This is not a comprehensive guide on how to conduct a deportation case, but focuses on some of the issues which may arise for victims of trafficking who are facing deportation due to criminality.
Convictions connected to exploitation
Commonly, victims of trafficking may be facing deportation due to offences that were undertaken whilst they were under the control of or being influenced by their trafficker. Advisors should be alive to this possibility with all deportation cases, but it is particularly common with e.g. Vietnamese people being convicted of cannabis cultivation or young people with gang and drug related convictions (ie where there may be a ‘county lines‘ element).
Ask your client why they committed their offence(s) and explore with them whether they may have been forced or groomed to participate.
There is a criminal defence to the charges available in these circumstances, at Section 45 of the Modern Slavery Act 2015, but victims of trafficking are prosecuted and convicted despite this. Unfortunately, there are still criminal solicitors and caseworkers who are not aware of trafficking, or the availability of the defence, who may advise their client to admit the offence, in the hope of a lesser sentence, when the advice should be to plead not guilty in order to run the trafficking defence.
Despite their own guidance, the police and CPS continue to bring prosecutions without always considering these issues.
While there has been some improvement in recent years, there are still many people within the criminal justice system who are unidentified victims of trafficking. The police have a statutory obligation to refer people into the NRM if trafficking indicators are presented but it is not unusual for this to be missed.
If your client is subsequently referred into the NRM, then a referral to a criminal solicitor who has experience of challenging convictions should be made as soon as possible. It is possible to appeal against a criminal conviction several years after the conviction.
Some practical steps for immigration advisors
Find out if your client’s convictions (or any pending prosecutions) may have resulted from criminal acts committed whilst they were under the control or influence of traffickers. If so, take a detailed statement from them, dealing with their early lives, how they became a victim of trafficking, how they were forced or groomed into committing offences, and their current circumstances.
- Consider a referral into the NRM if not already actioned.
- Alert your client’s criminal solicitor to the possibility of a s45 defence or appeal against conviction. If the solicitor is not interested or doesn’t understand, or is unwilling to take appropriate action, see if you can help your client transfer to a better one.
- Raise the trafficking issue as a material fact in your client’s case against deportation, which should lessen (or indeed remove) the public interest in them being deported. This may be in representations to the client’s criminal caseworking team, pre-decision, or on appeal to the Tribunal, or in an application to revoke the deport order.
- Get advice from specialist counsel where challenging decisions.
Some legal pointers for challenging deport decisions
(with many thanks to Michelle Knorr at Doughty St Chambers)
1.ECAT and Directive 2011/36/EU include provisions on the non-penalisation of victims of trafficking. Article 26 ECAT says as follows:
Article 26 – Non-punishment provision
Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
2. Similarly Article 8 Directive 2011/36/EU provides:
Non-prosecution or non-application of penalties to the victim
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.
Recital 14 of the Directive states:
Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in. (emphasis added)
3. Under the UK Borders Act 2007 (s.32 and s.33) it is automatically deemed that deportation is conducive to the public good for those who are 18 or over at the time of conviction and who have been sentenced to at least 12 months imprisonment.
This automatic deeming is however subject to exceptions, in particular where the SSHD thinks that the making of a deportation order would be contrary to the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) (s.33(6A), 2007 Act), or where removal pursuant to the deportation order would breach a persons rights under EU law (s.33(4)), which of course includes rights under Directive 2011/36/EU. Where an exception applies it remains a matter for the SSHD’s discretion whether deportation is conducive to the public good (s.3(5) Immigration Act 1971).
Where a VOT might be subject to automatic deportation provisions, these non-punishment provisions must be considered, and if deportation is contrary to them then the VOT will fall under one of the exceptions because their deportation would be contrary to ECAT and EU law. If the exceptions do apply then deportation would prima facie not be conducive to the public good because, as explained below, the exceptions will only apply where there is sufficient nexus between the trafficking and the offence such that the VOTs culpability is very significantly diminished.
Unfortunately, the Respondent has not issued comprehensive guidance on this issue. The Respondent’s guidance on ‘Deporting Non-EEA Foreign Nationals’ at section 2.4.7 recognises that automatic deportation should not be pursued where a VOT is undergoing identification and provides that it can continue when a negative conclusive grounds decision is reached, however no further guidance is given on how caseworkers should proceed when a positive conclusive grounds decision is reached.
4. Deportation is primarily concerned with public policy and as recognised by the Supreme Court in Hounga there is a prominent strain of public policy against trafficking and in favour of the protection of its victims, which includes non-penalisation of VOTs: Hounga v Allen  UKSC 47 at §52.
5. The High Court has recognised that: “whether a person is a victim of trafficking can be relevant to determination of whether, notwithstanding he or she has committed a criminal offence, he or she should be deported” and that as a result the decision maker must consider whether the person has been trafficked and it will be material to the decision on whether deportation should be pursued (XB v SSHD  EWHC 2557 per Collins J at §§29-32).
6. In R v M(L), B(M) and G(D)  1 Cr App.R. 12, a Court recommendation for deportation was quashed on appeal where the Respondent had a history of trafficking and committed a document offence in that context, even where the nexus with trafficking was not present (see §47).
7. While there is limited guidance on the circumstances in which liability for deportation is extinguished on trafficking grounds, there is extensive guidance from the Court of Appeal Criminal Division on the application of the non-punishment provisions in the criminal context. It is appropriate to draw from this guidance since it is the same provisions and same test in ECAT and the Directive that must be applied. Further, the criminal cases concern whether it is in the ‘public interest’ to prosecute, which has an obvious parallel to the public interest issues central to deportation.
