This subsection considers the rights of EEA nationals in the UK who are victims of trafficking. This includes their rights under EU law, which continue to exist whilst we are in the Brexit ‘transition period’; under the UK’s EU Settlement Scheme, which requires EEA nationals to apply for their post-Brexit status; and in regard to discretionary leave.
If an individual is from one of these countries, they may still have European free movement rights in the UK:
Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland.
We will refer to this group as ‘EEA nationals’ and the relevant law as ‘EU law’. We will not try here to explain EU law, but solely look at some issues that may arise for EEA nationals who are victims of trafficking.
Although the UK has now left the EU, these free movement rights remain in place until the end of the ‘transitional period’, which is currently predicted ot be 31 December 2020.
For more on free movement law in general, we recommend the EU free movement hub of the Free Movement blog.
A victim of trafficking from one of these countries will have a right to reside (i.e. the right to live and work in the UK) under EU law only if they are ‘exercising their Treaty rights’ (also referred to as being a ‘Qualified Person’ or having ‘free movement’ rights). They will have these rights if they are working or, importantly for victims, should continue to be treated as a worker despite having stopped work (see below).
They may also have a right to reside if they’re looking for work, self-employed, self-sufficient, or studying. A person can be both a victim of trafficking and have a right to reside as e.g. an EEA worker.
In the UK, free movement rights are set out in The Immigration (European Economic Area) Regulations 2016. We look at this law as it might apply to victims of trafficking below. Then we look at the EUSS, and DL.
EU nationals who are temporarily out of work due to illness or accident
An EU national who has worked in the UK for any period in the past, but now cannot work for health reasons (including mental health problems connected to the trafficking events), may continue to be treated as a worker under the EEA Regulations. This will be important if they require access to public funds but are not yet entitled to settled status under the EUSS (see below). They will need to provide the DWP with medical evidence explaining why they are now temporarily unable to work. They can also make an application to the Home Office for an EEA Registration Certificate to show their right to reside (as a person who has retained worker status) during this period.
Always consider making an application for DL, or under the EUSS, if your client has difficulties evidencing their right to reside under EU law.
European nationals will automatically become permanently resident in the UK if they have been here for a continuous five-year period as a jobseeker, worker, self-employed or self-sufficient person, or as a self-sufficient student (or combination of these categories). The five-year period may be from some time ago, so the victim of trafficking may have already become permanently resident without them being aware of it.
Time spent in exploitation (for example, when they were made to work by their trafficker) can count as all or part of the five-year period. Periods in which they have been unable to work for health reasons may also be counted. If they are accepted as a victim of modern slavery, they can refer to the notes and decisions about them from the NRM in any European application, to show that their history as a worker has already been accepted by the Home Office.
If the client is accepted as a victim of trafficking, they should make a subject access request (SAR) as soon as possible, and specifically ask for disclosure of the ‘consideration minute’ in their case. This document explains why the NRM made a positive decision in their case, i.e. the accepted facts behind that decision. They can rely on the consideration minute in an EEA application, to show their history as a trafficked worker has already been accepted by the Home Office.
The victim should not be penalised because of the exploitative nature of the work. Even if the employment was undertaken under the control of a trafficker, the victim is still a worker for the purposes of European law.
The term ‘worker’ in European law must be interpreted broadly because it defines the scope of one of the fundamental principles of the EU under the Treaty on the Functioning of the European Union (see e.g. Lawrie-Blum v Land Baden-Württemberg Case 66/85,  ECR 2121, at paragraphs 16-18). Work must be ‘genuine and effective’, be undertaken ‘for and under the direction of another’ and must be remunerative. Work carried out under the grossly exploitative circumstances that you find in trafficking cases can meet these requirements.
The fact that a contract for work may be illegal as performed (e.g. for failure to pay the National Minimum Wage) does not prevent the person concerned from being a worker. This was affirmed by the Upper Tribunal in the case of JA v Secretary of State for Work and Pensions UKUT 122 (AAC), where an EEA national who had worked for cash in hand at a restaurant and therefore had an illegal contract for work, nevertheless qualified as a worker. The Tribunal stressed that it is a matter of fact, and not law, which determines an individual’s worker status.
Brexit and the EU Settlement Scheme (EUSS)
In preparation for Brexit, the government has created the EU Settlement Scheme (EUSS) for EU nationals and their family members. It can be found at Appendix EU of the Immigration Rules. The Rules are not easy to understand, but for most applicants the requirements of the EUSS are easy to meet.
