Oral evidence: Modern slavery, HC 1460
Tuesday 2 July 2019
Ordered by the House of Commons to be published on 2 July 2019.
Members present: Yvette Cooper (Chair); Janet Daby; Chris Green; Kate Green; Tim Loughton; Stuart C. McDonald; Toby Perkins; Douglas Ross.
Questions 201–265
Witnesses
I: Ahmed Aydeed, Director and Solicitor, Duncan Lewis Solicitors, James Wilson, Deputy Director, Detention Action, and Sarah Teather, Director, Jesuit Refugee Service.
Written evidence from witnesses:
– The Jesuit Refugee Service UK
Examination of witnesses
Witnesses: Ahmed Aydeed, James Wilson and Sarah Teather.
Q201 Chair: Can I welcome everyone to this evidence session of the Home Affairs Select Committee and our inquiry into modern slavery? Can I welcome our panel? Thank you for coming to give evidence before us today. Could I ask you just each to introduce yourselves and the organisations that you represent?
James Wilson: Thank you very much. I am James Wilson, Deputy Director at Detention Action, working directly with detainees in Harmondsworth, Colnbrook and Morton Hall.
Sarah Teather: I am Sarah Teather. I am Director of the Jesuit Refugee Service in the UK, and we run a detention outreach service in two of the Heathrow immigration removal centres.
Ahmed Aydeed: My name is Ahmed Aydeed. I am a Public Law Director at Duncan Lewis, and I act predominantly for victims of trafficking and detention and for asylum seekers.
Q202 Chair: Thank you very much. Could I ask you to give us very briefly an outline of your concerns about the way in which the detention system is currently operating around slavery victims?
Ahmed Aydeed: All I can say?
Chair: A very brief overview, if you can.
Ahmed Aydeed: I am not sure that is going to be possible.
Q203 Chair: We have lots of questions to ask you about the detail but it would be very helpful if you could give us an initial outline or even just your top two concerns, if you have a lot.
Ahmed Aydeed: Top two concerns. I will have to limit it, then. Perhaps that potential victims and victims of trafficking should not really be detained in an immigration detention centre. That is going to be probably one of the main concerns: the detention of victims of trafficking in immigration detention centres or under immigration powers in prison.
Q204 Chair: What is the scale of the problem, in your assessment?
Ahmed Aydeed: It is impossible to say what the scale is because there is no data held on the number of victims of trafficking or potential victims of trafficking that are detained in immigration detention centres. I think it was a question that was raised in PMQs in June and as a question posed to the Secretary of State. The question was along these lines: “How many potential or confirmed victims of trafficking are detained, or those who have received positive, conclusive or reasonable grounds decisions? How many of those were held in an immigration detention centre?”
The Secretary of State stated that data are taken on the number of positive reasonable grounds decisions and conclusive grounds decisions, but that does not then link to whether those individuals were at any point detained, so the answer was, “We don’t know”.
When you look at all of the issues concerning—you will have heard about this as well—picking up on indicators, the fact that first responders are not picking up on indicators, when you take all of those issues together, I think it is impossible to say the number of individuals. I would say, though, that we conduct legal surgeries at detention centres. I do on a regular basis, during these legal detention surgeries at detention centres, see victims of trafficking and there are clear indicators there but they are still detained.
Sarah Teather: I would say something similar. I am concerned that victims of trafficking are clearly being held in immigration detention centres. The quality of referral to the NRM process appears to be poor or the decision-making appears to be poor. We are seeing people who have obvious indicators of trafficking, clear indications of torture, and yet they are sometimes being given a negative reasonable grounds decision. Even when they are given a positive reasonable grounds decision, it appears not to trigger release immediately from detention.
We have had three cases—we had one in our briefing but we have seen more since—that have spent all of their 45-day recovery period in immigration detention. When they have been referred in, they have spent their reflection and recovery period in detention.
Q205 Chair: Once they have had the NRM, why did nothing happen at that point? Why was there then no change to take them out of detention?
Sarah Teather: This is a little difficult to say. One thing I should say for context is the organisation that I work with primarily provides pastoral care to people in immigration detention. We are not providing specialist legal advice. When people come to us and tell us their stories, they are telling us their stories in a very different context. Our volunteer is here in the public gallery today. She is a religious sister. She is Vietnamese. They are looking for emotional support, and it is Vietnamese men who we are seeing predominantly. I cannot speak for others. That is the particular group of people that we are seeing.
I do not know why it is not triggering, but the information that we are seeing in the Home Office monthly reports says that they are weighing public order and immigration factors against the possibility that they might be trafficked, and that is why they will not be released. I think it is the weighing of the vulnerability against public order that is stopping people from being released. Often people are eventually released but they may spend some time in immigration detention first.
Q206 Chair: Then the 45 days are not starting again from when they leave?
Sarah Teather: No. Some of those people are then released with no support at all. Sometimes we have been able to intervene to get somebody released into a safe house, but sometimes people are being released with no support at all, leaving them very vulnerable to re-trafficking. We had one person who just disappeared afterwards. We do not know where he is and we are quite concerned.
Q207 Chair: Do you again have any sense of scale?
Sarah Teather: I don’t. As I said, just the context of what we do: we are a small organisation providing pastoral care. We have seen 26 Vietnamese men in a period of just over two years since we gained a Vietnamese volunteer to work as part of our outreach team. I do not know beyond that. I do not know about other nationalities. I do not know who we are not reaching. Sometimes people have been in immigration detention for some time before they approach our volunteers.
Q208 Chair: Can you give me just a sense, if it were a pen portrait, a case study, then, for the kind of case that you might deal with?
Sarah Teather: It is variable, but people will often tell a story of having got into debt for one reason or another. In Vietnam they perhaps have come under the power of loan sharks. They may be sold or they may choose to go and work in order to try to pay back the debt. They are then trafficked through Russia and China, often beaten, and sometimes sexually abused en route.
Some of the people we have seen have been intercepted on entry to the UK when they have arrived in the back of a lorry, and some of those people have then been re-trafficked at that point. Most of the people we see will have been picked up in a raid where they have been working on cannabis farms.
They are not then picked up by the criminal justice system. Sometimes they have had very bad legal advice. They have been advised to plead guilty to minimise the sentence. They serve the sentence, often on remand, and then go into immigration detention. There is a succession of failures to pick things up.
They speak no English. They often have very poor literacy even in Vietnamese, which means their ability to engage with the process is very low. Sometimes they do not even know they have been referred into the NRM when they have been. They do not know the result of what has happened to them. The communication to them about the process is poor. They have had no legal advice to help them prepare for an NRM referral. They have been badly let down at every stage, and they are then very vulnerable even when they are released because they speak no English. If they are released then without support, they are very, very vulnerable indeed.
The detention has a lasting impact on people. It reminds them of their experience of being held in captivity. We are supporting one man at the moment. It is somebody whom we have referred to in one of our briefings, whose case was particularly traumatic, and we are now supporting him in the community after he has been released. He is terrified of being picked up again by the traffickers and terrified of being picked up and put in detention. He lives with these two fears that dominate his life.
James Wilson: I would very much echo the comments of Ahmed and Sarah. We made seven recommendations in our written submissions to the inquiry, which I can speak to if that is helpful.
Broadly, there are two main areas of concern, and it is concern with a capital C because we think it is a serious issue. First, there seems to be a major failure at the screening point around decisions to detain and potential victims of trafficking just not being identified, and that not being taken into account at the point of deciding to detain. Then, when there have not been indicators at an earlier point, identifying people in detention, again, there are clearly serious shortcomings there in terms of the system for referrals being made and people being released from detention.
The second area of concern is around other stages in the trafficking process, which are also failing trafficking victims more broadly but specifically people in detention. The lack of independence in terms of first responders but also the competent authority we think is a major issue and major conflict of interest, with both those parties being normally the Home Office.
Then the lack of support that is available for detainees. I very much pick up on what Sarah says about how vulnerable these clients are, almost invariably, in terms of their lack of English and in terms of the experiences that they have been through.
