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VITA Network has launched!

by Dr Rosie Riley BSc MBChB, VITA Network

Modern slavery and trafficking risks serious harm to victims, survivors and communities across ALL aspects of health and wellbeing. It is a health and public health issue and we want to see this at the heart of any response.

The health response goes far beyond bandaging wounds and treating the illnesses of survivors who enter a healthcare setting.

Public health sciences are vital in tackling the big picture of slavery, bringing expertise and experience in creating strategic prevention, intervention and aftercare responses.

A health lens helps us understand how potential victims’ lives may be shaped in ways that increase risks of exploitation and harm, and how to intervene.

Trauma sciences and psychology help us understand how our human brains and bodies respond in incredible, life-preserving ways to severe threat, and how survivors of exploitation may be best supported to help these powerful adaptations recognise new safety and reset to bring stability and health.

Health sciences can also help us understand complex and confusing emotional, behavioural, physical and medical presentations of people who have been harmed by slavery, helping professionals and practitioners across many disciplines provide excellent trauma-informed care.

We are excited to announce the launch of our new VITA Network, which aims to advance the health response for survivors of trafficking and slavey.

The VITA network is a platform where both organisations and individuals can connect and equip one another through the sharing of experiences, knowledge, skills, and resources. Together, we can then mobilise our workforces to transform prevention, intervention and survivor-care.

We welcome a diverse range of voices from all sectors and we’d love you to join us!

To get involved:

  • Contact us via email to share your ideas and expertise, contribute to the VITA Network committee, help develop the national health and modern slavery voice and take action for change
  • Check out our new website and sign up to our newsletter to grow your knowledge and connections
  • Follow us on Twitter.

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Confirmed victim of trafficking entitled to reinstatement of support after being exited from NRM

by Rebecca Kingi

We are pleased to confirm that in a recent case the Secretary of State for the Home Department (SSHD) conceded that our client, a confirmed victim of trafficking with a positive conclusive grounds (CG) decision, was entitled to request reinstatement of support under the National Referral Mechanism (NRM) and was eligible to have NRM support reinstated despite having previously been exited from the NRM.

The facts
Our client (P),was exited from NRM support following receipt of a positive conclusive grounds (CG) decision. He had not received NRM support for over a year.

P was an asylum seeker and in receipt of section 95 support. However, on account of his asylum claim being refused and his appeal dismissed, he faced destitution following his eviction from asylum support accommodation. Two days before his support was due to be terminated, an independent support provider requested reinstatement of NRM support from the SSHD, via the Victim Care Contract prime contractor, including the provision of accommodation. The prime contractor responded saying they were not able to assist as he had left NRM support. At the time of the request, P had an application for discretionary leave to remain as a victim of trafficking outstanding.

The challenge
ATLEU sought to challenge the SSHD’s refusal to make arrangements to provide P with accommodation and support as a recognised victim of trafficking who was homeless and destitute.

We argued that in refusing to reinstate support the SSHD had acted unlawfully. Recognised victims of trafficking awaiting resolution of an application for discretionary leave as a victim of trafficking are entitled to continued support under the NRM from the SSHD under both Article 12 of ECAT and the Recovery Needs Assessment Guidance.

The outcome
ATLEU sought interim relief from the Administrative Court, and secured an order on an urgent basis that P’s asylum support and accommodation should not be terminated as it would leave him homeless and destitute.

Following this the SSHD conceded that P both had a right to request reinstatement of NRM support, and that he was eligible to have NRM support reinstated. The SSHD sought to discharge their obligation to accommodate P through the provision of section 4 asylum support accommodation. The SSHD agreed that P could remain in his current accommodation, or be accommodated in the same area, in recognition of his specific support needs as a victim of trafficking.

P remains at his current accommodation and NRM outreach support has been put in place, including the provision of NRM subsistence.

You can find a copy of the consent order here.

What this means
Though the Recovery Needs Assessment Guidance is silent on reinstatement of support, this case provides confirmation that victims of trafficking with a positive conclusive grounds decision, who have previously left NRM support, are entitled to request reinstatement of support if the need arises.

It also demonstrates that victims of trafficking with a positive conclusive grounds decision who have left NRM support, but are still awaiting a decision on their discretionary leave application, are eligible to have NRM support reinstated when they have unmet support needs.

Our thanks to instructed counsel Shu Shin Luh of Garden Court Chambers.

We have prepared some responses to questions from survivors of trafficking and their support providers on this issue.

Coronavirus – impact on victim support

by Rebecca Kingi and Tomas Weber

We are concerned by reports that survivors of trafficking are being denied access to accommodation via the National Referral Mechanism (NRM) because of fears they may be infected with Coronavirus, regardless of their legal entitlement to this support. To date, we have not seen a contingency plan from the Victim Care Contract primary contractor and subcontractors to protect survivors who request and need this support. 

It is unlawful to deny housing to a survivor who has a legal entitlement to accommodation under the NRM because of concerns resulting from the Coronavirus (COVID-19) pandemic. Survivors are still entitled to the provision of safe and secure accommodation and to their period of recovery and reflection. Refusal of accommodation under the NRM leaves survivors at risk of destitution, in a position of significant risk to their health and safety, and vulnerable to exploitation.

If the Home Office and its contractors are unable to provide safe house accommodation to potential victims of trafficking for genuine safety reasons, then they have a legal duty to arrange alternative accommodation. For example, the individual needing support could be accommodated in a hotel for seven days before being transitioned into safehouse accommodation to allow for a period of quarantine. 

Survivors in receipt of NRM outreach support are also at risk if friends or family no longer accommodate them due to fears around Coronavirus. Further, survivors receiving NRM outreach support may lose this if their support workers are no longer able to meet clients face to face. Contingencies need to be put in place to ensure these survivors are not made destitute, that they receive their subsistence entitlement and that they are not isolated from support.  

