Accessing advice: The barriers
/No matter how good our law is, without access to specialist advice, trafficking survivors’ legal rights and entitlements remain an illusion.
Legal advice is an essential part of the support needed by survivors of trafficking and slavery to escape, recover and rebuild their lives. Survivors need advice and assistance to navigate and engage with the complex systems through which they are identified, access accommodation and support, regularise their immigration status and recover compensation.
Without it many survivors won’t enter the National Referral Mechanism (NRM); won’t share the information needed to support their identification as a victim of trafficking; won’t be able to regularise their immigration status; won’t recover compensation for their exploitation; and won’t be able to challenge unlawful housing and support decisions.
Many survivors struggle to access advice. ATLEU’s research shows that some wait up to 12 months for an initial appointment in parts of England and many do not access advice at all while they are in the NRM. Accurate figures nationwide are unknown because the government does not collect data on the number of survivors accessing legal aid, even though a simple tick box on each Legal Aid form could record whether an individual has been referred into the NRM.
A recent survey showed that 70% of respondents found it difficult or impossible to find legal aid representation for survivors of trafficking. The reasons for this include:
Victims, and those supporting them, are unaware when legal aid is available
The legal aid system is overly complex and bureaucratic and fails to make victims’ of trafficking entitlement to legal aid clear or straightforward.
The high volume of calls ATLEU receives to its advice line reveals the considerable confusion around what is and is not in scope under legal aid for survivors of trafficking. Support workers frequently call for help when they have been told incorrectly, by a legal aid provider, that legal aid is unavailable for various legal issues.
The published government materials do little to assist. Although legal aid has technically been available for advice on trafficking compensation claims since 2013, the government’s tool for finding a legal aid adviser still does not include this as an option. When searching for advice on a trafficking compensation claim the search engine tool incorrectly tells survivors: ‘From what you’ve told us today, it looks as though your problem is not covered.’
2. Legal aid providers don’t know when they can undertake work for victims of trafficking
The case of LL v Lord Chancellor may help to explain why so many legal aid providers may be confused. In 2017 the Legal Aid Agency told us that immigration advice to assist a victim of trafficking to obtain discretionary leave to remain had never been in scope of LASPO. This communication came four years after LASPO had been in force. Over this period the Legal Aid Agency had never set out their position in written guidance. It was a U-turn with significant implications for both survivors of trafficking and their advisers.
For a period of a year we fought the case, while survivors were left in limbo with their immigration cases on hold. During this time we asked the government to publish a clarification of their position, but this request was declined. In 2018 the case of LL was eventually conceded by the Lord Chancellor.
The terms of settlement included that the Legal Aid Agency would publish a statement regarding the availability of legal aid for trafficking cases. This statement is hard to locate as it is not found in the core legal aid guidance. Many providers are still unaware of this entitlement and wrongly turn away victims in need of advice.
3. Trafficking cases are so poorly funded that legal aid providers cannot afford to take these cases.
Legal aid providers simply cannot afford to provide advice to survivors of trafficking. The reality of the structure of the legal aid payment system means legal aid providers are required to work on immigration trafficking cases frequently for as long as three years without receiving any payment. To be required to cash-flow this service for so long means few legal aid providers can afford to do any of these cases, let alone many.
This payment structure results in very few providers developing trafficking expertise and survivors being unable to access advice. In October 2020 the Legal Aid Agency introduced some changes to the payment structure of immigration cases. Unfortunately, we anticipate that the benefit of these changes will be limited in trafficking cases due to the length and cost of these matters.
Unfortunately, as the government does not collect data on the numbers of survivors of trafficking accessing advice, the full picture is unknown. To improve this situation, we’ve created a new referral system to help professionals who work with survivors of trafficking to find legal advice. It will help us to better identify where the legal aid ‘deserts’ are for survivors and to gain a better idea of how many survivors simply cannot find legal representation.
Victoria Marks,
Director, ATLEU
This blog is based on evidence presented to the Group of Experts on Action against Trafficking in Human Beings (GRETA) during their recent online visit to the UK. GRETA is responsible for monitoring the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Parties.
