Training Paper for the ATLeP / AIRE Conference Safety Through Justice
By Eileen Bye, Solicitor, Luqmani Thompson & Partners
23 May 2011
Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings requires assistance to be given to victims, including accommodation and subsistence, information and legal advice.
Article 12 – Assistance to victims
1 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:
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;
f access to education for children.
2 Each Party shall take due account of the victim’s safety and protection needs.
3 In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.
4 Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.
5 Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims.
6 Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.
7 For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.
The following sorts of welfare provision may be available to victims:
- Special provision for victims of trafficking, to meet the terms of the Convention;
- Mainstream benefits such as jobseeker’s allowance, administered by the Department for Work and Pensions (DWP), to meet subsistence needs, and housing benefit, administered by local authorities, to pay the rent;
- Asylum support administered by the UK Border Agency, available to destitute asylum seekers while they have an extant asylum claim, finishing when the claim is decided and any appeal rights are exhausted;
- If victims are, or have, children, Children Act provisions for children in need apply, administered by the local authority;
- If victims have care needs, local authority social services departments may assess and make appropriate provision.
Access to welfare provision depends on:
- what status the victim has
- what stage the victim has reached
Lawful status – having leave to enter or remain
People with leave (permission) to enter or remain are likely to be in a less insecure position since they may have permission to work and entitlement to at least some benefits.
A Latvian can work and claim certain benefits by virtue of being a national of a member state of the European Union.
A spouse/partner or family member of a European Union national, a British Citizen or person settled (having indefinite leave) in the UK can work and has varying entitlement to benefits.
A domestic worker may have 12 months limited leave to enter, but it is a condition of her leave that she only work as a domestic worker and that she have adequate maintenance and accommodation without seeking to claim “public funds”*.
However, even for people who are lawfully here, there are obstacles in the way of getting mainstream benefits, for people of working age but with no history of work and national insurance contributions in Great Britain. They are likely to need means-tested non-contributory benefits. Many of these benefits exclude people who fail the habitual residence or right to reside test.
When immigration status is not in issue, the UK Human Trafficking Centre is the Competent Authority making decisions.
Irregular status – no leave to enter or remain
Typically, victims are illegal entrants: they have not been given leave to enter or remain. This includes people who got some sort of leave but it was obtained by deception and is therefore invalid. Some may be overstayers: that is, they did have leave to enter or remain, but it has expired without renewal.
The position of people with irregular status is insecure. They have no permission to work. They are not entitled to mainstream benefits because the relevant benefits are not available to those defined as “persons subject to immigration control” (persons with no leave to be here or just limited leave with a condition attached precluding recourse to “public funds”*).
What alternatives do they have? It depends on what stage they are at.
If there is no claim to be a victim of trafficking and no claim for asylum, there is no welfare entitlement.
If a claim for asylum has been made, asylum support is available to destitute asylum seekers until determination of the asylum claim. An asylum claim means a claim for protection under the terms of the UN Refugee Convention or Article 3 of the European Convention on Human Rights (torture, inhuman or degrading treatment). Asylum support means basic accommodation and/or a subsistence allowance for the duration of the asylum determination process, that is UKBA decision-making and any appeals.
If a victim of trafficking claim is made, a welfare mechanism is supposed to slip into gear:
1. During initial period
The First Responder agency (eg the police):
- routes the case through the National Referral Mechanism. For these cases in which immigration status is in issue, the referral passes to the UK Border Agency (UKBA) as the Competent Authority to make decisions. The first decision is
- whether to grant the 45-day recovery and reflection period. The Competent Authority has a target decision period of 5 working days. These times are extendable. The second decision, at the end of that period, is
- whether to grant Discretionary Leave.
Special provision (accommodation, subsistence support, referrals, and possible outreach assistance), should be available at this initial stage. However:
- there is some lack of clarity between the agencies about who should do what,
- there are gaps – it does not always meet immediate needs and there are cracks between the stages, or
- offered accommodation outside of London sometimes does not correspond to the needs of the victim whose only friends are in London, and
- there is not enough provision to meet needs
People who have claimed to be victims of trafficking and made asylum claims may be diverted into the asylum support provision.
2. Following decision by Competent Authority
A residence permit is to be granted, if the Competent Authority considers victims should be given permission to stay:
- Either owing to their personal circumstances
- Or to cooperate with investigation or criminal proceedings.
If the Competent Authority decision is negative:
- Asylum claimants: continue with asylum support until the asylum claim is finally determined
- Those without an extant asylum claim: no provision
- There is no general right of appeal against a refusal to grant this sort of residence permit.
If the Competent Authority decision is positive:
- Grant of residence permit of 12 months Discretionary Leave. No conditions attach to this Discretionary Leave prohibiting work or entitlement to benefits and other welfare provision (subject to normal rules of entitlement). Crucially, although this is a period of limited leave, it does not have a condition attached to it preventing recourse to public funds.
Children Act: local authorities have general duties to all children in need in their area, including victims of trafficking below the age of 18.
Social services provision for people with disabilities: victims who have care needs are likely to be entitled to an assessment which may engage provision, but not if their needs arise solely from destitution.
NHS care: The NHS (charges to Overseas Visitors) Regulations 1989 (which list who can and who cannot get free secondary health care) have been amended to include those whom the Competent Authority has identified as a victim of human trafficking or those for whom the rest and reflection period has not yet expired.
- those left out,
- those who should be able to engage the special provision, but there is not enough special provision, it is slow, or it does not meet needs,
- those who have been given a residence permit but then have to find a way through the labyrinth of DWP/local authorities/HMR&C, and
- insufficiency of advice and legal aid provision to deal with any of the problems.
* “Public funds” is defined in the Immigration Rules as the main means-tested benefits (income support, income-based jobseeker’s allowance, employment and support allowance, housing benefit and council tax benefit, social fund); the main disability benefits (attendance allowance, severe disablement allowance, disability living allowance, carers allowance); child benefit; state pension credit, child tax credit and working tax credit; local authority housing.
Information and law current as of 27/05/2011
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