RWA0019 The Anti-Trafficking Monitoring Group (ATMG)

The Anti-Trafficking Monitoring Group (ATMG), a coalition established in 2009 to monitor the UK’s implementation of European anti-trafficking legislation. The group examines all types of human trafficking, including internal trafficking and the trafficking of British nationals

3. How do you assess the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection?

1 There has been widespread condemnation of the UK-Rwanda Asylum Partnership Arrangement between from NGOs in all corners of civil society[1], as well as from Parliamentarians, world leaders, international organisations[2], and even from the civil service working in the Home Office. The first flight was grounded due to an intervention from the European Court of Human Rights. While we are against the forced removal of asylum seekers in all forms, in this submission we will focus on the Memorandum of Understanding as it pertains to victims of trafficking and modern slavery. We believe that the MoU does not offer any assurances on the safety of all asylum seekers, and is in breach of the UK’s international human rights obligations.

2 While it is legally possible to remove trafficking victims, the UK government’s powers to do so are rightly limited, given the specific and substantial vulnerability of survivors of trafficking and modern slavery. The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) puts obligations on the UK to provide residence permits to victims of trafficking during their Recovery and Reflection periods, and the Convention’s non-punishment principle states that a member state should by the  ‘basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities’. Please see paragraphs 16 to 24  to see full details].

3 In KTT vs Secretary of State for the Home Department [2021] EWHC 2722 Admin, the High Court ruled that victims of trafficking who are currently in situations of  ‘legal limbo’ should be granted leave to remain in the UK. Mr Justice Linden, in his judgment of the case, found the government’s modern slavery policy at odds with its obligations under the European Convention on Action against Trafficking[3].

4 There has been a steep and consistent rise in the proportion of survivors of trafficking referred to the National Referral Mechanism from inside UK detention centres: published statistics show an increase from 3% (501) in 2017 to 16% (1,767) in 2019[4]. In the last quarter April – June 2022 found that 91% of victims referred to the NRM were  later confirmed to be victims. This contradicts the consistent government claims that individuals are ‘abusing’ the modern slavery system in order to subvert immigration enforcement. Despite multiple requests in the House of Commons, the House of Lords and directly to the Home Office, at the time of  submission of this evidence, the government has been unable to provide a single piece of evidence to support this claim.

5 The safeguards and assurances given in the Memorandum of Understanding do little or nothing to remove concerns over the safety for trafficking victims who may be removed to Rwanda. The MoU states Rwanda will have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery and human trafficking, and will take all necessary steps to ensure these needs are accommodated. This does not make any provision or provide any assurances as to how the individual will be identified if they are removed from the UK before they are referred to the National Referral Mechanism. Nor does it provide details of how the UK government will accommodate these needs. Additionally, where an individual has been deported to Rwanda without being recognised as a victim of trafficking, Rwanda will fail to identify such victims, owing to the absence of ‘a proactive standardized mechanism to adequately screen for potential trafficking victims among vulnerable populations and refer them to protective services[5]. Key to this is no mechanism that functions or equates in a meaningful way to the UK’s National Referral Mechanism’

6 A similar policy was adopted by Israel whereby the state gave refugees the option to be detained in a detention facility or be sent to Rwanda. Around 4,000 Eritrean and Sudanese refugees who had been living in Israel were sent to Rwanda and Uganda between 2013 and 2018 before the scheme was abandoned. Once in Rwanda, refugees had their sole identification document and money confiscated from them.were detained without the ability to leave, and were then driven to the border and forced to exit the country, despite assurances that they would receive refugee status. These individuals, at high risk of trafficking and robbery, left for mainland Europe, transiting through areas with a high risk of trafficking, such as Libya.[6] Of the thousands sent, almost all are thought to have left almost immediately after having been forced to depart without the protection or support that was promised,[7] with one individual who remained describing their experience of homelessness and destitution.[8] This example demonstrates how the UK Government risks actively facilitating trafficking through their deportation policy, and inflicting serious harm on individuals.

