the call it is always a good idea to have a list of all the issues that you need to take instructions about. At the outset of the meeting explain what is going to happen and the format i.e. questions for the client, review of documents and then an opportunity for the client to put questions to you.

If you are taking notes at the same time, explain this to the client. Explain that if you are quiet, it is because you are writing so they understand what is happening.

Be aware that remote consultation can be tiring. If you are going to be speaking about distressing issues it might be a good idea to break up the call and the nature of the questions being put to the client. Can the meeting end on discussion of the lightest, least distressing issue?

Make sure you give the client plenty of time to respond and take note of the client’s demeanour. Ask them if they want to stop and take breaks. Ask them to let you know if something is upsetting them or distressing them. If they have a big gap before giving you an answer ask if they are alright.

Consider if the client has support from a counsellor or support worker. Can they be asked to check in with the client after the meeting?

Always end the call by checking if the client has any questions for you and knows what the next action will be and when you will be in contact.

Make sure to manage their expectations about what you can do for them and discuss other sources of help that may be best for support if they are available to the client. For example, encouraging them to use resources provided by mental health practitioners to manage symptoms or to speak to health professionals directly if they need more support.

Using an interpreter

At the outset ask the client and interpreter to confirm that they can hear and understand each other. Explain to the client that the interpreter’s job is to interpret what is being said and they are bound by confidentiality, so cannot repeat anything said to anyone else. This is a good way of reminding the interpreter of their duty of confidentiality.

Sometimes interpreters try to assist by giving the gist of what you or the client are saying. At the start of the conversation have a discussion with the interpreter about the way in which you wish to use them. So, for example, you may explain that it is extremely important that they repeat what the client is saying to you verbatim. Ask them whether it is easier for you to speak in short chunks or to explain something and allow them to interpret?

Explain to the interpreter that it is really important that they relay exactly what the client is saying so if there is any distress or upset that it is relayed to you. It is often worth explaining to the interpreter that at a court or tribunal hearing the interpreter will translate verbatim so it is important that you know if the client has difficulty with particular terminology or understanding questions being put to them.

Make sure that you speak directly to the client despite using an interpreter, to ensure that the discussion is between you and the client, rather than the client and interpreter. ‘Can you ask’ is more likely to lead to discussion between the client and interpreter and important information being lost.

The Salvation Army referral process 

by Carita Thomas

June 2020

The Salvation Army is one of the biggest organisations referring people into the National Referral Mechanism (NRM). There is now an online referral form.

Here’s how The Salvation Army say the process works:

  • They ask the victim for consent to enter the NRM after explaining the NRM and the referral process to them and when they are fully informed of the potential outcomes. 
  • They then conduct the NRM interview with the potential victim, at the end of which they read back the recorded information to ensure that the narrative taken about the victim’s history is accurate. The referral is then submitted to the government. 
  • If there is any additional information provided (for example, from a lawyer or support worker saying why they think the person is a victim or raising concerns about the interview), the Salvation Army forward all further evidence to the government via email and upload the evidence to their internal case management system.
  • The Home Office has told the Salvation Army that there is no need for a potential victim to consent to what is written about them on the NRM referral form. The victim is only consenting to the NRM referral and a request for support. With the new online NRM referral form, oral consent to the fact of referral/request for support is all that is required from the victim. The victim does not need to sign a consent form. 
  • If someone disagrees with what is written about them on the NRM form, they can remedy this by submitting corrections through their solicitor if they have one or, if they are told the government does not believe they are a victim, by asking the government to reconsider that decision later.
  • If someone wants to withdraw from the NRM they need to sign a physical consent form as oral consent is not sufficient.
  • If someone asks for the withdrawal of an NRM referral, their NRM details will stay on the Home Office file for some time so are not immediately cancelled out. 
  • The Salvation Army will not provide potential victims with a printed or emailed copy of their NRM referral as soon as it is completed as standard. They say this is because: “The content of the NRM referral is the evidence and observations of the first responder and therefore can contain classified information – for example details of police or immigration operations which led to the referral. A first responder can provide the individual being referred into the NRM with a printed copy of the NRM referral form if requested, but this is dependent on the capabilities of the first responder to do so at that time….An individual or their legal reps can also request a copy of the NRM referral form from the SCA [government decision maker] through a subject access request.” 

We have had a client who was referred into the NRM by the Salvation Army, although we told them that the client did not consent to what was recorded about them on the referral form before the referral was submitted. As the Salvation Army has explained, the Home Office have advised them there is no need for their consent to what is written down.

What is written on the referral form is very important. A victim should agree to what is sent to the government. If something is written down that is incorrect this could hurt their case and could lead to a decision that they are deemed not a victim of trafficking. This means they might not get the chance to get financial support and accommodation or a legal aid lawyer. It is hard to challenge a negative decision once it is made and much better if the right decision is made the first time.

