Legal aid and immigration advice for victims of modern slavery

The government has conceded our client’s judicial review and confirmed that victims of modern slavery can get legal aid for immigration advice on their right to remain in the UK.

Background to the case

Our client, LL, is a young woman who was brought to the UK and sexually exploited as a child. The government found her to be a potential victim of trafficking[1]. The government is now considering if she was definitely trafficked into this country[2] and, if she qualifies for discretionary leave to remain as a victim of trafficking, so she can recover from her experiences in safety and security.

In a U-turn last year the government’s legal aid department, the Legal Aid Agency, said that LL did not have a right to free immigration advice because in their view:

-          There was no entitlement to legal aid for immigration advice for victims of trafficking seeking discretionary leave on the basis of their trafficking experiences;

-          Victims of trafficking are “automatically considered” for discretionary leave to remain by the Home Office so it does not amount to a formal immigration application requiring legal assistance;

-          There is no entitlement to legal aid for victims for advice during the trafficking identification process including where they wish to make an application for leave to remain

-          Victims could only access legal aid by making an application for Exceptional Case Funding, a fund operated on a discretionary basis by the Legal Aid Agency.

On refusing legal aid to LL, the Legal Aid Agency accepted that they had changed their view of victims’ entitlement to legal aid in these circumstances. The relevant law, which sets out who is entitled to Legal aid, is the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

This change of interpretation came as a real shock to those working with victims of trafficking as the government had been saying publicly for the previous four years there was a right to legal aid for victims needing this sort of legal advice. They continued to say this in Home Office leaflets even after the decision given to our client.

LL took the Lord Chancellor to court through an application for judicial review, arguing she was entitled to legal aid for immigration advice whilst the Government considered whether she was a victim of trafficking. We reported on this earlier here. LL has been in limbo for over a year while she tried to establish that she and other victims of trafficking have a legal entitlement to legal aid. Her case with the Home Office was put on hold. The judicial review only settled the day before the court hearing with the government agreeing to amend its position on providing free immigration advice to those who have been trafficked.

Result of the case

As a result of LL’s determination there is now greater clarity for all victims about their entitlement to free legal advice. The government has revised its position and confirmed that victims of trafficking:

-          Have the right to legal aid for immigration advice where they need advice on leave to enter or remain and have a government decision they are a potential victim of trafficking (called a “reasonable grounds” decision) or definitely a victim of trafficking (called a "conclusive grounds" decision);

-          Have the right to legal aid where they argue they should be granted discretionary leave to remain as a victim of trafficking;

-          Have the right to legal aid whether the immigration application is made formally or informally (ie whether or not an application form is used when requesting leave); and

-          Have the right to legal aid for advice about whether they are a victim of trafficking or not, but only when they are getting advice on leave to enter or remain too (for any reason not just because they are victim).

A copy of the agreement signed by the government in LL’s case can be read here

The Legal Aid Agency has confirmed it will extend this interpretation to victims of slavery, servitude and forced or compulsory labour as well (under para 32A of LASPO). This means victims of all types of modern slavery have a confirmed right to free immigration advice. The new position should be published on the Legal Aid Agency website shortly.

Why this matters

The government system for identifying people as victims of modern slavery (called the “National Referral Mechanism” or “NRM”) is complicated. Last year the Work and Pensions  parliamentary select committee found: “It is a complex system that should offer support to potential victims when they are at their most vulnerable. We heard serious concerns about the lack of legal advice to victims prior to their consent to referral, the absence of an appeals process and the NRM’s inability properly to respond to the needs of victims.”

A decision confirming you are a victim of modern slavery does not lead to any automatic protections. Victims don’t have an automatic right to stay in the UK, to claim benefits or work and many are made to leave the country. Only a small proportion are granted discretionary leave to remain in the UK as victims. The most recent Home Office statistics show just 12% of confirmed victims are granted this type of leave. In practice there is no automatic consideration for discretionary leave for victims without an asylum claim; if they want to be considered for leave the Home Office requires them to make this request and the burden is on them to provide supporting evidence and legal arguments. Without access to free legal advice most victims don’t know about this route to regularise their stay. The government’s current published guidance on this is unclear and has been found to be unlawful by the courts on more than one occasion.

