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Protection claims

This section looks at protection claims. If a trafficked person fears that something bad (usually referred to in legal terms as ‘serious harm’ or ‘persecution’) might happen to them if they go back to their country of origin, they can make a protection claim. This is usually done by claiming asylum.

This section provides a very basic overview of asylum law and the processes involved in an asylum claim.

In the next section, we provide more detailed advice for lawyers and advisors representing victims of trafficking in the asylum process (e.g. on preparing statements and seeking expert evidence).

Those who want advice about claiming asylum are entitled, subject to their means, to legal aid (ie free legal advice and representation) to help them decide whether to claim asylum. If the person does decide to claim asylum, legal aid is available throughout the asylum process, including for represetation in an asylum appeal.

The potential asylum seeker should try to get legal advice, if possible, before attending the Home Office to claim asylum. They can then be advised about the Home Office’s asylum screening process and the questions they are likely to be asked in the screening interview.

Legal aid is not though available for pre-NRM advice, i.e. for advice solely related to the person’s potential trafficking claim (e.g. advice on whether a person should enter the NRM or not). For victims of trafficking who do not claim asylum, legal aid is only available following a positive reasonable grounds decision.

However, for potential victims of trafficking, their trafficking and asylum claims will be closely linked, both in respect of the facts and the law. So an advisor providing initial legal advice on an asylum claim will need to discuss and advise the person on the trafficking events and processes at the same time.

Legal aid advisors must be regulated and accredited under the Law Society’s Immigration and Accreditation Scheme (IAAS) to advise and represent clients. Those not doing legal aid work will need to be regulated by the Solicitors Regulation Authority or regulated at the appropriate level by the Office of the Immigration Services Commissioner (OISC).

Be aware that there are some very good and very bad advisors out there so before seeking legal advice, confirm with the advisor how they are regulated and that they have experience in dealing with victims of trafficking.

Personal recommendations can help, but not always. A local Law Centre or Citizens Advice may be able to recommend good local advisors.

See our section on legal advice and representation for more information on finding an advisor and legal aid.

The definition of a refugee

To succeed in their asylum claim and be recognised as a refugee, whether or not the person is a victim of trafficking, the asylum seeker must show they are a refugee as defined by the 1951 Convention Relating to the Status of Refugees (Refugee Convention), Article 1A(2):

‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

The asylum seeker must show that each element of this definition has been met. To break it down, they:

  • Must fear something bad will happen to them)
  • The fear must be well-founded (i.e. there must be a real risk that it will actually happen)
  • The bad thing they fear must amount to persecution (in the EU, this is defined using provisions in the European Convention of Human Rights: usually death, torture, or inhuman and degrading treatment or punishment)
  • The persecution must be because of their race, religion, nationality, membership of a particular social group or political opinion (the ‘Convention reasons’)
  • Must be outside of their country of nationality or, if stateless, their country of former habitual residence
  • Cannot get protection from their own national authorities
  • Cannot safely and reasonably relocate internally within their own country.

When the Home Office or Immigration Tribunal decides that on the particular facts of the case that all the above requirements are met, the person will be granted refugee status and leave to remain in the UK as a refugee.

Humanitarian protection

Asylum seekers are sometimes refused asylum but granted a different status called Humanitarian Protection (HP). For a victim of trafficking this may happen where all the above elements are met except for the ‘Convention reason’ – i.e. the persecution they fear is not for one of the five reasons: their race, religion, nationality, membership of a particular social group or political opinion.

As we show below, a victim of trafficking may be able show they belong to ‘a particular social group’ in their country. This is a complex question of fact and law. In some countries they will be part of a particular social group, but in other countries, not. If they are not, the asylum seeker may be entitled to ‘humanitarian protection’ rather than refugee status.

Actually, for many victims of trafficking, a grant of HP will be a good outcome, as it provides for most of the same benefits that apply to refugee status: five years leave and then settlement, permission to work, access to public funds, and family reunion. The only material difference will be that a refugee is entitled to a refugee travel document, which is relatively easy to travel on, but a person with HP is not. If the person with HP is able to get a national passport from their country of nationality, they will be able to travel on this.

Why do victims of trafficking claim asylum?

