Clause 42 - Guidance about identifying and supporting victims

Modern Slavery Bill – in a Public Bill Committee am 10:45 am ar 14 Hydref 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Mark Pritchard Mark Pritchard Ceidwadwyr, The Wrekin

With this it will be convenient to discuss the following:

New clause 22—

“National referral mechanism

‘(1) The Secretary of State must by order establish a mechanism for the identification and protection of victims of modern slavery offences as defined in Part 1 of this Act.

(2) In establishing the mechanism the Secretary of State must have regard to the desirability of making provision for the following matters—

(a) the means and process for the identification and referral to the mechanism of potential victims of modern slavery;

(b) the provision to a child of an advocate in accordance with section 41 of this Act, if no such advocate has already been appointed upon identification of the child as a victim or referral to the mechanism;

(c) the appropriate stages in the formal identification process of a victim of modern slavery, the tests to be applied at each stage, and the timescales within which each stage must be completed;

(d) the suitability, qualification and necessary training of a person or organisation to fulfil the processes at paragraphs (2)(a) or (c);

(e) the principle that an organisation whose functions include determining asylum and immigration is unsuitable to deal with the matters referred to in paragraph (c).

(f) the care assistance or services which shall be provided as a minimum to all potential and formally identified victims of modern slavery;

(g) the provision of an internal review and appeal of a decision under paragraphs (2)(a) or (c).”

New clause 27—

“General duty to identify, assist, support and promote the welfare of victims

‘(1) Public authorities have a general duty—

(a) to take all reasonable steps to identify persons who are, may be, or may have been, trafficked, enslaved or exploited persons;

(b) to take all reasonable steps to provide assistance and support (including to refer persons to other agencies for assistance and support) on a consensual and informed basis, and to promote the welfare of persons who are, may be, or may have been, trafficked, enslaved or exploited persons, including, as a minimum the provision of—

(i) standards of living capable of ensuring their subsistence, through such measures as the provision of appropriate and secure accommodation, psychological and material assistance;

(ii) access to necessary medical treatment;

(iii) translation and interpretation services;

(iv) counselling and information, in particular regarding their legal rights and the services available to them, in a language that they can understand;

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

(vi) access to education for children;

(c) to make arrangements for ensuring that any services provided by another person for the purpose of discharging the public authority’s function are provided in accordance with the general duty in section 16(1) above; and

(d) to have due regard to the fact that an individual is, or may have been a trafficked, enslaved or exploited person when making decisions affecting that individual.”

New clause 28—

“Establishment and function of the National Referral Mechanism (“NRM”)

‘(1) The Secretary of State must establish an NRM to—

(a) identify trafficked, enslaved or exploited persons within the United Kingdom;

(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and

(c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support including, at a minimum, the measures referred to in section 16(1).

(2) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a renewable residence permit provided for in sections 16(11) and (12) below.

(3) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.

(4) A person (including a child) must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.

Additional protections - renewable residence permits

(5) A person who is determined in the NRM process to be a trafficked, enslaved or exploited person shall be entitled to a one year renewable residence permit permitting them to remain in the United Kingdom where one or other, or both, of the following situations apply—

(a) a competent authority in the NRM considers that their stay is necessary owing to their personal situation; or

(b) a competent authority in the NRM considers that their stay is necessary for the purpose of the person’s co-operation with the authorities in connection with their investigations or criminal proceedings.

(6) A residence permit for child victims shall be issued where it is in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.

Duties in relation to children

(7) The protection, assistance and support provided to trafficked, enslaved or exploited children (including those to whom the presumption of age applies) in accordance with the provisions in this Bill shall be at least equivalent to the protection, assistance and support provided to adults, save that where other legislation provides for greater protection for children that legislation shall, to the extent of any inconsistency with this Bill, prevail.”

New clause 29—

“Identifying and supporting victims

‘(1) The Secretary of State shall make regulations about the arrangements for determining whether or not a person is to be treated as a victim of slavery or human trafficking and shall in particular make provision—

(a) about the process for the referral of potential victims of slavery or human trafficking for such a determination;

(b) about the process and tests for determining whether a person should be treated as such a victim; and

(c) for an individual to have access to an internal review and appeal of a decision made about them under subsection 1(b).

