Supplementary written evidene from CARE (Christian Action Research and Education) (VMS0037)

1. Introduction and summary

1.1.       CARE thanks the Committee for the opportunity to submit further evidence. This paper is supplied further to our oral evidence given to the Committee on 11 January 2017 and our written evidence submission ref. VMS0006.  It offers additional recommendations for both the Home Office and DWP in response to evidence given by Ministers and officials from the Home Office and Department for Work and Pensions during the Committee’s session on 30 January 2017.

1.2.       CARE welcomes the commitments made by Minsters in their evidence to the Committee acknowledging room for improvement in the response to trafficking victims both through the Home Office’s National Referral Mechanism (NRM) and the role of the Department of Work and Pensions.

1.3.       We were concerned about a lack of clarity presented by Ministers about the current provision of care, residence permits and the rights of EU/EEA nationals both during the NRM process and afterwards.

1.4.       CARE believes that the current system is failing to meet international obligations to provide support following the determination by the NRM that a person is a victim; and that there is a knock-on impact affecting the ability to increase the number of successful police investigations and prosecutions.

1.5.       We recommend that:

• the Government reviews its compliance with its international obligations relating to provision of support during and after the reflection and recovery period and fully implement the GRETA report’s recommendations on support; 
• reform of the NRM through multi-agency panels should allow for decisions to be made on discretionary leave to remain at the time of a conclusive grounds decision.  The panels should also make recommendations on support and consider DLR decisions from a victim-centred approach;
• the Government develop a distinct procedure to assist victims of trafficking returning home including comprehensive risk assessments to ensure safe return and prevent further exploitation;
• The Home Office and DWP must ensure that extensions to a person’s stay in a safe house or NASS accommodation are available until benefits are received, including development of policy guidance about the making of extensions;
• There should be new models of partnerships with Jobcentres to support victims and victims of modern slavery should receive access to interpreters where requested. 

2. Meeting international obligations

2.1.       CARE welcomes the statement by Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism that the Government is concerned to meet its international obligations in relation to provision for victims of modern slavery.[1] 

2.2.       However, we regret that the Minster’s statement to the Committee addressed only one of those obligations – the obligation to provide a reflection and recovery period of a minimum of 30 days as detailed in Article 13 of the Council of Europe Convention on action against trafficking in human beings.  We refer the Committee to our written evidence which highlights the wider obligations of article 12 of the Convention and article 11 of the EU Directive on preventing and combating trafficking in human beings and protecting its victims which apply beyond the conclusion of the NRM process and the end of the reflection and recovery period.[2] 

2.3.       We note that in its October 2016 report evaluating the UK’s implementation of the Convention the official monitoring body, the Group of Experts on Human Trafficking (GRETA) urged the UK authorities “to make further efforts to ensure that all victims of trafficking are provided with adequate support and assistance, according to their individual needs, beyond the 45-day period covered by the NRM, with a view to facilitating their reintegration and recovery as well as guaranteeing their protection.”[3]

2.4.       We recommend the Government reviews its compliance with its international obligations relating to provision of support not only during the reflection and recovery period, but also thereafter.  We recommend the Government implement fully the recommendation of the GRETA report regarding provision of support and the reflection and recovery period.[4]

3. Entitlement to discretionary leave to remain (DLR) and reform of the NRM

3.1.       We regret that the Minister’s description of the process and entitlement of victims to discretionary leave to remain in the UK given during the oral evidence session contradicts what is stated in Home Office Guidance and could therefore create confusion.  The process for obtaining DLR has been set out in detail in the Appendix. DLR is available only after a conclusive grounds decision and is a temporary period of leave of fixed length, usually for a minimum of 12 months and a maximum of 30 months although it can be renewed.[5] 

3.2.       The process and the ease (or difficulty) of obtaining DLR is important because DLR not only entitles a person to remain in the UK for a limited period of time facilitating their recovery by enabling them to access specialist treatments, seek compensation, seek justice though the criminal justice process and protect them from further exploitation, it also gives victims an entitlement to welfare benefits without which victims are left destitute and homeless and unable to continue their recovery in this country.  CARE believes that the current process is flawed leaving victims falling through the gaps.

3.3.       There are three main flaws which we see in the current process for obtaining DLR:

3.3.1. The police are required to make the application on behalf of the victim (whether an EEA national or not) which places a burden on police forces and can create delays in the system.[6] CARE would prefer to see the police using their resources for their many other responsibilities in respect of modern slavery investigation.

