(HUM0005)

Written evidence submitted by Dr Jo Wilding (HUM0005)

University of Sussex School of Law, Politics and Scociology

1. This response addresses the following three questions in the terms of reference:

• What evidence is there, if any, that the National Referral Mechanism process is being exploited by individuals seeking asylum in the UK?
• To what extent do support services meet the needs of victims who have been trafficked in or to the UK?
• How can legislation, including the Modern Slavery Act 2015, policy and criminal justice system practice be improved to prevent and address human trafficking?

2. I am a researcher at the University of Sussex, specialising in issues around access to legal advice, with particular expertise in immigration legal advice. I have undertaken research projects for the Welsh Government, East of England Local Government Association, Justice Together Initiative (a collaboration of major philanthropic funders), Paul Hamlyn Foundation, and Refugee Action, and am currently the Principal Investigator on an Economic and Social Research Council funded project on access to social welfare and immigration legal advice. I also have good knowledge of trafficking law from my time as a practising barrister.

Is there evidence of the NRM process being ‘exploited’?

3. I do not believe there is any evidence of the NRM process being ‘exploited’ by people seeking asylum, based on research and my previous experience in practice as an asylum and immigration barrister.

4. A positive decision in the NRM would only be an advantage in the asylum process if a person could additionally show a risk on return to the home country based on their status as a victim of trafficking. This would require either a risk of re-trafficking (by force, or because of debt bondage, or because the individual had some other vulnerabilities like a learning disability) or a risk of other harm, for example because of stigma, having been trafficked for sexual exploitation. Merely having been trafficked is not in itself a ‘passport’ to asylum. It only automatically leads to a period of one year and one day of leave to remain.

5. On the contrary, my experience has been that people rarely know about the NRM unless a lawyer explains it to them and, unfortunately, many asylum legal aid providers also have limited knowledge of the process or indeed the law on trafficking. For example, I encountered the following cases as a barrister:

-          a woman was found by police locked in an attic bedroom in a house where she was a domestic servant, calling from a window for help;

-          a young man with learning disabilities, who arrived in the UK as a child, disappeared from his accommodation and was later found walking alone by a motorway and told the Home Office that a man took him from a park and told him to work for him, but did not pay him;

-          a number of cases where young Vietnamese people had been locked in houses for cannabis cultivation, some of whom then received criminal convictions;

-          a group of three siblings who were sent to the UK by their family in a private fostering arrangement but were in fact exploited for domestic servitude and benefit fraud;

-          two young women who had been sent by their family in their home country and were encountered being taken out of the UK to a third country on false documents.

In each of these cases, it was not the victims themselves who identified that they had been trafficked, because they simply had no idea what this meant. Equally, in some cases (including the first two listed) the very clear indicators of trafficking were not identified by police or the Home Office.

6. In one case, a young woman had fled a family which brought her to the UK as a domestic servant and mistreated her. The family failed to report her missing as required by the terms of their sponsorship of her visa, and did not do so before she herself attended the Home Office asking for help several months later, at which point the Home Office contacted them. Nevertheless, the Home Office accepted at face value the family’s assertion that they had been treating her well and had been very concerned for her well-being. In fact, the Home Office in its refusal decision criticised and scolded the victim for making such a ‘heinous’ allegation. The Administrative Court accepted that the Home Office’s decision was flawed, particularly by accepting the family’s assertion at face value, and she was eventually accepted to have been a victim of trafficking.

7. In both my practice and my research, I have encountered numerous cases where the Home Office made extremely poor and legally incorrect decisions on trafficking in the NRM. There is no right of appeal against NRM decisions, meaning these can only be challenged on judicial review, and many of them are conceded at the earliest opportunity by the Government Legal Department because they are indefensible.

8. Far from being abused by people seeking asylum, I would argue that trafficking law is poorly understood and applied by Home Office decision makers, leading to a large amount of unnecessary litigation.

9. In one example in my research, the Home Office accepted that a woman had been trafficked twice from her home country – once to the UK, and once to a third country, from which she had fled to the UK. Despite this acceptance, they argued that she was ‘not trafficked for the purposes of the Convention’. This was legal nonsense, because the law is clear that it does not matter which country someone was trafficked from or to, and there is no difference in the meaning of trafficking ‘for the purposes of the Convention’. The legal representatives had no choice but to apply for judicial review, since the risk of re-trafficking was the basis of the asylum claim. The Home Office maintained the decision in its response to the pre-action letter. The Government Legal Department conceded immediately, in the Acknowledgement of Service, agreeing to pay the applicant’s costs.[1]

10. There are very many similar examples, though it is difficult to identify how many from Administrative Court statistics.