A grant of discretionary leave has the power to transform a life and ensure victims are free for good. Taking away the threat of removal, providing a safety net of social support and the space and time for recovery can give victims the security they need to break cycles of trafficking and exploitation. It gives victims the opportunity to focus on working with the police to catch the criminals who abused them and start re-building their lives by seeking compensation for the harms done to them.

Impact

It is bitterly disappointing that our client has had to pursue this case against a government with a Prime Minister who recognised the horror and inhumanity of the crimes suffered by victims of trafficking and slavery and pledged, that “these crimes must be stopped and the victims of modern slavery must go free”. The Prime Minister has said “this is the great human rights issue of our time,” and has a mission “to rid our world of this barbaric evil”. [3]

It is bitterly disappointing this government decided to spend taxpayers’ money contesting LL’s case only to change its mind on the eve of the hearing, leaving our client without access to advice, her life on hold, unable to plan for her future or recover from the horrific abuse she has suffered for almost a year.

It is bitterly disappointing that for over a year the Legal Aid Agency refused to publish a statement confirming their interpretation of the law, leaving victims without access to legal advice they desperately need.

Carita Thomas of ATLEU said:

“Being a world leader for victims of trafficking means putting victims’ needs first. Theresa May pledged to get a real grip of this issue right across Whitehall. Sadly our client’s case is evidence that there is still much to be done to secure essential protections for victims in this country and ensure these are understood across government.

This is a case that should never have gone to court. The Legal Aid Agency’s position has caused  unnecessary problems for our client and many other victims.  However, we welcome greater clarity over the issue of legal aid for victims of trafficking and hope that as a result of this case victims are better able to access the help that they need.”

Practical steps – for victims of modern slavery and those supporting them

  • Which victims have the right to free immigration advice and advice about being identified as a victim under the NRM?

A) Victim of modern slavery with a positive reasonable grounds decision (who has not had negative conclusive grounds decision) OR

B) Victim of modern slavery with a positive conclusive grounds decision

AND they want advice on getting ANY type of leave to enter or remain for any reason

Go to any immigration legal aid lawyer and ask them to open a file. This will be subject to the normal financial means and merits tests. The victim can look for an advisor near them here.

  • Who is not covered - these people do not have a right to legal aid for immigration advice unless they qualify for some other reason not about modern slavery (e.g. they have an asylum claim):

- Possible victims who have not gone into the NRM - whether they want advice on getting leave to remain or just going into the NRM 

- Possible victims who have been referred into the NRM but are still waiting for a reasonable grounds decision

- Victims who have a negative reasonable or conclusive grounds decision

- Victims inside or outside the NRM who ONLY want advice about identification and the NRM (and not about leave to remain)

Anyone in this "not covered" paragraph must apply for exceptional case funding if they want advice on identification or leave to remain for free.

  • Leave to remain as a victim of modern slavery - get advice about this

-          If someone is found to be a modern slavery they could be entitled to a grant of discretionary leave to remain. All victims of modern slavery can and should get advice about this type of permission to stay as early as possible so they can present their case to the Home Office while they are still in the NRM. They can ask the Home Office for this type of leave to remain even if they have another application like asylum.

-          EU nationals should get advice on this too. Discretionary leave as a victim can bring benefits for an EU national victim if they are not able to support themselves through work or cannot use any other rights under European law to stay here once they are identified as a victim. If the victim is still in the NRM they can write to the Home Office to ask to be considered for this type of leave (or ask a support worker or representative to do this for them). If a EU national thinks they might want leave to remain as a victim later on, they should get advice about asking for this while they are still in the NRM. They do not have to wait until they leave the NRM to make an application.

Practical steps – for immigration lawyers

  • Open a file – you can get paid to advise a victim of trafficking if they need advice about ANY type of application for leave to enter or remain in the UK. This would include, for example, advice about an Article 8 (family or private life) application which is not within the scope of legal aid for those who are not victims.