Template letter

We have drafted a template letter for the sector to use in the event that a request for accommodation and/or support via the NRM is denied for reasons related to Coronavirus. The letter sets out why the decision is unlawful and should be re-made. If you are not sure whether your client has a legal entitlement to accommodation or support under the NRM, or if you send this letter and the issue is not resolved, please contact our team for advice

Advice and referrals

ATLEU operates a free telephone/email advice helpline to provide legal support to those assisting victims of trafficking and slavery. If you have concerns that a potential or confirmed victim is not accessing the support they need or If you are having problems getting potential victims referred into the NRM in general, then then please contact us by sending an email to advice@atleu.org.uk

If you want to refer someone to us for legal representation, please email referrals@atleu.org.uk. We cannot guarantee to take every referral, but our team will be providing legal support via our helpline and prioritising taking those cases where survivors have been placed in a position of significant risk as a result of the government’s failure to provide adequate protection amid the Coronavirus pandemic.

Health guidance in multiple languages

Health guidance on COVID-19 is available in multiple languages. Leaflets produced by Doctors of the World on 13 March 2020 can be found here. Please share these with your clients. 


NN and LP – Implications on victim support

by Rebecca Kingi and Tomas Weber

The case of NN and LP v SSHD [2019] EWHC 1003 (Admin) impacted the availability of government support for confirmed victims of trafficking. In this blog, we take a look at the case and the effect it has had in practice several months on. We also identify areas of ongoing uncertainty and concern when it comes to support for confirmed victims of trafficking.

What happened in the case?

NN and LP were both asylum seekers and victims of trafficking with conclusive grounds decisions. The Home Office decided to terminate their support under the NRM, a decision based on their policy that support should be terminated 45 days after a positive conclusive grounds decision.

NN and LP sought to challenge this policy by judicial review. They argued that the policy was unlawful because the duty to provide support was not time limited under the Council of Europe Convention on Action against Trafficking (ECAT) or the ‘Anti-Trafficking’ Directive. Whether support should continue should instead be based on an assessment of the needs of the individual.

The court granted permission for the judicial review and, unusually, interim relief was granted for everybody in NN and LP’s position. This meant that no victims of trafficking with positive conclusive grounds decisions who were in receipt of support, which was due to end 45 days following that decision, could be exited from support pending the outcome of the case.

The case was then settled by consent order. The Home Office conceded that the support and assistance measures referenced by Article 12(1) of ECAT could not be determined by time alone.

How did the Home Office respond?

Following the Home Office’s recognition that support measures should be determined by need, a new policy for terminating support was produced.

Following a positive conclusive grounds decision, a support worker now conducts a ‘Recovery Needs Assessment’ (RNA) to determine whether an individual has a continuing need for support, as well as a transition plan for moving to alternative services. The assessment is then sent to the Single Competent Authority, which decides whether support should continue in light of the support worker’s recommendations.

To read more about the RNA, read our blog below.

How has NN and LP worked in practice?

Since the case of NN and LP and the development of the RNA policy, the Home Office and its contractors have completed RNA’s for a number of victims with positive conclusive grounds decisions, extending their support as a result.

NN and LP has also proved to be a helpful authority in legal challenges around the support victims of trafficking receive. Specifically, the clarification that support for victims should be assessed on an individual needs basis and should not be time-limited. To demonstrate this, we have set out some examples from our recent cases where we applied NN and LP (all names have been changed to protect our clients’ identities).

Raphael’s case
Raphael was referred into the NRM after a nurse suspected he was a victim of trafficking; he was admitted to hospital with severe physical health issues after being subjected to labour exploitation for a number of years and made to live in a sub-standard conditions by his traffickers.

After he received his positive conclusive grounds decision, Raphael was evicted from a safehouse into destitution. Having nowhere else to go, he went back to his traffickers and was re-exploited until the charity, Hope for Justice, assisted him with securing emergency accommodation via the local authority.

However, the Department of Work and Pensions assessed Raphael as ineligible for welfare support so Raphael was again left without any income. A request for the reinstatement of NRM support was made and accepted. However, Raphael was only provided the outreach rate of subsistence of £35 per week (he is not an asylum seeker).

On this minimal amount of income, Raphael was unable to meet his basic living costs and was soon in arrears with his housing service charge payments, placing him at risk of losing his accommodation. We were instructed to challenge the level of NRM support provided to Raphael, specifically that it was not in line with his individual needs and that a blanket policy had been applied to his case.

We succeeded in reaching a settlement, where the Home Office agreed to pay the service charge arrears and the ongoing service charge payments on top of his weekly subsistence. Raphael subsequently won his appeal with DWP (with representation from the AIRE centre), and is now in receipt of Universal Credit. However, through arguing the principles established in NN and LP, a gap in his support was successfully avoided.

Andy’s case
Andy is a European national with a positive conclusive grounds decision. Destitute, with no family or friends to support him, Andy came to the UK on the promise of work and a better life. This promise proved to be false, and he became a victim of labour exploitation.

Andy was subjected to cruel and degrading treatment at the hands of his traffickers. He was identified as a potential victim and referred into the NRM for support. Unfortunately, Andy was extremely traumatised as a result of his exploitation and suffered from substance abuse issues. This resulted in him having behavioural issues in a safehouse, and being exited unlawfully from the NRM into destitution prior to receiving his conclusive grounds decision.

He then received his positive conclusive grounds decision, and with assistance from an independent advocate, was accepted back into safehouse accommodation. His NRM support worker submitted regular RNAs which identified his ongoing support need for safe and secure accommodation.

However, Andy struggled within the safehouse environment and continued to present with behavioural issues placing him at imminent risk of eviction and homelessness. ATLEU provided second-tier advice to his independent advocate at Hope for Justice regarding his right to ongoing support under ECAT, despite his behavioural issues.

As a result, an agreement was reached with the Home Office, and they funded alternative accommodation for Andy via the Victim Care Contract and continued to provide him with subsistence and support from an NRM support worker. This was an ideal solution as it avoided the need for Andy to formally instruct a solicitor and engage in stressful litigation.

If you are working with survivors of trafficking and want help in relation to a support matter, you can contact us to ask for advice by emailing advice@atleu.org.uk

Areas of uncertainty and concern

Gaps in support for a number of victims have been successfully avoided as a result of NN and LP, but extended support for victims via the NRM will require adequate resourcing. We have heard reports that victims remaining in safehouse accommodation for longer periods of time has resulted in a reduction of the number of bed spaces available for those entering the system, and that there is increased pressure on the system.