Asylum claims by victims of trafficking are usually made for fear of harm from former traffickers; or from their community back home, due to the stigma they will face; and/or fear of being trafficked again or otherwise exploited by others. We outline each below.

Fear of harm from their traffickers: Where a victim has escaped from their trafficker, they may fear that their trafficker(s) will harm them on return to their country. Often the fear concerns a debt owed to the trafficker. These types of claim can be difficult to make out where the person has the option of living in a different part of their country so that the trafficker will not be able to find them. Many asylum claims made on this basis fail where the Home Office or Tribunal decide it is reasonable for the person to internally relocate. Where they succeed, it is often on the basis that it is ‘unduly harsh’ for them to be expected to relocate as they will find it difficult to survive in the new area, with no family or other means of support, leaving them open to destitution and the risk of further exploitation. It may also be argued that the highly-organised criminal networks that arranged their trafficking are sophisticated enough to track the person down wherever they live within their country of origin.

Risk of re-trafficking: Many clients face a risk of being trafficked again or otherwise exploited on return to their country, particularly considering their individual circumstances and past experiences. This risk may be from the same people or, more often, from others who may try to exploit their vulnerabilities. If they go back to precisely the same circumstances that led them to being trafficked in the first place, there will often be a real risk that the same will happen again. Indeed, they may be all the more vulnerable as a result of their trafficking experiences. For those who may be shunned by their families or communities on return as a result of the stigma of having been trafficked, the risk will aslo be heightened.

For those in labour exploitation, even where there appears to be an element of choice once they have gone back home as to whether to go back overseas to work again, the client may decide they have no choice but to do so and to accept potentially exploitative work again. This can support a claim based on risk of re-trafficking. They may be forced back into exploitation if, for instance, they have family members back home who rely on them for support. Similarly, a former sex-worker may have no option but to return to sex-work in order to survive.

How to claim asylum

An asylum claim can be made to an immigration officer on entry to the UK. Once in the UK, there are two ways to claim under the current policy:

  1. In person at the Asylum Screening Unit on a walk-in basis, but it is a good idea to ring up before to make an appointment:
    Asylum Screening Unit Lunar House, 40 Wellesley Road, Croydon CR9 2BY (Monday – Friday: 08.00 – 13.00 hrs)
    ASU appointment booking number: 020 8196 4524
    The appointment booking line is open Monday – Friday 08:00 – 15:00 hrs.
  2.  A local claim made by the Chief Immigration Officer in exceptional cases when there is a good reason why the individual cannot go to the Asylum Screening Unit (e.g. they were exploited in London and have moved away from the area).

Get legal advice, if possible, before claiming asylum.

Should a victim of trafficking be referred into the NRM before they make their asylum claim?

Yes. Where possible. Waiting until the asylum screening interview (see below) to raise trafficking for the first time can cause difficulties, as the Home Office will then be the first responder (i.e. they will have the role of referring the person into the NRM). They are not the ideal first responder.

The Home Office’s staff guidance on Asylum interviews states:

‘If indicators of modern slavery first come to light whilst you are conducting the asylum interview, and if the potential victim consents to being entered into the National Referral Mechanism (NRM) process, you, as the first responder, must complete a NRM referral form. You do not need to gain consent from minors. The completed referral form should be emailed to the Modern Slavery and Human Trafficking Unit (MSHTU) for allocation to a competent authority team. You should also note the duty to notify for adults who do not wish to enter the NRM and complete and submit Form MS1 in these cases’.

Where the Home Office is the first responder, there may be a long delay in getting a reasonable grounds decision, and it can be difficult to get a copy of their referral form. Also, if the NRM’s reasonable or conclusive grounds decisions are negative, and you need to request reconsideration of the decision, the first responder should initiate that request. The Home Office is more reluctant than other first responders to seek reconsideration. However, on this point, following the recent case of DS vs SSHD, the the Single Competent Authority will not reject any request for reconsideration on the basis of who has submitted it (see Amendment to the NRM’s reconsideration policy here). But we still say the Home Office is not a great first responder!

It might also be a good idea for the person to get a trafficking safe house and support in place before they claim asylum to avoid immediate dispersal under asylum support provisions.

