Law Centre (NI) submission to GRETA’s country visit to the UK (Belfast, Thursday 27^th October 2011)

Law Centre (NI) is a public interest law non-governmental organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services. Through our two regional offices in Northern Ireland, the Law Centre provides advice, casework, training, information and policy services to over 400 member organisations in Northern Ireland. Our areas of work are social security, immigration, mental health, employment and community care.

The Law Centre has advised and represented a number of victims of trafficking in Northern Ireland. We have also delivered training on trafficking issues and are working in conjunction with Amnesty International to follow up the recommendations outlined in Anti-Trafficking Monitoring Group’s, Wrong kind of victim? report.[1] The Law Centre convenes a North/South Immigration Forum which brings together practitioners from Northern Ireland and the Republic of Ireland and which has examined issues relating to trafficking. The Law Centre also convenes a Working Group on Guardianship which is looking at ways of improving practices related to separated children (including trafficked children) in Northern Ireland.

This submission highlights issues in which the Law Centre has direct expertise through its casework and policy functions.

Justiciability of  theTrafficking Convention in Northern Ireland & Identification of Victims (Art 29 and Art 4)

In September 2011, the Belfast High Court, following a Judicial Review hearing in summer 2010, issued a decision which considered the application of the Trafficking Convention in Northern Ireland.[2] This case dealt with: a number of different grounds relating to the NRM; the definition of a victim; UKBA policy; and UK obligations set out in the Trafficking Convention and ECHR. The case dealt with two women who had both received negative decisions after escaping their traffickers some time before they were identified and referred to the NRM. The Competent Authority considered the women as “historic” victims who therefore did not fall within the definition of a victim under Article 4 of the Convention.

This case is of great concern to practitioners in Northern Ireland as, if this decision stands, it leaves victims in Northern Ireland at a significant disadvantage compared to victims identified elsewhere in the UK in relation to challenging negative decisions of the Competent Authority.

The Trafficking Convention requires parties to adopt measures to ensure co-ordination of the policies and actions of governmental departments and other public agencies. We are deeply concerned that the Belfast High Court’s approach to this issue may seriously threaten cohesive, co-ordinated protection for victims of trafficking across the UK.

• GRETA may wish to examine this issue and consider whether victims of trafficking in Northern Ireland have equal access to remedies provided by the Trafficking Convention and ECHR as compared to victims in other parts of the UK

Assistance to victims, compensation & legal redress (Art 12 & Art 15)

The Trafficking Convention requires states to provide assistance to victims which should include ‘counselling and information, in particular as regards their legal rights and the services available to them, in a language they can understand’.  UKBA guidance suggests that a Trafficking Leaflet is not currently available.[3] We are not aware of any such leaflet in Northern Ireland that outlines the rights and entitlements of victims of trafficking. In addition, no victim in Northern Ireland has yet availed of any compensation, not least because to date there has been no successful prosecution of a trafficker. The legal processes that may apply to victims are complex and varied. We do not think that victims receive information, from their first contact with the competent authorities, on the relevant judicial and administrative proceedings as is required by the Convention.

• GRETA may wish to recommend that translated Trafficking Leaflets, which outline victims’ legal rights, are made available.

 The Law Centre is also extremely concerned that not all victims of trafficking are offered specialist immigration advice immediately on their identification. While we recognise that some victims may request to return to their country of origin, we maintain that it is essential that persons first have the benefit of immigration advice, which enables them to make an informed decision.

• GRETA may wish to recommend that a referral mechanism is established in Northern Ireland to ensure that all victims are offered specialist immigration advice and that resources are made available to ensure specialised immigration practitioners are available

Departmental trafficking guidance (Art 10 & 12)

In February 2011, the Department of Health, Social Services and Public Safety (DHSSPS) and PSNI published guidance on dealing with trafficked children in Northern Ireland. Guidance for trafficked adults has not yet been produced. The Department of Justice has recently indicated its willingness to issue guidance and has invited Law Centre NI and Amnesty International to be involved in the drafting process.

• GRETA may wish to welcome this development and to ask the Department of Justice for a timeframe

Operation Gull and Larne detention centre (Art 10)

Operation Gull is a joint operation between An Garda Síochána, PSNI and UKBA, which has been running since 2005. Persons entering Northern Ireland at sea and airports may be questioned in relation to their immigration status and may face detention and/or removal. The UK government has never provided a formal rationale for Operation Gull, however, it is understood that approximately 600-800 people face enforcement action as a result each year. The Law Centre has concerns about the lack of oversight of Operation Gull and the speed and secrecy with which operations take place. We have no way of knowing what measures are taken to help Immigration Officers identify victims of trafficking.

Our concerns are compounded by the opening of Larne House ‘Short-term Holding Facility’ in July 2011. Between July–September 2011, it is understood that approximately 130 persons have been held at Larne House. The Law Centre’s immigration advice line has received only a small number of calls relating to detainees. Our concern is that the majority of the individuals in detention, whether detained following Operation Gull or following traditional enforcement measures, may not be getting access to specialist immigration advice. This may include potential victims of trafficking.

We are therefore concerned that potential victims of trafficking are perhaps not being identified.