3.3.2. There is a separate process for victims who are EEA nationals requiring them to make a direct application for DLR rather than having it considered automatically immediately after a positive conclusive grounds decision.  Due to the lack of consistent access to immigration advice many victims from EEA countries may not be aware of their entitlement to DLR, nor of how it would benefit them nor how to make an application.[7] Those who are not experts in immigration law can easily presume that if the victim is an EEA national that they will be entitled to residency and other benefits under EU Treaties.  However, as we set out in our written evidence, victims who have been exercising treaty rights may not be able to demonstrate that they meet the necessary criteria and others may not be able to exercise their treaty rights at all.[8]

3.3.3. There is a high threshold and lack of clarity about granting of DLR on the basis of a victim’s personal circumstances which may have the effect of narrowing the availability of the residence permission from that envisaged by Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings.[9]   For instance, DLR appears to be more readily granted on the basis of assisting police investigations than on a victim’s personal circumstances.[10]  The only illustration of what might qualify as “personal circumstances… such that it would be detrimental for the individual to leave the UK”[11] in the Home Office Guidance is “to allow [the victim] to finish a course of medical treatment that would not be readily available if they were to return home,”[12] whereas the Convention’s Explanatory Report describes a range of situations to be taken into account when giving leave due to a victim’s personal situation including the “victim’s safety, state of health, family situation or some other factor”.[13]  

3.4.       CARE believes that these flaws could be addressed by a reform of the NRM process which would establish multi-agency panels (currently being piloted) which would not only make conclusive grounds decisions but also have the power and responsibility for granting DLR and to make other recommendation for victims’ ongoing care and support needs as appropriate.   This was recommended by the NRM review and discussed in our written evidence submission at paragraph 6.4.[14] It has also been recommended by the Independent Anti-Slavery Commissioner.[15]   We note also that the GRETA report welcomed the introduction of these panels stating that they “correspond to the requirements of the Convention” and recommending “the UK authorities should allocate sufficient resources to ensure their full effectiveness and sustainability.” [16] 

3.5.       Within such a system:

• The multi-agency panel should automatically consider whether to grant DLR at the point of making a positive conclusive grounds decision
• All members of the panel should have input into discussions of the necessity of granting DLR not only immigration officials (which is the current arrangement[17]).
• Consideration of DLR should be automatic for all victims, both EEA nationals and non-EEA nationals.  Cognisant that the rights of EEA nationals are likely to change following Brexit, until that point EEA nationals should be granted an automatic 12 month period of DLR on receipt of a positive conclusive grounds decision enabling them to access welfare benefits and housing.
• The requirement for police to request DLR for a victim should be dispensed with.  Rather, the process of evidence gathering for the multi-agency panel’s NRM decision should include enquiries as to whether the individual is helping police with investigations and if police would like the victim to have a right to remain in the UK in order that they might assist with investigations following completion of the reflection and recovery period.
• The threshold for receiving DLR on the basis of a victim’s personal circumstances should not be restricted to undergoing medical treatment – and this should not be the only example given in the Home Office guidance.

3.6.       Within such a system, we note that there are two others issues to address:

3.6.1. Persons who may present a risk to the UK

CARE recognises the Government’s responsibility to protect the UK from individuals who may pose a threat to this country and its citizens.  However we were concerned by the implication in the Ministers’ comments that matters other than a person’s status and situation as a victim should play a significant role in determining whether a person should be granted discretionary leave to remain as a victim of modern slavery.[18]  Many victims are people who have been targeted for exploitation because of some kind of vulnerability.  Having a criminal record may make a person an attractive target for exploitation since the threat of legal consequences can be used as a means to control or coerce a victim and may make them less likely to seek help. Whilst understanding that each case is different, CARE is concerned by the suggestion that a victim’s past involvement in criminal activity may take precedence over their present status as a victim of modern day slavery.[19]  We recommend the Home Office ensures that the guidance for decision-makers on DLR takes a victim-centred approach, treating the person as a victim first and foremost and considering their needs as a victim before assessing any possible risk to the UK.  The Guidance should also highlight the possible connection between a criminal record and vulnerability. This approach should apply both to DLR cases and to the guidance for removal of EEA nationals.

3.6.2. Safe return

At several points in her evidence to the Committee the Home Office Minister referred to it being safe for some victims to return to their home country.[20] CARE is greatly concerned that there is no formal or consistently applied process for effective and specialised risk assessment for all victims returning home. It is not sufficient to assert that victims do not need to remain in the UK, unless effort is made to ensure that they will not return to a situation where they are at risk of further exploitation. We note the recommendations of the GRETA report[21] and the Independent Anti-Slavery Commissioner[22] and recommend the Government develops a distinct procedure to assist victims of trafficking returning home including comprehensive risk assessments in the victims’ countries of origin and taking steps to assist the victim with reintegration to ensure safe return and prevent further exploitation.

4. DWP practice and ensuring smooth transition from support under the NRM to welfare benefits

4.1.  The Government has a responsibility ensure that whether victims remain in the UK or return home they do not leave the protective environment of the safe house support before safe accommodation and money for food and living expenses has been provide for their next step.