What if trafficking is raised at the screening interview but the Home Office does not refer the person into the NRM or there is a delay in doing so?

If, as a result, the person continues in a situation of exploitation or otherwise suffers for longer than necessary, that could be actionable against the Home Office, for instance as a human rights breach. For more on compensation claims against the Home Office, see ATHUB’s section on Compensation.

Will it always benefit me to be referred into the NRM?

It is important to consider whether a referral into the NRM is necessary or helpful in each individual asylum case. Many people may have been in a situation of trafficking or exploitation on their journey to the UK but it may not form a key part of their protection claim. For example, an Eritrean who has fled Eritrea to avoid military service who has been held in modern slavery  in Libya on his way to the UK. In this situation, consider whether and how the referral will actually benefit your client.

The advantages will be that your client will have access to more support if accepted as a victim of trafficking (ie more money and a trafficking support worker) and it may provide additional reasons why they should be granted status (see our section on Discretionary leave). The disadvantages are that it can often lead to long delays in their asylum claim being decided while the case is mired in the NRM. Children, who are supported by social workers and foster carers, may benefit little from the addtional support provided by the NRM. Where there is a strong asylum claim the benefits of the NRM might be outweighed by the delay. This is a decison to take carefully, with as much involvement and understanding from the client as possible. ATLEU would say that where a vulnerable client can benefit from the support offered in the NRM, particularly where such support is not available elsewhere, they may well be advised to consent to the referral.

If someone chooses not to be referred into the NRM, it does not prevent them raising their trafficking as part of their asylum claim, whether it’s at the core of their claim or peripheral to it. A decision not to be referred in should not affect the asylum decision-maker’s fact finding role, or undermine the asylum seeker’s credibility. In an asylum/ human rights appeal, the Tribunal will not be bound by any decision made by the NRM.

It is important to remember though that whether they are referred into the NRM or not, the fact that they have been trafficked is likely to mean they have mental and physical health problems as a result, which can make them all the more vulnerable on return. And even if the trafficking is peripheral to their asylum claim, they may be at risk of being retrafficked if returned home and then forced by their circumstances to flee again.

Asylum process

Here we give a very limited overview of the asylum process.

Interviews

There will be two Home Office interviews.

Screening interview (the initial interview)
The asylum claim starts with this interview. It lasts at least one hour and is conducted by a Home Office caseworker. The person will be asked basic details about their identity, background, family, travel and entry to the UK, and the reason(s) they’ve claimed asylum. They’ll also be asked if they’ve suffered exploitation, to identify them as a possible victim of trafficking.

It will be a good idea to take your asylum-seeking client through a copy of the standard screening interview form, so they are prepared for answering the questions.
At the interview, the person will have an opportunity to say if they want a male or female interviewer and/or interpreter when they have the main asylum interview.

When the interview is completed, they will be given a copy of the screening interview record. It is important to go through it with your client to make sure their answers were written down correctly and that they gave accurate information. They may have had difficulties with the interpreter or the questions that were asked. If there were problems with the interview, the advisor must consider whether to make representations to the Home Office before the main interview.

Processing for asylum support and accommodation will also start here. If an applicant asks the Home Office for help with accommodation, they can be provided initial accommodation immediately if they have nowhere else to stay. If the asylum seeker is already in safe house accommodation, they should not be moved immediately into asylum support accommodation.

Substantive interview (main interview)
The substantive asylum interview may take place months or even a year or more after the screening interview. It is the most important and will last several hours.

The applicant should be given an interpreter of their choice of gender and preferred language.

You should discuss the language of the interview with your client beforehand. It shouldn’t be presumed the client wants an interpreter in their first language as it may no longer be their strongest.

The applicant can bring a legal representative to their interview (though legal aid does not pay for this unless the person being interviewed is a child, or in detention or lacks capacity within the meaning of section 2 of the Mental Capacity Act 2005). If the person does not attend with an advisor, the interview should be recorded. The applicant will be given a copy of the written and audio record of the interview immediately afterwards. If they do not agree with the written record, they can listen to the recording to check whether the notes are correct.

A victim of trafficking may wish their support worker to attend the asylum interviews with them for support.

