Access to Justice: seven things you should know if you are supporting migrant workers experiencing exploitation

Blog4 Jun 2019

How can migrant workers access justice when they have experienced exploitation in the workplace?

Last month, the Labour Exploitation Advisory Group (LEAG) was joined by experts from the Anti-Trafficking and Labour Exploitation Unit (ATLEU) to learn more about this crucial topic. We heard about the ways in which justice can be achieved for migrant workers who have experienced labour abuse and exploitation in the UK, as well as strategies LEAG members adopt to support their clients.

From how to challenge negative NRM* decisions to seeking compensation for undocumented workers who have experienced exploitation, here are seven key lessons from the event:

#1 Support providers can help their clients prepare for their NRM referral interview

If you are supporting someone who has experienced exploitation and wants to be referred into the NRM, there are a few things you can do to support their referral. NRM referral interviews are a crucial step in securing your client’s status as a recognised survivor of exploitation. You can help clients prepare by explaining the indicators of human trafficking, the purpose of the referral interview and what questions they are likely to be asked. You can also go through the NRM referral form together to ensure your client mentions examples of their experience that are relevant for the NRM decision-maker. This can be done by working with your client to understand the process that has led them into exploitation, which can include accounts of their family life, previous trauma, insecure economic, social or cultural status, and any forms of vulnerability that they may have experienced.

You can also support your client’s referral by choosing a first responder that is specialised on the specific issue that your client has experienced. Among the eleven non-statutory first responders there are organisations that focus on support for children, victims of domestic servitude and refugees. Choosing a specialised first responder increases the chances of having all the vital information included in your client’s referral form to support the NRM decision-makers’ reasonable and conclusive grounds decisions.

#2 Support providers can assist clients to challenge a first responder if they refuse to submit an NRM referral

LEAG members have mentioned that, in some cases, first responders have refused to refer potential victims into the NRM. In these cases, your client can either choose to contact another first responder – perhaps one of the specialised non-statutory ones – or challenge this refusal. If your client chooses the latter, you can support them by seeking to understand why the referral was refused. This may require you to explain how your client’s experience is linked to the indicators of human trafficking set out in the Modern Slavery Act 2015 to clarify why your client should be referred.

Victims in immigration detention do not need to be referred by the UK Visas and Immigration (UKVI), the Home Office’s first responder in detention. This is a common misconception. If you have identified a potential victim in immigration detention and they do not wish to be referred by the Home Office, it is possible to seek another first responder. The Salvation Army runs a confidential Referral Helpline that is available 24 hours a day, seven days a week, which can be used to refer victims in immigration detention.

#3 Legal aid is available to challenge negative NRM decisions

In some cases, even when the burden of proof has been reached, LEAG members have noticed that their clients are receiving negative reasonable grounds decisions, preventing them from gaining recognised status as a survivor of human trafficking. In this case, it is possible to seek a new first responder to re-refer this person into the NRM based on further evidence. When approaching the new first responder, it is important to provide more details on what the person has experienced.

It is also possible to initiate a judicial review which is covered by legal aid and must be made within three months from the date of the decision that is being challenged. When initiating a judicial review, it is important that the solicitor works with the client to understand their immigration history, including information that may affect the credibility of their current statement, such as previous immigration applications made by traffickers on the client’s behalf or accounts of their experience that may create inconsistencies or lack sufficient detail. This is important in order to provide the judge with a comprehensive overview of the client’s experience and anticipate any inconsistencies that may arise.

#4 Solicitors can apply for discretionary leave to remain before their client receives a conclusive NRM decision

If someone has a pending NRM case but has not applied for asylum, it is possible for their solicitor to initiate a discretionary leave to remain (DLR) application so they can regularise their immigration status in the UK. Compensation claims can be used to support a DLR application.

In cases where the client has received positive conclusive grounds on their NRM case and is currently awaiting their asylum decision, it is also possible to apply for DLR to cover the period between the end of their NRM support and their asylum decision.

#5 Victims of human trafficking can seek compensation for the crimes committed against them

The Compensation or Reparation Order, was established under section 8 of the UK Modern Slavery Act. It states that the Court must consider making a reparation order to compensate a victim following the conviction of their perpetrator for a modern slavery offence (slavery, servitude, forced labour or human trafficking) and the making of a ‘confiscation order’. Compensation can be awarded for personal injury, loss or damage resulting from an offence, and must be formally requested by the Crown Prosecution Service.