  • Leave to remain is the key - remember this is the aim of the file. There is no automatic right to legal aid under the current rules to help someone be identified as a victim if it is not connected to an application for leave to enter or remain or a protection claim. Make sure your advice to the client and any application for an extension of funding to the Legal Aid Agency makes this goal clear. In our case we argued that identification and leave to remain as a victim are integrally linked and you can say this in your legal aid application. Point to the agreed order in this case if your application is refused for being work that is out of scope.

  • Advice on getting discretionary leave as a victim is definitely covered by legal aid. You can raise arguments for your client to get discretionary leave as a victim of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings. This can be done as soon as the client is in the NRM and has their reasonable grounds decision. If you are advising the client on getting another type of leave the advice about the trafficking leave would be done on the same legal aid file.
  • Resources - the Home Office has brought the UK’s obligations to victims under the Convention into effect in their policy document (the Guidance for Competent Authorities) here. Please note the version at the time of writing this note is not up to date and is incorrect on the law and practice in several places. One important recent judgment about how the policy is wrong is here. After this court decision the Home Office released this guidance on grants of discretionary leave.

Further information

Please contact Marsha Lowe with any queries on this story: marsha@atleu.org.uk.

We would like to give our huge thanks to the barristers representing our client: Martin Westgate QCCatherine Meredith, assisted by Zoe Harper and Dr Anne Gallagher, of Doughty Street Chambers.

We would also like to thank the intervener in this case for their legal input, the Aire Centre, represented by Freshfields Bruckhaus Deringer LLP and Aidan O’Neill QC of Matrix Chambers, and all of those who generously gave their time to give evidence in the course of the case.

ATLEU provides telephone and email advice to support people working with victims of modern slavery. If you have a question about your contact or work with a victim, please contact us on atleuteam@atleu.org.uk. You can also read more about working with victims on our information hub here.

If you get a refusal of legal aid despite your client falling within the group who should now clearly get legal aid - please let us know by emailing: atleuteam@atleu.org.uk.

[1] Ie she had received a “reasonable grounds” decision

[2] Ie whether to give her a “conclusive grounds” decision

[3] https://www.gov.uk/government/speeches/defeating-modern-slavery-theresa-may-article

Extending time for minimum wage claims

In 2015, a two year limit was placed on claims for unauthorised deductions from wages in the employment tribunal. As many victims of trafficking are paid nothing, or almost nothing, over many years, recovery of (at best) two years’ back pay will not fully reflect their loss. As an alternative, a claim can be brought in the civil courts for breach of the implied contractual term requiring payment of the minimum wage. A six year limitation period applies to such claims but of course many wage claims by victims of trafficking extend back still further.

Section 32(1)(b) of the Limitation Act 1980 provides a possible means of extending this six year limit. Where the Defendant has deliberately concealed from the Claimant any fact relevant to her right of action, the six years will not begin until the claimant has discovered that fact, or could reasonably have discovered it. Under section 32(2), such deliberate concealment is expressly stated to include a situation where a Defendant deliberately commits a breach of duty in circumstances where it is unlikely to be discovered for some time.

These provisions were successfully deployed in the recent case of A* [2017] EWHC 3098. A was a domestic worker for the Defendants for almost 10 years. As in many trafficking cases, when A was brought to the UK she and was unable to read or write in English. The Defendants made A sign documents that they sent annually to the Home Office, which stated that she was paid for her work in line with the national minimum wage. 

The Court found that the Defendants had deliberately withheld from A the fact that they were representing to the Home Office that they were complying with UK employment laws, when they were not. The Court also found that the Defendants knew they were obliged to pay A the national minimum wage, and therefore that they fell within the provisions of section 32(1)(b) and (2). Time only started to run when A had learned enough English to read the documents she was signing, and so her whole claim was in time.

These circumstances may apply in many trafficking cases where there is a long period of employment. The availability of this extension should always be a factor in considering the best forum for such claims.

By Anna Beale
Barrister, Cloisters

* The case is anonymised in accordance with a court order pending determination of the Defendants’ application for a permanent anonymity order.