(2) The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about indicators that a person may be a victim of slavery or human trafficking.

(3) The Secretary of State may, from time to time, revise the guidance issued under subsection (2).

(4) The Secretary of State must arrange for any guidance issued or revised under this section to be published in a way the Secretary of State considers appropriate.

(5) The Secretary of State must ensure that—

(a) a person about whom a referral has been made under subsection (1)(a) is provided with assistance and support in accordance with this section for—

(i) if there are no criminal proceedings, ninety days,

(ii) if criminal proceedings take place, ninety days after criminal proceedings are completed; or

(iii) until there is a conclusive determination under the processes established by subsection (1) that a person is not to be treated as a victim of slavery or human trafficking,

(b) if the family of a child identified as a victim is resident in the United Kingdom it be entitled to assistance and support under this section,

(c) assistance and support provided under this section—

(i) is not conditional on the willingness of the person to act as a witness;

(ii) shall be provided with the person’s agreement;

(iii) shall take due account of the victim’s need for safety and protection, including the opportunity to receive assistance from a person of the same gender;

(iv) shall be provided to assist victims in their physical, psychological and social recovery; and

(v) shall meet minimum standards for such support as shall be set out by the Secretary of State by order.

(6) For the purpose of this section, “assistance and support” may include but not be restricted to—

(a) appropriate and safe accommodation;

(b) material assistance, including that required by a person with special needs arising from pregnancy, physical or mental health conditions, disability, or being the victim of serious psychological, physical or sexual violence;

(c) medical treatment, including psychological assistance;

(d) counselling;

(e) information, including on a reflection and recovery period, the possibility of granting international protection and refugee status, a voluntary return, welfare entitlements and accessing employment;

(f) translation and interpretation services, as required;

(g) access to education for child victims and children of victims;

(h) legal counselling, either through legal aid or other means;

(i) legal representation, either through legal aid or other means;

(j) assistance in applying for compensation; and

(k) provision of services (including travelling and other expenses) to assist a victim of trafficking in human beings, and children of victims, to leave the United Kingdom and to settle in a new place of residence.”

This New Clause ensures the arrangements for determining if a person is a victim of slavery or human trafficking are established in regulations and contain a formal process for review and appeal and requires the Secretary of State to set out in guidance the indicators that suggest a person may be trafficked. The New Clause sets out the clear types of assistance which a victim can receive and enables the Secretary of State to establish minimum standards for the provision of that support. The New Clause sets out a ninety day minimum period for which a victim can receive support.

Photo of Sarah Teather Sarah Teather Democratiaid Rhyddfrydol, Brent Central

The debate on the previous clause was very positive: I wonder whether we can have an equally positive one now. I feel a lot more cheerful than I did when I arrived this morning.

Proposed new clause 22 is one of three that have been tabled that seek to place in statute a referral mechanism for victims of human trafficking. The current NRM was introduced in 2009 to meet the UK’s obligations under the trafficking convention. However, there are various concerns with how the current system works and its fairness and effectiveness. The Government announced a review of the NRM almost a year ago, in October 2013, and that was followed by a call for evidence. Over the conference recess we received the interim report, and I am grateful to the Minister for ensuring that it was available to the Committee before today’s debate.

Once the Bill is enacted, the NRM will play a key role in determining whether it is a success. So many of the Bill’s aims depend on victims coming forward. To do so they need to know that they will be treated with dignity, compassion and respect. For that to happen, the NRM—or whatever it gets called in the future—must be able to identify potential victims of trafficking. It currently fails to do that, an issue that has been raised pretty consistently during the course of the Committee thus far. I know the Minister is very aware of the current system’s failings and is committed to tackling those.

