Reconocimiento y determinación pérdida por deterioro (NIC SP 21)

The independence of decisions made regarding whether people have been trafficked should also be questioned as part of the significant NRM reforms to improve its ability to refer victims to support, make fair decisions and build up a better picture of modern slavery in the UK. At present,

Recommendation:

„

„ The Government should create a two-tier National Referral Mechanism (NRM) system which allows information about a person’s experience of modern slavery to be gathered through an anonymous referral, which does not require the person’s consent. If the potential victim then wishes to make a full referral to access support services, they may give their consent and a ‘second-tier’ referral can be made.

an individual who may have been trafficked but who also has an uncertain immigration status is referred to the NRM Competent Authorities in the UKBA. These Competent Authorities are in fact full-time asylum case owners. Though there is some training for UKBA Competent Authorities, the reality is that these Competent Authorities spend the majority of their time working on asylum issues; they are asylum case owners by vocation. This role involves a very different evidence process and burden of proof: combining the two roles is not therefore a natural fit.

Overlapping the role of asylum case owner and Competent Authority may be an ‘efficient’ approach for the UKBA, but it creates a fundamental conflict of interest. This dual role creates a situation whereby UKBA Competent Authorities are attempting to balance their existing heavy caseload of asylum claims with the important decision of whether a person has been trafficked.21

Some UKBA Competent Authorities have developed a weekly rota for making NRM decisions, where an asylum case owner will be rotated into the role of Competent Authority for one week every month in an attempt to ensure that decisions are made in a timely manner. One Competent Authority representative said of this rotation system:

‘We’re under-staffed…This is a good way of meeting our obligations with the NRM’.22

This rotation system does not allow sufficient time for staff to make all the NRM decisions that are referred to them, creating a serious backlog of NRM decisions for some UKBA Competent Authorities who can take months to work through the accumulated cases. An aftercare provider has reported to the CSJ that one UKBA Competent Authority has taken up to 14 months to make a decision.23 _{Understaffing and a lack of resources are significant}

contributors to the slowing of this process.

The pressures already exerted on the UKBA to tackle the high number of unresolved asylum cases are significant. In November 2012, a report by the Chief Inspector of Borders and

21 The Guardian, UKBA condemned over asylum and immigration backlog, 22 November 2012 [accessed via: http:// www.guardian.co.uk/ uk/2012/nov/22/border-agency-asylum-claims-backlog (10/01/13)]

22 Anonymous UKBA Competent Authority, in evidence to the CSJ 23 Anonymous aftercare provider, in evidence to the CSJ

‘If you know somebody’s got a messy immigration claim, you’re

hesitant to refer them to the NRM.’

Anonymous charity supporting survivors of modern slavery, in evidence to the CSJ

‘It’s difficult if you’re working on asylum cases to get the other work

done…you’re constantly interrupted.’

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Immigration found that 100,000 pieces of correspondence relating to unresolved asylum claims remained unopened due to under resourcing in the Agency.24 _{A further backlog of 16,000 further}

unresolved cases was discovered in January 2013.25 _{When added to this the increasing number of}

victims being referred to the NRM – the UKHTC marked a 33 per cent increase in referrals from 2010 to 2011 – it is only right to bring the most intense scrutiny to bear on the UKBA’s role as a Competent Authority.26 _{It is important to note that the 33 per cent increase in NRM referrals}

from 2010 to 2011 included an increase in potential victims whose country of origin is outside of the EU. This means that their NRM decision is likely to be made by the UKBA. As Figure 3.1 shows, there was a 46 per cent increase in NRM referrals of people from Nigeria, a 47 per cent increase in people from Vietnam and a 76 per cent increase in people from Uganda.27 _{Provisional statistics}

for 2012 also indicate Nigeria, Vietnam and China remain in the top five source countries.28

Furthermore, in some cases, UKBA Competent Authorities are not clear on how to make a decision about human trafficking, because the standards of proof for making these decisions are not clearly outlined as they are when making an asylum decision. It is understandable that there may be challenges in gathering verifiable stories from the person in question, however some Competent Authorities have highlighted a gap in the guidance needed to help them assess the credibility of a modern slavery victim’s experience. In addition to being under- resourced, UKBA Competent Authorities are ill-equipped to make decisions about whether a person has been trafficked.

The CSJ has heard frequently of the substantial lack of faith in NRM decisions made by the UKBA. Despite the ostensible safeguards the UKBA appear to have in place to give a

24 John Vine QPM, Independent Chief Inspector of Borders and Immigration, An inspection of the UKBA’s handling of legacy asylum and migration cases, March – July 2012, London: Office of the Independent Chief Inspector of Borders and Immigration, November 2012, p44 25 BBC News, UKBA backlogs: Inspectors find thousands of new cases, 24 January 2013 [accessed via: http://www.bbc.co.uk/news/

uk-21170495 (24/01/13)]

26 Inter-Departmental Ministerial Group on Human Trafficking, First Annual Report of the Inter-Departmental Ministerial Group on Human Trafficking, London: Home Office, October 2012, p74

