Does English Law Offer Adequate Protections To Victims Of Human Trafficking

Context: The project aims to advise my client, a Charity supporting trafficked victims. The Charity has been approached by a woman who says she has been trafficked and forced into slavery and prostitution. However, authorities do not fully accept what she says and are looking to deport her. This project aims to research the current law in respect of its effectiveness in protecting victims of human trafficking, who are vulnerable and have been exploited by their traffickers and to advise the charity on the law related to prevention and punishment of human trafficking and the areas of law that exist to protect those who are trafficked for such purposes.

Before the advice is given to the client on the law relating to human trafficking, this project will briefly outline the law relating to human trafficking and slavery from a historical and current perspective. The project will also discuss how individual’s life is affected by the laws and analyse the measures that the government has undertaken in order to prevent individuals from being trapped in human trafficking net.

Human trafficking is considered to be a modern day slavery. This is clear from the definition of human trafficking in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (henceforth Palermo Protocol), which is the principal international law document on human trafficking by the UN General Assembly. The Palermo Protocol defines human trafficking:

“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

Human trafficking as defined above, is the term used when human beings are illegally traded as commodities and used forced into labour market against their will or commercially or sexual exploited. It is therefore considered to be a modern or contemporary form of slavery. It may be noted that this is the generally held view on human trafficking as this definition has been accepted by the General Assembly of the UN, which can be seen as an affirmation of universal acceptance as the General Assembly is the largest assembly of states.

Human trafficking is a crime that is global in nature as it is prevalent in all parts of the world. Victims are generally victimised by traffickers close to their own home, or within their country of origin, which means that usually the perpetrators of trafficking are usually fellow citizens of the victims. Victims of trafficking may ultimately be trafficked into foreign locations or foreign countries, where they may be forced into labour or prostitution, which makes victimisation complex as it involves transnational movement. The UK itself has seen significant incidence of human trafficking in the recent past, and trafficking may be termed as a serious issue that the law and government has had to deal with. Before statistics on human trafficking can be mentioned, it is important to note that most cases of human trafficking go unreported and therefore, the true figures of human trafficking are dark figures and the actual statistics maintained by the police can only be used to provide some insight into the crime incidence. The National police operations in the UK indicate that there were 88 cases of human trafficking reported in 2007, and 167 cases reported specifically of sexual trafficking. In the first half of 2009, there were 148 cases referred with relation to sexual trafficking, and 199 cases referred in the later half of 2009 through the National Referral Mechanism. The UK Child Exploitation and Online Protection Centre statistics also indicate that there were 330 cases of child trafficking in 2007 and 325 in 2009, with 56% victims being trafficked for prostitution. These figures show a serious incidence of trafficking at least from the reported statistics, while the actual incidence may be much higher.

Most detected trafficking victims are subjected to many different forms of exploitation such as forced prostitution, forced labor, criminal activity, forced begging, domestic servitude, forced marriage, and forced organ removal. Indeed, exploitation is an important aspect of human trafficking and every trafficking incident is a form of exploitation. Exploitation is of different forms and can include forced engagement in criminal activities like pick pocketing, and drug trafficking. Trafficking in human beings, is founded on the existence of certain power relations wherein the perpetrator exercises the powers of ownership over the victims, been bought and sold often for less payment or no payment. In order to exercise the powers over the victims of trafficking, the trafficker puts the victims under their surveillance, monitors the movements of the victims and forces them to move from one place to another; this is done for the purpose of ensuring the lack of familiarity of the victim with the local rules and regulations and stay attached with the trafficker and are made to live and work in poor conditions. These are the grounds based on which courts have considered human trafficking to be a form of slavery. For instance, in M and others v Italy and Bulgaria, the ECtHR Court found ill-treatment to be a ground for holding that the victim was enslaved and his right under Articles 3 and 4 of the European Charter of Human Rights (ECHR).

Human trafficking may sometimes be incorrectly confused with human smuggling. There is no doubt that people often confuse human trafficking and people smuggling with illegal movements or economic, hence upon arrival, the smuggled person is free. Human smuggling is not the same as human trafficking and this distinction needs to be understood. Human smuggling involves illicit movement of people from one country to the other with the consent of the people being smuggled. Human trafficking does not involve consent of the victims. Although there are crucial differences between people smuggling and human trafficking, it may be noted that sometimes smuggled people can end up being victimised by traffickers or at times smuggled people may also face grave human rights abuses at the hands of the smugglers.

