CICA is an independent, government-funded authority which provides compensation to victims of violent crime. It makes decision based on the Criminal Injuries Compensation Scheme 2012. The scheme has been in place since 27 November 2012.
A person who has been conclusively identified as a victim of trafficking by the Home Office may be eligible for an award by virtue of paragraphs 10(c), 13(a), 15(a) and 16 of the scheme. Paragraph 4 states that a victim has to demonstrate that they have sustained a criminal injury, as a direct result of their being a victim of a crime of violence.
Alternatively, if the victim has made an application for asylum under s3(2) of the Immigration Act 1971 then they are similarly eligible for an award of compensation.
The way that the scheme is worded means that a victim of trafficking for the purposes of domestic servitude and/or forced labour is not entitled to compensation unless they have suffered physical violence or have been threatened with physical violence. A victim of trafficking for the purposes of sexual exploitation and/or prostitution would be entitled to compensation because they could also claim to be a victim of a sexual assault.
How the CICA scheme works
An application is made to the CICA. The application requires the applicant to set out the dates on which the criminal injury occurred, the injury suffered and the treatment obtained.
CICA will then obtain documentation from the police or any medical practitioner that the applicant has visited in order to find out whether they have suffered injury within the meaning of the scheme and where within the tariff the applicant should be placed.
Having reviewed any documentation the CICA will either make an award of compensation or refuse the application setting out the grounds for doing so.
Where an application is refused, an internal review can be sought and thereafter appeal is to the First Tier Tribunal (social entitlement) (CICA). Any further appeal is by way of application for judicial review to the Upper Tribunal and then Court of Appeal.
An application should be made to CICA within two years of the injury complained of. However, CICA have the discretion to extend time, so if there is a good reason for the application being made late then an award of compensation can be made.
Reporting to the police
CICA expects applicants to have reported their treatment to the police again within two years of the injury complained of. Many victims are wary of the police and so do not make an immediate complaint, so on the face of it are not eligible for an award of compensation.
However, where the victim has been referred into the NRM, information will have been passed to the Competent Authority who has the power to investigate. CICA have recently accepted in one case that a report to the UK Human Trafficking Centre amounted to a complaint to the police, and so an award of compensation should be made. It is therefore still worth submitting an application even where there has not been a direct report to the police.
Co-operating with the police
Where a report has been made to the police, CICA also expects victims to co-operate with an investigation, so that might mean giving a statement, or attending the criminal court to give evidence.
Where a victim has declined to co-operate with the police then CICA has the power to withhold or reduce an award of compensation.
However, in one recent case the First Tier Tribunal found that a victim who had withdrawn a complaint made to the police should not have an award of compensation withheld. The tribunal found that there was nothing in the EU trafficking directive and convention, which they had to consider, that linked an award of compensation for acts of trafficking to compliance with the police. It is therefore, still worth submitting an application event where there has been ‘non-compliance’ with a criminal investigation.
CICA can withhold or reduce an award if they feel that the victims conduct led to the injury being incurred. However, it is important to remember that a victim cannot consent to their own trafficking and exploitation, so in practice there should be few instances in which conduct should be an issue for a victim of trafficking
CICA can withhold or reduce an award where the victim has criminal convictions which have resulted in a custodial sentence or a sentence excluded from rehabilitation. Where the victims’ criminal record is as a result of their trafficking and exploitation then representations can be made as to why an award should be made and without reduction.
Compensation is made with reference to a tariff which sets out the sum that will be received for a specific injury, e.g. mental injury 6-28 weeks = £1000, five years or more but not permanent £13,500.
Where a victim has three or more criminal injuries appearing on the tariff, they will receive the full amount for the most severe injury, 30 percent of the second highest value injury and 15 per cent of the third highest value injury.
It may be possible to obtain a loss of earnings payment if it could be said that they were in employment at the time the injury occurred e.g. someone trafficking for labour exploitation in a factory, or someone subjected to domestic servitude and had been in employment in the three years prior to the application OR has good reason why they were not in employment. It is worth making representations about the nature of trafficking and exploitation to see if discretion can be exercised to make an award in respect of a victim of trafficking.
It may also be possible to obtain a special expenses payment, if as a direct result of the injuries suffered the victim has lost earnings or earning capacity. Such payments will only be made in respect of:
- Property or equipment relied on as a physical aid, which was lost or damaged as a result of the incident
- Medical costs e.g. dental treatment
- Costs of care/adaptations to property.
Advice and assistance with making an application
CICA applications are outside of the scope of legal aid, so funding can only be obtained via an Exceptional Case Funding application. This is where legal aid is granted to ensure that the applicant’s rights under EU and Human Rights legislation is not breached by the inability to access legal advice and assistance.
The right of a victim of trafficking to obtain compensation for their treatment is enshrined in both the trafficking directive and the trafficking convention. Similarly, the right to access free legal advice and assistance and submit an application to CICA is set out in the directive. Despite this the Legal Aid Agency regularly refuse applications to conduct CICA matters, only granting funding after formal challenge is raised. ATLEU will make these applications on clients’ behalf but are limited in the number that they can take on.
Hogan Lovells law firm is also able to free provide legal advice and assistance in submitting an application to CICA. Hogan Lovells are based in London but able to assist clients nationally. A referral form will need to be completed and sent to the Pro Bono Officer at firstname.lastname@example.org
Making a CICA application
An application can be made via telephone on 0300 003 3601 but interpreters are not normally provided. If your client requires an interpreter to complete the application form then a formal request will need to be made in advance.
Alternatively, an application can be made online:
If the application is rejected and assistance is needed with a review, if the victim is London or Nottingham based then the Free Representation Unit might be able to assist: