We explore here some of the specific issues involved in representing trafficked persons who have claimed asylum. To do so, we draw on our experience at ATLEU in successfully representing many trafficked clients in their asylum claims.
We look at legal and procedural issues and help you understand some of the casework skills necessary for representing trafficked persons in the asylum system.
We don’t claim this section to be a comprehensive guide to trafficking casework. Much is just as an overview. Each case will throw up new tactical considerations, and we hope this section may be of help with some of them. If there is anything you feel you would like more detail on or if you have comments from your own casework experience, please let us know as we welcome feedback.
Will trafficking be relevant to an asylum claim?
There may be some cases where the trafficking and asylum claims do not overlap, but often they will.
A trafficked person may be claiming asylum for reasons which do not directly relate to their trafficking experiences, e.g. where they have been trafficked after escaping their country. As an example, many migrants passing through Libya on their migration journey may end up in slavery there before escaping and travelling to the UK. The fact that they’ve been trafficked or subjected to modern slavery in Libya may be incidental to the reason they left their country in the first place.
But it may be relevant in different ways to risk on return. For instance, they may be traumatised by their trafficking experience. In some countries, those with mental health problems may be subjected to treatment in breach of Article 3, ECHR, for example as a result of customary practises or being chained up in a mental hospital. Or they could be rejected by their family because of the stigma attached to mental health problems, or where they’ve been subjected to sexual exploitation, leaving them destitute and at risk. Women, particularly, who lose the protection of their family and community can be at risk of suffering further abuse or exploitation. So, it is always necessary to think carefully about how the trafficking events may result in increased risk on return, or risk for other reasons than those that caused the person to flee their country in the first place.
Often though, the trafficking events are directly linked to the trafficked person’s fear of return, e.g. due to:
Fear of harm from traffickers: Where a victim has escaped their situation of exploitation, they will often fear that their traffickers/employers will take action against them or their family in their country of origin. Often it involves the non-payment of a debt by the client. Even those who have been exploited for many years may be led to believe they still owe money to their trafficker.
Risk of re-trafficking: Many clients may face a risk of being re-trafficking exploited again on return to their country, particularly where they are returning to the same life that led them to be trafficked in the first place. As put in the Country Guidelines case of HD (Trafficked women) Nigeria.
‘The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise’.
This risk may be from the same or different people than those who were originally responsible for the client being exploited. For those in labour exploitation, even if there appears to be an element of choice to go back overseas, if in reality, the client feels they would have no choice but to accept potentially exploitative work again, usually to support other family members, this can also support a claim based on risk of re-trafficking.
Don’t forget too, the very important principle at para 339K of the Immigration Rules that,
‘The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.’
Should your client be referred into the NRM before they make their asylum claim?
Yes. Waiting until the asylum screening interview (see below) to raise trafficking for the first time can cause difficulties, as the Home Office will then be the First Responder (i.e. they will have the role of referring the person into the NRM). They are not the ideal first responder.
The Home Office’s asylum interviews guidance states:
‘If indicators of modern slavery first come to light whilst you are conducting the asylum interview, and if the potential victim consents to being entered into the National Referral Mechanism (NRM) process, you, as the first responder, must complete a NRM referral form. You do not need to gain consent from minors. The completed referral form should be emailed to the Modern Slavery and Human Trafficking Unit (MSHTU) for allocation to a competent authority team. You should also note the duty to notify for adults who do not wish to enter the NRM and complete and submit Form MS1 in these cases’.
Where the Home Office is the first responder, there can be a long delay in getting a reasonable grounds decision, and it can be difficult to get a copy of their Referral Form. Also, if the NRM’s reasonable or conclusive grounds decisions are negative, and you need to request reconsideration of the decision, the first responder should initiate that request. The Home Office is more reluctant than other first responders to seek reconsideration.
It might also be a good idea for the person to get a trafficking safe house and support in place before they claim asylum to avoid immediate dispersal under asylum support provisions.
But if trafficking is raised for the first time at the screening interview, and the referral into the NRM is not made, or there is a lengthy delay, and as a result, the person continues in a situation of exploitation or otherwise suffers for longer than necessary, that could be actionable against the Home Office, for instance as a human rights breach. For more on compensation claims against the Home Office, see ATHUB’s section on Compensation.
Vulnerable clients and the asylum process
Most victims of trafficking are vulnerable. Those vulnerabilities may have been present before they were trafficked. Indeed, they may well have been targeted by their traffickers because of that vulnerability.
Having been forced into exploitative work, with its accompanying violence and abuse, they will be all the more vulnerable by the time they enter the asylum process. They are likely to be traumatised and depressed. They may have a wide range of other mental health problems including developmental and intellectual disorders.
An advisor must assess the extent to which their client will be able to cope with the normal asylum process. They may not be able to give a detailed and consistent account of their past because of these difficulties. They should not be forced to comply with processes that may traumatise them further and in which they are unable to give a useful account of themselves.
This is acknowledged in the Home Office guidance on conducting asylum interviews which states that in exceptional cases, ‘you may cancel or suspend the interview if the claimant is clearly unable to cope with an interview and where the validity of what they might say could be called into question’.
If this is the case, you will need to commission appropriate medical or other evidence to address this point. If it is not possible to get a detailed medico-legal report pre-interview, evidence may be available from the GP, support workers, or others involved in your client’s care.