Human trafficking is one of the top ranked illicit activities along with arms trafficking and as drugs trade; the Interpol considers it to be one of the most profitable illicit operations in the world today in terms of the profits generated by the traffickers. The involvement of organised crime syndicates in human trafficking has made it difficult to control human trafficking. In order to respond to human trafficking, the UK government has made number of changes with respect to existing anti-trafficking laws throught the the Modern Slavery Act 2015. These include the following: Nationality, Immigration and Asylum Act; Sexual Offences Act 2003; Asylum and Immigration (Treatment of Claimants) Act; and Coroners and Justice Act 2009. The Modern Slavery Act 2015 replaced these laws that earlier responded to human trafficking.

The changes in the laws have been necessitated by the understanding that human trafficking will continue to operate as a low-risk but high profit activity unless the criminal justice system responds to trafficking in a strong manner. These changes are also necessitated by the international human rights law, particularly the ECHR, which calls for security against modern day slavery under Article 4, which persists in the world even today in the form of human trafficking and exploitation. Article 4 relates to prohibition of slavery and forced labour. The ECHR demands that states take necessary actions to prevent human trafficking and take actions against those who are involved in human trafficking as a business. The European Court of Human Rights (ECtHR) has taken a stringent view of human trafficking and the obligations of the states to prevent and punish the offence of human trafficking. In Rantsev v Cyprus and Russia, an important case on human trafficking, the ECtHR observed that there is an obligation on State parties to undertake full and effective investigations into the offences of human trafficking, and this obligation applies to all states the jurisdiction of which may be involved in human trafficking, including those where trafficking originated, transited through and destined for. The transnational nature of trafficking necessitates that all states in the transit route for human trafficking are taking appropriate action through their laws and policy to respond to this problem. Human trafficking essentially involves collusion between criminal groups in more than one state and the dehumanization of individuals through the transit system as noted below in the words of Roza Pati:

“The dehumanization of individuals, which it so often entails, takes place within and outside the borders of one state and one legal system. When trafficking occurs within a single state, the government of that state can address the issue comprehensively and effectively within its borders. However, when any element of the process relates to a foreign state, be it the nationality of the victim or the state in which the victim is temporarily crossing during his or her trafficking passage, not only is the control of the state over this activity legally and factually limited, but the victim is also put in a precarious position.”

Human trafficking involves collusion between traffickers present in different countries along the transit route, which necessitates concerted action between states. Human trafficking involves movement of victims which present complex issues that are to be resolved by the states that lie along the transit route. This necessitates action from states in their laws and policy. The obligation of the UK to make laws that respond to human trafficking problem because of the same issues. Legislation on human trafficking must consider the personal circumstances of the victims. The victim may be a minor, or may be afflicted with mental or physical illnesses, or may be a victim of abuse within familial relationships. Such circumstances make the victims more vulnerable to the exploitation and victimisation by human traffickers. As exploitation is an essential part of trafficking victimisation, exploitation needs to be defined by the law. One of the most common forms of exploitation in such cases is that of sexual exploitation, which is defined as that which involves the commission of an offence under Part 1 of the Sexual Offences Act 2003 in England and Wales.

The client in this case has stated that she was forced into slavery and prostitution. As the discussion above indicates, this would be considered to be exploitation and slavery under Article 4 of the ECHR. With respect to this, is has been noted by the ECtHR that human trafficking is a form of slavery. The discussion below presents the law that relates to the client’s situation.

It may be noted that the traffickers different forms of recruitment methods. A person may have been recruited by someone who uses physical control or commits sexual violence. or lures them into coming to the UK with opportunities to work and studies, or some other method may be used to lure the victims into human trafficking. There are power relations that make it difficult for the victims to resist exploitation. Physical or emotional abuse may be related to exploitation as such victims are more easily influenced. Research indicates that there are several factors that are responsible for influence by the traffickers on the victims, which makes London a trafficking hot spot. Girls from low socio-economic backgrounds may also be vulnerable to victimisation. Similarly, victims of domestic violence are also susceptible to human trafficking.

The client has told the Charity that she has been trafficked. Whilst we don’t know how or where she was trafficked from, it is very common for people to be trafficked for the purposes of slavery and prostitution. The discussion above already indicates that several factors may be responsible for the influence that the traffickers may have wielded on the client and lured her into trafficking.

Historically, the British parliament had laws in place to prevent human trafficking, including Nationality, Immigration and Asylum Act, which made the trafficking of people for prostitution illegal, Sexual Offences Act 2003, Asylum and Immigration (Treatment of Claimants) Act 2004 and Coroners and Justice Act 2009, which criminalised forced labour. The Modern Slavery Act 2015 consolidated the previous legislation into one Act. Furthermore, a Directive was set up by the European Parliament to respond to human trafficking, which is the European Trafficking Directive 2011/36/EU, which provides a uniform approach to identification and protection of victims in different European states. This Directive is also an aspect of the Modern Slavery Act.

