Advising survivors of trafficking remotely
by Jamila Duncan-Bosu
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.
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.
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.
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.
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.
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
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.
- 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
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
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
‘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
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.