Usually, however, your client will be interviewed, and it will be important that the interviewer is aware of how vulnerable your client is before the interviews take place so that they can adapt the interview process as necessary. Remember that for vulnerable individuals, it may be possible to obtain legal aid funding to attend the interview with them if you are able to provide medical evidence to support the need for this.
Consider too how your vulnerable client will cope with their Tribunal appeal. Rely on The Child, Vulnerable Adult and Sensitive Appellant Guidance (Presidential Guidance Note No.2 of 2010) where necessary. As explained in a recent Tribunal decision, the guidance was developed to assist judges to identify vulnerable witnesses and to consider the nature and extent of any vulnerability as part of their assessment of the evidence. Paragraph 3 of the guidance states:
‘The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole. ‘
The guidance sets out several potential factors that might lead a judge to identify a person as a vulnerable witness, which might include:
- Mental health problems
- Social or learning difficulties
- Religious beliefs or practices, sexual orientation, ethnic social and cultural background
- Domestic and employment circumstances
- A physical disability or impairment that might affect the giving of evidence.
The guidance goes on to identify reasonable adjustments that might need to be made to the way in which the hearing is conducted depending on the nature and extent of a person’s vulnerability.
In AM (Afghanistan) v SSHD  EWCA Civ the Court of Appeal gave guidance on the general approach to be adopted in law and practice for the First-tier Tribunal and Upper Tribunal to fairly determine ‘claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. ‘
The Court of Appeal considered several pieces of guidance from various sources, including the Child, Vulnerable Adult and Sensitive Appellant Guidance. The Court of Appeal was required to determine whether the Tribunal had the power to appoint a litigation friend. It concluded that the procedure rules were sufficiently flexible to do so.
However, in considering the various pieces of guidance and case law on procedural fairness, the Court of Appeal cautioned against ‘an over elaborate interpretation of the guidance note. ‘
Does trafficking amount to persecution?
Yes! Exploiting a person in a trafficking situation will amount to persecution. Persecution is defined in Regulation 5 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 as the severe violation of a basic ‘non-derogable’ human right. Both Articles 3 and 4(1), ECHR are such non-derogable rights and both will be applicable to those who are at risk of being trafficked.
In some countries, former victims of trafficking will be ‘members of a particular social group’ (PSG). As defined in the Regulations, they share that innate characteristic or common background with other former victims and it cannot be changed about them, or they have a distinct identity as they are seen as being different by other members in society (for example in social attitudes or by the state).
It can also relate to a risk of re-exploitation. Don’t limit the PSG: keep it as wide as possible, for example, so it can cover PSG as a woman, single mother, unmarried woman, because of sex had outside marriage, because the applicant is a victim of trafficking, etc.
You will need good objective or expert evidence to show that the PSG you seek to rely on does fit the definition in the Regulations.
Should you take a statement?
Always. A detailed statement of your client’s background and experiences, in the first person, will be vital. This will generally be taken over several lengthy meetings with your client.
A statement taken in a single appointment is extremely unlikely to be satisfactory – often trafficking cases involve gradual disclosure over time and you should allow time for this to happen. It will form the backbone of their case. It will also help prepare your client for their interview.
What do you do with the statement?
Whether you should submit the statement to the Home Office before or after the interview will depend on the particular case, and how you think your client will fare at the interview. By providing the statement before the interview, the interviewer will be better prepared and should ask more relevant and focused questions. Without a statement, the interview is likely to be less productive.
However, providing the statement before the interview runs the risk the client may get confused and give inconsistent answers at the interview.
If your client is not able to give you sufficient instructions to enable you to prepare a detailed statement that will assist their case, then any statement you have may be contradicted by what is said in the interview as your client may be going through the process of disclosure. This is why advisors should sometimes be cautious about submitting statements prior to interviews.
Where clients do provide inconsistent information at the interview or elsewhere, that can usually be understood and explained with the right supporting medical evidence. It is well established that clients who are suffering from trauma and/or other mental health issues will have memory problems over and above the normal memory problems we all face. This should be specifically addressed in your client’s medical report.
Inconsistencies can also arise from clients not volunteering enough information when questioned and not understanding that something may be important to mention. No lawyer can ever anticipate everything that has happened to a client to prompt questions that cover their entire history.
With trafficked clients specifically, the first account provided may be vastly different from a subsequent account. Often, people are told by their traffickers an account to give if they are apprehended by the authorities, and it is not unusually for two distinctly different accounts being given in quick succession.
If these differing accounts are given to the Home Office, then it will be important that a witness statement explains these inconsistencies and why the client gave a particular account at the time. This is especially true where information has been taken from clients while in police custody or detention at the point of arrest.
The process of taking a detailed statement from your client is, of course, a vital tool in preparing your client for their interview. Whether to submit the statement before or after the interview is a difficult question. Generally, ATLEU will submit the statement to the Home Office before the interview unless there is a good reason for not doing so.
Drafting your client’s statement
Taking a statement from a trafficked client can be significantly different than for many other asylum seekers. It is important to give time to statement preparation. This usually requires several meetings with the client to ensure that you have enough time to get to know each other, develop a relationship of trust and to take detailed instructions on their life history.
At the same time, you have to take into account that many trafficked clients will be deeply traumatised and taking them through many traumatic events may be extremely difficult or even impossible for them.
You will need to discuss with your client how best to arrange your meetings. They may prefer to talk about everything over a quick succession of meetings or need time to prepare themselves in between times.