27 Ibid

28 UKHTC website, United Kingdom National Referral Mechanism, Provisional Statistics 2012 [accessed via: http://www.soca.gov.uk/about- soca/about-the-ukhtc/national-referral-mechanism/statistics (08/02/13)] 150 100 50 0 Albania China Czech Repub lic

Ghana Hungary IndiaLithuania Niger ia

Romania Slovakia Uganda Vietnam

2010 2011 Number of NRM re ferrals Country of origin

‘second pair of eyes’ to NRM decisions, the serious conflict of interest is almost impossible to overcome; aside from capacity issues there is a substantial problem of perception and credibility.29 _{Evidence for this lack of faith is seen in the number of judicial reviews}

that have been requested of the UKBA for decisions made by them through the NRM. Every judicial review conducted in this area since the NRM was established in April 2009 has been for UKBA Competent Authority decisions; there have been none for UKHTC Competent Authority decisions.30 _{This reflects fears among victims and support agencies}

that immigration status may unduly influence UKBA decisions. Whilst it is acceptable for the UKBA to contribute relevant information to the decision over whether someone is a victim of modern slavery, and whilst it may have a legal role to play in legitimising the immigration status of an individual during their reflection period, the decisions themselves should not be made by this agency. Frustration at the incapacity of the UKBA to fulfil this role is palpable across the field.

The division of cases on grounds of immigration status between the UKHTC and the UKBA is wrong and unfair. It undermines national efforts to fight this tragic crime. The fact that any potential victim is required to make their welfare case to the exact same agency who may at the same time be considering their immigration status is a denial of the right to have an independent decision concerning whether they have been trafficked. This causes significant concerns amongst organisations who are supporting victims; those working with such organisations, such as the police, are also aware of such apprehensions:

29 Inter-Departmental Ministerial Group on Human Trafficking, First Annual Report of the Inter-Departmental Ministerial Group on Human Trafficking, London: Home Office, October 2012, p82

30 Hansard, Written answers and statements, 31 October 2012 [accessed via: http://www.publications.parliament.uk/pa/cm201213/ cmhansrd/cm121031/text/121031w0002.htm#12103179000046 (10/01/13)]

A judicial review is a procedure through which an individual is able to challenge the decision or exercise of power by a public body such as a local council, a Minister or, in cases of human trafficking, the NRM. If an individual feels the decision of one of these bodies is unlawful or represents a violation of their rights, they may apply to the Administrative Court (a division of the High Court) for a judicial review of the decision and have the decision withdrawn. A court may also make orders to compel the authority to do its duty or to stop it from acting illegally. A judicial review is not a reconsideration of the NRM decision but rather makes a judgment over whether the decision itself was made ‘legally’. A specific appeal process would be needed if a potential victim of trafficking is to have an official route made available to them to challenge a NRM decision and have their evidence reconsidered. Judicial reviews are essentially a challenge to the way in which a decision has been made, rather than addressing whether the decision itself was right or fair. Some aftercare providers registered fears that, upon receiving a negative Conclusive Grounds decision, an individual’s support under the Convention will end, giving little access to support if they wish to begin a judicial review process. If a formal process of appeal was established for the NRM, individuals should be supported through the process as part of measures to ensure victims of modern slavery are protected and offered a fair hearing.

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In order to eliminate the risk that immigration concerns and welfare decisions are confused, and to ensure continued transparency and independence within the NRM, the CSJ recommends that the UKBA is relieved of its role as Competent Authority. One single Competent Authority – under the UKHTC – should oversee all decisions. There is no justification for the UKBA to have a Competent Authority role in the NRM.

It should not matter where a person is trafficked from; their experience as a victim of a human rights abuse should be addressed first by the single Competent Authority responsible for making all decisions, regardless of their country of origin or status in the UK. For a person who may – as has been reported – have been trapped in modern slavery through threats related to their immigration status and deportation or prison, a referral to the UKBA is wholly contradictory to the UK’s aims to put victims first.

The single Competent Authority should draw on the expertise of representatives from welfare organisations, psychological experts and those trained in interaction with vulnerable victims of abuse. This would be a vast improvement on the current situation. The single Competent Authority should also establish sustainable channels of communication through which to approach all relevant agencies to gather information and make an informed decision. The consistent message from NGOs providing care, First Responders who make referrals, and others working to tackle modern slavery, is that a single Competent Authority is crucial to the independence and legitimacy of the NRM. Investing the decision-making remit in one Competent Authority will mitigate the risk that internal pressure on the UKBA will impact on NRM decisions. The UKBA is currently under-resourced to fulfil this role, and many asylum case owners lack the capacity to make decisions; this cannot continue. Removing the UKBA as a Competent Authority will encourage better engagement from agencies tasked with making NRM referrals; it is crucial that there is increased trust in NRM decisions if it is to fulfil its role properly in helping to effectively safeguard victims and building an improved picture of the problem in the UK.

31 Hales L and Gelsthorpe L, The Criminalisation of Migrant Women, Cambridge: Institute of Criminology, University of Cambridge, August 2012, pp45–46

‘How can you have an organisation making decisions on a victim of