The Modern slavery Act 2015 provides for Civil legal aid for victims of slavery in Part 5. Section 32A of the Act provides that civil legal services should be provided to an individual who has made an application for leave to enter or remain in the UK where the authorities may be able to conclusively determine the victimisation of the individual through slavery, servitude or forced labour. This is applicable even where victimisation is not conclusively proved but there are reasonable grounds for believing such victimisation. Section 32A also provides that victimisation may be determined by the competent authority even where there are grounds to believe in such victimisation. The order of the competent authority is important in this respect, and the individual is a victim of slavery if the competent authority concludes that. Furthermore, the law also relates to the ECHR provisions by providing that slavery and forced labour is defined in the same way as under Article 4 of the ECHR.

Other provisions of the Modern Slavery Act 2015 that are relevant here are also discussed briefly to provide an overview of the provisions that are applicable for the client. Section 49 provides guidance on the identification of victims and extension of support to such victims. The guidance is to be issued by the Secretary of the State for the public authorities and other appropriate persons. The guidance is to relate to the indications that may lead to the determination of victimisation by slavery or human trafficking. Guidance will also relate to arrangements for providing assistance to such victims. Section 49 requires that the Secretary of State may revise and publish the guidance from time to time. This guidance should be referred to by the Charity in this case.

Section 50 of the Modern Slavery Act 2015 provides the Regulations about identifying and supporting victims which are to be made and published by the Secretary of State so that assistance and support may be provided to the victims. Under this provision, the Secretary of State may make regulations providing for public authorities to determine conditions for laying of reasonable grounds for determination of persons as victims under the Act. Section 51 of the Act relates to presumption about age with relation to persons believed to be victims of human trafficking, and where the authorities are uncertain about the age of the person but may have reasonable grounds to believe that the person is under 18 years of age. As per this provision, until the assessment of the person's age is carried out by a local authority or the person's age is otherwise determined, it is to be presumed that the person is under 18 years of age. Section 52 is particularly important in this case scenario because as per this section, the public authority to whose notice it is brought that a person may be a suspected victim, is responsible for notifying the Secretary of State or any other notified public authority. This is a statutory duty under the Act.

The discussion on the provisions of the Modern Slavery Act 2015 indicates that there is a duty on public authorities to make the required notification to the authorities if there is an indication that a person may be a victim of slavery or prostitution or trafficking, as the client is claiming to be in this case. There are certain protections that are attached to persons like the client in this case, which are provided under the legislation itself. The framework of the legislation makes the government duty bound to assist victims as the court has also confirmed this duty of the state under the ECHR. With regard to the client in this scenario, we know that the government is refusing to believe her status as a victim of trafficking even though she has the typical characteristics of the victim just as in this case of R. (on the application of EM) v Secretary of State for the Home Department. Therefore, the client in this case can seek judicial review if the government continue to refuse to believe her as victim of trafficking. The Civil Procedure Rules, Part 54, Part 8 application, allows individuals to move the High Court for judicial review of administrative acts and provides the process as per which the judicial review applications are processed.

Support for judicial review action in such cases can be found in the case of H v Secretary of State for the Home Department, in which case the victim of human trafficking was not given support by the Secretary of State for the Home Department and there were errors in Home Office procedures in dealing with human trafficking victims. The claimant was a Vietnamese national who arrived in the UK as a teenager and was allegedly tortured and abused by certain persons and when interviewed by an immigration officer as a possible human trafficking victim, the victim was not believed by the officer and instead an order for deportation was made. This was a result of errors in procedures by the Home office. Similar action can be taken by the client in the current case scenario as well. In that case, the Home Office initially found in August 2016 that there were no conclusive grounds that the victim had been trafficked, but it made a new decision in May 2017 that the claimant was trafficked and entitled to sustainable damages for being unlawfully detained in an immigration detention. Although improper procedures were carried out, the court still held that it was not the its role to scrutinise the performance of the Home Office. This case indicates that the courts may be reluctant to review the decisions of the authorities even where these have not supported a genuine human trafficking victim. It is important that the client is also made aware of such jurisprudence which may go against her case.