Part of the problem is that many on the front line are not aware of the NRM or are not routinely looking out for signs of trafficking. Putting an improved NRM on a statutory footing would help to solve that. Currently, too many trafficking victims who come into contact with public bodies are not identified, and instead wind up in prison or immigration detention. The POPPY project, through the Immigration Law Practitioners’ Association, gave an example of a woman who spent a total of 336 days in both prison and immigration detention without being properly identified as a trafficked person. I was not on the pre-legislative scrutiny Committee, but I have spoken to a number of Members who were and they were profoundly affected by the evidence they heard. Of those 336 days, 49 were spent there after the referral had been made and three were after the positive reasonable grounds issue had been considered.

My hon. Friend the Member for Enfield, Southgate is not here today but has been very active in the Committee; he and I are both serving on a panel of parliamentarians calling for an all-party parliamentary inquiry into immigration detention. During our first evidence session, we heard directly from a young man via a phone link. At the time, he was being held in Colnbrook detention centre. He told us how he had been trafficked from his home in Cameroon to Hungary, where he was put in a basement, beaten, raped and tortured. He eventually managed to escape and, because he spoke some English, was taken to Heathrow. When he came to the UK, he was arrested for using false papers and given an 18-month custodial sentence. That was in 2010. For the next four years, he was transferred from a prison to Colnbrook, Haslar immigration removal centre, Harmondsworth IRC and then back to Colnbrook. At no stage was he identified as a victim of trafficking, despite having a diagnosis of post-traumatic stress disorder. When he spoke to us, he had been referred for cognitive behavioural therapy three times within Colnbrook without receiving it. I have met this gentleman and a number of the people who have been supporting him on a voluntary basis inside Colnbrook, and they were very distressed by the lack of care he received. The good news is that, since speaking to the panel, he has been granted bail. However, this young man has been seriously failed by the system for several years. Rather than being treated and supported as a victim, he has been prosecuted as a criminal and that has significantly increased his trauma.

Another issue with the NRM is that a victim of trafficking cannot refer themselves; they must be referred by one of the first responders. That creates an extra layer to the NRM, whereby the first responder weighs up whether an individual is a victim of trafficking. Evidence shows—frankly, this ought to be common sense—that having repeatedly to recount stories of ill treatment and abuse to multiple organisations, without any kind of counselling, is detrimental to the individual concerned. It does not allow them to move on; they simply get stuck in the trauma. When we discussed the previous clause, my hon. Friend the Member for Congleton made that point specifically about children, but the same applies to adults—both men and women.

The situation is further compounded by the lack of clarity regarding the training and expertise needed to be a first responder. As the interim report on the NRM notes, the training courses that are available are not compulsory and

“there is no system of standardisation or approval.”

This means that victims have to wait for first responders to make a decision, increasing the time that they are without support. If a victim is referred to one or two competent authorities, they face the “reasonable grounds” stage, which is the gateway to support. However, victims have no access to support before that, including free legal advice. That is yet another block and invariably mirrors the referral stage, despite evidence suggesting that there is usually no contact between the original referrer and the competent authorities. That needs to change.

If the NRM is to have the confidence of victims, its decisions need to be both transparent and consistent. At the moment, they are neither. As the Joint Committee’s report showed, the two competent authorities with decision-making powers in the NRM have very different records, and that is part of the reason why the UK Border Agency’s successor organisation, UK Visas and Immigration, must be stripped of its competent authority status. UKVI’s grant rate is only 20%, whereas the UK Human Trafficking Centre’s rate stands at 80%, and there is no obvious explanation for that vast discrepancy.

The Joint Committee also heard numerous examples of individuals waiting far longer than the 45-day reflection period for a decision to be made. The evidence shows that the UKVI is unable even to follow the NRM process correctly. It has a disproportionate focus on victim credibility; gives too much weight to police evidence; incorrectly believes that independent verification of victims’ stories is needed where it actually is not; and frequently conflates NRM and asylum decision-making processes. It is not as though asylum decision-making processes are a particularly good model to follow.