For more on asylum interviews, particualrly for lawyers and advisors, see the next section.

After the substantive interview
The applicant (with their advisor’s help) should carefully check the written interview record and write to the Home Office quickly if they have any points to make (e.g. complaints about its conduct, amendments to the written record, or corrections/ clarifications). If an applicant needs time after the interview to send in representations and/or further evidence, they should ask for it at the interview. They will usually be given at least five working days to do this but can ask for longer if necessary.

A decision can be made at any time after the interview but may take weeks or months.

Outcomes

If the individual is granted refugee status or humanitarian protection, they will be granted leave to remain in the UK for five years. This gives them permission to work, use the NHS,  and have recourse to public funds (e.g. claim benefits and access statutory housing). After five years, they can apply for indefinite leave to remain.

If they are refused asylum, they may be granted discretionary leave to remain (see section on discretionary leave).

Leave will be granted in the form of a biometric residence permit (BRP), a plastic card with the applicant’s photo and personal details on it.

If refused asylum, whether or not they are granted another form of leave, the applicant will usually have a right to appeal to the Immigration and Asylum Chamber of the First Tier Tribunal to challenge that decision. The Home Office may refuse them a right of appeal if they decide the claim is ‘clearly unfounded’. In that case, the decision can only be challenged by applying for judicial review.

Travel documents

If the person is granted refugee status, they will not be able to travel on a national passport, but they can apply instead for a refugee travel document. If a refugee uses a travel document or passport belonging to their country of origin or goes to their country of origin, they could have their refugee status taken away. This should not be a problem for people with humanitarian protection, but if in doubt, please get advice on this.

Family reunion

If the refugee or person granted HP has a partner or child under 18 who was part of their family unit before they claimed asylum, they can apply for family reunion with them (i.e. for a visa to join them in the UK). There is no fee to pay for this application. These applications can be covered by legal aid if an application for exceptional case funding (ECF) is made. Advisors should be making ECF applications for clients who need help with family reunion applications as they are usually granted! And hopefully, if there are a lot of them, the government may agree to legal aid being reinstated for this type of case.

They may also be able to apply for other dependent relatives to join them (for example a parent or sibling or a child aged over 18 years) but this is more difficult, and there will be a fee to pay. Clients will certainly benefit from a grant of legal aid for these complex cases as it will be almost impossible for them to succeed in their applications unless they have very good legal representation.

ATLEU recently succeeded on appeal for a client who applied to bring four of their children to the UK. Because of the client’s vulnerability, and problems with the travel documentation, and the names and ages of the children, it took some 10 years to make the application following her grant of refugee status. By that time some of the children were well over 18 years old, but all were successful following an appeal hearing.

Appeals

The applicant has 14 calendar days from the date that the Home Office decision was sent to them (NB: not the date that they received it) to begin the appeal process by lodging their appeal. It can be submitted online, by post, by email or by fax.

If a lawyer thinks the case is strong enough, with at least a 50% chance of succeeding on appeal, and the client meets the financial test, they will be enttiled to legal aid. The advisor should then lodge the appeal for them.

If the advisor decides that the case is not strong enough to justify a grant of legal aid, they should advise their client about the appeal procedure and may help them to lodge the appeal on a ‘pro bono’ basis (i.e. without being paid to do so). The client can then write to the Legal Aid Agency to appeal the decison to refuse legal aid; the CW4 procedure. As the deadline is short, it’s best that the client doesn’t await for a reply from the legal aid appeal before putting in the asylum appeal. If absolutely necessary, an appeal can be lodged late, but the person will need to persuade the Tribunal that ‘it is in the interests of fairness and justice’ that the appeal should be accepted.

Information on a new CW4 Appeals Project is here.

If an asylum appeal is lodged, the appellant will remain on asylum support and be allowed to stay in their Home Office accommodation until the appeal process is finally over. If they do not appeal, they will become ‘appeal rights exhausted’, often lose their support, unless they have children, and will be expected to leave the UK (unless they have any other leave or another application being considered).

There are fees to appeal to the Tribunal (£140) but if the person is receiving legal aid, they will be exempt. If they are not, but cannot afford the appeal fee, they can apply for it to be exempted.