While this is concerning, we believe that the main issue here is not the implementation of the RNA itself, but underlying issues with the operation of the NRM which result in the need for extended victim support in the first place, such as:

  1. Long delays in identification decisions, which result in victims being left in limbo for years and a large backlog of cases
  2. A failure to grant victims leave to remain meaning they are unable to work, access local authority or private sector accommodation, or obtain welfare support creating a dependency on the NRM system
  3. Inadequate training for NRM support workers, meaning they may not all have the knowledge or skills to advocate for victims to receive local authority and welfare support, and may fail to refer victims for legal support when needed (for example, to a housing solicitor).

A further issue with the implementation of the RNA, which we identified within our blog series, is the uncertainty around requests for reinstatement of NRM support, as opposed to requests for extension of NRM support. The RNA is silent about whether it applies to reinstatement requests. We understand the Home Office and its primary contractor are taking an inconsistent approach with reinstatement requests and assert these requests fall outside of the RNA policy.

We are concerned with the lack of transparency around the process for reinstatement requests and the risk to victims as a result. There will be cases where the Home Office will be under a legal obligation to reinstate support for a victim of trafficking with a positive conclusive grounds decision. This obligation may not exist in all cases, so the individual facts and needs of the victim must be considered. However, as things stand the Home Office does have an obligation to consider these cases and we are concerned by reports that suggest they are refusing to do so.

ATLEU continues to represent clients facing challenges with their support, to safeguard their rights and promote their recovery, whilst also seeking to further clarify the law. Please do get in touch if you are working with victims who may have long-term support needs which are not being met, or who are facing termination of their current support.


New policy on support for victims of trafficking

by Rebecca Kingi

In September the government released a new policy on extended Home Office support for confirmed victims of slavery.

Background
The Recovery Needs Assessment (RNA) policy and guidance was produced after the court case of NN and LP v SSHD [2019] EWHC 1003 (Admin) that settled in June 2019. During that case the government had agreed that the current system for supporting people who had been conclusively identified as victims of slavery did not work properly and that a new system would be designed. The government accepted that support should be provided to a victim of slavery in line with their needs, and not be terminated after a set amount of time.

The RNA guidance sets out how the Single Competent Authority (the UK’s decision-making body responsible for identifiying victims of slavery) will decide if a confirmed victim of slavery is entitled to continued support under the Home Office’s system for supporting victims, (provided through the Victim Care Contract). This support can include accommodation, basic financial subsistence, and the help of a support worker.

What has changed
Before the introduction of the RNA policy, if a confirmed victim of slavery needed ongoing support under the National Referral Mechanism (NRM) their NRM support worker could make an extension request for this support, although such requests were not automatically granted.

Support requests were frequently made by organisations assisting the individual or those supporting the victim outside of the NRM. There was no official procedure in place for organisations outside of the Victim Care Contract to make a request, or for a victim to do so themselves.

Further, there was no formal guidance around what ongoing support the government should provide a victim after they had received a positive conclusive grounds decision. Many victims faced difficulties in securing any ongoing support, which meant the government was in breach of its legal obligation to support victims in line with the victim’s needs.

So, a formal policy in itself is a good idea, and it is a positive development that the Home Office has responded to the legal challenges and introduced ongoing support options for victims.

However, we do not believe that the policy goes far enough. The formal procedure that has been introduced appears to be so restrictive that victims with a legal entitlement to ongoing support may have real difficulties in securing it.

Some key things to know:

Who decides if support will carry on?
This Single Competent Authority will take the decision; the same body that decides if a person is a victim of slavery.

Who can ask for support to carry on?
Only support workers who are working under the Victim Care Contract can request support. A victim cannot request it themselves. Neither can their lawyer or anyone else working with the victim, for example, a charity that is not working under the Home Office Victim Careontract to provide support.

When do you ask?
After the Single Competent Authority makes a conclusive grounds decision that someone is definitely a victim of slavery, they will carry on getting support under the Victim Care Contract for a further 45 days. If they need ongoing support then their Victim Care Contract support worker can ask for an extension as soon as the positive conclusive grounds decision has been received.

How long will it take to get a decision?
This is not clear. The policy says that if a decision is not made in the 45 days the victim will keep getting support until a decision is made and transition arrangements are in place.

How do you ask?
The victim’s support worker completes a needs assessment form and sends this to the Prime Contractor, which manages the Victim Care Contract. This is currently The Salvation Army. Once the Prime Contractor has reviewed the form it then goes to the Single Competent Authority to make a decision. Supporting evidence supplied with the application should be dated within the last three calendar months.

How long can support be extended for?
Up to a maximum of six months in one go.

In Part 2 we will discuss some of our questions in response to the new policy and highlight some potential issues to watch out for.

New policy on support for victims of trafficking – Part 2

Part 2 by Rebecca Kingi

In our last blog we outlined how the new Recovery Needs Assessment (RNA) came about, and some key things about the policy itself. In this blog we discuss some of our concerns with the policy as drafted, and suggest some issues to watch out for. Of course, it remains to be seen how the policy will work in practice, and our hope is that it will not be applied as restrictively as the drafting suggests, to ensure compliance with the ‘European Convention Against Trafficking’ (see below).

A narrow view of victim needs
The RNA policy was meant to be developed in line with the Council of Europe Convention on Action Against Trafficking in Human Beings. This Convention takes a broad view of a victim’s needs when looking at what is necessary to help them. Unfortunately, the wording of the policy takes a more restrictive approach. It says the government will look at recovery needs ‘arising from (a victim’s) modern slavery experiences’.

Many victims have support needs that arise from pre-existing issues that have made the person vulnerable to slavery (these needs can also be aggravated by slavery). In our view, the government is obligated to take such needs into account under the Convention.

Further, the government should consider a victim’s circumstances at the time the support is requested, which may not be caused directly by their time in slavery, but place the victim at risk of re-exploitation. For example, a lack of legal status which places them at risk of destitution as the victim is not eligible for alternative state support. Victims’ mental health may fluctuate and they may have needs that arise at a later date, which if left unmet may leave them unsafe and unprotected and unable to live independently. If this policy is interpreted narrowly or in a literal way, victims are at risk of being exited from support into destitution.