11. I would argue that 1) there is no evidence of the NRM process being abused by people seeking asylum and 2) the Home Office has demonstrated a lack of competence in making NRM decisions. These decisions should be handed over to a multi-agency decision-making body which does not have the conflict of interest that the Home Office does because of its express policy interest in reducing asylum numbers.

To what extent do support services meet the needs of victims who have been trafficked in or to the UK?

12. In relation to support services, my answer is focused on access to legal advice. The best providers meet the legal advice needs of people who have been trafficked into the UK very well. During a piece of research for the Solicitors’ Regulation Authority and Legal Ombudsman, I reviewed asylum case files and identified a number of best practice points.[2] These included spending time with the client in a place in which they were comfortable, together with a support provider, over a number of appointments to build trust and enable the person to tell their story fully. However, the current funding and auditing arrangements in England and Wales make this extremely difficult for a legal aid lawyer, unless they have other sources of funding.

13. There are four ways in which legal advice is not meeting the needs of people who have been trafficked: namely, the limited scope of legal aid for non-asylum matters; the overall shortage of capacity; the very extreme shortage of providers in some geographical areas which may have high levels of trafficking; and the lack of knowledge and experience of trafficking indicators among some providers.

The limited scope of legal aid for non-asylum matters

14. In England and Wales, most non-asylum immigration work is excluded from the scope of legal aid. That means a person who does not have regular immigration status, who cannot or does not want to claim asylum (for example because they are from a European country) is unlikely to be able to access immigration legal advice. Although their case may theoretically be fundable under Exceptional Case Funding (ECF), few providers are willing to undertake a large amount of unpaid work to make an at-risk application for funding, and then undertake the case on the very limited payment for ECF cases.

15. In relation to trafficking, many survivors have a range of legal advice needs including on family, criminal, housing, welfare benefits, and employment law as well as immigration and asylum. The current legal aid funding arrangements in England and Wales make holistic advice very difficult because of the severe restrictions on the scope of legal aid, meaning each adviser or advice organisation can only address fragments of the survivor’s advice need. Again, because the scope is broader in Scotland, holistic advice is more available within a single organisation.

Overall capacity shortage

16. There is a very severe shortage of legal aid provision across England, Wales and Northern Ireland. In my research, I identified a shortage of around 50%, or 25,000, between the number of new legal aid applications by main applicants (excluding dependants) and the number of new legal aid cases opened by providers in England and Wales in 2021-22.[3] The gap in the previous year was at least 6,000.[4] The number of immigration legal aid providers continues to fall and the number of people applying for asylum continues to rise, meaning the capacity gap is continually growing.

17. Northern Ireland also has a severe capacity gap for immigration and asylum legal aid, though this is more difficult to quantify.[5] There are only 10-15 firms undertaking any immigration legal aid work in NI and these have one or two individuals undertaking this work as a part of their overall work. None has a dedicated team, so capacity is very small. This compares with 3,100 people (including dependants) in asylum support as of December 2022, which makes up only one element of total demand in NI, and illustrates the very large gap in capacity.

18. The funding and other conditions of legal aid play a significant role in this, causing providers to leave the legal aid market in England and Wales (or never to enter it in NI), or to undertake minimal work for the fixed fee in England and Wales. I discuss this in more detail below, in relation to legal advisers’ knowledge and conduct of cases.

Geographical shortages

19. Some areas have a particularly severe shortage of access to legal advice. These include most of Wales (only one caseworker outside the far south), the eastern half of the East of England, the South West of England (two caseworkers south of Bristol), all of NI outside Belfast, and all of Scotland outside Glasgow.

Fig 1: Map showing provider locations in England and Wales, Feb 2021. From Jo Wilding, 2021, The Legal Aid Market. Challenges for publicly funded immigration and asylum legal representation. Policy Press. Reprinted with permission of Policy Press.

20. In general, these patterns of provision have arisen around asylum dispersal areas where, since 1999, the vast majority of people receiving asylum support were accommodated. As the map in Fig 1 shows, clusters of providers formed in some of these areas, though not all, at a time when legal aid rates were more conducive to financial survival. It should be noted that the number of providers has declined since the map was created in February 2021, so most areas now have fewer providers than the map indicates, and some of those providers which still hold contracts no longer undertake any immigration legal aid work. Dispersal patterns are also the reason why there is adequate provision in Glasgow but very little in the rest of Scotland, for example, though there are still ‘dispersal areas’ with few or no providers.

