Oral evidence: Draft Modern Slavery Bill, HC [1019], Tuesday 11 March 2014

Oral evidence, 11 March 2014.

Witnesses

Zofia Duszynska, Legal Director, Immigration Law Practitioners’ Association, and Shauna Gillan, Legal Officer, Immigration Law Practitioners’ Association, examined.

Chairman

Would you both identify yourselves, and then we will stagger into action.

Fiona Mactaggart

I ought formally to declare an interest, as a person who helped to set up ILPA, but it was a very, very long time ago.

Chairman

That is to your credit, as were all the other declarations we have had.

Shauna Gillan

I am Shauna Gillan. I am a legal officer with the Immigration Law Practitioners’ Association.

Zofia Duszynska

I am Zofia Duszynska. I am a solicitor at Hammersmith and Fulham Law Centre and I am on the executive committee of the Immigration Law Practitioners’ Association.

Chairman

We have just heard the reasons why you are needed. Let us get into some questioning.

Lord McColl of Dulwich

What types of legal services and for what types of claim are victims of human trafficking currently able to access civil legal aid funding? Are there any gaps in the funding?

Zofia Duszynska

At the moment, victims of trafficking can get legal aid for an immigration matter—leave to enter or leave to remain. Once they have a positive reasonable grounds decision, which means they need to have passed that first identification hurdle in order to get legal aid to pursue a standard immigration matter, they can still claim asylum and get assistance with an asylum matter, but not with any other application for leave to enter or remain. For example, for assistance with even accessing the NRM or for preparing a statement in support of their identification as a victim of trafficking, they would not be able to get legal aid to do that until they had already passed that “I suspect but cannot prove” evidential hurdle. They can get legal aid for an employment matter, to pursue a claim for damages, and also, at the moment, for judicial review so that they can challenge a negative reasonable grounds decision. But as they would already have had to have some level of legal representation in order to access the NRM, the initial gateway is really quite hard for them.

Shauna Gillan

The position prior to the Legal Aid, Sentencing and Punishment of Offenders Act, which came into force last April, was that immigration matters were generally in scope. A person who had a meritorious immigration case could go and get access to a lawyer. If that lawyer then spotted indicators that the person was a victim of trafficking, the lawyer could then assist them in making a referral to the NRM, assist them in getting a positive identification from that body and things could flow from that. Now, because the NRM is the gateway to getting in front of a lawyer, we see problems whereby people aren’t self-referring to what they perceive to be the Home Office—because it is; it is housed within the Home Office. Previously they had the support of a lawyer to bring them there and to assist them in making a statement. Now they do not, because it is the gateway to get to the lawyer.

Lord McColl of Dulwich

That is quite a gap.

Shauna Gillan

Yes, a substantial gap.

Lord McColl of Dulwich

Are there any other gaps?

Zofia Duszynska

There are gaps if, for example, you have made a successful asylum claim and your children are still in your country of origin. Previously, you could have legal aid for family reunion to bring your children. Now, for a victim of trafficking, if you succeed in your asylum claim, there is no legal aid for that essential family reunion matter. Given that families of victims of trafficking are often in a very precarious situation, which was the push or pull factor for the trafficking in the beginning, that really is quite problematic and leads to a lot of concern about exploitation of other members of the family.

Lord McColl of Dulwich

Thank you. That is very clear.

Sir Andrew Stunell

The Government have proposed introducing a residence test for civil legal proceedings. There is an exemption for victims of human trafficking, but how broad is that exemption, and are we looking at another gap in that case?

Shauna Gillan

Another huge gap in terms of the residence test. It is something we are very concerned about. Currently, if you are unable to get yourself through the gateway in the Legal Aid Act, you can still judicially review a wrongful NRM decision. We know that there are many wrongful and erroneous NRM decisions, but currently you have that save. You will be completely cut out under the residence test from bringing a judicial review to get you back in.

Sir Andrew Stunell

Do you have any practical examples of cases, which are currently successful, that you are clear would fall outside the exemption?

