Blog post by Maja Grundler, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The UK government’s “New Plan for Immigration” contains a number of concerning assertions and proposals in relation to victims of modern slavery. The policy document alleges that modern slavery referrals are sought to ‘avoid immigration detention and frustrate removal’ and sees a need for ‘distinguishing more effectively between genuine and vexatious accounts of modern slavery.’ Overall, the New Plan casts suspicion on those exercising their right to seek protection, whether as a refugee or as a trafficked person.
Besides the general suspicion with which victims of modern slavery are treated in the New Plan, two proposals on their right to remain in the UK are particularly concerning. Firstly, the New Plan proposes to ‘consult on seeking bilateral or multilateral agreements with safe, ECAT-signatory countries which would enable the removal of victims of modern slavery ensuring their needs are met in the country to which they are removed in line with our obligations under ECAT.’ The ECAT is the Council of Europe Convention on Action against Trafficking in Human Beings.
Secondly, the policy foresees to ‘make clear, for the first time in legislation, that confirmed victims with long-term recovery needs linked to their modern slavery exploitation may be eligible for a grant of temporary leave to remain (subject to any public order exemption) to assist their recovery, building on our end-to-end needs-based approach to supporting victims. We will also make clear that temporary leave to remain may be available to victims who are helping the police with prosecutions and bringing their exploiters to justice.’
While the second statement, at first glance, contains positive aspects, overall the New Plan’s approach to non-removal of victims of modern slavery lacks understanding of and engagement with European (human rights) law, in particular the ECAT, and its interplay with the European Convention on Human Rights (ECHR).
In this blog post, I will discuss the above proposals in light of provisions of the ECAT and the ECHR, as well as recent developments in the UK Supreme Court. Throughout this blog post, I will use the terms “victim of modern slavery” and “trafficked person” interchangeably.
Obligations under the ECAT
The New Plan affirms the UK’s commitment to fulfil its obligations under the ECAT. This instrument entered into force in the UK in 2009 and establishes a ‘comprehensive framework for the protection and assistance of victims and witnesses.’ This includes an obligation to identify trafficked persons (Article 10 ECAT), a provision on residence permits for trafficked persons (Article 14 ECAT), and a number of assistance measures for trafficked persons (Articles 12 and 13). To meet the obligation to identify trafficked persons as required by Article 10 ECAT, the UK created a National Referral Mechanism (NRM), operating under the auspices of the “Single Competent Authority,” situated within the Home Office. For those referred into the NRM, first a “reasonable grounds” decision will be made, if there are reasonable grounds for believing that a person has been trafficked, and if, on the balance of probabilities, there are conclusive grounds for believing that the person in question has been trafficked, a “conclusive grounds” decision will be issued. Those with a positive conclusive grounds decision may be eligible for a residence permit, which the ECAT specifies can be issued based on trafficked persons’ personal situation or for the purpose of investigating the trafficking offence. In the UK, those pursuing compensation can also obtain discretionary leave to remain.
Outsourcing Obligations towards Trafficked Persons?
A close reading of the ECAT reveals that the New Plan’s proposal of removing trafficked persons to other signatory states, and thus outsourcing the UK’s obligations towards trafficked persons, will not be in line with the UK’s obligations under this instrument. Firstly, Article 10(2) ECAT states that ‘if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process […] has been completed’ (emphasis added). In addition, persons issued with a reasonable grounds decision have the right to a recovery and reflection period of at least 30 days under the ECAT, during which, according to Art 13(1), ‘the Parties shall authorise the persons concerned to stay in their territory’ (emphasis added). Further, Articles 12(3) and 12(4) ECAT provide for medical assistance and access to the labour market for ‘victims lawfully resident within [the state’s] territory’ (emphasis added). Lawful residence, under the ECAT, can be obtained through the residence permits mentioned above.
The New Plan does not specify at what stage of the identification process removal to another ECAT signatory state would be sought, but the above provisions clarify that neither a person with a reasonable grounds decision, nor a person with a conclusive grounds decision and a residence permit can be removed and that assistance must be provided in the UK’s territory. This is also confirmed by the Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) which calls on states to ‘permit [trafficked persons] to remain in the country of destination, temporarily or permanently’ (para 26(h)).
The Right to Remain as a Trafficked Person
With regard to the question of residence permits, the New Plan suggests that ‘victims with long-term recovery needs linked to their modern slavery exploitation may be eligible for a grant of temporary leave to remain and that ‘temporary leave to remain may be available to victims who are helping the police with prosecutions and bringing their exploiters to justice’ (emphasis added). At first glance, this seems to be compatible with the ECAT, which foresees residence permits where the ‘competent authority considers that [a trafficked person’s] stay is necessary’ (Article 14(1)). Yet, the ECAT is not a stand-alone instrument. The European Court of Human Rights has incorporated states’ obligations under the ECAT into human rights law, more specifically as positive obligations under Article 4 ECHR, in its judgement in Rantsev. The relevant positive obligations include putting in place a legal framework to criminalise trafficking, protecting trafficked persons, and investigating trafficking offences. Based on this, the UK Supreme Court has expanded the right to remain for trafficked persons and limited states’ discretion foreseen in the ECAT for granting residence permits.
Before explaining how the Supreme Court has expanded trafficked persons’ rights to remain, it should be noted that, depending on the circumstances, victims of modern slavery may be able to remain in the UK if returning them to their country of origin (or indeed a third country) would amount to refoulement. A risk of serious harm on return will trigger the UK’s protection obligations under refugee and human rights law, resulting in a grant of refugee status, humanitarian protection, or human rights protection. In addition, trafficked persons may also hold valid visas or residence permits.
However, for trafficked persons who have no right to remain on any of these grounds, the Supreme Court judgement in MS (Pakistan) v Secretary of State for the Home Department  is of great importance. In this judgement, the Supreme Court made two important findings. First of all, in human rights appeals against removal, courts and tribunals can remake the trafficking decision of the Competent Authority, thus determining on the facts before them at the time of the hearing whether or not an applicant has been trafficked in the past. Secondly, the Supreme Court decided that a trafficked person (whether identified by the NRM or on appeal by a tribunal) cannot be removed from the UK while an investigation of her trafficking experience is pending or ongoing. This removes the discretion granted by the ECAT to the Competent Authority to decide whether a residence permit is necessary.
Based on MS (Pakistan), a similar argument may be made in relation to residence permits for ‘victims with long-term recovery needs linked to their modern slavery exploitation.’ The positive obligation under Article 4 ECHR at issue in MS (Pakistan) was the obligation to investigate, with the Court finding that no such investigation can take place if the trafficked person is removed. Similarly, from the positive obligation to protect trafficked persons, it should be possible to infer that long-term assistance facilitating recovery cannot be provided if a trafficked person is removed, so that trafficked persons who continue to need assistance are therefore likely to be able to claim a right to remain.
The UK government cannot outsource its obligations towards trafficked persons, nor limit its protection obligations towards them, while fulfilling its duties under the ECAT. The question of trafficked persons’ right to remain is not a matter of discretion on the part of the UK, but a matter of human rights law. As the Supreme Court clarified in MS (Pakistan), any trafficked person subject to removal can appeal on human rights grounds with reference to Article 4 ECHR. If an investigation of the person’s trafficking experience is yet to be conducted or ongoing, she cannot be removed. Similarly, trafficked persons with long-term recovery needs will likely have a right to remain. The ECAT clarifies that the relevant assistance to trafficked persons must be provided in the UK’s territory.
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