21. By contrast, provision in more rural areas has been extremely limited. Although some forms of trafficking may concentrate victims in urban and suburban areas, much of the exploitation for forced labour takes place in more rural areas, in agriculture, fishing and food packing, where victims are controlled through debt bondage and confiscation of documents. In those areas there is generally no access to legal advice at all. The map at Fig 1 does not show the distribution within areas but, for example, all of the (seven remaining) providers in the Bristol, Gloucestershire and North Somerset area are actually in Bristol. This is a serious concern in parts of Scotland, NI and the East of England, for example.

22. The Home Office is now moving to a model of ‘full dispersal’ to all parts of the UK, meaning asylum applicants are accommodated throughout the country, including in hotels in relatively remote areas. It has also made the National Transfer Scheme for unaccompanied children mandatory, meaning children are now looked after in all local authorities (except Scilly). Combined with the change to EU nationals’ status in the UK, this means there is now immigration, asylum and trafficking advice need in all parts of the UK and, there is a significant risk of trafficking cases being unidentified as a result.

Limited knowledge of trafficking and disincentives to explore issues

23. As I set out above, not all legal advisers are experienced and knowledgeable about indicators of trafficking. This means that people within the asylum system may not be identified by their own representative and referred into the NRM, and may therefore be unable to access any of the support services which should flow from that.

24. In England and Wales, most asylum work is funded on a fixed fee, which pays for a certain amount of work, after which providers are unpaid unless and until they reach the ‘escape’ threshold to receive hourly rates. This threshold is now double the fixed fee, meaning they might do up to 49% of their work on any case unpaid. Previously the threshold was triple the fixed fee, which was extremely financially challenging for firms which did as much work as they felt the case needed, instead of keeping within the fixed fee.

25. Although fee rates are low, this works better in Scotland, where solicitors are paid an hourly rate for their face-to-face time with clients, which offers much better likelihood of identifying indicators of trafficking because there is more opportunity to build a rapport and to ensure all issues are fully explored (though other aspects of their work are unpaid or underpaid).

26. In England and Wales, there is now a ‘bolt-on fee’ in addition to the asylum fixed fee for giving clients information about entering the NRM. This was implemented in 2023, so it remains to be seen what effect it will have, but it still requires that people first manage to access a legal aid representative.

27. In NI, an hourly rate is also payable, but at only £43.25 per hour, it is too low to permit any lawyer to specialise in immigration and asylum work or to build the level of specialism or the capacity which would be needed to meet the needs of people who have been trafficked, and to passport them into other support services.

28. The combined effect of overall shortages, geographical shortages and the lack of specialist knowledge of trafficking indicators among some immigration legal aid providers (and lack of adequate funding for this from the respective legal aid authorities) is that people do not have access to legal advice that meets their needs – and this in turn means they may be unable to access other support services, because of their immigration status.

How can legislation, including the Modern Slavery Act 2015, policy and criminal justice system practice be improved to prevent and address human trafficking?

Immigration law and policy

29. A number of immigration laws appear to increase the risks of exploitation or make it more difficult to escape exploitation. In particular, changes are needed to the domestic worker visa to make it easier to leave an employer without being unlawfully present in the UK.

30. The government should remove restrictions on access to public funds for those who would otherwise qualify, but for their immigration status. This leaves individuals vulnerable to exploitation.

31. Responsibility for making Reasonable and Conclusive Grounds decisions in the NRM should be removed from the Home Office, which has a clear conflict of interest with its immigration enforcement role. Decisions should instead be made by multi-agency panels outside the remit of the Home Office.

32. No restrictions should be placed on access to the Modern Slavery Act, the NRM, or any other protective measures by legislation aimed at immigration enforcement.

Scope of legal aid: England and Wales

33. The LASPO Act 2012 should be amended to include in scope any case where there is a possible trafficking issue, pre-referral into the NRM, even if there is no asylum issue. Currently, this creates a serious gap in access to legal advice for non-UK nationals. This amendment would bring England and Wales into line with Scotland and Northern Ireland in terms of scope.

Criminal Justice System policy and practice

34. There should be an early assessment of cases involving non-UK nationals before prosecution to identify possible indicators of trafficking. This might target particular offences which are known to be connected to trafficking, such as cannabis cultivation and all immigration-related offences, and / or particular nationalities known to experience high rates of trafficking such as Vietnam and Albania. This should aim to ensure people are identified as possible victims and diverted out of the criminal justice process at an early stage, and long before immigration enforcement comes into issue.

35. I would be happy to provide further detail on any of these points or to give oral evidence if helpful.

March 2023