1. Home
  2. Housing and support
  3. Immigration detention

Immigration detention

NRM consideration: Barrier to removal 

Victims in Immigration Removal Centres (IRCs) can only lawfully be detained if there is a realistic prospect of removal, therefore it is highly likely that any victim in an IRC will be vulnerable to removal. However if the victim is in the NRM, this is a barrier to removal until there is a CG decision. For this reason if a victim is in detention and/or liable to removal, it is crucial to act urgently to raise any indicators of trafficking with First Responders/SCA/IECA so that the case is accepted into the NRM in order to prevent removal.

If there are indicators that they are a victim but they have not yet been identified as such in the NRM (either because they have never had their case considered in the NRM or there was a previous negative NRM decision that could be challenged), urgent steps should be taken to request that a First Responder completes an NRM referral or a request for reconsideration/pre-action letter which includes a reconsideration request is submitted. The Home Office can be contacted in their role as a First Responder, they have a presence in all IRCs. Alternatively, an NGO or other statutory First Responder can be contacted. Once a victim has had the NRM form submitted, or a reconsideration of a negative trafficking decision has been accepted there is a barrier to removal. 

However, it is important to be aware, even after a reconsideration request has been accepted and there is a barrier to removal, a further negative decision could be taken quickly which would again mean that a victim is at risk of removal again. Urgent legal action may be needed to prevent a removal. It is important that any victim in an IRC has instructed a legal aid public law or immigration representative with experience in trafficking cases and judicial reviews. 

Positive RG/CG decision

If a victim receives a positive RG decision, it does not necessarily mean that they will be released from detention. 

According to the Adults at Risk in Immigration Detention policy, being a victim indicates that the individual may be particularly vulnerable to harm in immigration detention, therefore an “Adult at Risk”. Once there are indicators that an individual may be at risk of harm in detention, consideration will be given by the Home Office as to the level of evidence in support, the weight that should be given to that evidence in order to assess if immigration detention is likely to harm that individual. If it is concluded that an individual is at risk of harm in detention, the presumption is that detention is not appropriate unless and until there are immigration considerations that outweigh the risk factors. The immigration factors considered are (i) the length of time in detention; (ii) public protection issues; and (iii) compliance issues.

This means that indicators of trafficking, or a positive RG/CG decision is a positive factor to be argued as to why a victim should be released from detention, however it does not mean that the victim will automatically be released. 

Access to ECAT support in an immigration removal centre

Our view is that being detained in an Immigration Removal Centre (IRC) can never constitute appropriate and safe accommodation for a victim because even if sufficient support and safety is provided, the environment itself is not conducive to the recovery of a victim. However, the cases of R (EM) v Secretary of State for the Home Department [2018] EWCA Civ 1070 and R (ZV) v SSHD [2018] EWHC 2725 (Admin) found that it is possible for the UK authorities to provide support which meets the legal threshold of Article 12 ECAT in IRCs. Nevertheless, both these cases were decided on the facts of one particular victim. It is advisable to get detailed information and evidence about support that is needed and what is being provided in every case. If the victim is not receiving the support they are entitled to, this should be urgently requested/legal advice should be sought to challenge this by way of judicial review.

We are aware that there are significant practical difficulties faced by victims in accessing the support they are entitled to. Charities who work with detained potential or confirmed victims such as BID and Medical Justice say that the safeguarding mechanisms in IRCs, such as the rule 34 and 35 process do not always function properly, that there is a lack of identification of indicators modern slavery and when referrals are made into the NRM, there is a lack of trafficking recovery support assessments and support being offered.

Anyone detained under immigration powers, whether in an IRC or a prison who is a potential or confirmed victim of modern slavery should have their needs assessed according to the Adults at risk: detention of potential or confirmed victims of modern slavery guidance.

How is the “Adults at risk: detention of potential or confirmed victims of modern slavery guidance” applied?

First, an interview is held with the individual to identify whether they have any specific recovery needs arising from their experience of modern slavery. This interview will be conducted by Detention Engagement Teams (DETs) for individuals in Immigration Removal Centres (IRCs) and Immigration Prison Teams (IPTs) for individuals in the prison estate.

Second, the individual will be referred to the relevant Healthcare provider for an assessment of any physical and mental health recovery needs. Following this assessment, Healthcare will advise on whether any identified needs can be met in the IRC / prison.

Finally, the information gathered in the first 2 stages will be conveyed to the responsible casework team and the responsible casework SEO will assess whether or not suitable assistance to support the individual in their recovery can be provided within detention.

What are the potential outcomes?

First, where it is considered appropriate for the individual to remain in detention the AAR level will remain at least Level 2, even where the recovery period has been withdrawn following a “public order” disqualification. However, even though the policy allows those who have the public order disqualification applied to them to remain at level 2 AAR, they are nevertheless excluded from receiving a modern slavery needs assessment and support. However, if the competent authority decides to disqualify an individual from the NRM on the grounds of “bad faith”, the individual will no longer be considered a potential victim of modern slavery and will no longer engage the AAR policy (unless other indicators of risk are present).

Second, where it is considered that the individual’s recovery needs cannot be met in the IRC / prison, the AAR level must be increased to Level 3 even where it is unclear that the absence of support would be likely to cause harm

Third, the recovery needs of a potential victim of modern slavery may change over time and will be kept under review.