Shauna Gillan

There was a case last year where it was found that the decision makers in the NRM were applying an unlawful policy. They were finding people who had been trafficked in the past and identifying them as historical victims of trafficking, and saying that they did not need the convention because they were no longer victims of trafficking. The entire policy was unlawful. That was a judicial review brought by someone who had an incorrect NRM decision. That kind of test case would not survive the residence test that is due to be brought in in May.

Sir Andrew Stunell

That is a very clear practical example. Do you have others in mind, or will that do? I think it is a pretty conclusive one.

Zofia Duszynska

I think it is. If you have a negative and wrongly founded NRM decision, which has been taken on the basis of information that has been supplied on your behalf but without you having had access to legal representation before, and you then do not have the opportunity to access legal aid to challenge that decision, you cannot have your trafficking matter, or even your immigration matter, dealt with at all. It is fairly fundamental to the process.

Sir Andrew Stunell

We have just taken evidence from the people who gave that decision. I do not know if you were present at the back of the room.

Shauna Gillan

Yes, we were.

Zofia Duszynska

Yes.

Sir Andrew Stunell

Have you any comment to make on their assertion that they are getting it much more right nowadays?

Zofia Duszynska

This is what we were quite interested in hearing. In terms of the five days for making a reasonable grounds decision, my recent experience is that the reasonable grounds decision in two of the cases I have dealt with most recently has been made within the five days. But in terms of the conclusive grounds decision, I have one that is still waiting since last October, way beyond the 45 days, and with no communication. The policy says that the reflection and recovery period should be extended for 28 days at a time by agreement, but we have not had that level of communication. I have another victim of trafficking who was identified while in prison, and is now on bail in safe and secure accommodation. He is accessing the very services he should be during the reflection and recovery period. The 45 days has expired, and, despite the criminal representatives chasing UKVI, I would say every 10 days, there is no response on how long that period is to be extended. He is safe and he is receiving services, but because he is also facing a criminal matter it is quite essential as to whether the criminal matter proceeds and whether there is an abuse of process in that, if a prosecution is taken against a victim of trafficking. The whole process is currently stalled while the trafficking matter is, to my eyes at least, not actually proceeding.

Sir Andrew Stunell

In relation to the case that you used to illustrate the gap where a completely unlawful policy was being produced, was that HTC or UKVI? Which branch was it?

Zofia Duszynska

It was UKVI.

Sir Andrew Stunell

There is a real surprise for the Committee. Thank you very much.

Lord Warner

The contracts under LASPO have now been in effect nearly a year. What has been the effect on the supply side, in the sense that the legal aid contracts with firms suggested that they would take a smaller number of cases? What is your view of what has actually happened in the legal aid funded firms themselves? Have they simply cut out a lot of trafficking work? Are they doing it pro bono? What has happened on that supply of legal services side?

Shauna Gillan

People are certainly now turning away trafficking cases that they would like to do but because of financial pressures cannot take on. Lawyers are stepping in sometimes and also doing pro bono work. If you are in the area of legal aid, you are there for a reason, and lawyers are going the extra mile and doing that. What is concerning is firms telling us things like, “We need to start doing private work now to make our legal aid practice viable. We are having to spend time, which we would rather be spending on vulnerable victims of trafficking, in private work to keep things afloat.” Firms have gone under. If we look at the context of the past two or three years, major providers of legal aid like Refugee and Migrant Justice and IAS—the Immigration Advisory Service—have just folded. We see fewer people doing the work, and the solicitors who are doing the work are less able to respond to the needs of people who very much need their help.

Lord Warner

Is it possible to give us a note on the scale of the change which is taking place?

Shauna Gillan

Certainly, we would be very happy to write in and do that. Another point in terms of contracts and matter starts is that there are only five matter starts now for compensation cases. Previously, if you were a firm that specialised in bringing compensation matters, you could do as many as you liked. ATLEU, in their written evidence to this Committee, said that they used to do about 30 a year; now they can only do five. There are very few firms who specialise in doing this type of work, and those that do it are completely hampered now by the cap of five cases. This is something that comes from our obligations under the directive; we need to provide legal aid for the deterrent factor, as well as for redress and the moral duty to compensate victims of trafficking, but they are capped at five cases now. When I say they are capped at five cases, that is miscellaneous matters; it is across a broad range and it is not just for trafficking. Once those five cases have been used up on whatever, if a trafficking victim says, “I would like to proceed with a compensation case,” they could be told that that is the end of the matter and the quota is gone.