The EUSS is currently in force and applies to all EU nationals who arrive in the UK before the ‘cut-off date’. The cut-off date is the 31 December 2020. Applications should be made before 30 June 2021.
Currently, we have EU law, which continues to operate whilst we’re in the transition period, and the EUSS running side by side. A person with rights under both, can choose to apply for EU documentation under EU law to evidence their right to reside or under the EUSS (ie under UK law) for leave to remain, or both.
There are two types of leave (ie permission to stay) that can be granted under the EUSS. They are ‘pre-settled status’ and ‘settled status’.
Pre-settled status is for those who have lived in the UK for a continuous period of less than five years. They will be granted five years leave to remain. The sting in the tail of pre-settled status is that the person will not be entitled to recourse to public funds unless they can also prove to the DWP that they also have a right to reside under EU law.
Settled status, also called indefinite leave to remain, is for those who have lived in the UK for five years or more. There will be no prohibition on recourse to public funds.
Importantly, an EEA national applying for leave under the EUSS will not have to show how they have been spending their time in the UK ie they will not have to show they have been exercising their Treaty Rights (ie as a qualified person) during their residence here.
For a victim of trafficking with a complex work history, it is likely therefore to be easier and better to establish their rights under the EUSS than under EU law, particularly if they have lived in the UK for five consecutive years and are entitled to settled status.
EU Settlement Scheme Applications
Applications under the EUSS for victims will often be straightforward. The applications are made online, and the Home Office’s EUSS computer system will check the government’s own records on several databases for evidence of the applicant’s length of residence. Additional evidence of residence will only be sought where the computer search does not come up with the relevant information.
There may be complications where, for instance:
- the person lacks documents to show the length of their residence in the country
- or lacks identity documents (e.g. national ID card or passport) in the form that the Home Office requires or money to get new ones
- or has criminal convictions associated with their history of exploitation
- the use of their identity to claim benefits or work by other people has created false records on government systems.
Victims have successfully applied under the scheme without adequate proof of residence in the UK for every year that they claimed to have been here. You can address this lack of documents by explaining their circumstances and exploitation in a cover letter to show why they do not have the necessary documents.
Victims have also been granted indefinite leave to remain despite not having a current biometric identity document which is normally required. If you come across a victim with no valid biometric national ID or passport and you can argue a good reason why they cannot get one before they need to apply for indefinite leave to remain then you should still make the application.
Paul Blomfield MP’s parliamentary question about victims using the settlement scheme is available here, and the government reply is useful to quote (ignoring what it says about fees as that has now changed). It contains a commitment by the government to be flexible over documents. However, the applicant will have to explain that they do not have items for reasons beyond their control or because they have a compelling practical or compassionate explanation.
This part of Home Office guidance for caseworkers is helpful to quote – P.7:
‘Paragraph 1.15 of the Statement of Intent on the EU Settlement Scheme published on 21 June 2018 states: The Home Office will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens. User-friendly guidance will be available online to guide applicants through each stage of the application process. ‘ [our emphasis]
See also pp.23-27, 99-100 of the caseworker guidance.
You can explain in a covering letter why the government should be flexible over document requirements in a particular case, referencing the applicant’s personal circumstances in the past or now. For example, does the client urgently need to have confirmation of their right to stay in the UK which means they do not have the time to get certain documents in the required form? Or will they get into debt with the cost of travelling to an embassy in London and applying for a new identity document if they have limited income? Is there a risk of re exploitation or harm if they need to get documents they have to pay for, or go back to anyone they lived or worked with in exploitation to find documents?)
Despite the government’s commitment to flexibility, a victim can get a head start by requesting a copy of their file from the government (now it will be from the Home Office NRM team or Salvation Army even if the victim was previously dealt with by the National Crime Agency). This is particularly helpful where a client has a positive CG as there should be information on the file (usually in the form of a ‘consideration minute’) showing their account of their arrival and circumstances in the UK has been believed.
This information can then be submitted with an application to the Home Office. Make sure to carefully read and check the information before sending it in with an application in case there is anything you need to take instructions on first. Ask for the full copy of the file including the referral form, any ‘consideration minutes’, reasonable and conclusive grounds decisions, correspondence or other documentation that it is held.
We do not look in this section at the rights of family members of EEA nationals. A victim of trafficking who is a non-EEA national may have rights in the UK as the family member of an EEA national, and EEA victims of trafficking may have non-EEA family members with rights under EEA law. General EU free movement law (and the EUSS) will apply in these circumstances.
