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Introduction to trafficking and immigration

This section of ATHUB looks at the immigration issues and options for victims of trafficking and modern slavery who want to stay in the UK temporarily or permanently. Each section provides an overview, and then more detailed information for lawyers and advisors. We will consider context, the law, applications, processes, remedies, and provide some caseworking tips.

ATLEU has a second-tier advice service for those working with victims of trafficking. For more information, visit here.

We will consider the following immigration options;

We do not deal in this section with how to work with victims of trafficking, the process of identifying victims of trafficking (i.e. reasonable and conclusive grounds decisions made by the NRM) or challenges to those decisions. These are dealt with in the Introduction section of ATHUB. However, to understand the immigration issues faced by victims of trafficking you will need a reasonable understanding of the NRM and its processes. We do therefore look in this section at how NRM procedures and decisions may be relevant to immigration applications, i.e. the interplay between the NRM and immigration decision-making.

Common terms

Home Office: The department of government responsible for immigration control.

UKVI: UK Visas and Immigration, the department of the Home Office responsible for making decisions on leave to remain.

Leave: A grant of permission to stay in the UK under UK law. It can be ‘limited’ to a particular period of time, or ‘indefinite’ (ILR).

Immigration Rules: (‘the Rules’) The UKVI’s Rules which govern who can apply for leave, and the requirements they must meet to succeed in an application.

Discretionary leave: (DL) Leave granted to victims of trafficking under the UK’s trafficking policy (i.e. outside the Rules).

Domestic worker: A person granted leave under the Domestic Worker categories of the Rules.

Single Competent Authority: (SCA) The section within the NRM which makes decisions on trafficking claims.

Reasonable grounds decision: (RG) Following the referral of the potential victim of trafficking into the NRM, this is the first decision they will receive. The SCA will decide whether there are reasonable grounds to suspect they are a victim of trafficking.

Conclusive grounds decision: (CG) sometime after a positive RG decision (which can be a long time after!) the SCA will decide whether the person actually is a victim of trafficking.

A trafficked person with immigration issues will need specialist legal advice, representation and support throughout the trafficking and immigration application processes. These processes are governed by laws and policies which are complex. Trafficking cases are also factually complex. And, of course, decison-making isn’t always great. A suitable immigration lawyer or adviser will be one that has experience of helping their clients through these processes and can substantially improve the trafficked person’s prospects of success, both in respect of their trafficking decisions and immigration applications.

We consider here how to find suitable legal advice and representation, and the availability of legal aid (government funding for legal services).

Who can advise and represent trafficked persons?

A variety of legal professionals can represent trafficked persons. They may be solicitors, barristers, legal executives, advisors or caseworkers. We will generally refer to all of them as advisors on this website unless we need to differentiate between them.

It doesn’t matter too much what type of advisor your client has, as long as they are appropriately regulated to do this kind of work and are experienced in this complex area of law and policy. Usually, for trafficked persons, their advisors will be solicitors or caseworkers working for legal aid firms. Legal aid is government-funded legal advice and representation (see below for more on legal aid and victims of trafficking).

All clients should be told the exact status of their advisor at their initial meeting and in the mandatory follow up client-care letter.

To do legal aid work, the firm or advice agency or charity must be regulated either by the Solicitors Regulation Authority (SRA) or the Office of the Immigration Services Commissioner (OISC).

All legal aid advisors must be accredited under the Immigration and Asylum Accreditation Scheme (IAAS) run by the Law Society. Their organisation must also have an appropriate legal aid contract granted to them by the Legal Aid Agency which comes under the Ministry of Justice.

A legal aid advisor representing a trafficked person must be qualified as a senior caseworker or advanced caseworker under the IAAS. A senior or advanced caseworker will be able to advise and represent victims of trafficking in respect of any applications to the UKVI, and in appealing decisions. To undertake judicial review work, the advisor must be a solicitor.

Many SRA and OISC regulated firms do not do legal aid work. They will usually charge a fee for the work (unless they’ve agreed to do it for free, sometimes called ‘pro bono’). However, they must act in the best interests of their client or prospective client. That means that they must tell them about the availability of legal aid and must inform the client if they might be eligible for legal aid. That may mean referring them to another firm in the area that does legal aid work.