Lord Warner

You are saying that the legal aid contracts with the firms make it impossible for us to comply with the obligations under the directive.

Shauna Gillan

Yes, I would accept that.

Baroness Doocey

We have been told that the only formal means of challenging a negative NRM is by way of judicial review. What are the most frequent types of failure of decision making challenged, and would the ILPA be supportive of a statutory appeal for the NRM?

Shauna Gillan

It is a question of how much time the Committee has to hear from us. We could give you some examples. There are fundamental misunderstandings of the test; saying things like, “You are not credible because you came into this country on false documents,” instead of understanding that that is an indicating factor for trafficking and that the trafficker has brought in the person under false documents. There is failing to consider any objective evidence whatsoever. There are failures due to out-of-date policies and out-of-date operational guidance notes. This is all very much a feature of NRM decision making. It gives us concern that, now, without the lawyer assisting in that process, because it is the gateway, we will just see further unlawful decision making. If the residence test comes in, there will be no ability to challenge that.

Zofia Duszynska

In the previous session, you referred to the culture of disbelief. We still see complete conflation of the asylum and the trafficking decision-making process. One of the things that I do not think really came out of the previous session was that an asylum decision is a decision about the prospective fear of future risk. It is about what is going to happen when you come home. You don’t need to have already been persecuted, although past persecution is an indicator. Trafficking is about past experience. The whole idea that you are making credibility assumptions when you are looking at two separate sets of facts and two separate historical periods is really quite concerning. We see it quite a lot. You are not recognised as a victim of trafficking because you do not face a further risk, or because you have recovered from your experiences. That is another error in the decision making. You may still be in need of assistance to recover from your experiences. Your experiences may have ended, but you are still a victim of trafficking. The fact that the decisions are being made by the same body, but looking at two entirely separate processes, is something that hugely infects the decision making.

Chairman

That came out quite clearly, Zofia.

Baroness Doocey

Are these usually UKVI or UKHTC failures?

Shauna Gillan

UKVI, broadly.

Zofia Duszynska

We do not see so many of the UKHTC decisions, because they are not concerned with people who have an immigration problem.

Baroness Doocey

Would you be supportive of a statutory appeal mechanism for the NRM?

Zofia Duszynska

Yes.

Baroness Doocey

Do you think it is the right way to go?

Shauna Gillan

We would rather see the decision making improve. The big ask would be removing the national referral mechanism from the ambit of UKVI. That would be step one. Failing that, an appeal against what we see as very poor decision making is something that we would accept.

Chairman

The DWP, to try and improve its decision making, has a review process put in before an appeal process. Would that not help here?

Zofia Duszynska

That would be similar to the housing process as well, where you have a review and then a statutory appeal against it. It is clearly less costly than doing a judicial review. I suppose the issue would be whether the same pair of eyes was conducting the review. At the moment, you can request a review of your NRM decision, but it will be the same pair of eyes. You would want a review by somebody different—a different pair of eyes—and then potentially a statutory appeal.

Baroness Butler-Sloss

With the importance of trying to get this through, possibly a statutory appeal might be a step too far, but what do you think about having a review by some independent person who was unconnected with UKVI? Would that meet the need?

Zofia Duszynska

With all of these things, the process of the NRM and the decision making is so flawed at the moment that, before we had another pair of eyes looking at something, we would want to improve the decision-making process in the first place. The delays in the system are bad enough at the moment, and are affecting people’s recovery times. People’s recovery depends on whether they feel safe in the UK, so as long as referring it to another body did not increase the delays in that process—

Shauna Gillan

Improving the reviews and appeals coming from the NRM does not address the problem of people not getting in the door in the first place to the NRM—being completely deterred from going to the Home Office because they have a precarious immigration status. That is a huge concern. If we are only seeing the tip of the iceberg in terms of actual victims of trafficking, and then we are only seeing a subset of those being referred to NRM, it keeps diminishing. The focus should be on those kinds of issues.