If it becomes clear over time that your client is just not able to give you a sufficiently detailed and cogent account of their life, then you will need to consider why. Consider instructing a psychologist or psychiatrist to assess your client. Consider whether it is possible to draft a statement for them that will assist their case.
Trafficking statements will be very lengthy, you should leave plenty of time to read back, make any necessary amendments, and confirm its accuracy.
We set out below a list of questions you may want to put to your client when taking instructions for their statement.
How do I afford lots of time on a case?
Working in a hard-pressed legal aid environment, subject to many Home Office and Tribunal deadlines, can make it difficult to find the time to prepare very lengthy statements. There will also be evidence gathering, country research and detailed representations to draft. There will be other complex and urgent matters.
All legal aid lawyers do their best when dealing with these competing pressures, but for those working with victims of trafficking, their caseloads will need to be small and carefully monitored.
However, to compensate, a well-prepared trafficking case will usually hit the escape case threshold. A big part of that is the time spent with the client establishing their complex histories. It is very common for our clients to disclose important information over a period of time, meaning that multiple attendances to prepare for an interview or prepare a statement are entirely justified.
The need to also tread gently and sensitively when establishing a relationship of trust with a client or questioning them about traumatic experiences is also entirely valid in justification of time spent. It is important to note these factors in your attendance notes.
Coping with deadlines
If necessary, you can request extensions from the asylum team or Single Competent Authority if you need more time to prepare a statement. It may be that there has been a long delay already, but you never know when a decision might come.
Ask the SCA, as the trafficking decision will usually be made before the asylum decision, not to make a decision until you’ve finalised a statement and have appropriate medical evidence. Highlight the particular vulnerabilities of the client and how they’ve affected your preparation so far and provide medical evidence of that if possible.
The Home Office trafficking guidance states:
‘Requests to delay making a conclusive grounds decision
In some cases the SCA may receive a request to hold off making a conclusive grounds decision, for example until an interested party can submit further information they deem relevant to a case. The SCA must consider the circumstances of the request, whether the additional information is required for the decision, and as such whether it is appropriate to keep the individual in the recovery and reflection period rather than proceeding with a decision’.
Taking the statement – questions for your client
These are some points you may like to cover when taking a statement from a client or going through their account before an interview.
These questions are not exhaustive in relation to every aspect of trafficking identification or protection claims but cover some main areas that can be useful when preparing a case and are specific to issues that often arise for victims of modern slavery (i.e. we have not covered questions you could ask if someone fears persecution for reasons that are unconnected to exploitation e.g. because of their political opinion).
It is always best to give clients open questions and ask them ‘And then what happened?’ to allow them to express a history in their own words. However, if they do not cover certain areas, then you can use these lines of questioning to get further details.
We suggest these lines of questioning to help a client understand what they can be asked as a protection claim or trafficking case is assessed. The questions here reflect parts of the definitions around protection claims, identification of victims of trafficking, and pick up on points we have seen arise in Home Office interviews, refusal letters and appeal determinations.
Corroboration for abuse is often not possible (or fundable) at the initial stage of a protection claim. Bear in mind the Home Office says this in their asylum interviewing guidance:
‘Victims of gender based persecution
In cases involving victims of gender-based persecution, for example, rape and other forms of sexual violence, domestic violence, crimes in the name of honour, female genital mutilation (FGM), forced abortion and sterilisation it would be inappropriate for you to obtain details of the act itself. However, it is important that you obtain information regarding the events leading up to, and after the act, together with the surrounding circumstances at the time it took place, as well as the motivation of the perpetrator, if known’.
There will also be other issues that will come up in speaking to your client or reading their history that will open other lines of questioning for you. Not all questions will be relevant to your client, so please adapt to their circumstances and presentation.
You should also think how your client reacts to certain types of questions – are they suggestible or easy to lead, do they tend to agree to anything put to them, do they find it difficult to answer questions put in long or more difficult formulations (for example, questions with negative phrasing). Try to mix up your question styles to see how the client responds.
Please note the below list of questions is not prescriptive. This should just be used as a guide of the sort of things that a good statement may need to cover.
Taking a witness statement is a process that both the person giving the statement and the person taking the statement goes through. It may be useful for an adviser to give a statement alongside the client’s statement – explaining how the statement was taken, how long was taken over how many appointments, how the client presented during this process, etc.
This may be necessary to explain why more disclosure has been obtained through this disclosure compared to what was possible in court, the Home Office interview, statement given to previous representative, etc.
Cover the client’s early history as this is necessary to understand the choices they made later in life, and their behaviour now, future expectations, and what support is realistically available in their country.
- Do you remember any details about your family? What did your parents do and are they still working? How many siblings did you have, are they married and when was this? What work do they do/how do they support themselves? Are they able to support the family? (If a client cannot remember details like this then you could start by asking the client’s earliest memory of home and explore and build upon that.)
- How did you think of your family’s circumstances when you were growing up, e.g. poor, comfortable, well off?
- What was your house like? Describe it to me (e.g. number of rooms, if any were shared with others/livestock, etc.)
- What did you do in your free time? (To understand if they had to work, what social attitudes their family had towards their activities and if socialising with other genders or people was restricted in any way and why).
- Was your family religious? Did they attend church/the mosque/other regularly and did you have to go? Did they show their religious beliefs in any other way?
- What was your relationship like with your parents? (To elicit if they were strict, supportive, any indicators of childhood emotional distancing or abuse, strength of any ongoing dependent relationship with them).