Q209 Chair: Again, a sense of scale?
James Wilson: We work with around 1,000 or so people in detention in an average year, compared to 24,000 or so people detained, I think in the last year. It is hard to get a sense of scale for all kinds of reasons. People may not disclose to us indicators of trafficking.
In the first six months of this year we have had contact with 31 people in detention where there are indicators of trafficking to us, which, extrapolated across the system, is clearly a significant number, and we are seeing significant delays in people going on to be released.
Just to speak to a point, if that would be okay, in terms of your question to Sarah about reasons why there was a delay between reasonable grounds decisions and accommodation to be provided. Just looking at two cases that we have experienced recently, there was a client who had a positive reasonable grounds decision, but the Home Office, rather than offering or arranging a safe house, asked the individual to provide a release address, as with someone else in detention, despite that reasonable grounds decision also having medical grounds saying that he would be vulnerable to exploitation and re-trafficking if back in the community. They were eventually referred to a safe house but only after four months in detention.
We had another case recently where the individual spent a total of 11 months in detention and, initially—due to a conviction—he was denied safe house accommodation because of the criminal conviction. Often we are seeing criminal convictions relating very closely to the experience of trafficking, and it is very hard to understand why these indicators are not being picked up and actioned.
Q210 Tim Loughton: Can you go into a bit more detail about the consequences of victims being held in immigration detention, in terms of what support services are available for them there and the impact it is having on mental health? Is it a completely differential outcome for various people in various different centres, or what are the experiences you are seeing?
James Wilson: We would stress that detention has a seriously detrimental effect on everybody detained, and we see people deteriorating no matter their level of initial apparent vulnerability. Particularly for victims of trafficking, we see people becoming increasingly desperate. I would come back into the language issues and really basics.
In terms of the forms of support, there are charities like ours who provide some level of support but with very limited forms of access to the centres. There are welfare teams within the centres but they are seriously overstretched in terms of their ability to support people, so there is a serious gap.
As Sarah has highlighted, we are seeing clients not aware of the fact that in some cases there has been an NRM referral made for them and/or it is taking a long time for that initial referral to happen. Clients just do not have the information about the basics of their own case and their progress.
Q211 Tim Loughton: Sarah, welcome back.
Sarah Teather: Thank you. It is nice to see you.
Q212 Tim Loughton: In your experience of your clients you are seeing, is it just the service is overstretched, or, even if it was not overstretched, are there appropriate services there to look after them? I am playing the devil’s advocate. I suppose at least in detention they are safe temporarily, or are they not? Is it a language issue that they are just not getting proper communication because simply there are not people who speak Vietnamese or whatever may be available there? Are the health services there? The mental health services, I suppose, have the language issues as well. What is the experience of the average type of client that you are coming across that the system is clearly failing?
Sarah Teather: First of all, I would echo what James said that the experience of being held in immigration detention is extremely distressing and damaging for everybody who experiences it. Whether they are victims of trafficking or not, we see people’s mental health spiral during the time in which they are in detention.
It is particularly the case for people who have previously experienced captivity and slavery. It really exacerbates issues for them. The kinds of things that we see are flashbacks and nightmares, self-harm and suicidal ideation from people we are working with. It is pretty devastating for people. When they leave detention, it does not go away. I mentioned a minute ago the gentleman who we are continuing to support after he has left detention. That sense of fear, when he goes out of the house where he is now staying, that he might be detained is just as apparent as his fear that he might be re-trafficked. I think that is the first thing to say.
I would question whether or not detention is the ideal environment in which to do a good-quality NRM referral anyway. Define whether or not it is safe. Yes, in theory, they are not at risk of being trafficked, but people’s levels of desperation at that point are very significant. Their only engagement with officials has been very negative.
These are people who have dealt with the police. They have been criminalised. They may or not have been imprisoned. They might have been held on remand. They have come into detention. They have had probably a hostile asylum interview. Often they put in an asylum claim on the basis of their debt, because often people are in debt and fear being returned because of debt.
Their every dealing with officials is very negative and hostile. Are they really in a position to speak and disclose sexual abuse, physical abuse, an experience for them that is often shame-ridden? People are full of shame that they have been convicted for drugs. Some of the violence that has been done to them dominates their ability to talk about their experiences. I am not convinced that detention is ideal for assessments—
Q213 Tim Loughton: One of your recommendations is that there should be an absolute bar on the detention of victims of trafficking, so it is not the appropriate place for them. They are not getting any remedial support largely when they are there. What is the alternative? It sounds as though, if they are not getting support in detention and there are not the support packages when they are coming out of detention when they are at a particularly vulnerable time, it is only organisations like yours and other charities who are providing that sort of support, let alone advocacy support, of which there is little available in detention presumably as well, and you are having to do that for them.
Sarah Teather: It depends whether or not they are lucky enough to get a solicitor like Ahmed to fight their cause.
The other thing I want to say also is that being in detention affects the choices that people make. People are so desperate that they are willing to give a bail address that might not be safe in order to get out, and that is the point—just to pick up a little bit on what James said—when we are particularly worried.
I was sitting in with our team a few weeks ago listening to somebody speaking about the fact that they were just desperate to get out and they had given a bail address, and they had given a bail address of a friend. Then we asked a few more questions and realised they did not know that person. It had come through the community.
When you speak no English, your only options are to rely on that, and your experience in detention is very, very isolating. They might not have had violence done to them, but, if they have witnessed violence and aggression again, it reminds people of these experiences.
We had one situation with a guy who was a minor. He was a minor and he was in detention, and that had not been picked up. A lot of the men that we see are very, very young.
Q214 Tim Loughton: They had not done a proper age check?
Sarah Teather: They had not, no. Eventually, he was referred into the Refugee Council’s trafficked boys’ project and they managed to get a new age assessment and overturn it. He had been through the criminal justice system. He had been convicted. He was in detention. He was still a minor in detention. He is a very young boy.
This is the case in our briefing. He said that he was intercepted, to begin with, in the back of a lorry, and he said that he had been placed in foster care and then kidnapped or lured out of foster care and later picked up in a cannabis farm. There is a succession of people who have failed these people. It is a legacy of failure, unfortunately.
Ahmed Aydeed: Sorry, could I just come back on those points? There are three issues that arise from this. First, what do you need out of that individual in terms of when you look at it from a public body’s perspective? The Secretary of State will want to know about the trafficking. They will want to know. They will want the person to disclose these concerns so that can then be reported to the police, and then you can investigate the gangs who are behind this trafficking.
If you look at that, what victims are told by their traffickers and by their enslavers is that, “If you escape the Home Secretary will detain you”. If you are then found in a detention centre, what has happened to you is exactly what the trafficker has told you. How is that going to be conducive to you to disclose information that might be helpful to the Secretary of State in terms of making a decision on your claim and, also, informing the police for that to be investigated?
Then the second issues becomes: what impact in terms of mental health and physical health does that have on the individual? What all medical practitioners tell us and what is confirmed is that this is re-traumatising. For someone who has been held in captivity, who is then re-detained by the Home Secretary, that is going to be re-traumatising. I do not need to tell you that. That is in the report and experts say the exact same thing.
Then what you have is the question of: are these people safe in detention? We have issued a claim—and that has been settled now—for a minor victim of trafficking. If you look at the circumstances in this case, it is completely appalling. There was a positive reasonable grounds decision before he was even charged and convicted of his offence, but that was never communicated to the CPS.
The CPS then went and agreed to bring charges against this individual, who was a minor at the age of 16, found in a cannabis house and then convicted him of cannabis cultivation. By the way, throughout his period in prison and in detention he is described as the model detainee, the model prisoner. Yet he was convicted in absence of that information and that information was not passed on to the CPS.