Lack of access to the application process
Only support workers under the Home Office Victim Care Contract can request that a victim’s support be extended. It is concerning and contrary to a victim centred approach that the victim themselves cannot request this support. Further, the request cannot be made by any other professionals working with them, for example a legal representative, doctor, social worker or external charity or NGO. This means that if a victim’s support worker is unable to make the application, the victim has no other way to request the support.

Consent from victims
It is not clear from the policy how much involvement victims will have in what is said about them or if they have to agree the final version. The policy says that victims must have the process explained to them but it does not make clear that the application itself should be done with their full agreement and involvement.

Disclosure of documents
The RNA asks for disclosure of correspondence that may have very personal information in it or advice from a lawyer that is legally privileged and the victim has the right to keep confidential. Victims should receive legal advice before sharing any document with the Single Competent Authority and should face no pressure or criticism for not providing documents that are privileged or they do not want to share.

We understand the need for the Single Competent Authority to know someone’s immigration status as this will help them to understand where someone does or does not have recourse to public funds. However, it should not be necessary for correspondence about an immigration application to be shared. A tick box system on the form to choose options for immigration status would be preferable, with a ‘don’t know’ box if the victim or their support worker is unsure and has not had the appropriate training to be able to provide the answer.

The Single Competent Authority should be able to check a person’s immigration status with the Home Office, and come back to the support worker with clarifying questions if they are unsure, before an application is refused.

Restrictive rights if support is refused
If the Single Competent Authority decide that support will not be extended, or offer support different tothat requested (for example the victim will receive ongoing support from a support worker but no accommodation), this decision is final. There is no process for the victim to challenge the decision if they think it is wrong. Only the Prime Contractor of the Victim Care Contract can ask for a reconsideration and only if ‘material new evidence/information comes to light which was not available at the time of the original recommendation’.

This is concerning. There is no decision making body that is immune from making a mistake, and the right to appeal should exist to ensure decisions can be reviewed and public decision making bodies can be held to account.

Further, the restriction on requesting a reconsideration limits the victim’s ability to access this new scheme and accordingly threatens their legal right to support. What if the victim is unable to ask the Prime Contractor to request a reconsideration, or the Prime Contractor is unable to do so? Victims, or any person they choose to represent them, should not be shut out of the reconsideration process.

This restrictive process is also an inefficient way to run the system ,which will inevitably lead to a waste of public money, as the only alternative for a victim to try to challenge the decision will be through costly litigation.

That being said, it is not clear whether the victim will be given a copy of the reasons for refusal of support so they can take independent legal advice on challenging this, and it is already hard for victims to access legal aid lawyers to challenge decisions they do not agree with from the government. All in all, this policy provides for very limited rights of challenge for an exceptionally vulnerable group for whom access to justice is essential.

Questions in response to the policy
We have some questions about how the policy will work in practice, and how the government and it’s contractors will follow it.

Will there be funding for capacity building and training?
As you know, the decision making body that is responsible for deciding requests for support is the Single Competent Authority, whose role within the NRM to date has been to make decisions on identification (quite distinct from support needs). Decisions about ongoing support should be informed by a knowledge of social care, housing rights, and the restrictions that arise from a lack of immigration status.

We want to know whether the government will be providing new funding to ensure there are enough decision makers who are trained appropriately and have capacity to deal with the increased workload. We also are interested in whether there will be additional funding to ensure that NRM support workers, who are already hard pressed in their existing duties, have funded time to make proper assessments and gather the right evidence in support.

We suggest there would also need to be increased funding for the main government support provider to have enough staff to filter and check all the needs assessments, in order for the policy to work as intended.

There is also a need for the government to ensure it adequately trains and pays for the time of its contracted support workers to take steps as soon as possible to assist and advocate for victims to move onto other forms of support. This is even more important if the government makes it harder to stay in their victim support system.

Support workers need adequate training on how to transition victims into local authority or alternative support, for example, how to provide supporting evidence for a homelessness assessment. Otherwise, victims could be stuck in a system designed for short term needs for a prolonged period, meaning they have the inability to rebuild and move on with their lives.

Can victims come back into NRM support if they have left it?
The policy is silent on whether victims can return to support under the Victim Care Contract if they need it after they have left it for a period. Many victims have the need for support months or even years down the line. This is often due to having been unable to access the right help – to regularise their immigration status or to access secure housing and welfare benefits.

What about the situation where a victim receives an offer to stay with a friend so exits the safe house after a conclusive grounds decision, before the end of the 45 day standard support period. However, this turns out to be a dangerous situation, which means they need to leave or have more supported accommodation. Can they apply for further support at that point and how do they do this if the support worker is no longer working with them?

Is this policy in line with expert recommendations?
This document is apparently a final version of the policy. The government did not open the design of the policy up to public consultation and has not published the recommendations of the people it consulted with on what a needs based system should look like. The lack of transparency of the process is concerning, especially in light of the issues raised with the policy wording. We invite the government to make public the recommendations put forward for this policy, and to formally consult on future amendments and policies.

New policy on support for victims of trafficking – Part 3

by Rebecca Kingi

So by now, you know some key information about the Recovery Needs Assessment (RNA), and you know our concerns about it. So, what do you do? In this blog we make some suggestions on how best to prepare a RNA, and also what to do if you are a non-government contractor but your client needs their support extended under the Victim Care Contract.

Suggestions on how to get the best support for your client

If you are a Victim Care Contract support worker
It is important that the RNA is completed thoroughly with evidence to support your position. If you are requesting extended NRM support for your client, make sure you:

  • Clearly set out how the client’s needs arise from their slavery experience. Apply the term as widely as you can but try to show why you think it is connected. If you think your client has a need for ongoing support, but you cannot show how that need arose from their slavery experience (for example lack of immigration status), request ongoing support anyway as this person has a right to support under the European Convention Against Trafficking. Set out the risk of re-exploitation and harm to the client if the support request was declined.
  • Provide evidence to show your client’s needs, for example medical records, letters from other supporting agencies, bank statements showing minimal income, letters where other support has been declined such as negative benefit decisions.
  • Set out why the support cannot be provided elsewhere. For example, no status so no eligibility for Universal Credit or local authority housing. Show negative decision letters and ask for a letter from the client’s immigration solicitor (if possible) confirming the client’s circumstances.
  • Set out what support you are requesting and why. For example, if your client needs ongoing accommodation, state why outreach support would not be sufficient for your client and the consequences to your client if accommodation was not provided.