The UKVI also suffers from the same affliction as many of the Home Office decision-making bodies: a culture of disbelief, an issue consistently raised by organisations working with people who are often the most vulnerable. A reformed NRM must be independent of the Home Office. I welcome the commitment from the Minister that the issue of ensuring that no authority that decides an individual’s immigration status will also be responsible for deciding whether the person is trafficked will be included in the final review. Perhaps she will confirm that for the record.

The 45-day reflection process also needs to be lengthened. That would allow victims properly to reflect and recover, and the decision maker properly to consider cases and to undergo an internal review system. A longer reflection period would be in keeping with that in other countries, including Chile, Canada, Norway, Germany, the Czech Republic and Denmark. Any reformed NRM must also include a proper appeal process for which legal support is available. The current situation, in which the only way to challenge a negative decision is through judicial review, is simply not suitable. If the Government eventually find a way to bring in their residence test for legal aid, the ability to challenge a decision will be restricted yet further, in reality making it almost impossible.

In her letter to the Committee, the Minister said she would consider the right of appeal in her final review. I again urge her to ensure that there is a full appeals process for which legal aid is available. To ensure that there is a proper distinction between trafficking decisions and any related immigration or asylum case, the right of appeal should be to a tribunal other than the immigration  and asylum chamber. Any appeal should also suspend any scheduled removal, in line with the UK’s obligations under the Council of Europe anti-trafficking convention.

The Bill is ambitious in its aims but, the current review notwithstanding, for it to be successful it must include a mechanism for identifying and supporting victims. The current NRM has been shown to be lacking in many areas. The Minister has a chance to correct that. I understand that we will not get the full review in time for us to consider it, but anything the Minister can say to reassure us will be gratefully received. I wanted to get those remarks on the record in the hope that they will be carefully considered when the revised system is brought in.

Photo of Diana R. Johnson Diana R. Johnson Shadow Minister (Home Affairs) 11:00, 14 Hydref 2014

The Opposition obviously support the inclusion of clause 42 in the Bill. It was not in the original draft Bill, so we are pleased to see that it has made its way into this version. However, which public bodies does the Minister expect to issue guidance to concerning their roles and responsibilities? Will she issue guidance to individual bodies, or general guidance that can be used across the public sector and agencies?

In tabling new clauses 27 and 28, we are not seeking to remove and replace clause 42; rather we believe there is a need to supplement it. New clause 27 expands on the provisions in clause 42 to create a general duty on public authorities to identify, assist and support victims of human trafficking. It is very similar in its aim to new clause 29, which is also in this group.

I hope we will get further assurances from the Minister that the Government intend to provide statutory guidance to public bodies most commonly in contact with victims, including local authorities, the police and the Prison Service. However, I stress that unless the Minister intends to issue guidance to a plethora of different bodies, we need a general provision that recognises that victims come into contact with a huge range of public agencies, not only the ones to which I have just referred. A whole range of other organisations—the hon. Member for Brent Central referred to them—needs to be identified in terms of the health needs of these groups, for example.

I have mentioned the police and I should also mention immigration officials. We need to reflect on the criminal justice system. As the hon. Member for Brent Central said, many trafficking victims are first identified when they are on remand or in an immigration removal centre. They need support in those situations and we have to provide a mechanism to enable them to assert their right to support when public bodies are not acting. Indeed, we hope that the passing of the general duty outlined in new clause 27 would change the behaviour of public bodies, negating the need for action on behalf of victims or separate regulations.

While new clause 27 seeks to ensure support for victims, new clause 28 is about putting the process for identifying victims and offering them support on a statutory footing, an aim shared with new clause 22. I want to echo to some extent what the hon. Member for Brent Central said about the current problems with the National Referral Mechanism. I am sure the Minister will accept that some of the problems clearly identified in the Home Office’s internal review of the NRM do exist. While I welcome the review, I do not think that its existence, or anything in the recent interim report, negates the need to put the NRM on a statutory footing.