The Criminal Injuries Compensation Authority (CICA) can compensate victims of trafficking. A CICA claim may be pursued via the Criminal Injuries Compensation Scheme, a fund designed to compensate ‘blameless’ victims of violent crime, if they have sustained a personal injury within the UK directly attributable to being a victim of that crime. The two most relevant payments available as remedy for victims of human trafficking are injury payments and loss of earnings payment.

Victims of trafficking can also bring claims directly against their traffickers in either the Employment Tribunal or the County/High Court. The forum in which they bring their complaint will depend on the treatment suffered. So somebody trafficked for domestic servitude might bring claims in the Employment Tribunal for breaches of employment rights, whereas someone trafficked for sex work might bring claims in the County/High Court for personal injury.

#6 Victims are in the ‘driving seat’ of their civil compensation claims

Victims of human trafficking are often reluctant to initiate criminal proceedings for fear of having to face their traffickers or of engaging with the police. They may, however, be interested in seeking financial compensation for the abuses they have experienced, which may include non-payment of minimum wages, unlawful pay deductions, harassment, false imprisonment, breach of contract and discrimination. If successful, compensation claims can help to break the cycle of re-trafficking by providing the victim with a sum of money to move on from their experience of exploitation, as well as support their families in the UK or abroad.

Victims should be referred for advice in relation to a compensation claim as early as possible as there are time limits for raising legal complaints. Even if the victim does not feel ready to pursue the claim, it maybe that steps can be taken to preserve the victim’s time limit so they do not lose the right to make any complaint at all.

Unlike criminal proceedings, where the police are in charge of investigating the case, civil claims are guided by the claimant. This means that the victim has more decision-making power over what they would like to pursue and which issues they would like to raise in court. In cases where the victim is required to give evidence, it is possible to set up mechanisms to avoid seeing their trafficker, such as evidence being given in a separate room via video monitors, for example.

Civil claims can be made at a County Court/High Court or at an Employment Tribunal. Victims of trafficking are entitled to legal aid to pursue compensation claims; they do not need to have been recognised via the NRM to obtain legal aid. Non victims of trafficking can only obtain legal aid if the legal complaint is that of discrimination. In those cases, legal aid can be obtained by contacting the Legal Aid Agency’s Discrimination Gateway. Funding for claims not covered by legal aid, such as CICA claims may be obtained via the Exceptional Case Funding regime.

#7 Undocumented workers can seek compensation, but barriers exist  

Even if someone has been working in the UK without the legal right to work, it is still possible for them to seek compensation. The Court/Tribunal will weigh up public policy considerations as to whether a party to an illegal contract should be compensated, so for example was the worker complicit in any illegality rather than just having knowledge of it. In cases where the claimant is a victim of human trafficking seeking to enforce their right to compensation, additional arguments can be raised that EU trafficking legislation requires that victims should be compensated for their treatment.  

While it is positive that undocumented victims of human trafficking for labour exploitation can seek compensation, those who wish to remain in the UK and do not have pathways for permanent settlement may choose not to benefit from these compensation avenues.

This is because the UK does not currently provide long-term immigration remedies to victims of human trafficking, meaning that even when someone is given positive conclusive grounds, they are not automatically entitled to remain in the UK. Victims have a right to a residence permit to remain in the UK, to complete a compensation claim, but once this had been done and compensation received, they would be required to leave the UK.

Undocumented workers who are not victims of trafficking would have to make an application to remain whilst they pursued a compensation claim, the right to leave in these circumstances is not guaranteed. This means for many undocumented workers who are not victims of trafficking they are faced with the dilemma of seeking compensation but leaving the UK; or staying in the UK without being able to exercise their right to compensation. It is therefore essential that workers seek advice. It may be that the worker has a right to a substantial sum in compensation which might impact on the decision as to whether to remain in exploitative conditions in the UK.

Undocumented workers whose labour abuse and exploitation do not fit the human trafficking or modern slavery definitions under the UK Modern Slavery Act, are left without clear pathways to justice to recover unpaid wages, sick or holiday pay, as they have no automatic entitlement to legal advice and assistance, even if they have experienced abuse and exploitation while working without legal documentation.

Find more information about LEAG here. 

With thanks to Jamila Duncan-Bosu and Julian Bild from ATLEU.

*The NRM is the National Referral Mechanism: it is the UK’s mechanism for identifying and supporting victims of modern slavery and human trafficking. To find out more, see the government’s page on the NRM here