If there is no space to do this on the form, write a cover letter and make sure this is appended to the assessment.

If your client receives a negative decision and there is no route for reconsideration, refer your client for legal advice as soon as possible. Look for a public law solicitor with a legal aid contract – you can search here: https://find-legal-advice.justice.gov.uk/

If your client has not been given written reasons for why the request was declined, ask for these and request extended support until these are provided.

Always make sure that victims get legal advice about sharing any documents in the assessment if the victim is not sure and direct the Single Competent Authority to check data on someone’s immigration status with the Home Office without sharing correspondence about an immigration application. If there is no immigration lawyer to help you work out what someone’s immigration status is and the victim does not know, you can contact our advice line and we will do our best to help you work out the right option from the facts.

Always make sure the victim agrees to anything written about them in the application.

If you do not have enough time to prepare an application, or do not understand what you are being asked to comment on, ask for advice from lawyers working with the victim and raise your concerns with management and the Single Competent Authority, explaining in the application you are not qualified to comment on that point.

If you are supporting the victim outside of the Victim Care Contract
Ask the NRM support worker to do the RNA and provide them with supporting evidence on the basis set out above. If the support worker says they do not have time, offer to draft the RNA for their review. If the person has left the NRM but now needs to access NRM support, ask their previous NRM support worker if they can assist.

If your client’s NRM support worker cannot help, ask the Prime Contractor to conduct the RNA and submit your supporting evidence to the Single Competent Authority. You can email them at: nationalreferralmechanism@homeoffice.gov.uk

If the primary contractor cannot help, make the request for ongoing support yourself directly to the Single Competent Authority with your supporting evidence. You can email them at: nationalreferralmechanism@homeoffice.gov.uk

If the above options do not get you very far, or your attempts are met with a resounding “no”, refer your client for legal advice. A public law solicitor may be able to challenge the government for failing to provide support for your client, and secure the support. Your client may be eligible for legal aid for such advice. As set out above, you can find a legal aid lawyer here. We also have a general advice line which you can call.

Closing comments
Victims need to have long term support guaranteed so they get the help they need to move on with their lives. A person without leave to remain in the UK will continue to feel unsafe if their immigration status is not resolved. Often, the reason a person needs extended support from the NRM is because they have no leave, and accordingly, no entitlement to local authority and welfare support.

The government’s approach to granting discretionary leave is highly problematic and it is very difficult to get this type of status. Should the government change this approach and award victims a grant of leave, we would anticipate a decreased demand for extended NRM support and a faster road to victim recovery.

Recovery should not be dealt with in small increments, holding someone in a system of dependence where they know they are subject to short term extensions that have no guarantee of being granted. We have been told by clients how this leaves them with deep anxiety. We are concerned that the design of this policy will create the same uncertainty, making support extensions difficult to access.

If the government sticks to the letter of this policy it will also be difficult to succeed in getting extensions. Instead of seeking short term and narrow support solutions, the government should adopt the proposals of Lord McColl, who has sponsored a bill that would see all accepted victims of slavery given one year of discretionary leave by right, to let them find a more independent, but still supported, pathway to recovery.

Considering status when representing EEA nationals

Part 1 by Rebecca Kingi

Myth: My client doesn’t need immigration advice; they are an EEA national.

Truth: In the UK, EEA nationals do not enjoy automatic residence rights and recourse to public funds, unless they can prove that they are exercising their EEA treaty rights. Unfortunately, this has meant that many victims who are EEA nationals, and are unable to work, face destitution on exiting the NRM, and in some cases even deportation.

In order to ensure the option of longer-term state support for victims, and to mitigate the risk of destitution and deportation, victims who are EEA nationals should be referred for immigration advice as soon as possible.

An immigration solicitor will be able to advise the individual of their options, for example a grant of leave to remain, such as discretionary leave or indefinite leave under the EU Settlement Scheme. Victims of trafficking with either a Reasonable Grounds or Conclusive Grounds decision are entitled to legal aid for such advice and legal aid providers. More information can be found here. With a grant of discretionary leave to remain or indefinite leave to remain, victims have recourse to public funds (such as housing benefit and universal credit) and are eligible for state health services.

In the Brexit era it is even more important that EEA nationals receive legal advice about their options. However, there are significant challenges to obtaining that advice. In the current legal aid climate it is increasingly difficult to find an immigration solicitor with the capacity and the expertise to advise victims. There is also no guarantee that a victim will be eligible for a grant of leave or that their application will be processed within a reasonable time period.

However, this doesn’t automatically mean the victim is ineligible for support. Housing and welfare representatives, advocates, support workers, and agencies need to explore whether their EEA national client enjoys status, including as a ‘worker’ or ‘retained worker’, and are therefore eligible for state support without a grant of leave. This should be explored as soon as possible, so that clients do not risk losing status. In our experience, if you think your client could have ‘worker’ or ‘retained worker status’, you have to make this extremely clear to the relevant decision maker, especially as victims frequently lack vital evidence to support the assertion they have status, such as pay slips, due to their exploitation.

For a quick recap, an EEA national is exercising their treaty rights if they have worker status. However, they can also retain their worker status, if:

  1. They are temporarily unable to work due to illness or accident;1 or
  2. They are involuntarily unemployed and registered as a job seeker. Worker status is retained for up to six months if their time in employment was less than a year, and longer if the employment was for longer than a year. Further, the person needs to demonstrate that they have a genuine chance of getting a job in the future.2

So what does this look like in practice?