Exclusion from support due to “public order” or “bad faith”

Section 63(1) of the Nationality and Borders Act 2022 (NBA 2022) provides that the competent authority may deem an individual with a positive reasonable grounds decision as (a) a threat to public order, or (b) has claimed to be a victim of slavery or human trafficking in bad faith. These individuals are not entitled to a ‘reflection and recovery period’ and can be removed from the UK, in addition there is no requirement to grant discretionary leave to remain in the UK.

The meaning of ‘bad faith’ is not defined anywhere in NBA 2022. In terms of the meaning of ‘public order grounds’, although it has not been previously defined in UK domestic law, in NBA 2022 may apply to any person who has been convicted of a prison sentence of over 12 months . NBA 2022 also may apply to individuals who have committed serious offences (listed in Schedule 4 to the Modern Slavery Act 2015), who are deemed a threat to national security or there are reasonable grounds to suspect a person has been involved in terrorism offences.

ATLEU’s view is that this is an overly restrictive definition of ‘public order’ which is not in line with ECAT 13(3). It is also very worrying because a large proportion of victims of modern slavery have criminal sentences of over 12 months, particularly if they suffered criminal exploitation such as ‘county lines’ trafficking, cannabis cultivation or have fraud or illegal entry related convictions. There has already been a legal challenge which forced the government to amend its guidance on NBA 2022, to the effect that the needs to be a re-trafficking assessment carried out before an individual is excluded from protection and support under s63 (1) NBA 2022. It is likely that there will be further legal challenges around the public order/bad faith disqualifications.

Why should survivors in IRCs still be entitled to trafficking recovery support even if they are subject to the public order/bad faith disqualification?

Victims in IRCs may also have rights under Article 26 ECAT, this is the right to not be punished for their involvement in unlawful activities, to the extent that they have been compelled to do so. Our view is that being in immigration detention as a consequence of being convicted for an offence that an individual may have been forced to commit amounts to punishment. The Article 4 ECHR protection duty is informed by the non-punishment provision in Article 26 ECAT (V.C.L. AND A.N. v. THE UNITED KINGDOM 77587/12 74603/12). For a potential victim to properly exercise their Article 26 ECAT rights, they have to have proper access to support whilst in an IRC so that they can be in a position to be released and not be removed or deported, and the possibility to lodge a criminal appeal. This would be the case, even if they are excluded under s63(1) NBA 2022. However, this is an issue which has not been tested in the Courts, at present the Adults at risk: detention of potential or confirmed victims of modern slavery guidance still excludes those who are subject to the public order/bad faith disqualifications from trafficking recovery support in detention.

Legal Aid is available to advise on asylum/protection matters and any related trafficking claim, to advise on a bail application, to challenge the lawfulness of immigration detention and also to challenge whether adequate support for a victim is being provided. The assistance of an immigration or public law legal aid solicitor should be sought.

All immigration detainees are able to put their name on the list to see a legal aid lawyer who can provide 30 minutes of legal advice under the Detained Duty Advice Scheme (usually by asking staff in the welfare office or the library within the IRC). The 30 minutes’ advice is available to all detainees irrespective of whether they satisfy the means and merits criteria for any given legal aid matter. If their case has merit, the duty solicitor is required to take the case. Charities such as Bail for Immigration Detainees and Detention Action also provide advice to immigration detainees about bail applications.

Release from Detention 

A victim in a detention centre is particularly vulnerable to re-trafficking. They fear imminent removal and are likely to be distrustful of the authorities who are detaining them. The circumstances of their detention may increase their mental health symptoms. They may still be being threatened by their trafficker(s). The Home Office often speaks to detainees without a lawyer or any record of the conversation when considering release, it is common that a victim is then released to a private address or no address and then goes missing (possibly re-trafficked). It could be that a private address is related to their traffickers or unsuitable for another reason.

If a victim wishes to be released to a private address, anyone working with that victim should sensitively discuss safety risks with them – how well do they know the people offering accommodation etc. Safe and secure accommodation that is available quickly through the MSVCC is usually the best option. If the victim is unsure, they can be re-assured that they can change their mind later if they decide they don’t want to stay there. Otherwise local authority accommodation options can be explored.

Asylum accommodation could be explored in some cases, however particularly after release from detention, the risk of re-trafficking from this accommodation is particularly high because of the lack of safety and support staff. Best practice is to have an open, respectful conversation with the victim, explaining that re-trafficking is a common problem and that a short delay in order to wait for safe, secure and appropriate accommodation is preferable. However, ultimately it is the victim’s choice.

Bail 

If the victim has agreed, it is often quickest and safest to have MSVCC safe, secure and appropriate accommodation agreed before the bail application is made, a correspondence address for the charity providing the accommodation can be provided if the address cannot be revealed due to security of the accommodation. Local authority accommodation which is safe, secure and appropriate is also a good option.

If the address is not yet available, “bail in principle” or “conditional bail” should be applied for. Bail judges are often reluctant to order bail to no address, where there is no specific date when the accommodation will be provided because that can lead to a situation where someone remains in detention with no end date, because they are waiting for a suitable address. It can be suggested that the judge orders bail in principle on the basis that the Home Office arrange specialist MSVCC accommodation within seven days of the grant of bail. Alternatively, bail can applied to for release to asylum support accommodation or private address, but exercise caution here as it may not be safe, secure and appropriate accommodation and could increase the chance of re-trafficking (see above).

 

Was this article helpful?