The CPS is then unaware. The individual is prosecuted. Solicitors informed him to plead guilty. He pleads guilty. He then spends a period in prison. He is then detained under immigration powers in prison and then is transferred, with a positive reasonable grounds decision throughout this period and at one point a conclusive grounds decision confirming that he is a victim of trafficking. He is then transferred to an immigration detention centre. He is then held there for a year.
Do you know who is making these decisions? The Criminal Casework Department at the Home Office. Why should the Criminal Casework Department be making decisions related to trafficking? This is a Department that deals with foreign national offenders and, through the hostile environment and through other policies in the Government, they are asked to remove foreign national offenders and, also, do whatever they can to remove migrants. That is the same Department that is then going to be making a decision.
If I show you the correspondence to this—and I can submit that—and if you see the way in which the decision is being dealt with. We challenged the fact that a negative decision is made because he was assessed as an adult when he was a minor. We go back to the competent authority and say, “We are going to judicially review this unless you change the decision”. There is correspondence between the supervisor, who is a Criminal Casework Department supervisor, and the person making the decision, looking at ways in which you can refuse this claim.
When finally a positive conclusive grounds decision is made, the argument is, “Yes, you are a trafficking victim but we can remove you very quickly, so we are going to keep you in immigration detention until we issue it”. Then what happens is he is sexually assaulted in Morton Hall. Failure again, not just by the Home Secretary but also by the Ministry of Justice that runs Morton Hall.
We have issued claims on behalf of the client against both the Home Office and the Ministry of Justice. An apology has been issued, which is of no help at the moment, but an apology is issued by the Ministry of Justice and the claim is settled, and £85,000 in damages. Imagine the human suffering that was behind that, and that is because we have decided to keep this person detained for administrative convenience. This is for administrative convenience. This is immigration detention.
The other issue is we get to clients too late. There are not detention surgeries at prisons, so we cannot go in. We are not told, “This person has a positive reasonable grounds decision” or “This person is detained under immigration powers, give them advice” until they are transferred into an immigration detention centre. There are clients at the point we get to them that wish to just return voluntarily because they no longer can take being detained and imprisoned. They will sign waivers and disclaimers just so they can go back, and it is too late when we get there. You have the same Department that is making both decisions. That is just not right.
Q215 Chris Green: It is clear that there are a number of people who should never enter a detention centre, but are there circumstances in which you believe victims of slavery or trafficking should or could legitimately be held in detention, or not at all?
Ahmed Aydeed: To look at that question, it is immigration detention. Someone is not being detained because they have committed a criminal offence. This is really detention for administrative convenience. Is there really any basis to detain individuals under immigration powers? This is not a system that was set up to deal with foreign national offenders or to protect the public from people who might be very dangerous. This was supposed to be—as we were told when it came out—almost an airport lobby where someone is going to be removed within a very short space of time. Really, when you look at that, should someone who is very vulnerable then be detained?
When we move on from that, though, when you look at the impact that that has on an individual, can you really justify detaining them purely for administrative convenience in an immigration detention centre?
Q216 Chris Green: I understand the sense of someone who is a genuine victim in this, but under no circumstances, even if there are suspicions or fears about the person not being legitimate?
Ahmed Aydeed: What fears do we have in terms of someone not being detained? This is not a system that was set up to deal with foreign national offenders or someone who is at risk. If you look at the Home Secretary’s own policy, this is what we are told. The only time that a victim of trafficking or potential victim of trafficking should be detained is on the grounds of public order, but what does public order mean?
Q217 Chris Green: A bit vague.
Ahmed Aydeed: The Home Secretary does not know what it means. There is no policy on this. This is the response that was received from the Home Secretary’s own office, “There is currently no policy, practice, guidance or training which specifically provides a definition of grounds of public order, nor is there a policy, practice, guidance or training specifically on how to make decisions on whether potential victims of trafficking can be detained on grounds of public order. However, decisions to detain an individual must always be considered in line with general detention criteria”. A decision-maker does not even know on what basis that individual should be detained.
If we are going to define this—which, by the way, it still hasn’t—currently a draft version of the guidance is going through and is going past stakeholders. It has not been published yet. I have seen a draft version of it. When you go to what public order means, do you know what it says? It says, “To be confirmed”. There is still no policy or guidance on what that means.
I do not think there is any basis to detain individuals for administrative convenience, but, if you are going to have it, it should be in circumstances where that individual might potentially be a danger to society in general; maybe, for example, terrorism-related offences, if you are concerned.
Q218 Chris Green: Would it necessarily have to be so extreme? We did hear people can be trapped in the system because perhaps they have gone into debt or perhaps they have engaged in other activities that may be unlawful in their home countries. If we know this to be the case here, should that person be detained if they have been engaged in criminal activity before they go through the trafficking system?
Ahmed Aydeed: There are two issues with that. First, a lot of the time there are reasons why these offences have been committed, and that is under duress. You have a statutory defence to those offences, so you have a full defence to that. You have been forced into committing these offences, and that is then held against you to justify you being detained yet again.
Also, even if you were to look at someone being a risk to society, being a risk to the public, there are ways to deal with that. If you were to release someone, for example, into safe house accommodation, which is what is supposed to happen, if you were to provide the individual with the support that they so desperately need, they would not be offending. None of this would happen. That is what experts will tell you as well. If you take an individual out of the trafficking circumstances they are in, away from the exploiters and the traffickers, they would not be committing these offences that they are committing.
Sarah Teather: I did not say that the people who we were seeing had committed crimes in Vietnam. I have no information to suggest that, so I want to make sure that I correct the record.
Q219 Chris Green: No. I think the suggestion may be of getting into debt, and then that leads to—I was just expanding it slightly.
Sarah Teather: Yes, but people are coming from extremely poor backgrounds. A lot of the people that we see—partly because they are the people who would approach a Catholic religious sister—are Catholic. They are experiencing persecution on the basis that they are Catholic in Vietnam. They may have borrowed money to pay medical fees for a family member. This is not about criminal activities.
We have seen others who have been street children who say the level of suffering that they have experienced in their lives goes way, way, way, way back. That is one of the particularly painful aspects of working on these cases. When you start to hear what has happened to them before and then on the journey and then here, it is an unimaginable level of evil that has been done to people, an unimaginable level of suffering. At every stage people have turned away and failed to take responsibility for supporting and protecting them, and that is really very difficult to look at over an extended period of time.
I agree with Ahmed. I think some of the root of this problem is a knee-jerk desire to detain. If detention were used less, we would find fewer vulnerable people held in detention. This knee-jerk response to detention, “This is the only solution”, is part of the issue. There are other alternatives that at the moment the Government are not exploring.
Q220 Chris Green: In terms of support for people, the Salvation Army reported that victims in detention are less likely to enter its support system and wait much longer to receive support. In a sense, people who have had very difficult backgrounds are not then receiving the support. If they had not ended up in the detention centre, that support would be far more available.
Sarah Teather: I think people find it very difficult to engage with support when they have been through so many experiences of institutional responses that are so hostile. The further traumatising impact of being held in detention makes you less likely to engage with support that is available.
Q221 Chris Green: To access the support that is there, the detention system reduces the person’s recovery and—
Sarah Teather: It makes it more difficult. It is also really difficult to arrange NRM referrals in detention. Just the practical logistics of sorting it out are not straightforward.
James Wilson: Just to comment on the previous question in terms of any circumstances in which a trafficking victim could be detained, I agree with Ahmed’s and Sarah’s points entirely that they should not be, and we certainly do not feel that any vulnerable person, including trafficking victims or potential victims of trafficking, should be detained. Indeed, we believe that no one should be detained without the protection of very strict safeguards relating to time limits and judicial oversight.
It is particularly difficult to comment on public order aspects without a definition of public order, but the notion that a previous criminal history should justify the Government taking away someone’s liberty now: it is very hard to see how that argument works.
Q222 Chris Green: There is a question in that sense of public confidence over here that, when people come over, they are safe when they are in the UK but this is not the process for doing that.
James Wilson: No, and the question of whether somebody else is able to stay in the UK is a separate question.