Example A: Universal Credit

When an EEA national makes an application for Universal Credit, before an award is made, a decision maker will first consider whether the individual satisfies the Habitual Residence Test (HRT)3. Representations and/or evidence should be presented to the DWP in order to show the client has worker/retained worker (or other) status and has therefore satisfied the right to reside element of the HRT.

Example B: Housing

When presenting as homeless to a local authority, the housing officer will make an assessment as to whether the person has a right to reside and is therefore ‘eligible’ for housing assistance under the Housing Act 1996. Again, representations and/or evidence should be presented to the local authority in order to show the client has worker/retained worker status and is therefore eligible for support.

Footnotes:

  1. The Immigration (European Economic Area) Regulations 2016, Section 6 (2)(a).
  2. The Immigration (European Economic Area) Regulations 2016, Section 6 (2)(b), (2)(c) and (3).
  3. Technically if you are a ‘worker’ or ‘retained worker’ you are exempt from the HRT (UC Reg 9(4) UC Regs). However, in practice, the DWP does not consider if you are exempt and administratively the same format of the HRT is used.

Considering status when representing EEA nationals Part 2

by Rebecca Kingi

Myth: My client can’t have worker or retained worker status because their  work in the UK was exploitative. 

Truth: When looking at whether someone has worker or retained worker status, the test is not whether the work was legal, but whether it was ‘genuine and effective’. Exploitative work does not prevent a person from being considered a worker.

A national of an EEA state, who is in genuine and effective employment in the UK, is a worker for EU purposes1. Accordingly, the relevant Decision Maker should look at whether the work is genuine and effective, and not ‘on such a small scale as to be marginal and ancillary’2. The relevant factors the Decision Maker will consider on deciding whether work is ‘genuine and effective’ include:

  1. Whether the work was regular or intermittent
  2. The period of employment
  3. Whether work was intended to be short term or long term
  4. The number of hours worked
  5. The level of earnings.3

However, according to European case law, the term ‘worker’ must not be restrictively interpreted. The Court of Justice of the European Union has repeatedly affirmed that the term ‘worker’ must be defined by European law, and it is not dependent upon UK law4.

Exploitative work does not prevent a person from being considered a ‘worker’. Neither does exploitative work fall outside the ambit of ‘genuine and effective work’.  In JA v Secretary of State for Work and Pensionsthe Upper Tribunal found that the fact the contract for work is illegal as performed does not prevent the person concerned from being a worker. This case was about an EEA national who had worked cash in hand in a restaurant. The Tribunal stressed  that it was the factual situation, not the legal situation that determines whether the person is a worker.  Further, in EP v Secretary of State for Work and Pensions6 it was found that being trafficked into work does not prevent you from establishing worker status.

The obvious issue with an exploitative work history is that there is often little or no documentary evidence to prove that the work took place. Decision Makers are sometimes solely reliant on the individual’s account. This is why the Conclusive Grounds (CG) Decision is such an important piece of evidence for victims. The CG Decision verifies that the government’s Single Competent Authority has considered the account of the person, alongside other relevant information and has found it credible, then issued a decision to that effect; finding that the person was subjected to exploitation, making them a victim of trafficking/modern slavery.

It is really important that representatives:

  1. Gather any evidence to show the person was in genuine and effective work e.g. payslips, bank statements showing pay deposits, employment contracts, records from HMRC
  2. Set out why the client’s work was genuine and effective. Explain to the Decision Maker that exploitative work does not fall outside the ambit of genuine and effective work
  3. Provide a copy of the client’s Conclusive Grounds decision and explain to the Decision Maker its significance. 

This should be done in writing and given to the client to present to the Job Centre when they sit their Habitual Residence Test or to the local authority when they present as homeless. Make sure the client insists the information provided is given to the Decision Maker. 

If a client has only carried out minimal work, representatives should still argue the client enjoys worker status. As little as two weeks remunerated work can be sufficient to find a person has worker status7. Further, in the case of  Genc  v Land Berlin8  it  was held  that regular work of five and a half hours was  sufficient  to constitute genuine and effective work.

Myth: My client did not register as a job seeker straight away so they cannot have worker/retained worker status under The Immigration (European Economic Area) Regulations 2016 (I (EEA) Regs) even though they were previously engaged in genuine and effective work. 

Truth: Regulation (2)(b)(i) of the I (EEA) Regs does require a person to register as a jobseeker, however a gap between the work ending and registration does not necessarily mean your client has lost worker status.

If the delay between your client’s work ending and registration as a job seeker is more than a few days, the relevant Decision Maker will consider whether there are reasonable grounds for the delay, or whether it is undue delay9. The longer the delay, the more compelling the reasons need to be10.

So, what should you do if your client is in this position? 

  1. If they have not yet registered as a jobseeker, register them straight away (submit a claim for Job Seekers Allowance or Universal Credit)
  2. Provide representations as to why the delay was reasonable and not undue. Examples include:
    • Your client was in a situation of modern slavery/human trafficking
    • Your client was/is in an NRM safe house recovering from their exploitation
    • Your client was/is destitute
    • Your client’s health – mental, physical and/or suffering from an accident

We have successfully argued that time in a NRM safe house is a reasonable delay. However, time in the NRM can vary (the longer the delay, the harder to argue) and your client is always in a better position if there is no delay. So, if you can, help your client to register as soon as possible to protect their position.

If you need advice about a client’s eligibility as an EEA national, you can contact the AIRE Centrea legal charity who specialise in rights under European law, and in relation to welfare benefits, the Child Poverty Action Group. The Hope for Justice team of Independent Modern Slavery Advocates can also give advice in relation to the rights of victims of trafficking/modern slavery who are EEA nationals, call us on 0300 008 8000.

Footnotes:

  1. The Department of Work and Pensions Habitual Residence and Right to Reside Guidance, Chapter 7 Part 3, at 072810
  2. At 072816
  3. Ibid n2
  4. See Lawrie Blum v Land Baden – Wurttemberg [1986] EUECJ R-66/85 (3 July 1986); Levin v Staatsecretaris van Justitie [1982] EUECJ R-53/81 (23 March 1982); Lair v Universitat Hannover [1988] EUECJ R-39/86 (21 June 1988)
  5. JA v Secretary of State for Work and Pensions [2012] UKUT 122 (AAC) (16th April 2012)
  6. EP v Secretary of State for Work and Pensions [2016] UKUT 445 (AAC)
  7. Barry v London Borough of Southwark [2008] EWCA Civ 1440
  8. C-14/09 [2010] ECR I-00931
  9. SSWP v MM (IS) [2015] UKUT 128 (AAC) paras 47-52
  10. Child Poverty Action Group Benefits for Migrants Handbook, 8th Edition, 2016. At page 152.

