Detention

This is not a comprehensive guide to how to represent people in immigration detention but is focused on the specific issues regarding representing victims of trafficking in detention.

All immigration removal centres in England have rotas of legal aid lawyers who are in each centre each work. For the rota and more information see AVID’s website.

Legal aid immigration advice for people in immigration removal centres can only be provided by the firms that are on this rota unless the client is one that you have done work for amounting to at least five hours (not including travel and waiting) before they were detained.

For those held under immigration powers in prisons, however, any firm with a legal aid contract can be provided with legal advice under the hourly rates scheme.

What to look for

First contact with lawyers

Immigration detention is in many ways the front line for immigration lawyers. While working in detention, you are likely to come across people who have never had a legal representative and who may be having their first interaction with the immigration authorities. Many people will have been picked up directly from raids on their places of exploitation and may not yet have disclosed to anyone that they have suffered in this way.

It is crucial for lawyers to ask the right questions to discover whether these indicators are in place. One of the first questions lawyers should ask people in detention is ‘how were you picked up by the authorities?’ Their answer is likely to be telling – those picked up during raids on places of work may have been being exploited, and follow-up questions should be asked. It is also important to ask how they have been supporting themselves in the UK as those in detention are unlikely to have had the right to work legally immediately prior to detention.

It is important also to note that many exploiters will have told those that they are exploiting, that if they go to the authorities, they will be locked up and sent back to their country of origin. They have now been locked up, and the Home Office is threatening to return them to their country of origin. They will often have a misplaced sense of loyalty to their traffickers.

Their trust in you as a legal representative will be hard won. Allow people you are working with to slowly reveal their story and be flexible with accounts that seem to contradict what has gone before. Disclosure in this situation is likely to be a gradual, somewhat bumpy process.

You must remember that most victims of trafficking will not identify as such. They are unlikely to understand the concept of ‘trafficking’ and will frequently not see themselves as having been exploited. For all these reasons, it is important to be alive to anything you are told that does not quite make sense.

Lawyers should be aware of generic indicators of trafficking. These include, but are not limited to:

  • Deception about the nature of their job. This can include, the type of work undertaken, conditions of work, housing and living conditions and wages.
  • Working in conditions without respect of labour laws and without a signed contract.
  • Excessive working days or hours.
  • Confiscation of documents.
  • Debt bondage.
  • Isolation, confinement or surveillance.
  • Violence or threats of violence.
  • Abuse of any vulnerabilities, be it economic, social or of the victims of illegal status.
  • Deception through promises of marriage or adoption.
Those with criminal convictions

Given the nature of the detention population, a lot of people have arrived directly from prison (or may still be held in prison under immigration powers). Often these people have not had access to legal advice concerning their immigration matter and may already be far along the deportation process. This may mean that positive indicators that they are victims of trafficking have been missed.

Anyone working in detention will have met Vietnamese trafficking victims who have been convicted of cannabis cultivation. Often these people have never been referred into the NRM despite clear indicators that their conviction may be directly connected to their exploitation. Even if they have been referred into the NRM, due to the inadequate access to legal advice in prison, they may have a negative reasonable grounds or conclusive grounds decision as they have had no one to advocate on their behalf.

It is crucial that lawyers are aware that they can request reconsideration of negative decisions in these circumstances, using the government’s process to look at a negative decision again that is set out in their policy guidance. If this is the appropriate course of action, it will be important to identify why the previous referral was found to be negative and then take instructions on these points. The alternative means of challenging a negative CG or RG decision is by way of judicial review.

Lawyers should be requesting documents from their client’s criminal case immediately as trafficking indicators may present there – in the sentencing remarks regarding mitigation or elsewhere, for example, in notes about what they said or how they came across at the police station when they were first interviewed.

While the criminal courts are becoming more alert to trafficking issues following the Modern Slavery Act, there is still a long way to go, and so immigration lawyers will often be able to find things that have been missed by others.

It may also be appropriate to refer to the individual to a criminal lawyer who specialises in appealing convictions and sentences.

Recent arrivals

There has recently been an influx of people into detention who the Home Office is trying to remove via a charter flight to other European countries as part of the Dublin III convention processes. It is imperative to talk to these people about their journeys to the UK and whether they have been exploited along the way. There is a huge amount of exploitation occurring in places like Libya and Yemen due to the instability in these countries.

