Modern Slavery Bill

Debate between Baroness Cox and Lord Hylton

Monday 8th December 2014 Lords Chamber

[Baroness Cox]

My Lords, I rise to speak to Amendments 102B and 102C as probing amendments in order to return to the important issue of legal aid for victims of trafficking and slavery. Possibly these amendments might be more appropriately grouped with government Amendment 85, which has been widely welcomed and on which I would like to add my own congratulations.

These amendments have two aims, identified by the Immigration Law Practitioners’ Association, the Anti-Trafficking Monitoring Group and the Refugee Children’s Consortium. The first is to clarify the Government’s reason for preventing the commissioner from examining individual cases; and the second is to highlight the concern that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, many will continue to fall through the cracks of provision of desperately needed help. There is currently a protection gap that should be filled by the full provision of legal aid for all trafficked and enslaved persons from the first point of contact with a lawyer.

The amendments highlight the situation that, as things stand, the anti-slavery commissioner will be prevented from investigating individual cases when Clause 44 comes into force. They provide that Clause 44 cannot come into force until such time as legal aid is expanded for victims of slavery and trafficking. That is not to say that Clause 44 should then do so. The powers of the commissioner can be brought into force without the restrictions that Clause 44 would impose. It would give the commissioner a power to investigate individual cases and to be able to respond appropriately, including responding to emergencies.

By making orders under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Lord Chancellor can change which cases are eligible for legal aid. Orders under Section 9(2)(a) are orders to broaden the scope of legal aid. My amendment is not more precise than that. One reason for this is that the national referral mechanism is under review. We do not yet know exactly what the new system for victims of trafficking and slavery will look like. Indeed, the Home Office review of the national referral mechanism states:

“In the event that reasonable grounds determinations were to be phased out … Legal Aid, Sentencing and Punishment of Offenders Act 2012 would need to be amended. This is done through the making of an Order under Section 9 of the Act …six months should be allowed for drafting this process”.

The other concern is the great need for more legal aid to be available at an earlier stage in the process. Victims of trafficking currently qualify for legal aid for their immigration cases if they have a decision that there are “reasonable grounds” to believe that they have been trafficked. Until the competent authority and the national referral mechanism have made a positive “reasonable grounds” decision, a person is not eligible for legal aid. If the competent authority subsequently reaches a negative decision at the final conclusive grounds stage, this renders them ineligible once more. I have been advised by the Immigration Law Practitioners’ Association that the Government’s amendment on legal aid for victims of slavery is subject to the same limitations.

It is of great concern that legal aid is not available to those who are afraid to approach the national referral mechanism in the first place. According to the anti-trafficking and labour exploitation unit, a person who escapes from a trafficker or situation of exploitation and comes to them is likely to be destitute. The person is usually frightened and often illiterate and unable to speak English. In most cases that person has no immigration status, papers or passport. Traffickers keep control of the passports of their victims in many cases. Perversely, fear of immigration enforcement has therefore become a tool in the traffickers’ arsenal. Traffickers tell their victims that they are illegal and threaten to report them to the immigration authorities, which they say will arrest them, detain them and remove them from the jurisdiction. These are not idle threats; victims of trafficking are often disbelieved and detained.

Before turning to the authorities, including the statutory services such as police, who are first responders, victims of trafficking want to know what their options are. Will they be allowed to stay in the UK? Will they be safe? They have been in situations of powerlessness and subject to abuse. They are inherently very vulnerable, so victims of trafficking and slavery need advice about immigration. Without it, some opt to stay in situations of exploitation. It is a crime to give immigration advice if not authorised to do so, and for good reason—to protect people. Yet this means that NGOs providing shelter, which are first responders but not authorised to give immigration advice to the necessary level, cannot step into that breach left by the lack of legal aid.

If I may give one example to illustrate the dire predicament of such vulnerable people, Pranjali is an Indian national whom the excellent charity Kalayaan has assessed as having been trafficked. Pranjali is afraid to approach the national referral mechanism. She was subjected to appalling labour exploitation in the Middle East and here in the UK. She has tried to commit suicide multiple times and has visible scarring on her body. However, Pranjali is the sole provider for her family back in India. She became vulnerable to being exploited because her husband at home is disabled and needs money for his medical treatment. She entered on the tied, six-month domestic worker visa scheme last year but escaped from her employers, yet the Immigration Rules prevent her working for a different employer. She needs advice now as to whether she is likely to qualify for a residence permit as a victim of trafficking, which is her only option to regularise her status. She is weighing the risks of approaching the national referral mechanism, including the risks of being detained and removed, penniless, back to India—jeopardising her ability to provide for her husband’s medical treatment.

Victims of trafficking and slavery are thus in a Catch-22 situation. They will not receive help from a lawyer unless they get a positive decision but are far less likely to get a positive decision without a lawyer to assist them, both in making disclosures about what happened to them and in supporting those disclosures with evidence. The Home Office review of the national referral mechanism records that:

“Victims who escape and present themselves may not know where they have been held or the names of those holding them and the only evidence they have is the story of their experience. Research has shown that those who are severely traumatised have difficulty in providing a coherent story. These factors together can create a perception that decision-making is heavily (and wrongly) based on credibility whereas the decision-maker may feel constrained by the lack of evidence of a crime”.

Mistakes at this stage are difficult to rectify later and can adversely affect the rest of the case. It may be claimed that legal aid is available for everyone who claims asylum but not every victim of trafficking or slavery is a refugee.

In essence, my amendments seek to clarify the situation where a legal adviser encounters a person whom they determine needs legal advice on the immigration consequences of a referral to the national referral mechanism as a victim of trafficking or slavery. That person should surely be eligible for legal advice and for representation in their immigration matters whether or not a referral is ultimately made. Without such eligibility victims of trafficking and slavery, who are already inherently immensely vulnerable in so many ways, are also vulnerable to falling through the gaps of provisions that they so desperately need. I would be very grateful for any clarification or reassurance that the Minister is able to provide.

[Lord Hylton]

My Lords, Amendment 86M, tabled by the noble Lord, Lord McColl, is important in its own right and I am happy to support it. The amendment includes a period for reflection and recovery, which will be particularly helpful to overseas domestic workers who have been exploited or abused and who may have little or no English. I believe the amendment could be a ladder by which these overseas domestic workers in England, and particularly in London, could have access to legal aid and due process in civil cases as provided for by the Government’s Amendment 85, which was accepted earlier. In particular, if applications on behalf of aggrieved persons could be made by NGOs and law centres, the thing might be made to work and it would help those who particularly need it. For years we have seen bad and vicious employers enjoying a large measure of impunity. This must be ended. The amendment seems to agree with the Government’s stated wish to improve protection for victims.