A group of scenarios that you may encounter with your clients with some key questions on the process and their rights.
Saemira: Identifying a victim of trafficking
Saemira is 18, from Albania. She was brought up in a small village. Her family are strict Muslims. Saemira was expected to marry a man her father chose, like her elder sister. Saemira fell in love with Vjosa who was 21 and used to hang around the school playground. He said he wanted to marry her. When her father found out about Vjosa he beat Saemira. She ran away from home as Vjosa promised to take her to Tirana where they would marry.
In Tirana, Vjosa changed and started treating her badly. He locked her in the flat then forced her to sleep with a man he brought home. He brought other women home to work as prostitutes in the same flat, while his friends guarded the door. This carried on for eight months. Then he took Saemira to Italy to work as a prostitute for three months. One night a friend left the door open when he was drunk and Saemira escaped. She was helped to leave the country by a woman she met who took pity on her.
She is now in the UK. She has nightmares about being trapped in the flats where she has worked and cries constantly. She fears the return of Vjosa and his friends and how her family and other people will treat her if they learn she was a prostitute.
Q1. Why do you think Saemira should be considered a victim of trafficking?
Answer: She came to the UK herself and it does not seem she was trafficked into the country. But it seems like she was trafficked from Albania to Italy. Now she is here, the UK can still consider if she is a victim of trafficking and if she needs support because of this. She was taken from Albania to Italy (Movement) against her will (Means: Force) to work as a prostitute (Exploitation).
Q2. Does she need any referrals at the moment?
Answer: Sexual health screening, referral to counselling, referral into NRM if you are sure, otherwise seek some advice from an organisation working with victims. You may also need to apply for exceptional legal aid to pay a legal advisor for this initial advice.
Femi: Appealing against a negative asylum decision
Femi is 31, from Nigeria. She was brought to the UK by a woman who promised her the chance to work as a housemaid. Femi was used as a prostitute in a brothel in London for three years. She became pregnant. She escaped and started working illegally but stopped when her employer asked to see her original documents. She came to the attention of social services who referred her into the NRM. She then claimed asylum. Her son David is now six. He has been to school in the UK. Femi fears going back to Nigeria because her trafficker said she would have to repay the £50,000 that was spent on bringing her here. She has been seeing a counsellor for a year.
UK Visa and Immigration gave Femi a negative reasonable grounds decision, saying that she was no longer a victim of trafficking because she was out of the trafficking situation. The reasonable grounds decision was not challenged and the asylum case was refused. The letter with the asylum refusal is dated Monday 1 September and there is no other date on the paperwork to show it was sent later than this. She received the letter on Wednesday 3 September. She cannot read and has come to you as she doesn’t understand it. She has not spoken to her solicitor yet.
Q1. What is Femi’s deadline to appeal?
Answer: Monday 14 September, 14 calendar days later.
Q2. What do you do to help her now?
Answer: Help her read the papers so she understands. Advise her to go to her solicitor for advice as soon as possible.
Q3. Will Femi’s asylum support stop now she has been refused?
Answer: Not if she puts in an appeal. If she does not put in an appeal her support will stop 28 days after the appeal deadline.
Akos: Identifying a victim of trafficking
Akos was brought to the UK to work as a farm labourer. He is from Hungary. He thought he would earn a good wage here to support himself and his family and let him go back to Hungary one day with some savings. He has been in the UK for six months now and has not been paid. His employers kept promising they will pay him and he was worried if he leaves he would not get his money back. His employer has kept his passport and national ID card.
He had a lot of back pain from his work but the employer will not let him see the doctor. He was not fed properly for his manual job and the employer would make him work long hours, seven days a week. He was kept under constant watch by the farm staff and was always accompanied. One day he could not take it any more and saw there was no one on watch. He ran away from the farm and made it to the local town. He has no money and nowhere to sleep.
Q1. Is Akos a victim of trafficking?
Answer: Yes he might be. He was brought to the UK (movement), with a false promise of paid work (Means: Deception), then made to work without pay without a break (Exploitation).
Q2. What support or referrals might he need first of all?
Answer: Urgent referral to an organisation that helps victims of trafficking to see if they can help. If he is willing, an urgent referral into the NRM with a request for emergency accommodation and support while a referral is considered because he is destitute. A referral to a housing lawyer if unsure about going into the NRM and needs advice on his housing needs. Finally he should be asked if he wants to report his employer to the police.
Sara: Domestic worker
Sara came to the UK in May 2017 on a domestic worker visa. She is from the Philippines. She used to work in Qatar. The conditions were not good there but she was paid every month. She used most of her salary to support her family in the Philippines as she was the main breadwinner. Her employer said that he needed a housekeeper in the UK while the family was on holiday and she would be paid minimum wage for her work there. She agreed and travelled with the employer who made all the arrangements for getting to the UK and kept her travel documents with him.