- Did your family have any health problems/do they now? What medication or medical treatment do they need and how do they pay for it?
- What are your family’s living circumstances now?
- Do you still support your family, or do they ask you to now? Who is there to support your family members in your country of origin?
- Did your family own any land – did they own it themselves or rent it? What livestock or farming did you do? (The point of this line of questioning is to understand affluence of family background and the level of work that client may have had to do as a child and how this could have limited their other life chances and development).
- What did your parents want for you growing up? (To understand social considerations about the duty to support the family or social mores about age of marriage and procreation).
- Did you go to school? What kind of school? For how long? What age did you stop, and why was this? While you were at school, did you go every day? If not, why not? How did you do? Did you pass any exams, get any qualifications? Can you read and write? In what languages? (These questions should be explained before being asked, and also it can be useful to make the point that you do not mind what the answers are and many clients have not had the opportunity for much education which is why it is good to check with everyone).
- When was the first time you had a problem in your country and what was it?
Travel to the UK/into exploitation
- Why did you think you were coming to the UK/going to the place where you ended up being exploited? What were you told?
- How long were you told you were going for?
- What was the person like who was offering you this opportunity? Their name, social position, financial status. (You can ascertain this by asking the client to explain what they looked like in their clothes and presentation, where they met, what their home was like if they were taken to it, to work out if this was a wealthy person who may have power and connections in the country).
Some clients disclose they have been part of juju or witchcraft ceremonies which can be relevant if they feel comfortable to do so.
- Are you able to talk about the juju? (Reassure them about confidentiality and anonymity). If you cannot talk about it, why not? What do you fear?
- Are you able to describe what happened, who was there, what they were wearing, did you have to go through a ceremony, what exactly happened, were you given a choice?
- Were you required to swear an oath, make promises, and were threats made? What did you think about this afterwards?
- If you are a follower of a mainstream religion and believe in God, why do you believe any threats that were made?
- Do you still have fears relating to this?
Travel plans generally
- Did you apply for a visa to come here? Who applied for the visa? Did you see the application? Who paid for the visa? (It is important to remember that the Home Office will have copies of any visa applications that have been made. It is useful to obtain disclosure of this at the earliest possible opportunity, so this can guide the questions you ask your client regarding this).
- Did you have to sign anything before coming to the UK about your travel or visa? Did you have to give photos? Did you have to visit any office about your travel or visa or have any interviews with officials? Did you understand what happened? Who paid for all of this process?
- Did you travel on your own passport? When did you get this and why? Who paid for it? How did you get it/what was the process? If someone else got a passport for you did you see it or hold it at any time? What was the colour? Did you look inside and see the name?
- Did you get a visa? Did you see it? When? Whose name was it in?
- Who arranged the travel tickets and who paid for them?
Ask them to explain step by step their travel movements.
a. How were they notified it was time to leave and by whom? How much notice they had? What were they told to pack?
b. How did they get to the port/airport? Who went with them?
c. When did they get their tickets and travel document? Who gave it to them? Did they have to return them to anyone else or were they allowed to keep hold of them?
d. What did they say to officials at customs, what happened with their bags, were they accompanied at any of these points?
e. How did they know how to get onto the form of transport? Did they sit on it /travel alone and was anyone else who arranged the travel or was connected to the people arranging it on the same mode of transport and, if so, where?
- Who were they told to meet when they got to the other end?
- If they stopped in transit, what happened? Where were you? Did you think of escaping then and going to an official to ask for help and if not, why not?
- Walk me through what happened when you got off the form of transport and through immigration. Who were you with? Who did you speak to? How did you know what to do? Who did you meet? How did you recognise them? What did they say you were going to be doing/where you were going?
- If trafficked through different countries ask what happened along the way, how long they were in each place, the methods of transport, who they were with, were they required to do any work or anything for the people they were with along the way, did they come into contact with officials at any point and what happened, what were the conditions they lived in, how were they treated by the people arranging the travel.
- Ask about the number of different people that the client came into contact with while travelling to a place of exploitation and their names if the client remembers/is willing to disclose. (This is relevant as it helps explain how a client may have been part of a trafficking network).
Paying for travel
- Did someone else pay for your visa or passport or travel tickets?
- If someone else paid, do you know how much?
- If not, how did you pay for your visa and travel?
- When were you told the cost?
- What were you told about who would cover the cost, and how, and when were you told this?
Overseas domestic worker coming to the UK
- Did you see a contract before you began your employment? What language was it in? Would you read it? Did you get a copy?
- Were you taken to an embassy or high commission for a meeting? And if so, who was it with? Was your employer there? What language was the conversation in, and did you understand?
- Were you ever given an information leaflet about your rights or did anyone ever explain your employment rights in the UK to you before you came here? What language was the leaflet in? Did you get a copy of the leaflet to keep or understand the contents?
- Were you given a visa? Did you see it? How long was it for?
Walk the client through the exploitation at a gentle pace and be aware they may not be able or willing to talk about everything at once or in one appointment.
- Describe the place(s) you were kept and what you saw from the outside and inside.
- How many other people were there? What were their names? How often were they there? Did you speak to them? What was their situation?
- What happened when you first got there?
- Were you allowed to keep your personal possessions including travel document? If someone took your things, who was this and what happened to them? Could you ask for them back?
