Section 2: Review Of Current Practice And Models Of Care In Different Jusrisdictions
States are required to provide assistance and support for victims. There are generally acknowledged to be four dominant camps of perspectives, with competing agendas, in the trafficking debates which determine the form that models of intervention will take:
Law and Order: this perspective equates human trafficking with organized crime, focusing on crime prevention, law enforcement and the propensity to prosecute. The 2000, United Nations Convention on Transnational Organized Crime definition of trafficking (under a Convention on Organized Crime) privileged law and order priorities. “For states, for example, ‘human trafficking’ is largely a problem that concerns public order. A public-order driven approach to ‘human trafficking’ can turn counter-trafficking activities into tools for cutting down on both prostitution and migration” (Alpes 2008:36).
Migration: this perspective tends to equate human trafficking with human smuggling and illegal migration. The agenda which dominates is the tightening of border controls and stricter visa regulations (Kempadoo 2005:11).
Public Morality: this perspective tends to equate trafficking for the purpose of sexual exploitation with sex work or prostitution. The dominant agenda is the criminalization of sex work, usually championed by religious and conservative organizations (Kempadoo 2005:10). In 1949, the United Nations addressed these human rights abuses in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of Others, which states that “prostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community” (Preamble to the Convention). This convention equates trafficking with sex work, criminalizing sex work (Kempadoo 2005:10).
Human Rights: this perspective equates trafficking with violations of human rights, focuses on the abuse and forced labour experienced by the victim as well as the support and protection of the victims.
Although, arguably the Human Rights Perspective is the most encompassing and useful of the four, each of these agendas oversimplifies the complex process and lived experiences of exploitation which make up human trafficking. These oversimplifications shape and confuse, distort and delude the understanding and implementation of trafficking laws, most specifically the identification of trafficking victims (Haynes 2007:340).
Key legislative tools determining care and support for victims of trafficking
There have been a number of legislative tools which determine the need to provide interventions of assistance and support to victims of trafficking in humans, reflecting different elements of the four models referred to above.
The Council of Europe Convention on Action against Trafficking in Human Beings 2005 entered into force as the first European treaty in this field. It set out measures aimed at preventing trafficking in human beings and prosecuting traffickers, as well as providing genuine protection to victims of trafficking and ensuring their human rights were safeguarded. The convention applied to both national and transnational trafficking, whether related to organised crime or not. The Convention also acts as an international instrument for defining a ‘victim’ of trafficking in human beings; other international instruments left it to each state to define victimhood and accordingly, entitlement to protection and assistance (Secretariat of the Committee on Equal Opportunities, 2009).
The Convention provides a series of measures to protect and promote the rights of victims. Victims should be granted physical and psychological assistance and support, and are entitled to a minimum of 30 days (45 in the UK) to recover and escape from the influence of the traffickers and to make a decision about their possible co-operation with the authorities. Where appropriate, a renewable residence permit should be granted. Victims are also entitled to receive compensation and support with voluntary repatriation; taking into account their rights, safety and dignity. Importantly, attention is paid to the protection of victims (witnesses) during investigation and court proceedings.
Additionally the Convention allows for the possibility that victims who were involved in unlawful activities can avoid incurring penalties if they were compelled to do so by their situation.
The Convention emphasises the importance of correct identification of victims in order to protect and assist them. Provisions should be made to ensure the physical, psychological and social recovery of individuals through the provision of “appropriate and secure housing, medical and material assistance, counselling and information (in particular legal advice) in a language they understand, financial support, employment and training opportunities (including the possibility of obtaining work permits)” (Secretariat of the Committee on Equal Opportunities, 2009).
In 2011, the UK Government opted-in to the EU Directive on Human Trafficking (EU Directive) adopted by the European Parliament in 2010. The EU Directive takes a victim centred approach, including a gender perspective, to direct action in areas such as criminal law provisions, prosecution of offenders, victims' support and victims' rights in criminal proceedings, prevention and monitoring of the implementation of these actions by National Rapporteurs or equivalent mechanisms. The Directive’s specifications for victims of human trafficking include the following:
- The criminal law provisions include a common definition of the crime, as well as aggravating circumstances, higher penalties and the principle of non-punishment of the victims for unlawful activities - such as the use of false documents - in which they have been involved when subjected to traffickers.