• GRETA may wish to ask UKBA what measures are in place to identify and protect victims of trafficking identified during Operation Gull and/or detained at Larne House

Non punishment of victims (Art 26)

Victims have been prosecuted and detained in Northern Ireland before it has been established whether their involvement in unlawful activities was due to coercion. We query whether the Convention’s non punishment provision is being applied effectively.

We wonder whether appropriate measures are in place within the criminal justice system to ensure that foreign national prisoners who are victims of trafficking are identified and treated as such.

• GRETA may wish to discuss this issue with the Department of Justice, the Prison Service and the Probation Board for Northern Ireland

First Responders (Art 10)

There is some confusion as to which First Responders can act in Northern Ireland. The UKHTC provides a list of First Responders including a number of NGOs, some of which do not operate in Northern Ireland.[4] It is therefore unclear which First Responders can make referrals into the National Referral Mechanism. In addition it is still apparent that recognised First Responders in Northern Ireland are unclear as to the proper process of referral.

• GRETA may wish to seek clarification from the Department of Justice as to which NGOs have First Responder status in Northern Ireland, what arrangements are in place to clarify this and what training has been provided to ensure that First Responders are trained and qualified in preventing and combating trafficking

Follow up to “Visitor or Victim” campaign and/or future campaigns (Art 35)

The Law Centre is not aware of any NGOs being consulted prior to the “Visitor or Victim” campaign or the “Blue Blindfold” campaign. Civil society could assist in formulating more effective anti-trafficking campaigns. The Law Centre welcomes Department of Justice’s recent commitment to working with Amnesty International in raising trafficking awareness in schools.

• GRETA may wish to recommend that Department of Justice consults civil society on any proposals for new anti-trafficking campaigns in Northern Ireland.

Discouraging demand (Art 6)

Whilst it is welcomed that the Department is continuing to try and raise awareness, measures to discourage the demand that fosters exploitation have been limited to criminal sanctions for sexual exploitation.

• GRETA may wish to seek clarification as to what measures, if any, the Department intends to take in relation to demand.

Asylum and trafficking systems (Art 12 & Art 40)

We are very concerned about the interaction between the asylum and trafficking processes. Although the processes should be separate, it is our experience that victims have at times been interviewed on both issues at the same time. We understand that this is due to resource limitations within UKBA. This practice can, however, give rise to difficulties, not least in respect of the Interviewing Officer applying different standards of proof in asylum and trafficking claims and the potential conflict of interest. Furthermore, our experience is that the UKBA has not issued a Conclusive Grounds decision within the 45 day timeframe in a number of our cases. The Law Centre believes that all trafficking decisions should be made promptly and in accordance with NRM procedures.

• GRETA may wish to examine this issue of delay and may wish to consider the interaction between the asylum and trafficking processes

Prosecution & the criminal justice process (Art 23)

It is regrettable that to date there have been no successful prosecutions in respect of trafficking in Northern Ireland. The criminal justice process here is complex and lengthy and at times it can take years for a case to go to Court. Clearly this has a detrimental impact on victims and fails to provide restorative justice or compensation. It also means the criminal law offers no practical protection for a victim if it is not enforced through the Courts by the Public Prosecution Service (PPS). The PPS to date has not adopted public guidance on human trafficking nor has it issued detailed guidance around prosecution of victims.

• GRETA may wish to discuss this with the Department of Justice and the PPS and to request a timeframe.

Child victims of trafficking

We note that the UKBA is frequently the Competent Authority for child victims of trafficking and is therefore responsible for interviewing children, issuing decisions, etc.[5] The UKBA conducts its trafficking interviews at Drumkeen House, which does not have any child friendly interviewing facilities. The Law Centre has consistently requested that UKBA consider creating a child friendly interview room. No progress has been made on this to date.

• GRETA may wish to recommend that UKBA create a child friendly interview room at Drumkeen House

Evidence base

In June 2011, the Institute for Conflict Research in partnership with NGOs released a report into forced labour in Northern Ireland.[6]  The report specifically addressed exploitation of migrant workers in the mushroom industry, fishing industry and in the Roma community. A number of the recommendations are directed at improving the identification of cases of forced labour and may be of interest to GRETA.

• GRETA may wish to discuss these recommendations with the relevant government departments

Co-ordination and co-operation with civil society (Art 5)

It is our view that Northern Ireland would benefit from an all-inclusive multi disciplinary approach. We are concerned that the current approach is ad-hoc at times. We are particularly concerned by the lack of victim representation on the Department of Justice’s working groups on trafficking. The Law Centre maintains that victim representation is critical in terms of shaping Northern Ireland’s approach to trafficking.  We note that the Convention specifically refers to the need for parties to involve, where appropriate, NGOs committed to victim protection.

• GRETA may wish to consider the lack of victim representation in Northern Ireland.

Access to data

The lack of comprehensive reliable data relating to trafficked victims (both adults and children) remains a real problem. The Law Centre has obtained information from the UKHTC following a freedom of information request, however, unfortunately this data does not appear to be accurate. We recognise that different statutory bodies may be involved in collecting data (e.g. PSNI, UKBA, Department of Justice, etc.), however, we believe that there is an urgent need for a central data collection point in Northern Ireland. We would query the ability of the devolved institutions to plan effective and specialist services in the absence of data.

• GRETA may wish to make a recommendation relating to accurate data collection