Baroness Hanham

I want to stick on the decision-making process. Do you think it would be of any help if the NRM had the same tests on decisions as the asylum cases—that is, to a reasonable degree of likelihood? At the moment, the NRM’s is not the same as that for asylum. You are obviously pretty critical of the process of NRM decision making, but do you think changing that would make any difference?

Zofia Duszynska

We are broadly supportive of that, provided the test is correctly applied. While we were listening at the back, we were trying to work out what the historical basis was for having a different test. I remember, from when this was introduced, that the first test—the “I suspect but cannot prove” test—was the basic criminal justice test, the test the police use, and then for the conclusive grounds test they went for the basic civil standard of proof: not the burden of proof, the standard of proof. I do not think that at that point it was considered that the two processes—the immigration process and the trafficking decision-making process—would be conflated to the degree that they are. To bring the standard of proof down to the asylum standard of proof would make sense. It would make it easier for the decision makers because they would be looking at the same standard across the board, but we would still return to our same argument—that the decision making should not be within UKVI, but should be within a body that is not concerned with doorkeeping.

Shauna Gillan

The thing about those standards is that they look like one thing on paper, but, in our experience and in practice, much higher thresholds are applied. The danger with having different standards is that, as is very often the case, when the same decision maker is making both tests, if the decision maker finds someone to be not credible on a balance of probabilities analysis, they are then very unlikely to go on a lower threshold and say that the person is credible for that 10% real risk threshold. It certainly causes confusion, and a lowering of the bar in general would be something that we would support. It was interesting for me, sitting at the back and listening to the evidence that went before, to hear the number of times the word “corroboration” was used by the witnesses. There is no requirement for corroboration in either of these settings, in either asylum or trafficking, yet we had repeated references; for example, justifying the disparity between the 80% for EEA and non-EEA being 20% as saying, “Well, there is corroboration for the EEA nationals.” Since corroboration is not required at all, it should not be making a difference. What it illustrates is that the decision makers think that it is required, and that it makes a difference.

Chairman

It is also that decision makers should not be sent out to defend that brief, should they?

Shauna Gillan

I am sorry; how do you mean that?

Chairman

If I was Home Secretary I would be ashamed that my officials had to come and make the performance that we have just witnessed.

Shauna Gillan

I’d like to take the fifth amendment on that.

Chairman

There is something so fundamentally wrong with the policy that we should not put public officials in the position of having to come and defend the indefensible.

Shauna Gillan

I agree.

Baroness Doocey

I think they were quite happy with it.

Chairman

That is the problem.

Baroness Doocey

I would love to think that they were ashamed, but they certainly weren’t.

Chairman

That may well be true, but I wanted to be as charitable as possible.

Baroness Butler-Sloss

You are not including the UKHTC, which I think does a good job. I think your comments need to be more directed—more focused.

Chairman

As always. Ian, a focused question, please.

Lord McColl of Dulwich

ILPA supports a system of guardianship. To what extent does the recently launched personal advocate scheme meet the needs of children who have been trafficked?

Shauna Gillan

The answer to that is that we would like to have more information about it so we could tell you.

Lord McColl of Dulwich

So would we.

Shauna Gillan

I am sure it is a coincidence that it was announced around the same time as this Bill. All we know is that it does not reach the level of legal guardianship, which is what we so badly want to see as legal representatives. We are completely hampered in any case dealing with a child in terms of asking them to make a tactical legal decision or a financial decision. There is no one with parental responsibility to have the child’s best interests put first and foremost. I know that Zofia has seen many examples of this in her practice.

Lord McColl of Dulwich

Why should guardianship be included within the Bill rather than remain a matter of policy?