Rebecca Kingi is a New Zealand solicitor turned Independent Modern Slavery Advocate at Hope for Justice. She is passionate about advocating for the recognition and implementation of victims’ rights in the UK, and has a special interest in the rights of victims who are EEA nationals.


Universal Credit: Quirks, Tips and Advocacy

by Rachel Medina

Since the roll out of Universal Credit (UC) in Sheffield, the Snowdrop Project have had a steady trickle of the women and men we support who we have helped make a claim. I wanted to share my experiences, but also some of what I have learned to hopefully help other support workers working with trafficked and vulnerable people.

Identify and use your Partnership Services Team at the DWP
Building a good relationship with your local Job Centre’s Partnership Lead will help you if something goes wrong, and can offer advice generally about the transition to Universal Credit. We have had an excellent experience with ours in Sheffield and they have made a world of difference; advocating for our clients from within the Department of Work and Pensions (DWP).

Is your client capable of managing an online claim?
Not everyone is able to make and manage their claim online, even with support at the JobCentre or Citizens Advice especially if they don’t have an email address. If your client cannot do this, it is possible to make a telephone claim for Universal Credit. You can ring up and ask to make a claim and if the person you speak to says this isn’t possible – it isbe prepared to argue for it.

Creating an account
Clients need an email address to make a claim and be able to create a username and password as well as create answers to two security questions. The security questions are difficult for people from marginalised backgrounds to answer. For example, questions like ‘What was your first car?’ or ‘What was the first film you saw?’ reveal a significant bias towards Westerners, and generally my clients are only able to answer two of the questions from the entire list.

What to have when making a claim
A claim for Universal Credit does not start until all the information has been completed and you have clicked ‘submit’ so make sure you have details of:

  • All family members in the household
  • Rent amounts and service charge
  • Recent payslips
  • Evidence of any savings or other income
  • Evidence of illness or disabilities.

Identity verification
Unless your client has a British passport or driving licence, you will need to phone up to make an appointment at the Job Centre to verify the client’s identity in person.

Habitual Residency Test
If your client has Discretionary Leave to Remain (EU or Third Country), they will be required to attend another appointment to go through the Habitual Residency test (even though they are exempt). They need to attend the appointment because at present there is no way for them to be exempted through the UC system as refugees are.

Generally it is a good idea to attend all appointments if possible. As the DWP is a large organisation there will be gaps in individual staff member’s knowledge, and it often turns out that I am informing the worker of what the client’s rights are. Good luck!

Rachel Medina is Snowdrop’s local coordinator in Sheffield and has worked with refugees and migrants since 2009.


Extending NRM support vs moving into asylum support

Victims of trafficking will often be asylum seekers, but when should we argue that they should remain in the NRM rather than being moved into asylum support?

This was the dilemma facing Kim, a young woman trafficked to the UK for the purpose of sexual exploitation. Kim suffers from Post Traumatic Stress Disorder and depression and has attempted suicide a number of times.

Initially the Home Office found Kim was not trafficked. It was only after a year that her case was reconsidered and a positive conclusive grounds decision was made. After this, Kim was moved into a NRM safe house provided by The Salvation Army under the Victim Care Contract for the first time.

Four months later, Kim received two immigration decisions: first a refusal of asylum, swiftly followed by a refusal of discretionary leave as a victim of trafficking. We helped Kim to prepare an asylum appeal and to bring a judicial review of the refusal of discretionary leave.

Following a refusal of discretionary leave, most victims would have been moved from the NRM and into asylum support. However, it was apparent that in her fragile state, Kim continued to need the support and stability of the NRM to start to recover from her experiences and that a move would undermine this. An application for a 14-day extension to her safe-house accommodation was submitted and approved but it came with the caveat that no further extensions would be approved. Why? Because in the Home Office’s view, she should be in asylum support accommodation rather than remain in the NRM.

Contrast this to the Home Office’s evidence in the case of R (Galdikas and Ors) v Secretary of State for the Home Department [2016] EWHC 942 (Admin), in which they state that whenever an extension of NRM support is sought, it is considered ‘on its individual merits’. Asylum support was not right for Kim. Moving would have disrupted the small steps she was making towards recovery in the safe-house.

Despite the threat of a judicial review of the refusal to extend Kim’s NRM support, the Home Office maintained their position. We issued proceedings and sought interim relief, which was granted the following day. The court ordered the Home Office to continue to provide the NRM accommodation for the next two weeks and listed a hearing to consider whether this should be extended further.

In Kim’s case we argued that:

  • The Home Office’s decision to terminate support without carrying out an individual assessment of her needs was a breach of the UK’s obligations under the Anti-Trafficking Convention (ECAT), the Anti-Trafficking Directive, Article 4 of the European Convention on Human Rights (ECHR) and Article 5 of the Charter of Fundamental Rights (CFR).
  • The Home Office’s apparent policy that victims of trafficking who have an ongoing protection claim should automatically be moved onto asylum support is a breach of the requirement for public authorities to operate clear and transparent published criteria for decision making.
  • The policy is in breach of ECAT, the Directive, Article 4 ECHR, Article 5 CFR and the public sector equality duty under s. 149 Equality Act 2010.

The interim relief hearing did not go ahead as the Home Office agreed, by consent order, to continue to provide safe house support while they reconsidered the discretionary leave application. In the meantime, Kim’s asylum appeal has been successful. She continues to be supported in the NRM under the terms of the consent order.

A decision in the judicial review against the Home Office’s refusal to extend Kim’s NRM support is still pending. It is still important that Kim has won interim relief because she no longer faces the prospect of being forced into asylum support and can continue her recovery in the NRM, the system that was designed to help her do this.