After she got to the UK she was expected to be on call 24/7 and often worked over 12 hour days looking after the house and her employer’s children. She has not been paid in two months. Her employer shouts at her and she often feels frightened. He has told her he will report her to immigration who will remove her from the UK if she leaves and she is scared of losing any chance to earn money for her family.
Q1. Can Sara change employer?
Answer: Yes. If she came into the country on a visa for domestic workers to work in a private home she can change to another employer for up to 6 months less the time already spent in the UK as a domestic worker. But it may be hard for her to find a new employer if she has no identity document to prove who she is and her right to work. She may also not be able to find an employer who wants her for a short period. If she is referred into the NRM and gets a positive reasonable grounds decision she could carry on working and for another employer (if she is referred in before her visa runs out) until 28 days after the date when she is sent a conclusive grounds decision in writing. If she gets a positive conclusive grounds decision she can apply for leave to stay in the UK as a domestic worker who was a victim of trafficking and will be allowed to work for a different employer (but her leave will be for no more than 2 years).
Q2. What are the first referrals Sara might need?
Answer: A referral to Kalayaan who give advice and support to domestic workers and can refer into the NRM if they think this is needed. She should also be asked if she wants to report her employer to the police.
Marla: Compensation claims for domestic workers
Marla is a Filipino, employed as a domestic worker in Dubai. The family that she worked for asked her to come to the UK with them for two years, promising her a ‘good’ salary and an opportunity to study. Marla does not know what type of visa she entered on, as her employer did not explain this to her.
Once in the UK, Marla found herself working seven days a week with no opportunity to study. When she asked about her salary she was told that £500 a month was being saved in an account for her. Her employers took her to a bank to open an account but did not give her the cash card or any other account details. She was told she would receive her salary when she returned to Dubai in two years’ time.
Marla’s employers told her that it would be best if they kept her passport and she did not feel that she could object to this. She was not given time off, when she asked to go out her employers refused.
One day Marla burnt her employer’s dress whilst ironing. Her employer immediately told her to leave. Through Facebook Marla finds a friend from home who is now in the UK who collects her and offers her somewhere to stay.
Marla comes to see you having left her employers two weeks earlier. Marla tells you that she wants the salary that has been saved for her. She does not want to go into the National Referral Mechanism as she has managed to find a new job, albeit on a low salary.
Q1. Can Marla access legal aid?
Answer: Yes, as long as Marla is a victim of trafficking, there is no need for her to have entered the National Referral Mechanism in order to be eligible for legal aid about a compensation claim. (This is different from legal aid for immigration advice.) As long as there are indicators of trafficking, then she qualifies.
Q2. Where might she be able to bring a complaint?
Answer: As Marla left her employment less than three months ago, she is in time to bring a complaint in the employment tribunal. As the trafficking situation started less than six years ago she is also in time to bring a complaint about everything that happened to her in the UK in the County Court or High Court.
Q3. What claims might Marla bring?
Answer: Marla’s most valuable claim may be for the national minimum wage, which can be brought both in the employment tribunal or the courts. As she was employed for less than two years, the employment tribunal could, if she wins, award her all her wages so this may be her preferred option.
In the employment tribunal she could also bring a discrimination claim if she can show that a man or person of a different race would have been treated better. She can also bring claims for holiday pay, payslips and, if she was employed for over two years, unfair dismissal.
In the courts in addition to the minimum wage, she could bring a claim under the Protection from Harassment Act, even if her race or sex were not the reason behind her ill treatment.
Q4. What immediate steps might Marla take?
Answer: Marla could try to gain access of the bank account, if it was opened in her name. If she knows where the account is held, she could report to the bank’s fraud department and have the account frozen. Even if the money is no longer in the account (or was never there), the account would be valuable evidence in any legal case.
Samir: Working illegally and making a claim
Samir is from Albania where he met a man called Enver who told him about work on a building site in the UK. Enver told Samir that he would cover the costs of his travel to the UK and first month’s accommodation as he could pay him back when he started working. He told him he could get him into the UK on a visitor visa.
When Samir arrived he discovered that he had to share a small, filthy unheated caravan with three other men. When Samir complained to Enver he was threatened with violence and told that he was illegal and could not complain.
Samir worked in construction on different sites but did not receive any salary as it was all paid to Enver. Samir again complained to Enver about his lack of salary and poor conditions. In response, he was beaten up but was too frightened to go to hospital.
He eventually ran away and reported his treatment to the police. The police investigated but did not take action against Enver; Samir knows where Enver is but is very scared of him.