Zofia Duszynska

I think this goes to scrutiny. If it remains within policy—this is a slightly cynical comment on UKVI policy—we know that policies can change without sufficient scrutiny, whereas, if it is within the Bill, it would be on the face of the statute and it could not be subject to alteration, whim or random application. Any changes and any failure to implement it would be subject to scrutiny. That is our concern; there needs to be something in place which has a nationally applicable standard and is not subject to the budgets or the whims of individual social services departments. In terms of the representation of children, it really is quite important that that is the case. Although many social services departments do a great job of minding the victims of trafficking that are in their care, for the most part they are not under a full care order but are just accommodated under the Children Act. As Shauna says, there is nobody with parental responsibility. As the child or young person gets older, they are moved from the children’s team to the 16-plus team to the leaving care team. There is no continuity of care or knowledge, and there is a huge turnover within social services departments. A guardian with a national remit and legal standing would be much better placed to represent a child throughout the full legal process, without that same conflict of interest.

Lord McColl of Dulwich

Thank you. We have had people telling us that what is needed is to take the social worker service, improve it and make that work. What do you think about that idea?

Shauna Gillan

There are numerous problems. Social workers are not trained to make legal or immigration decisions. You are asking the question like a lawyer, knowing the answer before it is asked.

Chairman

It would take pressure off social services, wouldn’t it, because they know that this would be dealt with adequately and they could get on with something else?

Shauna Gillan

And focus on their expertise, which is welfare of the child and not a holistic approach.

Zofia Duszynska

A social worker cannot sign a form on behalf of a child unless the child has a full care order in place. For example, even getting legal aid for a child is problematic without somebody to take parental responsibility and sign the forms. At the moment, with these new restrictions on legal aid, if you wanted to take a judicial review on behalf of a child, although you would need a litigation friend before the High Court, and the Refugee Council children’s panel would perform that role, we are under pressure from the Legal Aid Agency to enter into conditional fee agreements with children. A child cannot be expected to enter into that kind of credit agreement, but they need somebody to advocate on their behalf and say that this is not going to be a viable alternative.

Chairman

What the Home Secretary has proposed is a step forward though, isn’t it?

Shauna Gillan

Perhaps a baby step forward.

Zofia Duszynska

It does not seem to be sufficiently described for us to be able to give a proper view on it.

Shauna Gillan

Bearing in mind that it is our legal obligation under article 6 of the directive to provide these guardians, I do not think a baby step is good enough. That was meant to come into force last April.

Chairman

Elizabeth, a last focused question.

Baroness Butler-Sloss

We were told by the Director of Cafcass that a number of children who are trafficked go through the care system; those children are getting Cafcass guardians. What is your view about whether Cafcass, if they had the finances, would be appropriate to do all these children, or do you look for a specialised guardian for trafficked children?

Zofia Duszynska

As an immigration lawyer, I have had limited contact with Cafcass, but the contact I had was in the context of the children of an adult victim of trafficking. The Cafcass worker who was involved in that case had insufficient time and resources to properly support the family. If sufficient resources were available, that is potentially the way forward, but my experience is not that many child victims of trafficking end up with full care orders. I have represented about 40 to 50 child victims of trafficking, and I have only had one who had a full care order.

Chairman

You must be the most knowledgeable person in the country if you have done 40 or 50.

Zofia Duszynska

No, I think probably Chris Beddoe is.

Chairman

But you have actually represented them.

Zofia Duszynska

We have done a lot of child victims of trafficking. I am still representing many child victims of trafficking.

Chairman

Thank you. Thanks for your evidence and for raising our spirits.

Zofia Duszynska

If I might, I want to add something about the support available for recognised victims of trafficking after they get a residence permit, and the difference between succeeding in an asylum claim and succeeding in a pure trafficking claim. Although while you are in the reflection and recovery period you will get accommodation and services that are probably superior to those for an asylum seeker, once you get refugee status you are eligible for housing assistance and other services. Since the changes to the private life and article 8 applications introduced by the Home Office last year, residence permits are now being issued with a restriction on public funds, which means you would not be eligible for benefits and you would not be eligible for housing assistance. Given the situation of victims of trafficking, who have often come from an exploitative work or financial situation, that is something we have to challenge in the High Court and it is something that we would like to be raised further.

Chairman

Yes, with mega costs. Again, thank you very much. Oral evidence: [Draft Modern Slavery Bill] 33