The client should also be advised on the signs that a victim may not be telling the whole truth. In the case of R. (on the application of EL) v Secretary of State for the Home Department, the credibility of an asylum seeker was questioned due to different information given in two interviews. There were inconsistencies in her accounts and she did not follow the ‘Victims of Modern Slavery - Competent Authority Guidance'. The client should be advised to present a clear narrative that confirms that she fits this guidance and her story is credible. She should be interviewed by a few members to ensure her accounts are consistent.

In the case of R. (on the application of M) v Secretary of the State for the Home Department, the application was rejected as the Secretary of State for the Home Department concluded that a claimant's account of events did not show she was a victim. This conclusion was reached due to an absence of details such as where her abuser lived or worked or to identify any places other than the park as she was not allowed anywhere but there. This absence of detail led the Secretary of State to strip the claimant's account of all credibility. In such cases, the UK law is failing to comply with its obligations to protect human trafficking victims under the international law including the ECHR. It is irrational to question a victim’s credibility based on absence of information she cannot give.

In the case of R. (on the application of TDT) v Secretary of State for the Home Department, a human trafficking victim was released from an administrative detention without safe guarding measures put in place. The Secretary of State was aware of the risk of re-trafficking of the victim but his accounts did not see him as a credible victim and the victim disappeared after his release. His release was not seen as a breach of Article 4 after the court considered the test set out in Rabone v Pennine Care NHS Foundation Trust. This case also shows a failure towards the duty of protection of the victim.

There are two recommendations that are made out in this report. The first recommendation is that the Charity must take up the case of the client because the client says that she is a victim of human trafficking. The Charity owes a duty of care to the client and in the first instance if the client says that she was trafficked, it is necessary that the Charity asks for relevant particulars and informs a public authority like the Secretary of State. The second recommendation is that the client should be informed about all the possible ramifications of not giving all the particulars as the cases discussed show that victims of trafficking may not get appropriate consideration due to technicalities. Therefore, the client should be advised to be completely open about all particulars of her case.

To conclude, the client in this case clearly fits into the definition of a victim of human trafficking as there appears to be no suggestion that she smuggled herself into the country and as she was forced into prostitution and labour. Having considered the case law, it is clear that the courts recognise that victim of trafficking should be protected by the legislation and conventions in place to give such protection. However, there may be some failures on the part of the UK government in complying with its obligations.

List of Cases

H v Secretary of State for the Home Department [2018] EWHC 2191 (Admin).

Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.

R. (on the application of EM) v Secretary of State for the Home Department [2018] EWCA Civ 1070.

R (TDT, by his litigation friend Tara Topteagarden) v Secretary of State for the Home Department [2018] EWCA Civ 1395.

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.

Books

Boister N, An Introduction to Transnational Criminal Law (Oxford: Oxford University Press 2012).

Dewey S, Hollow Bodies: Institutional Responses to Sex Trafficking in Armenia, Bosnia and India (Kumarian Press, 2008).

Galeotti M, ‘Introduction: Global crime today’ in M. Galeotti (ed.), Global crime today: the changing face of organised crime (Oxon: Routledge 2014).

Gallagher A and David F, The international law of migrant smuggling (Cambridge: Cambridge university press 2014).

Hope T, ‘What do crime statistics tell us?’ in C. Hale, K. Hayward, A. Wahidin & E.

Roy EC, Macias-Konstantopoulos AW, & Burke TF, ‘Sex Trafficking of Women and Girls in London’ in E. A. Roy Ahn, T. Burke, E. Cafferty, J. P. Castor, W. Macias-Konstantopoulos, A. McGahan, . . . T. Williams (Eds.), Sex Trafficking of Women and Girls in Eight Metropolitan Areas around the World Case Studies Viewed through a Public Health Lens (Massachusetts : Massachusetts General Hospital, 2010).

Wincup (eds.) Criminology (Oxford: Oxford University Press 2013).

Journals

Farrugia R, ‘State responsibility for human trafficking – perspectives from Malta’ (2012) 15 (2) Journal of Money Laundering Control 142.

Gromek-Broc K, EU Directive on preventing and combating trafficking in human beings and protecting victims: Will it be effective? (2011) 20 (64) Nova et Vétera 227.

Irogbe K, ‘Global Political Economy and the Power of Multinational Corporations’ (2013 ) Journal of Third World Studies 223.

Pati R, ‘States’ Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev V. Cyprus And Russia’, (2011) 29 Boston University International Law Journal 79.

Reports

Home Office, Victims of Modern Slavery - Competent Authority Guidance (The Stationary Office 2016). UNESCO, The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two (1954 and 1999) Protocols (The Hague: UNESCO 2010).

UNODC, Global Report on Trafficking in Persons 2014 (United Nations publication, Sales No. E.14.V.10).