7 The OECD SIGI, citing various sources, stated that, in Rwanda specifically,: ‘Refugee women and girls, particularly those in refugee camps, are at a disproportionate risk of Gender Based Violence, including “survival sex” in exchange for food or water, and human trafficking ... The GBV services the government has provided, such as the Isange One Stop Centres, are typically remote from refugee camps and refugee women and girls lack confidential complaint mechanisms and access to justice...’[9]

8 The OECD also found that the government of Rwanda did not: meet the minimum standards in several key areas. The government investigated fewer trafficking cases and prosecuted and convicted fewer traffickers compared to the previous year. The government lacked a victim-witness support program and did not maintain shelters for male victims. The government detained thousands of potential victims in district transit centres without conducting adequate screening or referring identified victims to proper care and assistance. This was echoed by the US Department of State who found that Rwanda ‘does not meet the ‘minimum standards for the elimination of trafficking.[10]’ It also states that the Rwandan government continued operating transit centers that advocacy groups reported detained vulnerable persons and potential trafficking victims—including those in commercial sex, foreign nationals, and children in street vending and forced begging—and did not adequately screen for trafficking indicators among them. The government held many potential victims of trafficking in these centers, which functioned as de facto de-tention facilities, for up to six months.[11]

9 IOM statistics show that migrants are at an increased risk of being trafficked within Rwanda, and that Refugee camps are consistently targeted by traffickers. Women and girls being especially vulnerable.[12]

10 The UK's International Ambassador for Human Rights provided a statement on 8 July 2021 during the UN Universal Periodic Review Adoption for Rwanda which stated: ‘We welcome that Rwanda accepted recommendations from other countries on combatting human trafficking, but we were disappointed that Rwanda did not support the UK recommendation to screen, identify and provide support to trafficking victims, including those held in Government transit centres. The Central Africa director at Human Rights Watch stating that arbitrary detention, ill-treatment, and torture in official and unofficial detention facilities is commonplace.[13]

11 So far, the government has recognised many of these concerns in Review of asylum processing Rwanda: country information on general human rights. However, they have not provided any information on how they intend to minimise the risks posed to trafficking survivors removed to Rwanda. As reported in The Guardian on 5th July 2022, potential victims of trafficking in Immigration detention have already been targeted for removal[14].

12 The Adults at Risk guidance[15] as well as the Detention Centre Rules[16] order sets out instructions on the care and management of victims of modern slavery who are held in immigration detention It is mean to explain how to support and care for detained individuals who have been identified as a potential or confirmed victim of modern slavery, and how to support caseworkers in assessing the appropriateness of their ongoing detention. Notwithstanding issues with the domestic adherence of this guidance, despite requests no such standards have been offered for the processing centres in Rwanda.

4. Given Article 5.1 of the MoU does not impose an obligation on the UK to provide legal assistance during the screening of asylum seekers before relocation to Rwanda, what mechanisms are there for legal advice to be provided to the individuals selected for relocation?

13 Currently in the UK there is a large disconnect in the accessibility of legal aid and the need for it from survivors of trafficking. Survivors of trafficking and modern slavery are now significantly less able to access legal advice when they need it since LASPO came into force. The introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly reduced the scope of legal aid, removing most non-asylum immigration work from the scope in England and Wales. Since its introduction, half of all law centres and not-for-profit legal advice services in England and Wales have closed, according to government figures. In 2013-14 there were 94 local areas with law centres or agencies offering free legal service. By 2019-20, the number had fallen to just 47.

14 At the same time, the legal framework for migration to the UK, and for people who migrate to the UK, has been transformed by a series of immigration and asylum-related Acts of Parliament, including the Nationality and Borders Act 2022, alongside Regulations, changes to the Immigration Rules, and the UK’s withdrawal from the EU. Regularisation of immigration status is often the gateway

15 Act (and within the remit of this consultation), pre-NRM advice will come into scope only if a survivor is accessing another in scope matter. Secondly, there is no free standing entitlement to legal aid for advice solely about the NRM identification process, unless this is linked to an application for leave to remain after receiving a positive Reasonable Grounds decision, and this is increasingly an unmet need, with the Home Office’s Competent Authority (CA) sending out witness statement requests, asking survivors to submit a statement themselves, which puts pressure on non-legally trained support workers to assist them, without advice on the implications. This undermines the likelihood that informed consent to a referral into the NRM has actually been achieved. The witness statement guidance from the CA states: “It is important to remember that a witness statement is a legal document and therefore can be used as evidence during any ongoing legal proceedings you may be involved with”. If a document might have relevance for an application for leave to remain, for example, even the CA’s consideration of discretionary leave, the person who is advising on how it is completed should be regulated by the Office of the Immigration Services Commissioner (OISC) or is otherwise covered by the Immigration and Asylum Act 1999 on who can give immigration advice.[17]