I think the whole Committee will agree that the interim report shows a system that is failing. It identifies numerous bureaucratic problems, discrepancies in the way EEA and non-EEA cases are handled, co-ordination problems and big problems with training of staff. There are also difficulties with good practice being identified across the country and implemented. Even where victims are identified, there are huge discrepancies in the support offered. I am sure all Committee members who have struggled on their constituents’ behalf with bureaucracy, delays and confusion at the UKBA will identify with what the interim report says. I find it shocking, for example, that 9% of referrals are refused simply because signatures are missed off the form. It is clearly a system more interested in ticking boxes than in supporting victims.

Although the interim report highlighted some systematic failings in the functioning of the NRM, it is worth pointing out what is not in it and which I expected to be there. The report makes no attempt to assess the accuracy of NRM decisions or to consider what redress is available to victims, or indeed to other agencies when there is a disagreement between the NRM and the original referring agency. Nor does it seek to explain the discrepancies between the number of positive decisions made by the UK Human Trafficking Centre and those made by UKBA, to which the hon. Member for Brent Central also referred. The report alludes to delays and discrepancies in the time it takes to get decisions, but it does not actually seek to quantify those delays. That is surprising, because there are already several sources of information on this point.

The Anti-Trafficking Monitoring Group’s report “Hidden in Plain Sight” illustrates a problem with delays that varies between referring agencies. It says that

“the Salvation Army, the service provision managing contractor, stated in written evidence to the Home Affairs Select Committee enquiry into Human Trafficking that the average number of days for reasonable grounds decisions is 37 days. The Poppy Project stated that the average time was 39 days from a sample of 49 cases. Other service providers reported that they had waited between two and seven months for reasonable grounds decisions. The Salvation Army stated that the average wait for conclusive grounds decisions was 104 days after delivery of the reasonable grounds decision whilst the Poppy Project stated that across 30 of its cases the average was 154 days. Other service providers reported between five months to even one year.”.

Finally, the interim Home Office report does not look at the attitude of UKBA staff towards dealing with victims of human trafficking. That issue has been raised before. In the report, “Hidden in Plain Sight”, a service provider said:

“I managed to get through to [the case owner] and I said you know, this woman, her mental health is being severely impacted upon because you are not making [an NRM] decision”.

She said that the opinion of the person at the other end of the telephone was,

“well, what’s her problem? She’s got a roof over her head; she’s in NASS accommodation, in G4S.”.

The service provider said that she found that attitude “quite disturbing”.

If the Home Office report, of which we have an interim, was really looking at the functioning of the  NRM, it would have been done by an independent body and would have looked at all the factors I outlined as well as considering the issue before us today: should the NRM be put on a statutory footing? The problems identified in the interim report, and those not mentioned, could be prevented and the system made simpler and perhaps cheaper if we put the NRM on a statutory footing and create a single, independent, transparent system to support all trafficking victims. Our amendment would recognise the particular needs of children and ensure they are accounted for within the NRM system.

Setting up that way of operating does not have to physically come out of the Home Office, but it does have to be separated out of the mess of conflicting systems that are currently in place. That is the intention behind new clause 28, which would cover the creation of the NRM, the duty of the NRM to provide support and assistance to victims and, crucially, give a right to appeal, which is desperately lacking in the current arrangements. We would give the NRM the right to issue renewable residency permits; that is crucial for convictions. Several agencies tell me that they can wait months for residency permits, during which time victims are left in limbo, unable to work or access support, and often end up being exploited again. That not only causes the system to fail victims, but means that potential witnesses are not able to stay in the country. The Minister has said on several occasions that she is keen to ensure that we see more convictions arising from the Modern Slavery Bill. Adopting the new clauses would help to secure more convictions in the long run, by putting the NRM on a statutory footing.

Photo of Fiona Bruce Fiona Bruce Ceidwadwyr, Congleton 11:15, 14 Hydref 2014

Clause 42 is clearly a step forward, which I welcome, but I would like to speak to new clause 29, which is in my name and that of my hon. Friend the Member for Enfield, Southgate. If we are to have a Modern Slavery Bill that lays a new foundation for addressing the issue of identifying and supporting victims in the 21st century, it needs to recognise that victims are at the centre and to make provision for them. I pay tribute to the excellent speech by my hon. Friend the Member for Brent Central, who recounted a heart-rending story of a victim that really brought home how important the issue is.