We recommend:

  • Advising your client about the process for the referral and ask them to tell the Salvation Army (or any other body referring them into the NRM) if they do not understand the questions asked or the interpreter used and to ask for everything written down about them to be read back to them. 
  • If you are already instructed as a legal representative and your client is comfortable with you or a support worker – consider observing and listening in to take a contemporaneous note of a referral conversation with the client and check with the client that they understand the interpreter. This might be particularly important if the client feels like they cannot assert themselves and wants the reassurance that comes from someone being with them. Be aware that if someone is with them it is important to raise any concerns with the interview quickly. If you are making representations about anything the client says is not clear before or shortly after an NRM referral is submitted you should note any limitations. For example, urgency/pressure of time/community interpreter or friend used to translate if there is no legal aid funding for a professional interpreter/client distress or difficulty disclosing.
  • If you are instructed before a reasonable grounds decision is made, request a copy of the referral form from the Salvation Army or any other body referring immediately and check the contents with your client so you can address anything they are not happy with.
  • Be aware of the possibility that supporting evidence or correspondence may not be read or acknowledged by the government. Get confirmation from the Salvation Army or any other body referring the victim into the NRM that they have submitted your correspondence so that if the government ignores it, this can be a point of challenge later.

Just because they’re lying doesn’t mean they’re not telling you the truth by Dr Aidan McQuade

February 2019

I interview a lot of people to write expert opinions on whether they have been trafficked. Sometimes I find that they have not. But even among those that I conclude have been trafficked, sometimes I find that they don’t tell the whole truth. Indeed, sometimes they lie.

I don’t think this is personal. Often it’s a function of their circumstances and consequence of having been trafficked. After all, anyone who has been through experiences as traumatic as many of them will naturally be wary even, or perhaps especially, if a stranger says, ‘I’m here to help’: they have heard that one before. Often it has been prologue to their nightmares becoming reality.

The people I interview about their experiences are generally the lucky(ish) ones. They have somehow managed to escape and obtained the assistance of a lawyer. But they may still be carrying a lot of trauma and suspicion. They may also be aware that the messy truth of their lives, their ordeals and their escapes do not necessarily meet the simplistic expectations or easily resonate with the relatively privileged life experiences of the functionaries from the Home Office who will be deciding their case in the unforgiving light of Theresa May’s ferocious ‘hostile environment’.

Generally, the Home Office will be searching for any discrepancy in an account to justify a ‘balance of probabilities’ decision that a potential ‘migrant’ is lying, that they have never been trafficked, that their fears for the future are groundless. But such discrepancies can be common in the accounts of genuine victims of trafficking for a multitude of reasons ranging from simple embarrassment, to the tricks of memory that traumatic experience can exacerbate, to having endured a protracted period of abuse when they had to do as they were told for fear of punishment.

Evidence external to the client’s account can be important in helping draw a defensible conclusion on a case – from medical and psychological assessments to the stark fact of the presence of the client in the UK: how did they get here in the first place?

But, under any circumstances, the discernment of the truth of a person’s trafficking claim is a complex matter. And this is a matter rendered altogether more complex when the fragility of human experience collides with the implacability of a policy more concerned with reducing migrant numbers than understanding how flawed human beings can be rendered into slavery by their own vulnerabilities.

Dr Aidan McQuade was CEO of Anti-Slavery International from 2006 to 2017. He is an acknowledged expert on slavery and forced labour, with an honorary OBE for his work on the elimination of modern slavery. As well as expert witness work, his work has included extensive and sustained engagement with international businesses on establishing anti-slavery policies and practices in their supply chains.

Government commitment to adopt Care Standards is vital step for survivors by Kate Roberts

November 2018

For survivors of trafficking and slavery, approaching the authorities or coming forward for help is likely to be terrifying. Many trafficked people are kept in exploitation through coercion rather than being physically locked up. They have been deceived and taught by their exploiter that they, the exploiter, are the only ones who can help them (by providing a space to sleep, or ‘work’) and that the authorities are not to be trusted.

For those victims who do come forward, and who are brave enough to disclose enough of what they have been through to be identified as possibly trafficked, knowing what support they will receive and what will happen next is vital. This is why the government’s commitment to adopt the Trafficking Survivor Care Standards into future Victim Care contracts is such an important step in building trust and supporting survivors towards recovery and reintegration.