Often when dealing with clients with strong asylum claims, practitioners may avoid trying to get their client’s referred into the NRM – as it slows down the application process, provides the Home Office with a further opportunity to make adverse credibility findings and may not be at all central to the client’s asylum claim.

However, for those in detention (and especially those who are in the Dublin III process), it a referral into the NRM is likely to be the correct course of action. Often, where these indicators exist, and where referrals are made into the NRM, people in this situation have their tickets cancelled, are released from detention and many are very quickly granted refugee status once the Home Office decides their cases can be dealt with in the UK.

For legal aid practitioners, it is also important to note that any client that has been taken on by the Duty Detention Advice scheme will be able to have their asylum claim billed at hourly rates, even if they are released as part of this process.

Referring into the NRM

Once you have become aware of the presence of trafficking indicators, the next step (as long as your client consents to this) is to get your client referred into the NRM.

In normal circumstances, with clients not in detention, we would recommend that the Home Office is approached as a first responders (the body or organisation that is permitted to make a referral into the NRM) as a last resort. However, for clients in detention, these considerations are likely to be different.

Support organisations are reluctant to act as first responders when the Home Office is involved in the day to day control of the individual. Although you could try approaching others to make a referral, for example, the Salvation Army, they may refuse the request.

Remember, the Home Office, as well as being first responders, are the detaining authority. This provides two reasons why they cannot ignore any requests made by legal representatives for their client’s to be referred into the NRM.

In practice, where there are trafficking indicators, a short letter to your client’s Home Office caseworker highlighting this will immediately lead to further investigation by the Home Office and may well lead to your client’s release.

Trafficking and bail

There are two main things to consider when making a bail application for someone you suspect to be a victim of trafficking.

Adult at Risk policy

If your client has positive indicators of trafficking, hopefully they will have been referred into the NRM. Depending on the stage of the NRM process, different aspects of the Adult at Risk (AAR) policy can be argued:

  • Pre- RG decision – at this stage, your client should be accepted as at least an AAR level 1. They have self-reported that they are a victim of trafficking, which is one of the recognised vulnerabilities and, therefore, should be considered an Adult at Risk. For AAR level 1, they can only be considered suitable for detention if ‘the date of removal can be forecast with some certainty.’ Clearly, this cannot be the case in this situation as the Home Office needs to make an RG decision prior to taking any removal action against your client. This will, therefore, provide a strong argument that they should be granted bail.
  • Post-positive RG – if your client has been provided with a positive RG decision, your client’s bail application should be extremely strong. Your client is at least an AAR level 2 and, therefore, should only be detained if ‘the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale.’ The positive RG provides your client with the 45-day rest and rehabilitation period and so no enforcement action can take place. Your client would, therefore, have an extremely strong case for bail.
Accommodation

Lawyers must think carefully about the address to which your client, who is a potential victim of trafficking, would be released. Due to the lack of trust for the system mentioned above, release from detention poses an extremely crucial time for people in terms of them returning to a situation of exploitation. The Home Office will often release the individual with no instructions in their language, and no understanding of where they need to go.

On a number of occasions, people have been released from detention but have never made it to their bail accommodation, disappearing without a trace. Sadly, it is not an irregular occurrence that these people will next be seen when they have been re-detained following a further period of exploitation.

This situation has been exacerbated by the recent changes to the Section 4 policy in detention and the increase in releases by the Home Office to no fixed abode – or sometimes, to any address provided by the client without supporting documentation.

The reality is that a large number of people are now being released from detention into homelessness and destitution – thus, substantially raising the risk of further exploitation.

One important thing for practitioners to note is that if your client is in the NRM process, they may be entitled to safe house accommodation. It would be extremely prudent for a practitioner to approach the Salvation Army if they are working with someone in detention who is in the NRM, as often they will be able to provide accommodation in safe houses and transport from the detention centre to this accommodation. They will also often consider requests where a negative RG or CG is under consideration for someone in detention.

For more useful information on bail and the accommodation issue, see Bail for Immigration Detention’s website.

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