The appeal is heard in the Immigration and Asylum Chamber (IAC) of the First Tier Tribunal. The Tribunal has hearing centres throughout the country, and the person appealing, ‘the appellant’, will be invited to attend their local one (hopefully). They will receive a ‘notice of hearing’ with the date of their hearing and other instructions they must follow. The usual procedure now is that they will be provided with a date for the pre-hearing review, which they do not need to attend, and a date for the full hearing, which they do need to attend. This review is an opportunity for the advisor to set out, usually in writing, some procedural and evidential issues in regard to the full hearing.

If the hearing has been listed for a date in the very near future, and the appellant needs more time to prepare for it than they have been given, they should ask for an adjournment (i.e. that the appeal be relisted for a later date) as soon as possible and explain the reasons.

On the day of the hearing, the appellant will have an interpreter provided by the court in their chosen language. They will usually be asked questions unless it is agreed that they are not fit to answer them, or if there is no dispute about the facts of the case. Any witnesses they bring will also be asked questions. Then the Home Office representative (the ‘Home Office Presenting Officer’) and the appellant or their representative, if they have one, will be given an opportunity to state their case (legally and factually) to the judge.

The judge will not usually announce their decision then and there. They will want to go away and think about it and write up the decision (known as a determination) and send it out in the post, which can take several weeks.

If the appellant wins and there is no further appeal by the Home Office, they should be granted the appropriate leave. The leave that they will be granted will depend on the legal basis upon which the appeal was allowed: i.e. on refugee grounds, or HP grounds, or on other human rights grounds.

If either side believes there is an error of law in the Tribunal’s determination, they can challenge the decision by applying for permission to appeal to the Upper Tribunal. If permission to appeal is granted, the Upper Tribunal will consider whether the First-tier Tribunal’s decision was lawful or not. If they decide it was not lawful, they will remake the decision.

Fresh claims

If a protection claim is finally refused, with no further rights of appeal, the asylum seeker can at any time in the future, whilst they are still in the UK, make a request for the Home Office to look at their case again. This process is usually called making ‘a fresh claim for asylum’ or on human rights grounds. You make the request by providing the Home Office with ‘further submissions’. The further submissoins will be in writing, and enclosing any new evidence there is in the case. The Home Office will only accept that the further submissions amount to a fresh claim if the information in them is ‘significantly different’ to what they have seen before.

The process usually involves the person attending the Home Office in Liverpool, by appointment, in person to hand in their further submissions and any additional documents that they want considered. Where there is good reason, the Home Office might agree that the further submissions be submitted by post, but this needs prior agreement. They will not be interviewed at this stage,  but may have to attend a further interview when the case is beign actively considered. Waiting times can be long.

If a fresh claim is refused (i.e. the Home Office does not accept the further submissions as amounting to a fresh claim) this can only be challenged by a process called judicial review (JR). The deadline to make an application for judicial review is three months from the date of the refusal decision, although the applicant should still act promptly as the JR process is lengthy and complex. The alternative is to make a new further submissions application if additional evidence can be obtained. Legal aid is available for advice on asylum fresh claims and judicial reviews.

Further information

A person considering applying for asylum should always get the appropriate legal advice before doing so (see our section on ‘Finding an advisor’). More government information about claiming about asylum, appeals and fresh claims can be found here:

https://www.gov.uk/claim-asylum/overview

https://www.gov.uk/topic/immigration-operational-guidance/asylum-policy

https://www.gov.uk/immigration-asylum-tribunal

Returning home

Some trafficked persons might want to return to their country of origin. This may be a difficult decision to make and should never be done without them getting advice on their options; particularly where the person might fear becoming destitute back home or face the possibility of being re-trafficked. It is not unusual for the Home Office to encourage or put pressure on individuals to leave the UK when in fact they have an arguable right to stay.

If an individual does decide to return, they might be able to get help with the cost of a flight. Some trafficked persons will also be able to take advantage of a scheme called ‘Assisted Voluntary Return’ which can offer financial grants to assist someone to reintegrate into their home country.

Find out more: https://www.gov.uk/return-home-voluntarily/who-can-get-help

 

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