To the point that we touched on earlier, it is particularly notable that often when we talk about criminal convictions for these potential victims within the UK, they are convictions such as working in a cannabis farm, which is a neon light indicator of potential trafficking, which should be addressed and explored and is just being overlooked.
In terms of the Salvation Army report on delays in access to support, that certainly ties with things that we are seeing in recent cases where there seems to be a long delay between the potential victim of trafficking in detention having the right advice that they need to be referred to the NRM, and then for the NRM referral and the reasonable grounds decision to be acted upon. I do not have the comparison figures to hand, but it does seem that, if you compare it to the rate of positive reasonable grounds decisions for potential victims outside of detention, there is a clear discrepancy that suggests that people in detention are less able to access the support they need.
Q223 Toby Perkins: The Government’s “adults at risk” guidance says that detention is not appropriate for individuals considered at risk, including victims of slavery or trafficking, but that detention might be appropriate when immigration control considerations outweigh their vulnerability. Can you say, specifically on the adults at risk guidance, Mr Wilson, what your view is on that both in terms of the guidance itself and the way it is implemented in practice?
James Wilson: As we have commented in various ways and in written submissions, the development of an adults at risk policy to, in theory, improve protection for vulnerable people in the wake of the first Stephen Shaw review is a welcome step to improve protection. However, we do not think that the current adults at risk policy has achieved its aims at all, and it has probably made things worse. The indicators of vulnerability, which should mean that a person exhibiting those characteristics of vulnerability isn’t detained, are then weighed against levels of evidence—the high levels of evidence can be very difficult for somebody to access—and then, as you indicate, weighed against immigration factors.
It would be a common-sense position to say that, if somebody’s removal is imminent within the next couple of days, that might be a reasonable ground not to release someone, or it might be a reason to detain somebody up until the time of that flight. The immigration grounds that we are seeing outweigh vulnerabilities and, in lots of cases, amount to nothing more than saying, “We think this person should be removed from the UK”, or other things such as a poor reporting history. In effect, by definition, somebody in an immigration removal centre is somebody that the Home Office at least states it is intending to remove. It just seems that the adults at risk system is failing to protect the vulnerable people. In effect, it is putting further barriers to their release.
Q224 Toby Perkins: The Home Office guidance to competent authority says that a detained person is usually released from immigration detention if they receive a positive reasonable grounds decision. Is this happening consistently? If not, what are the barriers to release, Ms Teather?
Sarah Teather: I will just pick up on the adults at risk policy first. I would agree with what James has said. Of the 26 cases I referred to which we have seen in a period of just over two years, who are Vietnamese men, around half of them we know had a rule 35 report at level 2. Often there is corroborating evidence of torture with their story, yet they were still held in immigration detention. One person had a level 3 and he was subsequently eventually released, but he had been held in detention for 10 months by that point. That gives you some sense of the situation.
The question you asked was about whether or not a positive reasonable grounds decision usually triggers release. I hinted at some of this in the remarks I said a few moments ago when I said that we had seen people who had spent their recovery and reflection period in detention. Yes, they are usually released, but there is often a significant delay, a variable delay. Some of those people have been deported. It is not always the case—
Q225 Toby Perkins: The damage is done in advance of the delay but, if the positive reasonable grounds decision is achieved, the Government are at that point tending to release?
Sarah Teather: Yes, but it is a further, often significant delay before the person is released. Those 45 days of recovery and reflection are there for a reason. They are there so that people can begin to recover and reflect on their experiences and engage with authorities around their own cases, but they are being held in detention; a situation that is exacerbating their mental health problems and their trauma. They have no capacity at that point to engage in a coherent way with the person who is handling their case.
Q226 Toby Perkins: Mr Aydeed, do you believe that a positive National Referral Mechanism decision should automatically trigger release from detention? Are there any circumstances or any cases where it would not be appropriate if they had had that positive decision?
Ahmed Aydeed: Could I just quickly come back on that point and then deal with that as well?
Q227 Toby Perkins: If you are going to say something different, yes.
Ahmed Aydeed: Yes, I will say something completely different. When you look at what happens after a positive RG, it does not necessarily lead to release. I will give you a few examples of the cases and the way that the Secretary of State deals with it.
One of our clients, we are asking for him to be released. He has a positive reasonable grounds decision. When you look at the risk factors and when you are looking at risk of absconding, risk of reoffending and risk of harm to the public, this is how it was assessed. For risk of absconding, “You are going to be destitute when we release you, so you are probably going to abscond”. He is not going to abscond because he is entitled to asylum support. Then also, because he has a positive reasonable grounds decision, he would get the uplift in terms of that, and also he is supposed to be released into safe house accommodation.
When you look at risk of reoffending, it says, “You are not going to be supported, so you are going to likely reoffend”. This is the decision. Then, risk of harm to the public, “Because of all the other concerns, you are probably going to reoffend and you are going to be at risk of harm to the public”. All of that was assessed, as “high, high, high” and it was refused. We would have to make an application to the High Court for that individual to be released if we are unable to get them released on bail. That was one of the cases.
The second case: PG. By the way, we have been granted permission because the court agrees that there is no guidance, and the court is now going to have to provide some guidance on what public order means. In this case, the client was trafficked to the UK from Poland. He was told that he was going to be able to work and signed up to this agency for employment. When he arrived, he was not able to. His money was taken away. He was forced into passing over his money and he was held captive. He was then forced into committing petty theft offences.
Finally, when a positive reasonable grounds decision was made and now a conclusive grounds decision is made, the Secretary of State certified his claim, so wanted to remove him first and then appeal later. We had to challenge that before that was withdrawn. Finally, when he had his hearing—we got the decision yesterday—when we turned up to court and there was a decision from the competent authority, he had already said that he was forced into criminality because of his trafficking, and yet the individual who was representing the Home Secretary still could not accept that and said, “We maintain our position that this individual should be removed because they have committed offences”.
Q228 Toby Perkins: When you say “forced”, do you mean forced by circumstances or forced by the traffickers?
Ahmed Aydeed: By the traffickers, yes. The conclusive grounds decision made by the Home Office as well, by the way, says that this individual was forced into committing those offences by his traffickers. Yet the decision that is maintained in court is: they should still be removed because, in any event, they committed these offences. By the way, there is a complete defence to that, the section 45 defence under the Modern Slavery Act. Those are the types of decisions that are maintained, so individuals are not all released after positive reasonable grounds or conclusive grounds decisions.
In terms of actual guidance, when you have a positive reasonable grounds decision, it goes to the competent authority guidance and that says you should only be detained on grounds of public order, but when you receive a conclusive grounds decision, which confirms that you are a victim of trafficking, you go back into the general adults at risk criteria, which means you can still be detained. You do not even receive the same protection that you would receive as an individual with a positive reasonable grounds decision. You have been conclusively determined to be a victim of trafficking, yet now there is going to be a balancing act on whether you should be detained.
Q229 Toby Perkins: In terms of the Government’s policies on immigration detention across the board, Mr Aydeed has already spoken about the fact that there is no policy on the grounds of public order but, more generally, the Government’s policies on immigration detention. Briefly, would you summarise the main problem is the contents of the guidance or its application?
Ahmed Aydeed: It is definitely both. The reason why it is both is, first, if you look at the application, there was this dichotomy where you had the Prime Minister now—and Home Secretary at the time—the hostile environment policy, but then at the same time we were told, “We are going to combat modern slavery”. You have this position where the same body that is going to make both decisions is applying the hostile environment, which we have all seen in terms of what has happened to that policy and issues in relation to equalities and whether it led to discrimination. That policy is being applied in the same body that is also being told, “We are going to combat modern slavery”. That was one of the main issues in relation to its application.
The second is, when you look at the guidance, except for children there is not a single policy that says, “If you are vulnerable or if these are your circumstances, we are going to release you”. There is always this policy where it is a balancing act.