It’s important to understand that the legal costs of representing a victim of trafficking can be high; not just the fees for the advisor, but substantial costs on top for professional interpreters and for expert reports (sometimes called ‘disbursements’), which can run into several thousands of pounds. Even if a victim can afford to pay their advisor’s costs, they may not be able to afford these essential disbursements. A legal aid advisor will be able to claim the costs of disbursements under the legal aid scheme.

There is another advantage in going to a legal aid firm. Their advisors have to pass exams, which include questions on representing victims of trafficking, and they are regularly audited by their regulators. Advisors working for solicitor firms that do not do legal aid work do not need to be accredited and are rarely audited. They may never have had any formal training or education regarding trafficking specifically, or even in respect of immigration casework. For this reason, even if the trafficked person does not qualify for legal aid and is paying privately, it may be advisable for them to seek help from a legal aid firm that also does private work.

Finding an advisor

Some advisors are experienced in asylum and trafficking work, put in a lot of time and effort to add value to their clients’ cases, and care very much about the outcome for the client. Many others do not have the engagement, skills or experience necessary to run these complex cases. Poor advisors can do great damage to a case. A case that should succeed (ie one that has ‘merit’) may fail if the advisor does not know or care what they are doing.

Finding a good advisor is not easy, particularly in parts of the country where there are no or few legal aid advisors. Generally speaking, ATLEU would recommend those advisors who do legal aid work as there is at least some real oversight of the quality of work they do. But even amongst legal aid advisors, some are poor. And there are some very good advisors and lawyers who only do private work, but they are likely to be beyond the means of most trafficked persons.

You can find local firms with a legal aid contract using the government’s  ‘Find a legal aid adviser’ portal. Local advice organisations such as Law Centres, Citizens Advice and local trafficking support organisations (e.g. British Red Cross, Hestia, Medaille Trust) may also be able to recommend good local advisors.

It is not always a good idea to use an advisor simply because they have been recommended by friends, family, members of the person’s diaspora community, or by interpreters. Local community firms may have advisors able to speak the trafficked person’s language, but that, in itself, is not a good enough reason to use them. All advisors should, if necessary, use professional interpreters to overcome any language difficulties. It’s better to use the organisations mentioned above to recommend a good advisor.

Always check the advisors are regulated, either by the SRA or OISC and, if the OISC, regulated at the appropriate level. Those OISC advisors representing trafficked persons need to be individually regulated at least to Level 2 in the asylum category. If they’re doing appeals work, they need to be regulated to Level 3. Those doing judicial review work usually need to be solicitors, but there are also a very few OISC advisors regulated to Level 3 who have the permission of the OISC to do work on judicial reviews. Check first that they have this permission.

Make sure the advisor provides you with an office address, email, and contact phone number. Those operating purely through mobile phones are likely to be dodgy. Make sure also that soon after meeting your client for the first time, they provide them with a client-care letter, confirming their contact details, regulatory body, complaints procedure, full details of the funding of the case, and an overview of the facts, law and processes involved in their particular case.

Below we list some basic things to look out for. If the advisor is not doing these things, ask then why not!

  • Have they provided you with a professional interpreter in the appropriate language?
  • Has the advisor got or applied for all the relevant papers in your case (usually through a process called a Subject Access Request)?
  • Have they advised you about the law, processes, and merits of their case in writing?
  • Do they reply to your calls and emails?
  • Are they in contact with your trafficking support worker?
  • Have they spent sufficient time with you so that you can fully explain to them your background and life? This should happen over several meetings.
  • Do you trust your advisor sufficiently to discuss things that have happened to you that you feel ashamed or embarassed about? Have they shown that they care about you and your case?
  • Have they prepared a detailed statement laying out the facts of your case? It will be impossible to run a trafficking or asylum case well without a detailed statement, and it is your advisor’s job to prepare that statement for you. It should include details of your early life, including family life, education, and key childhood events as well as the events that led up to you being trafficked, and subsequent events. We look further at drafting statements below.
  • Has the statement been read back to you in a language you can understand, with an opportunity for you to correct any mistakes or add further details? Do you feel you had sufficient ‘ownership’ of the statement process to ensure it is accurate and includes all the information that is relevant to your case.
  • Have they got hold of your medical records? Have they commissioned a medico-legal report for your case (or explained to you when they will do that)?
  • Have they met you before your Home Office interview to prepare you for it? Have they gone through the interview record with you after your interview for your comments?
  • Have they discussed with you what additional information may be available to support your case (e.g. documents, social media, statements from friends or family).
  • Have they sought information about or researched for themselves risks you may face in your home country?
  • Have they made appropriate representations (i.e. written a supporting letter) to the Home Office following the interview, outlining the facts of your case, any issues that go to your ‘credibility’, and the supporting personal, medical and country evidence?
  • Have you been advised about possible remedies if an application has been refused?