6. Is the MoU consistent with the UK’s obligations under international law, including (but not limited to) the 1951 Refugee Convention, the European Convention on Human Rights, and the Council of Europe Convention on Action against Trafficking in Human Beings?

16 The Council of Europe Convention on Action against Trafficking in Human Beings, (ECAT) and Directive 2011/36/EU include provisions on the non-penalisation of victims of trafficking. Article 26 ECAT says as follows: Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so[18]. This would include illegal entry into the UK as described under the Nationality and Borders Act.

17 Under ECAT where removal of the person would breach the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings ratified by the UK the person is excepted from automatic deportation under section 33(6A) of the 2007 Act.[19]

18 Page 38 of 64 of the Adults at Risk in detention guidance published for Home Office staff on 25 November 2021 states the UK would be in breach of its obligations under the trafficking convention if a potential victim of modern slavery was removed or deported during the reflection and recovery period.[20]

19 Article 3, entitled ‘non-discrimination principle’ states that “The implementation of the provisions of this Convention by Parties, in particular the enjoyment of measures to protect and promote the rights of victims, shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Yet it is clear that those survivors and victims who are asylum seekers will clearly not be provided with the same application of the non-punishment principle nor the same access to safety or recovery needs.[21]

20 Article 14 of ECAT states that Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: a the competent authority considers that their stay is necessary owing to their personal situation; b the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceeding. Yet we know that potential victims of trafficking are detained and there is a very high risk that victims of trafficking may be removed before they can be identified and supported. The MoU states this as a district possibility.[22]

21 The Independent Chief Inspector for Borders and Immigration recently found a number of concerns that border agencies and asylum in take units are not acting on trafficking indicators[23]: 

• Vietnamese migrants arriving via small boats and despite many showing trafficking indicators, none were identified as trafficking victims and all were referred for detention.
• there was a clear correlation between Vietnamese migrants and a risk of trafficking and exploitation, but this does not appear to act as a trigger for additional attention for this cohort by operational staff at TH
• Similarly, opportunities to identify victims of exploitation or trafficking were not taken by staff, and consequently possible referrals to law enforcement agencies onsite were not made.
• The identification of trafficking victims was limited, despite concerns about recent Vietnamese arrivals, who were later identified and referred into the National Referral Mechanism (NRM) from immigration detention. Data collected about NRM referrals could not establish if a referral was made in TH, meaning feedback loops were limited

22 This highlights concerns that asylum seekers who have been trafficked and therefore are entitled to residence in the UK during their Recovery and Reflection period are instead being transferred into to detention and therefore could face forced removal to Rwanda. It should also be noted that this problem is much wider then the Vietnamese Nationals listed in the ICIBI report.

23 Article 12 on the Assistance to victim’s states that Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least.[24]

A)   Standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;

B)   access to emergency medical treatment

C)   translation and interpretation services, when appropriate;

D)   counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;

E)   assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;

23 There has been no explanation as to how the victims of trafficking served removal notices can have these essential  needs met

24 Article 35 on Co-operation with civil society: it is clear that the Home Office has widely ignored the concerns raised by almost the entirety of Civil Society in their joint condemnation of this scheme and the evidence they have provided of its substantial risk. As demonstrated in the joint letter sent to the Home Secretary on the date[25]

8. How, in practice, should the impact of the MoU be evaluated, and against which measures?

25 Designing what measures against which this MoU should be evaluated is difficult as it is by its design counter to the spirit and law of international human rights obligations and the UK’s own domestic legislation. There must be a fully independent mechanism of monitoring and evaluation that ensures minimum standards of wellbeing for all asylum seekers deported to Rwanda. However, it is the opinion of this group that there exists no evidence that this scheme can be done ethically and in a way that ensures the wellbeing of anyone involved, especially victims of trafficking.