I do have sympathy now in terms of this when you look at caseworkers that work at the Home Office. How are they supposed to be making these decisions? How do they know what to do if the guidance is not even clear? You are asking this individual to make a decision on someone’s liberty and they do not actually know what they are supposed to be applying, but the hostile environment policy is being applied. I really do also have sympathy with the individuals who have to make the decision, because there is no clear guidance on this.
The adults at risk policy is worse than the policy that was before it. At least when we had chapter 55 there were very exceptional circumstances under which someone should be detained. There are two Shaw reviews, and now we are in a worse position than we were in even before that.
Q230 Toby Perkins: I assume the rest of the panel would broadly share that view, yes?
Sarah Teather: Yes, knee-jerk decisions to detain. It is very difficult to take one group of vulnerable people and say that we need a better system for dealing with them but set it against a whole background of hostility and aggressive enforcement, which makes it very difficult for those people to be treated fairly, which is affecting a lot of others as well.
Q231 Chair: Just on that individual case that you raised, where the Home Office barrister appeared to be recommending somebody should be deported and going against the recommendation being made by another bit of the Home Office, is that case concluded now?
Ahmed Aydeed: In terms of removal, it has, because the court has decided that this individual should not be removed and, also, the judge criticised the position that was taken by the presenting officer in that case. I think the judge said it was disingenuous to go behind the decision that was made by another.
Q232 Chair: Do you have any evidence as to why the Home Office barrister might take that view? Could you give us the details of that case so that we can ask some further questions of the Home Office?
Ahmed Aydeed: Yes, I can send you the decision.
Chair: Thank you very much.
Sarah Teather: We also saw somebody in detention who had a conclusive grounds decision and was also removed. Unfortunately, I do not have a lot of further information—because we saw him over a short period of time—to submit, but I can say that we have had—
Chair: If you have any further examples that would be helpful because it will just allow us to pursue with the Home Office at what level these sorts of decisions are taken and so on as well.
Q233 Janet Daby: Good afternoon. Thank you for your responses so far and thank you for the work that you do. That is one of the things I want to say, because this sounds quite horrendous in terms of what you have to work with. I appreciate every contribution that you have made so far to the discussion.
My question is really about outside of detention. What sort of support do people receive when they are eventually released, and what should they receive?
Sarah Teather: I will say something. We often lose touch with people after detention, depending on where they go. I have a smaller case pool to speak from, so I want to make sure that you understand the context of what I know and what I can speak on with confidence.
A number of the people who we have seen have been released into destitution without any support. In one of those situations—one of the ones that I referred to in the briefing—he disappeared shortly after and we have lost touch with him. There have been some concerns from his friends, who our volunteers have also been in touch with, that it is possible that he had been re-trafficked.
One of the people who we have been working with we are continuing to support, and he has had no support at all. He is being supported by friends within his community. We know that he is safe, but he is not getting the kind of support that he really needs.
The other thing to say is that if people also have an asylum claim, often they are subject to the normal conditions if they have had an asylum refusal around study bans. They are not able to access accredited ESOL, so some of the issues around isolation are difficult to overcome because they cannot get access to English classes either. There is a whole web of problems that people are subjected to. They are very vulnerable afterwards.
Q234 Janet Daby: In terms of a safe house, what would a safe house provide for a person who has been involved in slavery or been trafficked? What would that look like?
Sarah Teather: That is something I cannot comment on because it is not an area that we work in. When we refer people into a safe house we refer people on to another organisation to look after them at that point. We have referred people into Salvation Army accommodation on a number of occasions. I cannot comment beyond that.
Q235 Janet Daby: Does anybody else want to comment?
Ahmed Aydeed: Yes. In terms of what support trafficking victims should be getting when they are released, I think the Committee has already dealt with this when you were looking at the support and assistance for trafficking victims. We have just successfully challenged the Home Secretary’s policy on Friday. The Home Secretary has settled and agreed that there should not be a 45-day time limit. The policy was, when you received your positive conclusive grounds decision, you only received support for 45 days. We brought a judicial review against that and the Home Secretary settled on Friday and agreed that that was incompatible with the European Convention on Human Rights and the fact that that support should be continued. There was no medical, clinical, legal or logical basis why it should be cut off at 45 days.
In terms of the quality of support that you are supposed to be getting—and I can submit this afterwards—there is guidance on what type of support should be provided and the level of that support. I would back that in terms of the level of support. At the moment, it is not as good as it should be.
There are really good safe houses that provide really good quality support. For example, our client who was a minor victim of trafficking is in a safe house and is provided with accommodation. It is a safe house, so no one knows that you are there. You are away from your traffickers. You have somewhere to stay. He has a community there. You start to integrate and you are able to sort of start to move and make progress in your life. You have access to a computer, you get support.
Then obviously you also get a support worker who comes in and assists you every few weeks. You get a bit of financial assistance every week and you have access to medical practitioners who can help you cope with what you have gone through and try to make that recovery. You do see a huge shift, when someone is provided with this, in how they are able to recover. The other thing they need is leave to remain to be able to deal with that.
Can I just come back on one other thing about detention? The alternatives to detention are so successful. There is a 95% success rate in terms of alternatives to detention; 95% of people that are not in immigration detention continue to abide by the conditions set on them. Also, it costs £100 million a year more to keep people in immigration detention. Even when you move away from the inextricable link to human suffering and you look at detention, why would someone be kept in an immigration detention centre when they are going to abide by conditions if they are released and it costs £100 million less a year to deal with it in that way?
Q236 Janet Daby: In terms of the public purse, it is the more expensive way to deal with people who are vulnerable?
Ahmed Aydeed: Yes.
Q237 Janet Daby: My other question is: in February, the Home Office admitted that it had unlawfully detained a victim of trafficking for six months, and the solicitor said that this was not atypical. You have already mentioned cases where people have been held longer, and you have given an explanation around that. Is there anything else you would like to add to this statement? It is about what measures can be taken to reduce this from happening. You may well say a Government policy change, and I will leave it to you to say what you think is correct.
Ahmed Aydeed: Definitely clear guidance for caseworkers but, also, it is about the environment within the Home Office. You really have to change the way this issue is looked at. This is the biggest conflict of interest that you will get anywhere. It is not just me saying this. ILPA has said this. Anti-trafficking organisations have said this. You cannot have the same Department making decisions in terms of deportation decisions and then, also, the same Department that is going to be making competent—by the way, this year the Home Office has become the single competent authority.
I do not understand. Why has that decision been made when all guidance and recommendations were, “Do not go down this route because that is one of the key issues”? Now the single competent authority is the Home Office. I do not know how you are going to combat this issue if that is the case.
Sarah Teather: I would echo what Ahmed said there about the conflicts of interest within the Home Office. You really need the single competent authority to be fully independent. I think that is important and training throughout the criminal justice system as well. For certainly a lot of people that we are seeing, people have not picked them up before they have gone into detention. They have come into contact with other services that ought to have picked up that they were trafficking victims, and criminal solicitors are often giving bad advice.
Access to legal aid to help people to prepare for referral to an NRM is important. We are seeing people who do not understand that they have been referred. They have not had an opportunity to engage. They have not had a chance to prepare. They are then not communicated with afterwards. They do not know what the result was. This is happening to them without their knowledge or even their consent for the process. That is important.
Better screening in detention. I know that you have made a recommendation in your last inquiry into detention around somebody actually meeting people face-to-face. I think that would help. It is also true, though, that these people are extremely vulnerable. It is going to require a very significant amount of effort to understand their circumstances, though sometimes—as James said—there are neon lights flashing in their case that ought to indicate that they are victims of trafficking.
A time limit on detention would not only prevent people from being held for a long period of time in detention, it might also make the Home Office think twice about using it because it then thinks it can just warehouse people there while it decides what to do with them. That would make a significant difference.
Q238 Janet Daby: Did you want to say something as well, Mr Wilson?
James Wilson: Yes, I agree with all of that. In terms of the training also, I would add that there needs to be better training for other people within detention for officers and other officers within the centres to be aware of indicators where they arise.