- Did you have your own place in the accommodation to stay? Please, describe this to me. What did you sleep on? Where it was (floor/proper bed? Did you have access to a bathroom? Did anyone share that space with you?
- Did you have any personal things and where were they kept?
- What were you given for food? How often? Where was it kept? Would you request what was bought for you, or buy it yourself?
- What happened if you got sick/ did you get sick? Were you given any medication or taken to a doctor? Could you choose the doctor? If you visited a doctor outside where you were staying, who took you and did anyone come into the appointment with you?
- What were you told about how you would pay for your accommodation and food? Were you allowed out? Did you have to go with anyone? What were you told about going out?
- Were you given a key? How many doors were there to the property? Were they open or locked? Where was the key and could you access it? Did you have access to windows that opened and could you have escaped through these?
- Would anyone have noticed if you tried to get out of doors/windows? Why? (To ascertain if there was anyone watching/supervising).
- What were you told you had to do? What did you say? Did you refuse? What happened? How did this make you feel?
- Did you have a phone? Who paid for it? How often were you allowed to use it/any other phone? Did the place you were staying in have a phone and could you use it and why did you not use it? (If the client has disclosed the had access to a phone and also was treated badly) Why did you not call for help?
- Was there internet where you were kept and did you have access to it? Did you use it to ask for help?
- Could you have escaped earlier? Why not? What would have happened if you did?
- What were you expected to do?
- How many clients did you see and how often?
- Did you receive any payment, and could you keep it?
- Did you get any tips, and did you keep these? How much and where did you receive it? Was it ever found by the people in charge?
- Did you use contraception? How did you get this?
- Were you ever hurt or threatened? Did you tell the people in charge? What did they do?
- Could you refuse a client or refuse to do what they wanted?
- Were you ever asked to take a drink and drugs?
- Were you ever made to have sex or do a sexual act without agreeing to it?
- What would have happened if you refused to do what you were told? Did you refuse and what happened?
- Did anyone else that you know of working for the people in charge refuse to do what they were told and what happened?
- Were you ever threatened, and what was said?
- Did you ever have any health problems and did you get treatment?
- What did you wear, and how did you get the clothes?
- Were you asked to pay for your clothes? And if so, how?
Exploitation is usually multi-layered with one dominant characteristic more readily identifiable. So, for example, sexual abuse could occur in situations of labour exploitation or domestic servitude (or benefit fraud in domestic servitude, etc.). Questions here can still be relevant to another dominant thread of exploitation e.g. covering consent, health implications, contraception.
- What were you expected to do/what were your duties?
- What were your hours of work and how many days a week did you work?
- Were you off duty during breaks/days off/ the night?
- Were you shown a contract? What language was it in? Could you keep a copy?
- What were you told about how you would be working and the conditions/terms?
- Who told you this and when was it?
- If you did not like what you were told, did you tell your employer? What did they say?
- Were you paid? How much? How? (Directly/sent to family/in cash etc.) Did this stay the same all the time you were there? If you were not paid or not paid what you expected? Did you ask why not and what were you told?
- Were there any other workers with you? If so, how many, what did they do and what were their names?
- How were you treated by your employer(s)? Did they ever speak or behave to you in a way you did not like? What did you do when they did this? Could you talk to them to make them stop behaving like that?
- How did you feel doing the work?
- Did you have to go into the outside world as part of your work? Could you go alone? How long was it before you were allowed to go out?
- Did you get a break or days off? And if so, how often was this?
If you had time off could you go wherever you wanted and alone?
- Did you need any special equipment? Was this given to you?
- What did you wear for your work and who gave you the clothes?
- Were you asked to pay for your equipment/clothes/travel and how?
- How did you travel to where you needed to work? (If outside the place of accommodation). If someone took you, who was this and how?
- How did you escape? Walk me through this.
- What day and time of day did it happen? Do you remember the date?
- Who was around? Did anyone see you?
- How could you open any door or window that you have said before was locked?
- Did you plan your escape and if so, why could you not leave earlier?
- What did you take with you?
- What happened when you got away from the place you were being kept?
- How did you get help? Where did you go? Where were you?
- Do you know anyone from your period of exploitation that could support you with corroborative evidence? E.g. someone who now has escaped and is safe, a person who helped you escape.
- Partners. Does the client have a partner in this country (post-exploitation)? Do they know about the client’s past? Specifically discuss this. If the client has not disclosed their history to their partner, there is a possibility that this could come up in the future. For example, if the case is unsuccessful and the client needs to go to an appeal where the partner could be asked questions relevant to the client’s history, e.g. why can you not move to client’s county and support the client, so he/she does not have to take on exploitative work?
- Future risk. If the client fears the person(s) who put them into exploitation, why is this? Especially if a debt has been repaid and a long time has passed. Do they have information on recent threats made to the family in their country or to them directly? Do you need to take a statement from the family members/friends in their country?
- Risk of re exploitation. Clients are not always good at articulating this fear but do express it when asked questions about how their life would be if they are forced to return to their home country. It is important to explore this, and it sometimes needs to be broken down a lot for the client to conceive of the practicalities of return. For example:
a. What will people think of you if you go back to your country now? Will they expect you to have earned a lot of money or be well off?
b. How would you support yourself if you are sent back?
c. Can you find work to support yourself at home and if not, why not? What sort of work is there at home?
d. What do you do if you cannot find work at home? How would you buy food, pay for your housing, clothe yourself?
e. How would your family support themselves? (If they raise having to take on work overseas that could be exploitative). Will you now know how to avoid exploitative conditions as you have experienced them before? Can you just not accept the work? Will you not be able to find out the terms of work before you take it on? (Note – these questions are to anticipate what a client may say in response to questions by the Home Office/Tribunal in future, although we would make representations about past exploitation ‘conditioning’ the client for future exploitation).
g. Why do you need to be the one supporting the family, and what happens or how are you treated if you do not? (A country expert can also explore the cultural norms in relation to this point).
