The UK is required to provide support and assistance to victims of trafficking.
The legal framework for providing this support is made up of three key provisions:
- Article 12 of the Anti-Trafficking Convention
- Article 11 of the Anti-Trafficking Directive
- Victims of modern slavery – Competent Authority guidance.
The Competent Authority Guidance should be read alongside the Anti-Trafficking Convention and Directive. There may be inconsistencies between the guidance and the convention and directive. Do not assume that the guidance is the final word on support for victims. It might be possible to rely on more generous provisions within the convention and directive although in some circumstances the guidance is more generous.
Article 12 of Anti-Trafficking Convention: Assistance to victims
The purpose of the Article is to assist victims in their physical, psychological and social recovery. This assistance should include, as a minimum:
- Appropriate and secure accommodation
- Psychological and material assistance
- Translation and interpretation services
- Counselling and information regarding legal rights (in a language they understand).
Article 11 Directive: Assistance and support for victims of trafficking in human beings
The timeframe for assistance and support to be provided to victims is set out as follows:
- Before, during and for an appropriate period of time after the conclusion of criminal proceedings
- As soon as the Competent Authority has a reasonable grounds indication for believing the person might have been trafficked.
Assistance and support is not conditional on a victim’s willingness to cooperate in a criminal investigation, prosecution or trial.
Article 11(5) sets out minimum standards which must be met to provide for victims’ needs. It suggests:
- The provision of appropriate and safe accommodation
- Material assistance
- Necessary medical treatment including psychological assistance
- Counselling and information
- Translation and interpretation services.
These must be provided on a consensual and informed basis.
Competent Authority guidance: the ‘recovery and reflection’ period
Under Article 13 of the Anti-Trafficking Convention, the UK is under an obligation to provide a recovery and reflection of at least 30 days where there are reasonable grounds for believing that a person may be a victim of trafficking. This is for the person to be able to recover and escape the influence of the traffickers and/or to take an informed decision about whether to cooperate with the authorities.
The Home Office’s Victims of modern slavery – Competent Authority Guidance contains information about how the NRM operates. Once someone is referred into the NRM, a reasonable grounds decision should be made within five working days.
The guidance states that potential victims of trafficking, with a positive reasonable grounds decision, are entitled to support for a minimum of 45 days during their recovery and reflection period, if they want it. The Salvation Army is contracted by the Home Office to provide accommodation and support to victims of trafficking. It has a number of sub-contractors who provide support in safe houses for victims of trafficking. The support consists of accommodation, some financial support and services such as counselling. The guidance says that support can be provided to an individual from the date of referral into the NRM and before a reasonable grounds decision has been made, if the individual is going to be destitute during that period.
There are safe houses in a limited number of locations across the country. There may be reasons why someone would not want to go into a safe house. They may already have accommodation or be staying with friends and family. They may have a child in school in an area where they are not in danger, where section 17 support may be more appropriate.The guidance states that even if a potential victim decides not accept safe house accommodation, they should be offered outreach support.
The guidance also states that in cases where the child is the victim of trafficking, requests must always be made to the local authority’s children’s services at the earliest opportunity who can then ensure that appropriate accommodation is provided.
In all cases, clients should be referred to a solicitor as soon as possible.
Extending the 45 days
The guidance says that the conclusive grounds decision should generally be made after 45 days but it can often take much longer than that. Where it takes longer, victims of trafficking are routinely encouraged to apply for asylum support from the Home Office to move them on from safe houses but in some circumstances, this may not be appropriate.
A request for an extension of the accommodation can be made where an individual’s circumstances mean that they need more than the 45 days to recover and reflect. The guidance sets out the following likely reasons for an extension:
- Serious health issues
- Severe mental health issues (including post traumatic stress disorder) requiring a longer period of recovery and reflection
- High levels of victim intimidation.
Delays in making a conclusive grounds decision are not included as a reason to grant an extension. However, in practice, requests to extend have been granted on the basis that the guidance states at p.94 that “[d]elaying the conclusive decision unnecessarily may have consequences for the well-being of the victim, and for the UK in terms of support costs.”
What is ‘appropriate and secure’ accommodation?
What is ‘appropriate and secure’ will depend on the individual.
Article 11(7) Directive requires the UK to attend to victims with special needs, including: pregnancy, health, disability, a mental or psychological disorder, or where they have suffered a serious form of psychological, physical or sexual violence.
Considerations might include:
- Single sex accommodation.
- Own bedroom.
- Geographical location for access to counselling and support network and if a move away from the area where they are will disrupt specialist counselling and/or psychological treatment. Equally some victims may need to be moved some distance away from ‘danger areas’.
- Higher level of support required.
Losing NRM accommodation
NRM accommodation will usually be withdrawn following:
- A negative reasonable grounds decision (if the individual was given accommodation before the reasonable grounds decision was made)
- A negative conclusive grounds decision, individuals may receive as little as two days’ notice to leave the accommodation
- A positive conclusive grounds decision, individuals will usually only receive 14 days’ notice to leave the accommodation.
Accommodation for those who are found not to be victims of modern slavery
Those individuals who have claimed asylum can apply to the Home Office for asylum support, which includes accommodation and subsistence support.
Some individuals may be eligible for s.4 support from the Home Office, which includes accommodation and subsistence support.
If an individual has been granted discretionary leave to remain or another form of leave, they may be eligible for homelessness assistance from the local authority.
EEA nationals may be eligible for homelessness assistance.
In the case of non-asylum seekers, adults with children or social care needs can apply to social services for support if they are homeless or destitute.
Challenging negative decisions
This is done by way of application for judicial review and interim relief to the High Court:
- A negative reasonable grounds or conclusive grounds decision or a refusal of a residence permit can be challenged by way of judicial review.
- The time limit is three months from the date of the decision being challenged.
- It is possible to make an urgent application to the High Court seeking an order that accommodation and support be provided until the claim for judicial review is considered. This is called an application for interim relief and will usually be made at short notice.
Support after a positive conclusive grounds decision
Article 11 Trafficking Directive imposes a legal duty on the UK to support victims where necessary after they have received a positive conclusive grounds decision pending any determination of discretionary leave to remain.
Legal Aid is available to advise and assist an individual without accommodation.