An absolutely key thing is that there needs to be an independent body acting as first responder within detention at the decision to detain point and also as the competent authority. There is an enormous conflict of interest across the picture at the moment.
If I might just return really briefly to your previous question in terms of what there should be when people are released, I would just add that good-quality legal advice with legal aid support benefits everybody for clients to be receiving that, not just the clients themselves.
Also, it seems like a basic point, but there need to be safe houses that are genuinely safe houses. We have seen one recent case where a client was eventually released to a safe house, but it was a safe house that was in the area in which they had originally been trafficked. They subsequently absconded. We strongly suspect they have been re-trafficked back into the same system.
Q239 Stuart C. McDonald: I want to drill down a little bit into the different parts of the procedures, where there are opportunities that are missed for either stopping somebody who is a victim of trafficking going into detention or there are missed opportunities to get them back out of detention again.
Two of you have already mentioned the screening process, James Wilson and Sarah Teather. As I understand it, at some point somebody in the Home Office will make a decision—sitting at the desk, looking at papers—but then when that person is taken into detention there will be a screening interview there. I think Stephen Shaw has indicated that too often there are clear indicators that are not being picked up on or are not leading to a referral. Why is that, and how would you improve the screening process?
Ahmed Aydeed: None of the policies on detention actually deal with trafficking victims. They are all general policies in relation to vulnerable individuals. When someone goes into a detention centre, they are supposed to have a health screening within two hours. It is a short health screening and then you are referred to a doctor for an examination within 24 hours. That is a rule 34 examination. When you look at that, there is not anything that deals with trafficking victims. It deals with mental health issues or physical health issues, but that healthcare department does not know anything. They have not been told anything in terms of an NRM. There is not anything linked within that policy that says, “If you speak to this individual and they disclose, for example, the fact that they are a victim of trafficking, be aware that there is an NRM process. Inform the Home Office”.
Also, the only front-line staff that you will come across in general in detention is the Home Office. The healthcare staff cannot refer into the NRM, even if they note that someone is a victim of trafficking—they are not one of the front-line staff—and even when a doctor picks up in terms of the history. For example, when you get to a rule 34 examination, you were tortured, and that torture was committed by your traffickers. Your doctor is supposed to report that. There are issues with rule 34 and rule 35 in general. You have heard about it when you had the inquiry into immigration detention, and I can put evidence in on what all the issues are surrounding this policy in general.
When you look at it for trafficking victims, when we see reports where the doctor specifies that, “This person is a victim of trafficking. They were tortured by their traffickers. They have clear scars”, that is then reported to the caseworker, and the caseworker then just deals with that in terms of a vulnerability and you being a victim of torture. That does not lead at all to a referral. I have not seen a single case where rule 35 has led to a referral from either healthcare staff or the Home Office.
Q240 Stuart C. McDonald: Why is that? You are saying that the Home Office might consider somebody an adult at risk for the purposes of detention but then not go on to refer that person into the NRM?
Ahmed Aydeed: Yes. In terms of the Home Office, that is a failure by the Home Office because the Home Office is part of the front-line staff and it should be referring to itself in terms of the competent authority about the other part of it. That is a failing by the Home Office in terms of picking up on what is said in rule 35, not only appreciating that that deals with a victim of torture and the Home Office has to do a rule 35 response within 48 hours to that report. When it does the response, it should also then refer to the NRM. That does not happen. Even the healthcare staff cannot do anything about it because they are not first responders.
Q241 Stuart C. McDonald: Sure. That tallies with evidence that Detention Action gave evidence about. Of 16 Vietnamese men who had been detained in detention centres in 2016 and 2017, I think only nine of them had been referred into the NRM. That leaves another seven who were deemed adults at risk—presumably because of their trafficking history—but, nevertheless, no referral to the NRM was made. Again, is that just because—
James Wilson: Yes, and I think, of the nine, only two then had reasonable grounds decisions. Yes, absolutely, and that evidence, although it is a relatively small sample group, nevertheless speaks powerfully to the failures of the system.
In terms of the screening process, it feels like there widespread structural and cultural issues that need to be addressed. It is difficult to say in detail exactly what is going wrong in those screening interviews without probably being a fly on the wall in them, but we can see the impact really clearly. Clearly, vulnerable people continue to be detained en masse.
Q242 Stuart C. McDonald: Sure, so an absence of focus on victims of trafficking and slavery, plus justice and institutional confusion about who should be doing what.
Sarah Teather, you mentioned this earlier as well about the quality of Home Office referrals to the NRM, and we have heard other evidence about these referrals being incomplete or inadequate. Why is that happening? What is the problem here?
Sarah Teather: I do not know. It is difficult to diagnose exactly what the source is. There are a number of potential causes. It may well be that it is very difficult to get a full case history because the person does not wish to disclose in that context. We had a discussion earlier about whether people feel safe in detention to disclose, whether they are willing to disclose what has happened to them in that context.
Often the person has not been given any legal advice in order to enable them to prepare for that referral, so they are not full participants in the referral. The person who is the victim, who is the subject of the referral, is not able to participate. That means that you are particularly likely to get a very poor quality of referral.
What I do not know is whether this is quality of referral or poor-quality decision-making. On that, from where we are sitting as an organisation providing pastoral care, I cannot diagnose that, so it leaves me with a number of potential questions. I do not know what the source is. Is it the referral quality or is it that the decision itself is biased? I do not know. It could be both.
Q243 Stuart C. McDonald: If anyone else wants to chip in here as well, how do we fix that if there are either problems with individual Home Office caseworkers not being able to do their referrals properly or whether it is because they are struggling to get the right information from the victims? How can we include that for—
Sarah Teather: Having independent people who are able to do referrals is important. There is also an understanding that it takes time to build trust, and just expecting somebody to dish out the worst things that ever happened to them in the first five minutes of meeting somebody in a way that is coherent and linear and telling a story in that way that the Home Office expects is not realistic.
Ahmed Aydeed: I would agree with everything that has been said and, in terms of the way to deal with it, you will definitely need better guidance. There are a few issues that could be clarified quickly.
For example, there are no equivalent safeguarding mechanisms in prison. When you have a trafficking victim who is detained under immigration powers in prison, there is no rule 34 or rule 35 process; not that it adequately deals with trafficking victims in any event but that safeguarding mechanism does not exist in prison, so you do not pick up on that.
The other thing is, when a positive reasonable grounds decision is made, the Home Office does not communicate that with healthcare in a detention centre. I am not saying that people should be detained—I do not agree that they should be detained—but if you are detained, at least healthcare should know that you are a trafficking victim so they could at least put a care plan together on how to deal with the issues that you might be dealing with. If that is then communicated to the healthcare staff, at least they would know about it, but there is no policy that says, “Positive reasonable grounds decision. Communicate that to healthcare”.
Sarah Teather: It is not always even communicated within the Home Office. We had somebody who was given a positive reasonable grounds decision but then it did not appear in his monthly report from the Home Office, and it was still enacting processes to deport him so he had the interview around travel papers all within the same time period. They do not communicate it within the Home Office.
In theory, having one body, which is the same body, at least one of the benefits, you would imagine the Home Office might argue, is making it efficient. That is not even the case because they do not communicate even within the same organisation.
Q244 Stuart C. McDonald: James, you referred earlier to the rates of referrals leading to positive conclusion grounds decisions being different for those in detention to those outside detention. Why do you think that is happening? Is this back to the conflict of interest question again? Is it ostensibly that people are trying to use the NRM as a means to get out of detention? Is there a cynicism in the Home Office towards NRM referrals from the detention centres?
James Wilson: It would be hard for me to comment on that. My suspicion would be that some of the things we already touched on largely account for that: the issue with the Home Office being the first responder within detention in most cases, questions around the quality of referrals that are being made, and clear delays in the person in detention feeling able to disclose or even know that the NRM might exist and having that initial discussion.
Q245 Stuart C. McDonald: Are there any other reasons why?