As the then Minister responsible, Sarah Newton MP, explained during a backbench debate on the Modern Slavery Act:

‘If a potential victim opts to enter the NRM, we must ensure that the care they receive is consistent and meets minimum standards, regardless of where in the country they are being cared for. That is why the Government will adopt the Human Trafficking Foundation’s trafficking survivor care standards as a minimum standard for victim support.’*

The first Trafficking Survivor Care Standards were written in 2014 by a coalition of 25 organisations working in the anti-slavery sector, to provide practical and therapeutic support to victims. Four years on, the understanding of survivor needs and the legislative context has developed substantially.

The Human Trafficking Foundation, together with experts from 32 organisations, has spent the last year updating the standards. The revised version was published in October 2018, and has been endorsed by Kevin Hyland, the UK’s first Independent Anti- Slavery Commissioner.

As well as setting out standards of care for victims, with the aim of ensuring access to entitlements under Article 12, the care standards should help to inform consent, allowing victims to begin to take control of decisions being made about their lives. They also set out the support that the professionals working directly with victims should receive, to enable them to provide the specialist individual advocacy and support that survivors of trafficking will inevitably need as they begin to rebuild their lives.

*Sarah Newton MP in the backbench debate ‘Modern Slavery Act 2015’, 26 October 2017 

Kate Roberts is the Head of Office at Human Trafficking Foundation with particular expertise on survivor care and support needs for rehabilitation.
kate@humantraffickingfoundation.org

‘Creating the illusion of time’: New guide for professionals working with survivors of trafficking and slavery by Rachel Witkin

The Trauma Informed Code of Conduct by Rachel Witkin and Dr. Katy Robjant is published by the Helen Bamber Foundation

November 2018

The Trauma-Informed Code of Conduct (TiCC) is an accessible, ‘at a glance’ guide designed with legal professionals in mind. It contains trauma-informed methods for obtaining sensitive information and enabling full and detailed disclosure of trafficking/slavery histories in the course of professional work.

Trafficking and slavery have a devastating impact on a survivors’ sense of individual identity and self-esteem. Although a full and accurate account of individual trafficking/slavery histories are central to their legal protection, and usually required within a tight legal time frame, survivors are often too afraid or inhibited to speak openly about all that has happened to them. This is especially the case when they are working with professionals whom they perceive to be in authority, or those whom they do not know well.

The guide includes simple, best-practice methods of working with people who have mental health problems or Post-Traumatic Stress Disorder, as well as advice on how to work appropriately with interpreters, how to manage situations in which other people accompany survivors, and how to support clients who have instilled beliefs about traffickers or have suffered traumatic experiences of ritualised violence.

The TiCC provides simple, trauma-informed techniques which support all professionals to:

  • Establish and maintain a mutual relationship of trust with survivors in all working contexts and environments
  • Increase the confidence of survivors and minimise the risks of causing distress and re-traumatisation
  • Remain safe and well in the course of their work, avoiding secondary traumatisation and professional ‘burn out’.

In addition to enduring fears of their traffickers, those who have mental health problems from traumatic experiences may fear experiencing intrusive symptoms or becoming distressed and overwhelmed. Therefore, providing their evidence in any official forum can be extremely frightening for them, whether or not they communicate this. In all cases they should be offered pro-active, trauma-informed professional support, and have special measures put in place wherever possible.

The guide explains how in any setting, including legal chambers and offices, busy court buildings and police stations, Home Office interviews and other forums, professionals can extend a sense of calm, consistency and safety for survivors. It provides advice on how to communicate clearly and effectively with people who may find it difficult to absorb information and understand complex procedures, and how practices such as ‘creating the illusion of time’ are particularly helpful for minimising anxiety and avoiding any stress.

Even highly experienced professionals can benefit from following a trauma-informed code of conduct, as it avoids the need for them to draw solely and repeatedly upon their own personal intuitive resources, allowing them to conserve time and energy to achieve the best outcome for their clients.

An example from the TiCC – Creating the Illusion of Time:

Professionals can increase trust and confidence of survivors by communicating in a way that ‘creates the illusion of time’. This means that no matter how restricted their time is, or how busy they are in the course of their daily work, they ensure that the pressure of time does not feel like a problem or concern for the person they are working with.

There is no need to share the frantic nature of a work schedule with them, halt a discussion abruptly or walk quickly past them on the way to other parts of the building. This can set back the relationship of trust and inhibit survivors from feeling confident enough to speak freely. It is far more effective to listen carefully to each person, maintain conversation at a normal, moderate pace, then simply agree a time for a further appointment in order to hear more.

Hurried, swift movements, lack of eye contact or any form of action which suggests that professionals are in a hurry or have authority over a person, has the opposite effect, and can exacerbate any anxiety they may be feeling. The appearance of having time to listen to each person is calming and it increases their confidence.

More information on best practice for working with victims.

Rachel Witkin is the Head of Counter Trafficking for the Helen Bamber Foundation.

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