4.2.  CARE agrees with the Home Office Minister’s suggestion that if “the system is working properly, nobody should be made homeless”.[23] However, the evidence is that the system is not working properly, and the transition for victims from the NRM to other safe accommodation and welfare benefits is often problematic, as set out in our written evidence.[24]

4.3.  Under the current guidance if a person receives a positive conclusive grounds decision they have 14 days to leave the safe house accommodation.  Although the safe house provider may apply for this period to be extended, the extension is made on a discretionary basis.  This means some victims are refused an extension despite there being no alternative accommodation or welfare benefits in place.[25]  This can be the case even when an application for DLR is being made.[26]

4.4.  We are concerned by the Minister’s suggestion that she “would be very surprised indeed if [a victim became homeless] as a result of coming out of the system” but welcome her commitment to looking into any cases that are provided to her.[27] We recommend the Committee ensures the Minister has copies of the evidence it has received giving such examples.[28]

4.5.  The Home Office Minister also said in evidence “if we can’t sort out safe accommodation and all their papers, and if they are still supporting the police with prosecutions, and still trying to prosecute their slave masters, then we will extend the support that is available.”[29] CARE believes, however, that extensions should not be restricted to victims involved in police enquiries and that the system should ensure that there is no gap in support as victims transition from the reflection and recovery period to other forms of support. We recommend clear policy guidance is developed regarding when reflection and recovery period support will be extended.

4.6.  There is also a lack of coordination between departments to ensure that benefits are being paid at the point the person leaves the safe house or National Asylum Seeker Service accommodation.  The Home Office and DWP must ensure that extensions to a person’s stay in a safe house or NASS accommodation are available until benefits are received (not merely that their entitlement is established).  DWP must ensure that benefits including housing benefit are payable on the day the person leaves the safe house.  Where rent is required in advance the system must be able to respond flexibly.[30] 

4.7.  We welcome the example of partnership working in Leeds between specialist Jobcentre Plus staff and the support provider under the Home Office contract.  We welcome and encourage DWP to develop the Minister’s suggestion that this model could be further explored – both in terms of specialist job coaches within Jobcentres, and also through formalising relationships between Jobcentres and local safe houses enabling support workers to better advocate for the victims they support, and helping Jobcentre staff understand victims’ needs.[31]

4.8.  We further recommend that such partnership arrangements should be made with after-care providers (whether outreach services or supported accommodation projects) to enable support workers in those projects to establish strong working relationships with Jobcentre plus staff.

4.9.  We also highlight concerns raised by many support providers about the difficulties faced by victims in the Jobcentre process.  As well as the assistance of a support worker from an outreach project or safe house, DWP should also change its policy to ensure all victims of modern slavery receive access to interpreters where requested.[32]

5. Conclusion

5.1.  This paper sets out CARE’s views on the weakness of the systems for victims who wish to remain in the country and obtain welfare support for recovery from the trauma that they have experienced.  Our recommendations seek to ensure that the UK is able to meet its international obligations.

Appendix – The process for granting discretionary leave to remain (DLR)

1. The Home Office Minister stated that Discretionary Leave to Remain (DLR) is automatically provided to victims from non-EEA countries at the point of a reasonable grounds decision in the NRM.[33]  This is not accurate.  Only temporary admission for the purpose of the reflection and recovery period is available at reasonable grounds stage.[34]
2. DLR is available only following conclusive grounds decision. 
3. Moreover, provision of DLR is not automatic – neither for EEA or non-EEA nationals.  The Home Office guidance states “There is no automatic grant of leave to remain if there is a finding of fact that a person is a victim of human trafficking or slavery, servitude and forced or compulsory labour.”[35] 
4. The grant of leave is dependent on a decision by the Home Office and victims can only qualify for leave under three criteria:
• particularly compelling personal circumstances requiring them to stay in the UK for a period of time
• the victim needs to stay in the UK in order to pursue a claim for compensation against their traffickers
• the victim needs to stay in the UK to assist with police enquiries.[36]
5. Victims from non-EEA countries seeking DLR on the basis of the first two criteria will be considered for DLR automatically.[37] 
6. Victims who are EEA nationals must make a separate application to be considered for leave under these same two criteria.[38] 
7. The reason for this different process is that NRM decisions for EEA nationals are made by the National Crime Agency’s Competent Authority which has no immigration powers, whereas NRM decisions for non-EEA nationals are made by Home Office officials with immigration powers.[39] 
8. In respect of the third, and most common, ground on which DLR may be granted there is a separate process which applies to victims of all nationalities.  For DLR to be considered on this basis the police must make a formal application to the Home Office for the victim to be granted DLR.[40] 

April 2017