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 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 published draft Adults at Risk in Immigration Detention Statutory Guidance, 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 detention centre
If the victim is not released and remains in an IRC with a positive RG decision, and therefore in the “reflection and recovery period”, they are still entitled to support under ECAT Article 12 in the IRC. The case of R (EM) v Secretary of State for the Home Department  EWCA Civ 1070 found that it is possible for the UK authorities to provide support which meets the legal threshold of Article 12 ECAT in IRCs. Nevertheless, EM was 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.
The only instance when a victim in an IRC would not be entitled to Article 12 ECAT support is if they are excluded on “public order grounds” (ECAT Article 13(3)). The meaning of “public order grounds” has not been defined in UK domestic law, and also ATLEU is not aware of any cases where a victim has been excluded from Article 12 ECAT support on this basis. If there has been no indication of “public order” exclusion from support, it should be assumed that the victim is entitled to Article 12 ECAT support. If there has been a “public order” exclusion, legal advice should be sought because it is likely that this could be challenged as it is a definition that is not yet defined in UK domestic law.
However, our view is that being held in an immigration detention centre can never constitute appropriate and safe accommodation for a victim because even if sufficient support is provided, the environment itself is not conducive to the recovery of a victim. 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.
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” 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 is advisable to explain in the grounds for bail that “bail in principle” is requested. It can be suggested that the judge orders bail in principle on the basis that the Home Office arrange specialist VCC 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).