Pre-settled status under the EUSS
EEA nationals and their family members may be able to apply for pre-settled status under the EUSS if they have lived in the UK for less than five consecutive years by December 2020. They will then be able to apply for settled status (i.e. Indefinite Leave to Remain) at the five-year point.
Although these applications are easy to make, and the grant of limited leave under the scheme may give the individual some security, there is a sting in the tail. A person with pre-settled status will not have recourse to public funds (e.g. benefits, NHS care, housing) unless they can also prove they have a right to reside under EU law. ATLEU is concerned that many vulnerable EU nationals with pre-settled status may be unable to access such public funds for this reason. We are also concerned that following the transition period, there will be a blanket ban on accessing public funds for those with this status.
Vulnerable victims may benefit more from a grant of discretionary leave (DL) in these circumstances. A grant of DL will not preclude them from applying for settled status under the EUSS when they qualify.
EU nationals and discretionary leave (DL)
Aside from their rights under EU law and the EUSS, EEA nationals who are victims of trafficking may also be entitled to discretionary leave (DL) under the Home Office’s Trafficking policy (i.e. in the same way as non-EEA nationals) if they are not currently able to exercise their free movement rights (i.e. they cannot work, have not retained worker status, and are not in a position to become self-employed, self-sufficient, or study). This has the advantage over pre-settled status under the EUSS in that the leave will not prohibit access to public funds.
The policy says:
‘EEA nationals, who are identified as victims of modern slavery (human trafficking or slavery, servitude and forced or compulsory labour) generally retain the ability to exercise free movement rights in accordance with The Immigration (European Economic Area) Regulations 2016(the 2016 Regulations).
However, where an EEA national receives a positive conclusive grounds decision from another competent authority for example MSHTU they may apply to the Home Office if they are seeking discretionary leave under this policy and relying on the criteria in this guidance. They should use form FLR(HRO) to do so. The same approach to fees and fee waivers in relation to other victims who seek discretionary leave will also apply to EEA nationals. No assessment as to whether the EEA national is exercising treaty rights is needed.’
An EEA national might have language difficulties or health and support needs that could mean that they are not immediately able to find stable work. A grant of discretionary leave will give them a period of security, including an entitlement to public funds (including benefits and possibly housing) until they are ready and able to re-join the labour market. This may be particularly important for those who are vulnerable and at risk of re-exploitation.
It is important to argue for their right to discretionary leave early (while they are still in the NRM), and ask for it to be granted when the positive CG decison is made. But if they get a positive conclusive grounds decision but are not given discretionary leave (either because it is refused, or the Home Office does not consider it), they can make an application directly to the Home Office. See our section on applying for discretionary leave here.
Legal aid is available to assist all victims of trafficking who have a positive reasonable grounds decision (and who have not had a negative conclusive grounds decision) or those who have a positive conclusive grounds decision who need advice about leave to enter or remain under UK law. Legal aid is therefore available to help EEA nationals with applications under the EUSS, for discretionary leave under the trafficking policy and under other provisions in the Rules (e.g. Domestic Worker and Article 8 ECHR family and private life applications).
However, legal aid does not cover applications made under EU law (e.g. for a registration certificate or document confirming permanent residence). An application to the Legal Aid Agency for Exceptional Case Funding (ECF) may be made in these circumstances.
Which competent authority is responsible for European cases?
Since 29 April 2019, all NRM referrals, including those cases already within the NRM, will be decided by the Single Competent Authority (SCA). Before that date, the trafficking cases of European nationals would have been decided by the Modern Slavery Human Trafficking Unit (MSHTU) in the National Crime Agency.
Those who received a positive CG decision from the MSHTU/NCA were not automatically considered for a grant of DL as it was presumed that they would be able to exercise their free movement rights under EU law. This ignored the fact that many EEA nationals may not have been able to exercise their free movement rights in the UK.
The SCA’s guidance says that following a positive CG decision, they will go on to make a further decision on whether the person qualifies for DL. That ought to apply to EEA Nationals as well as non-EEA nationals. Nevertheless, before they make their CG decision, it will always be a good idea to put the SCA on notice that an EEA national actually does want to be considered for DL.
If they might benefit from a grant of DL, but the MSHTU/NCA didn’t consider the issue after making the CG decision, the victim should make an application for DL to the UKVI. See more on applying for DL, and challenging refusals of DL here.