- Protection available in their country/relocation.
a. Could the client approach the authorities in their country for help if they had a problem?
b. Have they ever tried this before – what happened?
c. Are they aware of any shelters or organisations that could offer them support in their country and would this be enough to help them if they had problems?
d. Could they move to a different place in their country away from the people they are afraid of, and if not, why not?
- Medical treatment. There may be medical treatment available in the country of origin for the client but valid reasons why the client will not feel able to access it (for example, overwhelming fears associated with their return or mistrust of authority figures may prevent them approaching figures in the health service). A question on this point can be put to a medical expert. It is also important to cover what medical treatment a client is having now and if they feel bad in any way physically or mentally and are not getting treatment, would they like it and why not if they say no. Bear in mind that many clients will not articulate a medical problem, especially if it is do with mental health, for reasons of shame or because talking about health problems is not a common thing in their culture, or because they may not understand that a symptom they describe is indicative of a deeper problem (e.g. a physical symptom that could indicate trauma).
You may have to ask more general questions to pick up on clues that could indicate they have a health concern, for example:
a. How do you feel in your body? Do you ever have any problems?
b. What do you do if you feel bad? When did this last happen?
c. How do you sleep?
d. Have you ever needed to go to the doctor, and what was that for?
- Emotions. A description of emotions about the experience that a client has gone through, even if it is explaining how they feel in talking about it, brings the claim to life and provides an avenue to explore trauma related symptoms.
- Personal characteristics that make them susceptible to exploitation.
Some victims of modern slavery have experienced such ill treatment or poor living circumstances throughout their lives that they do not believe they deserve or are entitled to anything better. It simply does not factor on their radar. They also can be submissive in nature and wanting to please others. These are factors that can be explored in questioning with the client but are also important to tie into your questions to a medical expert who should be able to comment on why they think the client may be susceptible to re exploitation with reference to their observations about the client’s health and personality in comparison to other victims.
Home Office asylum interview
The asylum interview record is likely to be used by the SCA for making the conclusive grounds decision and the asylum team for the asylum decision. The trafficking guidance states:
‘NRM decisions and asylum decisions are two distinct and separate decisions. An asylum interview may provide information that is also of relevance to the NRM decision where modern slavery issues are clarified and investigated as part of the asylum process. There may therefore be good reasons to conduct a single interview in asylum claims relating to a person within the NRM process but this is not always possible. Those conducting the interview must ensure that all significant inconsistencies are put to the applicant at interview, as this will be relevant in the consideration of both the asylum claim and modern slavery case.’
Home Office guidance on conducting asylum interviews is here. Both the asylum and trafficking guidance accept that there may be medical reasons to delay the interview. The trafficking guidance is more sensitive to the issue, stating:
‘Some victims may be highly vulnerable and there may be circumstances in which it would be right to delay the interview. If a victim is unable to attend an interview due to their psychological instability or other compassionate circumstance, then their legal representative or support provider should write to the SCA to explain the reasons for this and provide a realistic timescale as to when they can be interviewed and documentary evidence should be provided from a qualified practitioner in all cases. It is the SCA’s discretion as to whether the interview is delayed or not.’
While this guidance is more directed to NRM interviews (i.e. for those who have not claimed asylum), the same principle must hold good for asylum interviews of vulnerable victims of trafficking.
Preparing your client
As for any client facing a protection claim, the process of going through their account in detail with them before the interview prepares them for the questions they will be asked at the interview. There, it is likely to have been a gap between completing their statement and the interview, so their statement will need to be read back to them again. It may need to be further amended. Even if the statement has already been submitted to the Home Office, a supplementary statement can be drafted. Don’t discourage your client from telling you new things however inconvenient it might be for you to update their statement. Changes are easily explained by the inevitable confusion your client will have in remembering and disclosing their past.
If your client has problems concentrating, or for other reasons, they may benefit from having a translated copy of their statement, so they can read it in their own time. An application to the Legal Aid Agency can be made and justified on this basis for the cost of the translation. However it is done, your client is likely to need reminding of the information they provided in their statement and an opportunity to correct it or supplement it if necessary before their interview. This will also help the client to be clear of the chronology of what has happened and helps to order their thoughts and memories.
You will also need to meet your client shortly before the interview for you to give your client some advice about the interview and discuss anything on their mind that might be a barrier to them answering the Home Office’s questions.
Trafficked persons (as for other vulnerable client groups) may need reminders about the importance of telling the Home Office interviewer if they do not understand a question or the interpreter, and to explain if they feel unwell and need a break. Often, victims of trafficking that we have represented have not felt confident enough to assert themselves in an interview situation. You must try to give the client some agency in the interview process by explaining how this is their opportunity to show the Home Office that they are telling the truth and genuinely fear the prospects of returning to their country.
Another piece of advice ahead of the interview is to reassure your client that it is okay not to remember certain things and to be confident to tell the interviewing officer that this is the case. This is particularly true with regards to dates or times when events happened. Problems with credibility often occur when clients have felt pressured to guess a date of an event which then does not make sense within the chronology.