If your advisor is not doing these things, raise your concerns directly with your advisor, if you have the confidence, and with your trafficking support worker who may be able to find you better representation.

Few trafficked persons will have enough money to pay for their legal advice and representation. Legal fees can run into many thousands of pounds. However, most trafficked persons will be entitled to legal aid.

Legal aid is money from the government to help people who cannot afford to pay for a lawyer. Legal aid legal work is carried out by law firms that have a legal aid contract with the government’s Legal Aid Agency. Although their work will be paid for by the government, legal aid advisors and lawyers do not work for the government. They work for the individual only and cannot pass any information about their client to the government unless the client has given them permission to do so. The relationship between a legal aid advisor and their client should be exactly the same as if the client was paying privately.

It is very important that trafficked persons understand that their adviser is independent of the government and are bound by strict rules of confidentiality. An adviser should explain this to their client at the first meeting, and make sure their client understands. It should be explained again in the client-care letter.

There are three types of legal aid: Legal Help (LH), Controlled Legal Representation (CLR), and Licensed work (sometimes called ‘certificated work’). LH is available for applications to the Home Office (e.g. asylum claims). CLR is available for appeals against Home Office immigration decisions before the First-tier and Upper Tribunals (e.g. asylum appeals). Licensed work is for applications for permission to appeal to the Upper Tribunal, for seeking judical review of Home Office decisions where there is no right of appeal (e.g. negative trafficking decisions  or outright refusal of fresh claims), and for appeals to the Court of Appeal and UK Supreme Court.

All applicants for legal aid have to pass a financial test (the ‘means test’). Only the poorest will qualify, but that will include those who receive asylum and/or trafficking support and some of those entitled to welfare benefits (e.g. Universal Credit). Advisors who do not do legal aid work should still carry out the means test and advise a person that they might be able to get legal aid and, if so, should signpost the person to a legal aid lawyer. A privately-funded advisor may not be acting in their client’s best interests if they do not advise them about the availability of legal aid.

In some cases, before granting legal aid, the advisor will also have to undertake a ‘merits test’. This will particularly be true for CLR and licensed work.

The Means Test: The advisor will carry out the means test before agreeing to represent the trafficked person under the legal aid scheme. To decide whether the person qualifies, the advisor will need to ask them questions about their circumstances, including their immediate family, their income, savings and expenditure and whether there might be another person or organisation that can pay the person’s legal fees.

The trafficked person will have to provide up to date evidence of their means (e.g. a letter confirming they receive asylum or trafficking support, or welfare benefits, or evidence of their employment income, usually payslips and bank statements). If the person is sofa surfing and living on handouts from friends or charities, they will also have to provide evidence. The Legal Aid Agency provide a ‘third party support’ form for those helping them to confirm their support.

More information on the means test can be found here, including a legal aid eligibility calculator and key card giving the current financial limits for entitlement to legal aid.

The Merits Test: This will happen if a person is seeking legal aid for representation in an appeal or judicial review. The advisor will usually need to satisfy themselves that the case has at least a 50% chance of succeeding for the person to receive legal aid.

If the person has a right of appeal to the First-tier or Upper Tribunal in respect of an immigration decision, and the advisor decides there is insufficient merit in the case to grant or continue legal aid, the person will have a right to appeal that decision directly to the Legal Aid Agency. The advisor should inform their client of that right and help them to appeal. This is called the CW4 procedure. If the advisor declines or withdraws legal aid and does not inform them of this procedure, the person should ask them for a CW4 form to appeal to the LAA against the decision.