The inclusion of measures focused on victims in part 4 is a welcome addition since the draft Bill, making more convincing the claim that this is a credible Bill on modern slavery. Nevertheless, I suggest to the Minister that the provision of guidance on identifying and supporting victims under clause 42 does not move us far enough forward. Guidance is most effective when outlining how statutory mechanisms should work. It can be flexible and react to changing circumstances, which can be of great benefit, but guidance is not the place to establish core principles.

New clause 29 would establish core principles and create a stronger legal framework for transparent and efficient processes in the formal identification of victims and the delivery of high-quality care and support, in accordance with our duties under international treaties. I am sure the Minister will refer in her response to the ongoing review of the national referral mechanism, which is of great importance, but that review should not prevent our discussing the core principles.

The first core principle is that the process for formally identifying victims should be consistent and transparent. The Joint Committee on the draft Bill heard evidence from many non-governmental organisations that the fact that the NRM is established only in policy and guidance creates a lack of transparency, which Anti-Slavery International described as resulting in

“arbitrariness of application and access for victims”.

As a member of the Joint Committee, I also heard about levels of inconsistency in the quality of decision making under the NRM. Particular concern was expressed about decision making by UK Visas and Immigration—and previously the UK Border Agency—which is responsible for making two thirds of decisions under the NRM. The Centre for Social Justice report “It Happens Here” also noted evidence from many NGOs expressing a lack of confidence in the decisions made by the UKBA under the NRM.

The Anti-Trafficking Monitoring Group report of October 2013, “Hidden in Plain Sight”, quotes providers of support to victims as saying about UKVI that

“little information is sought from service providers to assist in decision making and negative decisions are taken without consulting interested parties, as required by the Home Office guidance.”

That suggestion that the existing guidance is not being followed consistently indicates that a more formal framework is required for decision-making processes that have such an impact on a victim’s life and access to services.

The statistics provided by the Anti-Trafficking Monitoring Group are extremely worrying, and suggest differences in decision-making procedures and the inconsistent application of criteria between the two competent authorities, UKVI and the UK Human Trafficking Centre. Creating an identification process in regulations with clear statements of the tests and criteria to be applied would make the NRM more accessible and transparent for victims.

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove

May I suggest to the hon. Lady that what she is describing is another example of the conflict of interest I mentioned earlier? UKVI has an  objective of admitting as few people into the United Kingdom as possible, which is clearly affecting its decision making.

Photo of Fiona Bruce Fiona Bruce Ceidwadwyr, Congleton

The right hon. Gentleman makes an extremely pertinent and valuable point, for which I thank him.

Related to the question of transparency in the process of identification is the ability for a victim to challenge a negative decision. There are currently only two ways that a negative decision under the NRM can be reviewed. The first is judicial review, which is a costly process and, more importantly, does not reconsider the merits of a person’s case. Secondly, an organisation providing support to the victim may make an informal request to the relevant competent authority for the case to be reviewed, but such a review is informal and discretionary, and, according to the Anti-Trafficking Monitoring Group, access to it is “inconsistent and unequal”. Such a haphazard approach is unsatisfactory. All victims should have the same opportunity to have a negative decision reviewed. Establishing a mechanism for appeal in regulations about the identification process will provide that equal access.

All my recommendations echo those made by the Joint Committee in our report. Without prejudicing the results of the NRM review, will the Minister consider establishing identification on a more formal basis?

I turn to support and assistance, which is currently provided to victims of trafficking on a 45-day reflection and recovery period. Such support is currently provided on a policy basis, but it does not appear in statute. As I have said, clause 42 is a welcome step forward, but it does not offer to victims firm assurance of the availability of assistance or of the form such support would take. In its 2012 report, the Council of Europe’s group of experts on action against trafficking in human beings—GRETA—invited the UK to enshrine the right to record—

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.