James Wilson: One of the biggest issues around detention is the lack of legal aid and quality support and advice within detention.
Q246 Stuart C. McDonald: Are there any other possible reasons why there is this?
Sarah Teather: It is not really in the Home Office’s interest, is it, in a way? It is difficult to tell whether or not that is genuinely affecting decisions, but if somebody is found subsequently to be a victim of trafficking, there is a potential for quite a significant damages claim.
Ahmed Aydeed: It is definitely the hostile environment or equivalent policies within the Home Office. It is training and definitely a policy within the Home Office. Other public bodies have been turned into a border force. You have the police, for example, who instead of being able to investigate the instances of trafficking then have to refer that individual to the Home Office. This is a case that we have had to bring. A trafficking victim self-reported to the police. He was then referred to the Home Office. He self-reported to the police and informed them that he was a victim of trafficking. He is then referred to the Home Office. He is then detained. We then pick up on the issue that he self-reported, “Why have you not referred on to the NRM?”
When he finally is referred, the Home Office then threatens to release him into homelessness. We have to then again challenge that and say, “No, you cannot release him into homelessness. You have to release him into safe house accommodation”. Finally, that then happens. If you have issues that occur throughout the process, it is difficult for a client to get to a detention centre at that point when they have been past the police officer, past the Home Office.
It is not just the fact that they might not even be disclosing at that point because they are being held captive again, but also is an individual at the Home Office then going to say, “Hold on, let’s stop here. Let’s look back at what has happened in the last four or five months and see if something went wrong”? It is because all of those issues that have happened and the fact that the police, instead of being able to investigate, have to refer people to the Home Office under Operation Nexus. That is a serious issue. If you want to combat this issue, you have to deal with all of the policies that have been set, whether it is the NHS or the police or any other first responders that might come across—
Q247 Stuart C. McDonald: A few times you have indicated certain policies have to change or certain practices have to change, but also in the last few answers it seems to become a question about who is involved in making decisions and making referrals and so on. If it is not the Home Office that is doing all of these things, which bodies should be involved in making these decisions, making these referrals and so on?
Ahmed Aydeed: An independent body.
Sarah Teather: Yes, an independent body. I would completely agree with Ahmed that the whole approach of hostility, of viewing people in a suspicious way, makes it very, very difficult to listen carefully to the stories that they are telling and to then provide the protection that they need.
Q248 Stuart C. McDonald: Which independent body?
Sarah Teather: An independent body. I do not have a dog in that race.
Ahmed Aydeed: Yes, as long as it is an independent body that does not make Home Office decisions or does not make decisions in relation to immigration. It should not be anyone who deals with criminal matters either. It should not be the CPS or anything like that. It should be an independent body that deals with trafficking victims, properly trained to make these decisions.
Q249 Stuart C. McDonald: Mr Wilson, do you have the same view?
James Wilson: I concur with that. Just referring to your point about policies that we would like to see changed, I think we would agree on a number of policies that we would like to see changed. The Committee might as well. There are fundamental, basic concepts that need to be followed by the Home Office, which is using detention as a genuine last resort, which seems so far away from current practice, and committing not to detain vulnerable people.
It is worth emphasising just how inappropriate it is to deny somebody who has been through any number of vulnerable situations, but for a trafficking victim who has been in that situation that has been exploited, put in slavery, to take their liberty away again with all the issues that come into detention, how inappropriate and humane it is.
Q250 Douglas Ross: It was said earlier what we really need is clear guidance for caseworkers in terms of how they are assessing things. How closely do you look at the guidance in terms of supporting people you work with to ensure you know what is being asked of the caseworkers and then to help or otherwise your clients? How closely do you go into the details of the guidance provided to caseworkers?
Sarah Teather: It is something I cannot answer because we do not provide legal advice to people within detention, so I have to leave that.
Ahmed Aydeed: In terms of guidance provided to the Home Office?
Douglas Ross: Yes.
Ahmed Aydeed: This is exactly what we do, so we will look at the guidance to the front-line staff and we will then show all of the points where indicators were not picked up on. We have talked a lot about someone speaking about what has happened to them, but there are clear indicators. There are indicators that the front-line staff are supposed to pick up on.
For example, the case that I have mentioned: the police raid the property. A 16 year old found in a cannabis house, very complicated equipment, does not speak English. Those were all very clear indicators that this individual was trafficked. That should be picked up on. If front-line staff were trained adequately, they would be able to pick up on indicators.
I spend a lot of time speaking to police officers, telling them, “Look at the indicators you have to refer”, and then they will call me back and say, “What do I do? Where am I supposed to refer to?” The same with the Home Office, because the Home Office is also the competent authority, there is going to be a constant battle to actually get that individual referred into the NRM. There is guidance in terms of guidance to front-line staff, but the staff need to be trained on that guidance.
Q251 Douglas Ross: That is what I would expect. I am not in any way trying to blame you here. I just want to understand in my own mind, because there was this article in the newspaper this week. It was raised in Parliament last Wednesday by an SNP MP about Home Office guidance that was saying that women who were trafficked into the UK from Nigeria could return to Africa “wealthy from prostitution” and “held in high regard”. Forget about why it is in there—it should not be in there; the Home Office has said it will reconsider it—but is there too much information that even someone like yourself, who is going through all this—how does that get missed, not only by the Home Office but by people supporting victims?
Ahmed Aydeed: This is not guidance specific to trafficking victims. This is country guidance information. It is talking about—
Q252 Douglas Ross: It is guidance on handling asylum claims from women trafficked.
Ahmed Aydeed: In terms of Nigeria, yes. It does not deal with the issue of when a trafficking decision is being made or when you are looking at the asylum claim or whether they should be granted leave to remain. This is the guidance that is provided in terms of when someone is returned to Nigeria. This has not been missed. This has been raised and an issue has been taken up with this. When you look at the response from the Home Secretary when they have asked, “Why is this in there?”—just look at the second page on that.
Q253 Douglas Ross: The response is not from the Home Secretary. It is from a Home Office official, which I thought was interesting. Not a named Minister. It was an official, which is always an interesting thing by any Department. You are saying it was not missed, so when was this raised?
Ahmed Aydeed: I am not sure in terms of when it was raised in relation to that particular case, but that—
Q254 Douglas Ross: That is what I am asking for because this is a very specific case. Stark language that should not be in any document. I think we can all agree on that. We will discuss with Ministers when we speak to them why it got in there in the first place, but I am just wondering why that is not highlighted when it has been in the public domain for quite some time. As I say, it is not a criticism. It is to try to work out, is it because there is too much information? That just should not be in there and we can change it now, but why has it been allowed to be in there and used in asylum claims for women who have been trafficked?
Ahmed Aydeed: First, we do not get to decide what is in there.
Q255 Douglas Ross: No, but you can highlight.
Ahmed Aydeed: If I were to highlight to you all of the unreasonable things that I look at, we would be here for hours, probably days, maybe even weeks. I have just explained to you a number of cases where we are in court making these submissions.
The one good thing about it sometimes is that the judge will be as outraged as we are in terms of this. If I were to take you through to cases where similar issues are applied, you would be outraged as well. It is because you have seen this in this guidance and thought, “This is outrageous”. This is what we deal with on a daily basis when decisions are made.
There is an argument made where individuals are detained unlawfully and the Secretary of State has to make payment to ensure that that person can recover from what has happened to them in terms of what the Secretary of State has done to them. They have made those payments, and then argue that those payments mean that that individual should not be granted leave to remain because they are going to be all right if they are removed. These are arguments that are raised all the time.
In cases where we act for individuals that are released and should not be released, a representative will turn up to court and say, “You no longer have instructions to continue acting for this”, when the Secretary of State has released them into homelessness and that individual has gone missing. Then the argument is, “You cannot continue acting for them because you do not have instructions”. There is a really good case on that called TDT where the solicitors did continue acting and it was found that the Secretary of State was in breach under Article 4. These are arguments.