Make sure your client’s trafficking support worker is aware of the interview. Discuss with them and your client whether they should attend with your client or not. If your client needs and wants someone to attend with them, then that will usually be the trafficking support worker, or a colleague of theirs if they are not available (see below for more on who can attend an interview).
Discussing sensitive experiences
Questions can be intrusive. If a client is dealt with insensitively it is worth reminding the Home Office of their guidance (or pre-emptively raising this before the interview if you are concerned it will not be followed):
‘You must interview asylum claimants whose accounts include details of modern slavery in the same way as other asylum claimants in terms of establishing the material facts of the asylum and modern slavery claim and testing the credibility of the claim. People in these situations may well have had traumatic experiences and you must always ask questions about what happened with sensitivity, respect, cultural awareness and gender awareness. As with victims of sexual violence in other circumstances, obtaining precise details of such abuses is not appropriate.’
Gender of interview personnel
Clients may nominate a preferred gender of the interviewer at the screening interview stage. Not all clients feel able to assert themselves to express a preference or understand why it may be useful for them to have a specific gender of interviewer, so you may need to make representations about this later, with a brief reference to their reasons (for example, abuse by a particular gender towards the client means they only feel comfortable to discuss their history in front of another gender).
When requesting a particular gender of the interviewer, it is a good idea to remind the Home Office that their guidance states that the request logically extends to the interpreter as well:
‘Claimants are asked at the screening interview if they would like a male or female interviewer and again in the invite to interview letter and they can also request this later. You should normally expect to meet this requirement and if it cannot be met on the scheduled day, the interview should normally be re-arranged.
When requested in advance of the interview, you should make every effort to meet the request for a male or female interpreter as far as operationally possible. In all cases, you must also be aware of gender related issues, since this may affect how the claimant responds during the interview.’
As a representative, you can do your best to guard against any negative inferences that may be drawn against your client later by stressing to the Home Office from the outset a need for a particular gender of interviewer and interpreter or language, if your client so prefers. If these requests are not accommodated, this may explain any problem your client has had in disclosing information in the interview or in respect of other misunderstandings.
Having a support worker in the interview
This is possible. The trafficking guidance says:
‘The SCA in seeking to arrange an interview will determine who is best placed to carry out an interview of the potential victim, and whether it would be beneficial for the support provider to be present during the interview.’
Sensibly, the SCA must accept that it is your client’s decision whether they would find it beneficial to be accompanied by their support worker or not.
The asylum interview guidance is more helpful, stating:
‘For reasons of confidentiality, you will normally interview a claimant on their own or in the presence of a legal representative or regulated adviser. Exceptionally, however, and with advance notice, you may allow a friend or other companion to be present to provide emotional or medical support. Claimants may also benefit from the presence of a supporter from their faith group or non-religious organisation before or during the interview, and this should normally be accommodated where advance notice is provided.
‘However, you must keep in mind the need to safeguard against the possibility that a trafficker or smuggler may use this as an opportunity to influence or monitor the claimant’s asylum claim. You must therefore first establish with the claimant alone whether they are content for the friend or companion to be present during the interview.
‘A friend or companion must not be family members, seeking asylum themselves, have any obvious personal interest in the outcome or have engaged in providing legal advice to the claimant. Whilst it is important to keep the presence of friends or companions to a minimum, you must consider any request from the claimant and accommodate this as far as possible.‘
It will be a long and scary day for your client. The presence of the support worker can be incredibly helpful to put your client more at ease.
Remind whoever is attending that:
‘Companions are admitted on condition that they are there solely to provide spiritual, medical or emotional support. They must not intervene during the interview and must observe complete confidentiality afterwards.’
Interpreters can attend the interview if instructed by the legal representative, even if attending without the representative. Note though that no legal aid is available for this unless agreed under the Exceptional Case Funding regime (or in accordance with The Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 (as amended).
It is a good idea to ask the Home Office to notify you in advance if they are unable to find the correct language interpreter. In our experience, if there is no appropriate interpreter available it can be possible to convey your client’s account by statement only, presuming you do have access to such an interpreter.
The Home Office guidance says this:
‘Choice of language A claimant may have been screened in one language but expressed a preference for the substantive interview to be conducted in their first language…However, if an interpreter cannot be found in their preferred language the interviewer should explain this to the claimant and conduct the interview in the language used at the screening interview, provided the claimant’s command is sufficient for the asylum interview.’
This could disadvantage your client if, for instance, the client gave their screening interview in English but does not speak English to a high enough standard that will allow them to deal with complex questions at the substantive interview.
For example, you have a client who is from Nigeria and her first language is Bini/Edo and she only feels able to talk about her history in front of women due to the nature of the abuse she has experienced. The Home Office cannot find a female Bini/Edo interpreter.
You should notify the Home Office from the outset that it will not be sufficient to interview your client in any other language (if your client genuinely does not feel confident in English) and you should be told if no appropriate interpreter is available so you can discuss with the caseworker an alternative arrangement (for example, supplying a full witness statement, or answering supplementary questions put in writing after a statement has already been submitted).
Interpreters are often booked very close to the interview date, so it is worth checking with the Home Office just before an interview on what arrangements have been made. With the increasing numbers of victims of trafficking in the NRM, the onus should be on the Home Office to recruit interpreters who can meet the needs of applicants, not for the applicants to be disadvantaged.