The government brought in major cuts to legal aid for immigration cases in 2013 in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Most immigration cases are not now ‘in scope’ for legal aid. However, victims of trafficking are an exception.  They will be entitled to legal aid for help with their trafficking and immigration cases. This will include:

  • Immigration advice and representation concerning their right to stay in this country under UK law (under any category of the Rules or outside the Rules). This will apply  if they have either a positive conclusive grounds decision OR a positive reasonable grounds decision AND they have not had a negative conclusive grounds decision. This will include help with applying for discretionary leave (DL) or challenging a refusal of DL, or for other immigration applications (e.g. on family or private life grounds or under the EU settlement Scheme). It also includes applications for ILR even if made many years after the person gets their positive CG decision.
  • Entitlement to legal aid under this category will run from the date of the positive RG decision and then continue. It will end only if the person receives a negative CG decision. Note that a legal challenge to a negative decision will usually be by way of an application for judicial review, and legal aid will be available in these circumstances (see below).

Legal aid will also be available, whether or not the person is a victim of trafficking, for

  • Asylum and humanitarian protection claims, throughout the process, including advice about whether to make a claim. Legal aid providers can claim their time for providing some limited pre-asylum advice even if the person doesn’t then go on to claim asylum. Legal aid will also be available for asylum seekers to help them with their asylum claim, appeal or judicial review even where the person has a negative trafficking decision.
  • Applications for ILR made on the basis of domestic violence or abuse, and for EU family members where the marriage or civil partnership terminated because of domestic violence or abuse.
  • Help to get out of immigration detention.
  • Help with a ‘judicial review’ challenge against a decision by UKVI (including a negative RG or CG decision)
  • A human rights claim based on Article 3 medical grounds.

Legal aid will NOT be available for the following, unless granted under the ECF scheme (see below):

  • Advice solely on entering the NRM (i.e. pre-NRM advice). If, however, the person has claimed asylum or wants advice on doing so, the issue of whether or not they should be referred into the NRM will be relevant to their asylum claim, and to that extent advice on the NRM can be provided under legal aid. There is likely to be a close overlap between the trafficking events and the asylum claim.
  • Help with EU/EEA applications made under EU law (i.e. under the EEA Regulations 2016). The legislation limits advice to those seeking to make applications for leave (permission to stay) under UK law, including under the EU Settlement Scheme (EUSS).
  • Seeking reconsideration of a negative NRM decision, unless that is being done as part of an asylum claim or appeal (although legal aid is available to challenge the NRM decision by judicial review) or under a public law file which was started with a view to bringing judicial review proceedings.
  • Family reunion – seeking to bring a family member to the UK.

However, for such cases where legal aid is not usually available, the person (or their advisor) may be able to make an ‘exceptional case funding’ application (see below).

Exceptional case funding (ECF)

People who have a case that does not fall within the scope of legal aid (as outlined above) can apply to the Legal Aid Agency for exceptional case funding. This is a form of discretionary legal aid that will only be granted if you can show that not having access to legal advice may lead to a decision being made, or you being unable to challenge a decision that has already been made, which may be in breach of your human rights or European Union rights.

Individuals can apply for ECF themselves but will often need help to do so. Some advice agencies and pro bono legal clinics help people apply for ECF. If legal aid is granted, the person will then have to find a legal aid advisor to advise or represent them under the legal aid scheme.

Information on applying for ECF is available from the government here. Further advice is available from the Public Law Project here.

It takes 20 working days to get a decision from the Legal Aid Agency (LAA) on an ECF application in most cases. If the LAA agrees that the matter is urgent, the person should get a decision in five working days.

The LAA says it is difficult to tell if something is urgent unless this is made clear on the front of the application form or letter. It is a good idea to say very simply why the case is urgent on the application form itself. The LAA should triage applications to decide if something is urgent before the five working day point. If you have asked them to deal with the case urgently and you have not heard from them in five working days, ring the LAA using this number: 0300 200 2020.