Two victims challenge the Home Office on subsistence cuts 

by Nusrat Uddin and Silvia Nicolaou Garcia.

Two victims of trafficking won their challenge against the Home Office’s decision to cut the weekly support money paid to asylum-seeking victims of trafficking by over 40%.

K, a vulnerable woman who was sex trafficked to the UK, has depression and PTSD and was heavily reliant on support groups to maintain her mental stability. She had access to mentoring and vocational training to mitigate the risks of re-exploitation. However, after leaving her safe house, she was placed on the outskirts of Greater London, making it more difficult for her to access the support network she had established over many months. When her weekly subsistence was cut from £65 to £37.75 per week, she could no longer afford to travel and became socially isolated, destabilising her recovery.

AM is a vulnerable 19-year-old asylum seeker who, as a child, fled persecution in his home country before being subjected to various forms of severe exploitation at the hands of traffickers. The cut in subsistence had a detrimental effect on his mental wellbeing. He was suddenly forced to choose between buying food and paying for the cost of transport to counselling sessions or legal appointments. Over eight months, AM accrued debt, his mental health deteriorated, and he was identified by professionals as being at risk of further exploitation.

A full hearing on the lawfulness of the Home Office’s decision to cut subsistence took place in October 2018. The Home Office argued that there had not been a cut to their support, as they had never been entitled to receive any additional payments above asylum support and it was the Salvation Army who decided to rectify this mistake. They argued that there was no justification for victims to be given more subsistence than people in asylum support. This was based on their submission that the meaning of subsistence for both these groups was the same, despite being set out in two different pieces of legislation with different purposes. The judgement of Mr Justice Mostyn in this case stated that the Home Office had failed to comply with statutory duties under section 49(1) of the Modern Slavery Act, to issue guidance in relation to arrangement for providing assistance and support to potential victims of trafficking. It was also said that there was a substantial cut to subsistence imposed by the Home Office; that the cuts were not done in a procedurally correct or fair way; and that the decision to make the cuts was irrational, discriminatory and unlawful.

Any new scheme designed to assist victims of trafficking now must cover all essential living needs of victims, including basic substance, travel, recreational, entertainment and social activities. These elements all form part of the holistic approach needed for a victim’s recovery, as many are unable to access counselling and therapy. Thankfully, the claimants and all victims subjected to the cut are entitled to be fully repaid. Details of the repayment scheme can be found here with the application form available here.

Such a significant reduction to the subsistence payment forces victims into an increasingly untenable and, frankly, inhumane situation. Victims of trafficking and slavery have endured the most horrific physical, psychological and sexual abuse and exploitation. During the recovery period, they are highly vulnerable to being re-trafficked, which is why it is crucial they are adequately supported and why this judgment is so welcome.

Nusrat Uddin, who represented K, is a solicitor in the Public Law team at Wilson Solicitors LLP. She assists vulnerable and disadvantaged clients who have been failed by state authorities and has a particular focus on improving state support for victims of trafficking and modern slavery.

Silvia Nicolaou Garcia, who represented AM, is an associate solicitor at Simpson Millar LLP, where she specialises in public law, community care and human rights. Silvia brings challenges to central and local government by way of judicial review and private law claims, mostly in relation to victims of trafficking, children and vulnerable adults.

Counsel in the case of K was Shu Shin Luh at Garden Court Chambers, led by Nathalie Lieven QC at Blackstone Chambers. Counsel in the case of AM was Ayesha Christie at Matrix Chambers, led by Chris Buttler of the same chambers.

To read the approved judgement, click here.


Tribunal says availability of safe-house accommodation does not stop asylum seekers from meeting destitution test by Lorna Barron

In a novel case, the First-tier Tribunal (Asylum Support) has decided that the availability of safe-house accommodation does not prevent asylum seekers from meeting the “destitution” test, which is required to access Section 4 asylum support.

The Tribunal Judge found that NRM accommodation is provided on a consensual basis and so it follows that consent can be withdrawn, making the accommodation inadequate and the destitution test satisfied.

Miss C, who had been living in safe-house accommodation for 10 months pending her Conclusive Grounds decision, had originally applied for support under section 4 of the Immigration and Asylum Act 1999.

This was refused by the Home Office who accepted the evidence that the conditions of the accommodation were exacerbating her mental health difficulties but argued that she could seek alternative NRM accommodation and so was not destitute.

Refused asylum-seekers are entitled to s.4 support if they satisfy one of the Regulation 3 conditions, which Miss C did, as well as the destitution test. A person is destitute if they do not have adequate accommodation or any means of obtaining it for the next 14 days. There are various factors the Home Office must consider in relation to adequacy, including whether it would be reasonable to continue to occupy the accommodation.

It was argued for Miss C that it was unreasonable to expect her to stay in the safe-house because she had withdrawn consent from the NRM support scheme. However, no guidance exists to explain how to withdraw consent yet it is unreasonable to expect victims of trafficking to leave safe-house accommodation purely to meet the destitution test.

There is also clear evidence that NRM support is a consensual scheme. Article 12(7) Council of Europe Convention on Action against Trafficking in Human Beings states support is provided on a ‘consensual and informed basis’. The NRM Referral Form also requires victims to choose between an NRM referral with or without support, the implication being that you can withdraw consent from the support but remain in the NRM.

After considering this evidence, the Judge was persuaded that Miss C could, and had, withdrawn her consent from NRM support and so it would be unreasonable for her to continue to occupy the accommodation.

To prevent similar refusal decisions in future, support providers assisting victims may wish to write to the NRM Hub specifically withdrawing consent from the scheme and then enclose a copy of this letter in the ASF1 application for asylum support. Ideally these applications would not go before the Tribunal but if they do hopefully this decision – that appellants can withdraw consent from NRM support – will provide a clearer line for Tribunal judges to follow in the future.

For more information about NRM support, click here.

For more information about the Competent Authority Guidance, click here.

Lorna Barron is a solicitor at Deighton Pierce Glynn specialising in asylum support, trafficking and unlawful detention. She is also a volunteer advocate for ASAP representing in appeals against Home Office decisions to refuse asylum support.  

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