Samir was referred into the national referral mechanism and has now been recognised as a victim of trafficking on a conclusive basis.
Q1. Can Samir access legal aid?
Answer: Yes, his treatment indicates trafficking and so he is entitled to obtain legal aid for advice in relation to compensation. The conclusive grounds decision strengthens the view that he is a victim of trafficking/modern slavery.
Q2. Where might Samir get compensation for his treatment?
Answer: If Enver can be traced and has assets in the UK then Samir could bring a claim in the employment tribunal or courts. The fact that he was working illegally is not necessarily a bar but may mean that he has better prospects with a Prevention from Harassment claim than a national minimum wage claim and so should bring a claim in the High Court.
If, despite support, Samir is too frightened to bring a claim against Enver, or Enver cannot be found or has no assets in the UK, then a claim to the Criminal Injuries Compensation Authority would probably be Samir’s best option because Samir reported the crime to the police. The fact that he was working illegally is not relevant as he has been recognised as a victim of trafficking.
Nam: Child trafficked for criminal work
Nam is a 16 year old orphan from Vietnam. His uncle asked Nam to work in the UK to help him meet his financial debts. Nam was told he would work on a building site. Nam was happy to help his uncle out.
As soon as Nam entered the UK he was placed in a cannabis factory to tend to the cannabis plants. He had very little belongings. He slept at the cannabis house and was not allowed out. Food would be bought for him. He was not given any money himself but was told that he wages would first go to meet the cost of his journey then meet his uncle’s debt. He understands an interest rate was also applied to both of these amounts.
Nam feels he was there for a long time. Following a police raid, Nam was arrested and taken to the police station suspected of producing a controlled drug. He is bailed into the care of the local authority and placed in foster care.
Nam is constantly looking over his shoulder, has nightmares of his time in the cannabis house and is self-harming. He says the person who bought him to the UK took his passport. He finds it extremely difficult to talk about his circumstances and history.
Q1. Is Nam a victim of trafficking?
Answer: Yes. He was taken from Vietnam to UK (movement) for the purpose of cannabis cultivation (exploitation). As he is a child no means need to be shown. It is irrelevant that he agreed to travel with his traffickers, as a child cannot give informed consent to its own exploitation.
Q2. Which referrals should be made?
Answer: A referral into the NRM, either by the local authority or an organisation working with child victims. An urgent referral to a criminal defence solicitor who can represent Nam as a victim and ensure the principle of non-prosecution of victims is adhered to. A referral to an immigration solicitor for advice and assistance in connection with his immigration status. A referral to a charity who provide support and advocacy for trafficked boys and young men. A referral to a counselling service with the consent of the child.
Temi: An age-disputed child
Temi is a 14 year old Nigerian girl. She was bought by Aunty Joy to the UK. Aunty had told Temi’s mom that she would be sure Temi is enrolled in the best schools in Essex and receive a really good education. Temi and her mom were very excited because her mom found it very difficult to pay for Temi’s schooling in Nigeria.
Aunty Joy arranged all the paperwork so Temi did not really understand what was being done. She knew that she had lots of makeup put on her face and had her hair done for photos to be taken.
When Temi arrived in the UK, Aunty Joy left her in the house of Mr and Mrs Johnson. She was told she had to look after their children, clean the house, cook, wash the clothes and take the children to school. Temi was beaten when the couple were not pleased with her work.
She slept in the kitchen, was neglected and her hair was matted. She was not allowed out other than to take and collect the children to school.
One of the other mom’s at the school had been watching Temi over a few months and was becoming increasingly concerned about her appearance and curious why she herself was not attending school. Having voiced her concerns to the headmistress, the police intervened and placed Temi into local authority care. Temi told them everything and she was placed in emergency foster care.
A few days later her social worker tells her that they have records of her entry to the UK which shows her passport with a date of birth that would make her 19 years old. Temi protests this is incorrect but she was not believed. An age assessment is conducted which concludes she is over 18. She is removed from her foster parents and placed in adult asylum seeking accommodation.
Q1. What are the urgent referrals Temi may need?
Answer: An urgent referral to a community care lawyer to see if the age assessment could be challenged and for more appropriate accommodation in the interim. An urgent referral to an organisation supporting and advocating for child victims of trafficking. This will ensure that she has someone beside her as she navigates the complex multiple legal avenues. A referral into the national referral mechanism. A referral to an immigration solicitor would also be required.
Q2: Will the police investigate Mr and Mrs Johnson?
All trafficking and modern slavery victims are victims of a crime. If a referral to the police has not been made, Temi can make a complaint herself (with the assistance of her advocate) if she wants to.