If the individual is applying for ECF themselves, or with the help of a support worker, they do not need to fill in an application form. The Legal Aid Agency says they accept a minimum of the following information in writing (and signed by the applicant):

  1. Background to your case, including all the main facts
  2. What you need legal advice on or what court proceedings you need representation in
  3. Explain why you cannot represent yourself
  4. What outcome you wish to achieve
  5. Information that will support your application, e.g. court applications and orders, expert and medical reports, copies of any decisions you wish to challenge
  6. Information on your financial situation.

Applications can be made by email or post:

Exceptional Case Funding Team (ECF)
Legal Aid Agency (7.38)
102 Petty France, London SW1H 9AJ

Email: contactECC@legalaid.gsi.gov.uk
Telephone: 0300 200 2020

This section aims to provide some tips for legal aid advisors working on trafficking cases.

Evidence of means: Victims of modern slavery often have problems proving the source of their income, for example, if they are working cash in hand and do not get payslips, or being supported by friends. Ideally, if a client has a support worker, ask them to write a letter confirming what they know about the client’s amount and source of their income over the relevant period and explain if this is normal in their experience (i.e. employers refusing to give payslips to workers who do not have leave to remain).

Money sent home to dependent family members can be counted for the purposes of the legal aid calculation. If a client sends money to a partner or child who is wholly dependent on them, you will have to take the partner’s income into account but can apply the partner and child deductions. It is advisable to keep proof of money sent home during the computation period on the file to show why the family deduction has been applied.

Fixed fees and the escape fee: Fixed fees under the Graduated Fees Scheme are very low, but there is usually potential for reaching the escape fee threshold in trafficking cases. This is due to the amount of time it can take to work sensitively with a victim, building up trust and obtaining instructions over a number of appointments, the complexity of the factual and legal issues that may arise, and the need for expert medical and country evidence.

The delays in decision making by the Competent Authority also requires more time to take updated instructions, periodically, and advise the client as their circumstances change or you seek to progress the case. Guidance on working with escape fee cases is here. Used properly, the legal aid scheme allows advisors to carry out as much work on a case as is necessary, and ensures that all the work will be paid for at hourly rates. An advisor trying to do the work within the fixed fee is very unlikely to do justice to their client’s case. For those doing trafficking work, it will always be a good idea to keep smaller caseloads so that the advisor has adequate time to prepare each case to its optimum.

Extensions of the disbursement limit to instruct country and medical experts: There is further information about instructing experts below. This paragraph simply looks at the funding arrangments for the expert opinion.

When requesting legal aid funding for experts, there are codified rates for many categories of expert. Country expert opinions do not have codified rates, so the general contractual and cost assessment principles will apply when justifying your choice of expert. You do not have to provide three alternative quotes to show that your choice is reasonable, but the Legal Aid Agency may request alternative quotes to assess whether a rate is reasonable (see Escape Cases Electronic Handbook at paragraph 5.24).

If you do seek alternative quotes and have no reply to an email, it is reasonable to submit a copy of your email enquiry with the funding application in the place of a quote.

If a Legal Aid Agency caseworker refers to their own knowledge of cheaper quotes you should ask for a copy of the information they rely on and why they think this is relevant to your client’s particular circumstances. Explain why the expert you have chosen is the correct one for your case.

You need to send provisional (eg summary) instructions to an expert requesting a quote. These can be sent in an email and do not have to be as detailed as formal instructions. They can consist of the broad areas of questioning that you need an opinion on, and an indication of how much material they’ll need to read beforehand.

You will need to send the Legal Aid Agency case documents to explain why an expert is necessary, for example, the reasons for refusal letter if at appeal stage, or if at pre-decision stage, information about why you need it at this stage (e.g. because a previous decision in the case or a Country Guidelines case flags it up as a requirement).

For medico-legal experts, you may need to show the Legal Aid Agency that you have first approached a treating practitioner, if there is one, to ask if they can do the report. This is not always appropriate, for example, if you need a report from an expert (a psychologist or psychiatrist) that can diagnose complex PTSD, which a GP, counsellor or psychotherapist will be unable to do. In any case, you may wish to make your life easier by approaching the treating medic in order to preempt the Legal Aid Agency raising this as a refusal point.

For country experts, you will need to indicate why country information in the public domain is not sufficient to answer the issues in the case. For victims of trafficking, a specific opinion that refers to a client’s circumstances is often necessary, and the need for this is supported by case law.