By the way, what happens is, as soon as we issue a claim, the individual will be released without us even being informed—released into homelessness, probably re-trafficked—and then we will receive letters to say, “You have to stop acting. We are going to make an application to the court to strike out these claims because your client has gone missing”. Right now we are dealing with a client, 17 years old, was detained in immigration detention. He has been released into homelessness. We right now have to make an application to the court to ensure that he receives accommodation, when in fact we were arguing that he should not have been detained. When that argument is accepted, they are released without us even being informed, and we have to issue challenges just to get them accommodation.
Q256 Douglas Ross: Just on that though, technically, how can you represent someone who you have no contact with? How do you get around that argument?
Ahmed Aydeed: This is an issue that, first, it depends on the instructions that were taken prior to the individual going missing. Were you adequately instructed to deal with a particular claim, whether it is a false imprisonment claim, an unlawful detention claim, or whether it deals with a decision under challenge? It really depends on the instructions that you have received and what you were instructed to continue doing. It is going to be on an individual case basis. The wider issue is: why is the Secretary of State releasing individuals without informing legal representatives that are on that?
Sarah Teather: The wider issue of the quality of asylum determination: this could be the subject of another inquiry for this Select Committee, and probably not a subject for the last few minutes of this session.
Just in terms of some of the cases that I have referred to that were in our briefing, which is one of those cases where they had applied for asylum on grounds that they were Catholic, they were unable to name the Ten Commandments so they were therefore found not to be Catholic. I do not know about you, but I have struggled to name the Ten Commandments and I work for the Church. Some of the grounds on which people have their cases thrown out is breathtaking.
Q257 Douglas Ross: I accept that and it is a very good example. I agree with you. I do not know why the Home Office, if it is so confident in its decision, could not then tell the person appointed to act on someone’s behalf that this decision has been taken. It would not be particularly burdensome or costly to add in something that immediately informs you that your client has—there is no reason for that not to happen.
Ahmed Aydeed: In fact there is a duty to do so. We have to be informed.
Q258 Douglas Ross: Yes. If you have been appointed and have been taking instructions up until that point, there is no reason for them to all of a sudden stop. That completes the process that you have been involved in, potentially.
Ahmed Aydeed: We have asked for that individual to be released. We have had this, by the way. There is a case ongoing at the moment as well that we are doing where we are going to court. On the day of court, the representative turns up and we get a call to say, “We have released him yesterday”, and we have not been informed and we are in court. Just to inform us, it is a breach, but the way that the Secretary of State is trying to get around that breach is to argue that that individual is no longer being represented, when in fact it is an Article 4 breach. You should not have been releasing that. You should be putting adequate safety mechanisms in place when you know that someone is a potential victim of trafficking. You have to put adequate safety mechanisms in place before you release them. That is why you are supposed to release an individual to safe house accommodation. It happens, and I can give you case examples.
Q259 Douglas Ross: Can I come on to the issues that I think you are all unanimous on? We have had other evidence to this inquiry that the Home Office has too many responsibilities within this, and conflicting responsibilities, and, therefore, we should have an independent body to take this forward in the future.
I always like to look at all the evidence. Is there an argument, however, that the Home Office is the right body because it covers, in its wide department, the areas that we are looking at? Therefore, while you have rightly highlighted examples of where that has broken down, are there benefits that the Home Office does continue to do this? While there have been cases where you have shown it has not been good, are there other examples where there is more joined-up working because it is all within the Home Office?
Sarah Teather: We are not seeing examples of joined-up working.
Q260 Douglas Ross: Nothing at all would encourage you that, despite the problems that may be overcome if we can make other changes, the Home Office is the right Department to look at this on its own without an independent body? There are no positives in that at all?
Ahmed Aydeed: When you look at what the purpose is of what you need a competent authority to do, it needs the information in terms of what is happening in a case but it does not need to be making decisions on someone’s immigration status. All it needs to be making a decision on is, are there reasonable grounds to believe that this individual might be a victim of trafficking? If so, provide a positive RG and then make a conclusive grounds decision, and then make a decision on leave to remain.
There could be an argument that you could make in terms of the element where you are looking at leave to remain, for example, because that is something that is supposedly within the expertise of the Home Secretary. For that element, perhaps you could raise an argument on why the Secretary of State should make that decision. I still think that they should not because there is a conflict again. I would say that what you are briefed to do is to refuse as many cases as you possibly could. In terms of expertise in relation to making those decisions, perhaps you could make an argument in terms of leave to remain, but there are no arguments for why the Home Office should be considered—
Q261 Douglas Ross: Just to clarify, you were saying the main issue for an independent body is to gather all the information. Is it not then easier to gather that information internally because all of that will be within the domain of the Home Office? I am just asking almost to be devil’s advocate.
Sarah Teather: The risk then is that that information that is gathered is then used later for immigration enforcement processes, rather than for protection.
Q262 Douglas Ross: Which is another duty of the Home Office.
Sarah Teather: Yes. You might expect that joined-up government would allow some protection to be put in place. I gave that example of somebody where they had spent their 45-day reflection and recovery period in detention, and indeed somehow it had not been communicated even within the Home Office. The monthly report that they would receive in detention did not say that they had a positive reasonable grounds, and processes for deportation were still ongoing.
The joining up for the benefit of the person does not appear to be happening in the cases that we are seeing, but there is constantly the concern that the join-up for immigration enforcement happens quite efficiently. That, from our perspective, in an organisation that is concerned about protecting the person, is really very worrying.
James Wilson: I concur that I do not see any benefit to it being all within the Home Office. It was interesting that in relation to the Nigeria guidance case yesterday a Home Office spokesperson said, “Through the Modern Slavery Act, the Government are committed to ensuring victims get the support they need and perpetrators are brought to justice”. That is a very laudable aim that is clearly being significantly failed in the practices that we are currently seeing, and it seems like it would benefit the Home Office, if it is serious about that aim as well, to have an independent body making the decision.
Ahmed Aydeed: It is not just us asking for this. If it will help, I can give you a full list of all the bodies that believe that the Home Secretary should not be the competent authority.
Q263 Douglas Ross: Lastly, can I just ask, what would you consider to be independent? They will to be appointed by someone and there will have to be some oversight. If they have any link at all or if they are appointed by the Home Secretary, would that not be independent? I am not trying to make a facetious point about anything. I am just trying to make sure. If this was a route that was ultimately pursued, I would not like to come back here in a year or two years’ time and say, “Even an independent body is not independent enough”. How do you have an independent body that is dealing with decisions that are ultimately the responsibility of the Government?
Ahmed Aydeed: The independent commissioner on trafficking resigned because he felt it was not independent enough. If you want to deal with this issue, it has to be independent. It cannot even necessarily just be set out. The body has to be independent. If the independent commissioner on trafficking has to resign because he does not feel his role is independent enough, that is a serious concern on that issue. It definitely should not be the Home Office and it should be independent, as the word states.
Q264 Chair: Final question, I think. Of all of the things that you have said should be done, given as well that Home Office Ministers have said they do not want slavery victims to end up being detained and want to make sure that they get the right support, and given your diagnoses of why this is going wrong, what would be your top recommendation that would make the difference? Is it the independent process? Is it something else in terms of legal support? Of all of the different recommendations, what is your number one?
Sarah Teather: Can we have two? I think I would say legal advice; access to legal aid for an NRM referral, which is more likely to entail then better communication.
Q265 Chair: We have been through all of the issues. I was just interested in your priorities.
Sarah Teather: Also, the independent body. Those two would be it.
James Wilson: I agree. I think the independent bodies are essential. Also I would come back to the issue of time limit and judicial oversight for vulnerable people and everyone.
Ahmed Aydeed: If indicators were picked up on early enough, we would get past most of these issues—a huge focus on indicators being picked up on adequately by front-line staff and then having an independent body to make the decisions on that.
Chair: Thank you very much for your evidence. We appreciate it. If you do have any further details on any of those individual case studies, that would also be much appreciated to allow us to pursue it further. Thank you.