The criminal cases have established that VOTs must be treated as victims of a crime, and where they are implicated in criminal offending it is relevant to consider whether the VOT committed the offence as a result of trafficking and when compelled to do so: R v O  EWCA Crim 2835; R v M(L), B(M) and G(D); R v N and L  QB 379; R v L & Others  EWCA Crim 991;  2 Crim. App. R 23; R v C and Others  EWCA Crim 1483.
8. The following principles can be extracted from the Court of Appeal decisions:
- The Convention/Directive obligation is to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so. The obligation on the decision-maker is to apply their mind contentiously to the question of public policy and reach an informed decision. If that exercise has not been properly carried out and would or might well have resulted in a decision not to deport, then there will be a breach of ECAT or the Directive: R v M(L), B(M) and G(D) at §19.
- Article 26 ECAT / Article 8 Directive do not say that no trafficked victim should be deported. What they say is that careful consideration must be given to whether public policy calls for deportation where a person is a VOT and the crime has been committed when he or she was in some manner compelled to commit it: R v M(L), B(M) and G(D) at §13
- The application of Article 26/Article 8 is fact sensitive in every case R v M(L), B(M) and G(D) at §14; R v L & Others at §19.
- It must first be considered there is reason to believe that the person was trafficked: R v M(L), B(M) and G(D) at §10; R v L & Others at §20. In cases where the Home Office is the competent authority and has determined that the person is conclusively a VOT, this must be answered in the affirmative, since it is the same decision-maker considering deportation with the same evidence.
- The second question for determination is the extent to which the crime alleged against the VOT was “consequent” and “integral” to the exploitation of which he was a victim: R v L & Others at §20
- Where there is a real possibility of trafficking and a nexus of compulsion it may well be that public policy points against deportation: R v M(L), B(M) and G(D) at §14(iii); R v L & Others at §33. This is in contrast to cases where the offence was committed outwith any reasonable nexus of compulsion occasioned by trafficking: R v M(L), B(M) and G(D) at §14(iv). There are also difficult cases where the offence retains some nexus with trafficking but the offence may call for deportation in the public interest – an example might be where the trafficking victim has themselves gone on to committing trafficking offences against others: R v M(L), B(M) and G(D) at 14(v).
9. CPS Guidance requires that prosecutors give careful consideration to pursuing a prosecution where a potential VOT is accused of a crime linked to their trafficking experience. The guidance provides for a four-stage approach to the prosecution decision:
Prosecutors should adopt the following four-stage assessment:
- Is there a reason to believe that the person is a victim of trafficking or slavery?
- If yes, move to Question 
- If not, you do not need to consider this assessment further.
- Is there clear evidence of a credible common law defence of duress?
- If yes, then the case should not be charged or should be discontinued on evidential grounds.
- If not, move to Question 3.
- Is there clear evidence of a statutory defence under Section 45 of the Modern Slavery Act 2015?
- If yes, then the case should not be charged or should be discontinued on evidential grounds
- If not, move to Question 4.
- Is it in the public interest to prosecute? Even where there is no clear evidence of duress and no clear evidence of a s.45 defence or where s.45 does not apply (because the offence is excluded under Schedule 4) this must be considered. In considering the public interest, Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation; see R v LM & Ors  EWCA Crim 2327.
The guidance aligns the meaning of compulsion in the trafficking context with the definition of trafficking to include all the means of trafficking (of adults):
“The Public Interest and Compulsion
“Compulsion” includes all the means of trafficking defined by the United Nations Protocol on Trafficking (The United Nations Convention against Transnational Organised Crime 2000 supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons.): threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not require physical force or constraint.
For a child to be a victim of trafficking, the means of trafficking are irrelevant. Where a child is recruited, transported, transferred, harboured or received for the purpose of exploitation, s/he is a victim of trafficking.
Compulsion is irrelevant insofar as a child’s status as is a victim of trafficking is concerned. However, compulsion will be a relevant consideration when considering whether the public interest in prosecuting a child is satisfied.(see Code for Crown Prosecutors, paragraph 4.14 b) for further guidance).
The means of trafficking/slavery (i.e. the level of compulsion) may not be sufficient to give rise to defences of duress or under Section 45 but will be relevant when considering the public interest test.
In considering whether a trafficking/slavery victim has been compelled to commit a crime, Prosecutors should consider whether a suspect’s criminality or culpability has been effectively extinguished or diminished to a point where it is not in the public interest to prosecute.
A suspect’s criminality or culpability should be considered in light of the seriousness of the offence. The more serious the offence, the greater the dominant force needed to reduce the criminality or culpability to the point where it is not in the public interest to prosecute; see R v VSJ & Ors  EWCA Crim 36, see also R v GS  EWCA Crim 1824“.
10. Immigration advisors should argue that decision makers should apply a a similar approach to the concept of compulsion in deportation cases. The fact that the conviction may remain in place is immaterial. The exception to automatic deportation on grounds of deportation contravening the United Kingdom’s obligations under ECAT specifically applies where the person is convicted of an offence such that they are otherwise subject to deportation. Therefore it applies only where someone has been found criminally liable and where their conviction remains. Of course if the conviction were overturned then there would be no need to even consider deportation and whether it was compatible with obligations towards under international law.