Be aware too that some clients, for whom English is not their first language, may have been outside their country and diaspora for such a period that they may now be more confident in English. Make sure that they still do want to be interviewed in their first language even if that happened at the screening interview.
Practical steps pre-interview
Make sure that your client knows the time, location, and how to get to the asylum interview. The Home Office will provide travel tickets to those supported in NASS accommodation to travel to the interview.
Inform your client that they may have to spend a long time waiting for their interview within the Home Office building. Advise them to bring food, water, and possibly something to read to keep their nerves in check. Often, people are not allowed to use their phones within the waiting area.
Advisors should request that at least 24 hours before the interview that the interview is recorded. While the Home Office now says that they automatically record all interviews, it is still worth putting this request in writing – see information from Right to Remain provided here.
If a support worker or independent interpreter is attending, you must write to the Home Office to get permission for this first. See information here.
Regarding childcare during the interview, childcare can be arranged for dependants under the age of five if you contact the Home Office about this first. It may also be worth contacting the Salvation Army to arrange this if your client is supported by them so your client can concentrate on their interview fully.
After the interview
record with the client post interview and then make any necessary representations and explain how long this is likely to take.
Home Office policy states:
‘Subject to a check of the relevant country reports or other research, you may take a decision on the asylum claim after the interview, unless the claimant or legal representative asks for time to provide further information and you agree a reasonable time for them to provide it. Legal representatives must notify the Home Office of the availability of further information, and are expected to provide all relevant information relevant to their client’s case at the earliest opportunity.
‘Although the interview is the primary opportunity to clarify unclear statements or inconsistencies within statements or other evidence or with country information material to the claim, you have the discretion to seek explanations in writing or by telephone after the interview. For example, where country information research finds information which directly contradicts the claimant’s statements or appears to do so, it would be a good practice for both the claimant and the Home Office to clarify the matter in further correspondence rather than defer the issue to the appeal stage. Where the claimant is represented, all contact must normally be made through their nominated legal representative, except where there are safeguarding concerns.’
It is important to make any necessary complaint about the interview urgently before a decision on the asylum claim is made. A complaint made before the decision is received is likely to carry more weight than afterwards.
Complaints may involve any manner of unfairness or impropriety in the interview process, whether specifically a breach of guidance or not. This can involve, but is not limited to, lengthy delay in the interview starting, the quality of the interpreting, an inaccurate written record, inappropriate or confusing questioning, rudeness or abruptness, or other poor interviewing skills/techniques.
Ask your client whether they felt comfortable answering questions during the interview – they may have, for example, found it difficult discussing sensitive or traumatic experience in front of an interpreter/interviewer who they saw as being from the same community as they have fled/come from.
Discuss with your client how any issues should be remedied, e.g. by another interview being carried out or by the Home Office accepting your corrections to the interview or them giving little weight to the interview record when making their decision.
Preparing post-interview representations
Post-interview representations should cover both the trafficking and asylum claims and should be sent to both the NRM and the relevant asylum team. Although the two decisions are made separately, and different standards of proof apply, there will be a close overlap particularly in respect of the Home Office’s conclusion on ‘credibility’.
The representations will need to outline the facts, and where they might be disputed, arguments made in their support, referencing the guidance, relevant country, medical and any other corroborative evidence; and how the facts meet the definition of trafficking and the requirements of the Refugee Convention with evidence and argument addressing each limb of both legal tests.
Where a statement was submitted pre-interview, a supplementary statement may need to be drafted to deal with any issues that might have arisen in the interview, and any late disclosure. If it was not submitted, it can be amended to deal with these issues.
Remember when doing your country research, that country information serves two distinct purposes: corroborating the account by showing as far as possible that the account is consistent with country evidence, and by establishing risk on return.
Often in trafficking cases, the latter will consist of evidence of the lack of services (e.g. support and regular employment opportunities) available to vulnerable returnees such that they will be vulnerable to re-trafficking.
Ensure the representations are comprehensive. Give reasons why your client might also be eligible for leave on Article 8 grounds or discretionary leave as a victim of trafficking.
Many advisors may feel frustrated that post-interview representations are often not considered in any detail by the Home Office decision-makers, if at all but it is important that your client’s case is set out as early as possible. The lack of consideration of this evidence by the Home Office can be something that can be shown to the judge at any subsequent appeal hearing.
Interaction between NRM and asylum process
While NRM and asylum decisions are separate decisions, an asylum interview can supply information relevant to the NRM decision and vice versa, with the asylum interviewer consulting what information exists on the NRM file.
If your client has already been interviewed in relation to their protection claim and then is asked for an interview by the competent authority, check if the competent authority has read the information already recorded from the asylum interview and ask what else they want to put to your client.
It has been our experience that an NRM interview can be scheduled simply as a matter of course, without the caseworker considering what additional information is really needed from the client. You can say that your client does not wish to be obstructive but wants to clarify if this interview is really needed in light of the evidence already provided.
The client may find it stressful and traumatic to undergo more questioning, and this may be unnecessary if going over the same ground already covered. The competent authority guidance provides for the SCA to ask questions and request further information in writing, which might be a better way of dealing with outstanding issues.
If the client receives a negative conclusive grounds decision, it is important to consider how this may affect the protection decision. It may be appropriate to challenge the negative conclusive grounds decision by way of judicial review and/or seek reconsideration of the decision before the asylum decision is made.