The Legal Aid Agency will need to be persuaded that an expert opinion is needed to support an application pre-decision, when they are more usually commissioned for the appeal. This will certainly be true of medico-legal reports which they generally see as relevant to credibility and therefore unnecessary until the Home Office has challenged your client’s credibility and refused their claim or application.

In trafficking cases though, you will need to explain why a medico-legal report is an essential building block of your client’s protection claim, to show your client is vulnerable, by reason of their poor mental or physical health, to being re-trafficked or otherwise exploited if they’re forced to go home. Without the medico-legal report, the client is likely to be refused asylum. So, you should be able to provide it to support the initial or fresh claim rather than await a refusal.

In this regard see, for instance, the case of HD (Trafficked women) Nigeria CG [2016] UKUT 454 (IAC), which lists the factors that will indicate an enhanced risk of being re-trafficked, including ‘Visible or discernible characteristics of vulnerability, such as …., mental health conditions, which may well have been caused by experiences of abuse when originally trafficked’. It would be unfair for such a client to have to await a refusal before they are allowed to provide appropriate evidence of their mental health conditions.

It can sometimes assist the grant of funding if you can ask the Home Office whether they consider such a report would assist; then provide their reply (if positive) to the LAA. Here is an example of representations for a medico-legal report to the LAA.

This can be a difficult area. We would be grateful for your feedback on trends you have seen in refusals of funding for expert evidence for victims of trafficking. This will help us draw together experiences and provide examples to others of best practice when engaging with the Legal Aid Agency.

Stage claims: Cases with victims of modern slavery can be long-running due to Home Office delays, and disbursement heavy. It is important to submit stage claims for payments of disbursements whenever possible to help cash flow.

Travel expenses: A client’s travel expenses to see their advisor can be reimbursed and claimed as a disbursement where no other more local provider can assist the client and they receive asylum support, are supported by a local authority or in the reasonable opinion of the provider, the client is suffering from destitution. Their cheapest available return fare can be covered. Ask your client whether they will have difficulty finding the fare to attend your office (which they might have to do several times in quick succession if you’re drafting a statement with them).

Where a client is dispersed and wishes you to continue representing them, the Legal Aid Agency will cover their travel for appointments to see you. There is a compelling argument about the relationship of trust established between a provider and a victim of trafficking that can help you justify carrying on with their case depsite their move.

The Legal Aid Agency will also cover travel expenses for a client to see an expert or attend a hearing as a witness in their own case, where the client is ‘impecunious’. The expense must be necessary ‘in order to make or keep the case viable’. Prior authority is recommended (See Cost Assessment Guidance paras 3.23/3.24).

Photocopying: Photocopying in immigration cases is substantial but often not claimed back from the Legal Aid Agency. You can claim for all your copying where the number of copies is ‘exceptional’. Copies of 500 pages or more is considered exceptional by the Legal Aid Agency. 500 or more pages refer to the number of pages copied (not the number of originals to be copied). The number of pages is not cumulative throughout the life of the case. The rate you can claim is 4p per page (or more if justified with reference to alternative quotes obtained). See Cost Assessment Guidance (para 3.37-9) and Escape Cases Electronic Handbook (para 5.18).

Detained clients: Remember that you can only do legal aid work for someone in a removal centre where you do not have a specific legal aid contract if (para 8.6, Immigration Specification) if:

  • The client is a close family member (as defined) of an existing client and knowledge of the family’s circumstances is material to the new client’s case.
  • The client is one that you have done work for amounting to at least five hours (not including travel and waiting) before they were detained.

Legal aid in detention is provided under the Duty Detention Advice scheme. In each immigration removal centre in the UK, there are rotas of solicitors who are in each centre each week. People in detention should sign up to see one of these solicitors who (if the client is eligible for legal aid) must take on their cases.

A list of which firms are in each centre is available here: http://www.aviddetention.org.uk/immigration-detention/information-people-detention/legal-advice

There are major concerns about the quality of advice and representation provided under the LAA detention contracts. Where you think a client has been poorly represented when in detention, you should consider raising a formal complaint against that firm’s work.

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