- The Directive provides for specific treatment of particularly vulnerable victimsaimed at preventing secondary victimisation (no visual contact with the defendant, no questioning on private life, no unnecessary repetition of the testimony, etc). It also provides for police protection of victims, and legal counselling to enable victims to claim compensation. Special protective measures are envisaged for children.
- Victim support includes national mechanisms for early identification and assistance to victims, based on cooperation between law enforcement and civil society organisations; providing victims with shelters, medical and psychological assistance, information and interpretation services. A victim must be treated as such as soon as there is an indication that she/he has been trafficked. A victim will be provided with assistance before, during and after criminal proceedings.
- Prevention aspects cover measures discouraging the demand that fosters trafficking as well as awareness-raising and training aimed at the officials likely to come into contact with victims, and potential victims.
The European Court of Human Rights has ruled that trafficking in human beings falls within the scope of Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that accordingly, “States had a positive obligation to put in place an appropriate legal and administrative framework against trafficking, to take measures to protect victims and to investigate acts of trafficking, including through effective co-operation with other States concerned on criminal matters”. This now means that trafficking in human beings can be combated as a violation of the European Convention on Human Rights (GRETA, 2011).
Under international legislation, states are expected to establish programmes to assist victims in their physical, psychological, and social recovery, including access to shelter, health care, legal information, educational opportunities, and potential criminal proceedings against their traffickers. Across Europe, access to protection and services can be difficult to obtain. Provisions and practice vary across countries and the extent to which responses have been implemented is variable. Each member state in the European Union is responsible for establishing its own mechanisms for implementing the Convention and Council Directive decisions, and, in many cases, the anti-trafficking frameworks at the national level still lack explicit anti-trafficking laws, or instruments for enacting protective measures. Lack of funding across states can also prohibit the provision of necessary resources to protect victims or their families.
A Group of Experts on Action against Trafficking in human beings (GRETA) was established to monitor the implementation of the Convention in Europe. By design, GRETA is supposed to include no fewer than 10 and no more than 15 members, elected from among representatives of member states. However, the responsibilities of implementing and enforcing the policies are delegated to various officials within each member state. In practice, any one of a multitude of ministries and agencies may be responsible for enacting the policies set forth by the European Council. While Europe-wise institutions like Europol have functioned effectively to improve investigation and prosecution efforts, no similar institution exists to assist with protection efforts. This has resulted in many of the protection activities falling to the various national and local level NGOs to implement (Shinkle 2007:4).
A number of areas of good practice have been identified as addressing trafficking in European states (for example Italy’s Article 18, which enacts the right to a residence permit and access to social programmes; Britain’s Poppy Project, which provides shelter and care services to adult women victims of sexual exploitation). However concerns have been expressed that states overly rely on poorly resourced NGOs, and for excessive attention to sexual exploitation with a resulting failure to address the needs of victims of other forms of trafficking.
Attempts to provide individualised support through NGOs has also been criticised where, in the absence of greater government funding, the NGO community is too constrained in terms of their financial and geographical coverage to sufficiently serve or protect the country’s victims. The emphasis on law enforcement has also been noted more generally at the expense of victim’s rights. In Italy for example women trafficked for sexual exploitation have been deported for refusing to give information about their exploiters, regardless of the fact that many victims may not be able to provide useful information and/or have legitimate fears for their own or loved ones’ safety if they reveal identifying information about their traffickers (Aghatise, 2004).
Similarly, less than 5% of victims of trafficking for sexual exploitation in the Netherlands were willing to assist the police in proceedings against traffickers. Those who do can obtain a B9 temporary permit but will have to return to their country of origin after prosecution proceedings have been completed. ODIHR (2007: 5) estimate that about 95% of victims are therefore denied full assistance and are likely to be expelled from the country. This can place victims at further risk of traffickers in source countries. Scotland distinguishes itself from other European nations by not resorting to forced repatriation.
Shinkle (2007) argues that better enforcement of European Council decisions at the national level is required, noting that lack of funding and dedication by member states has thwarted developments. Because member states are responsible for implementing the European Council directives, insufficient mechanisms for enforcing compliance have also been an entrenched problem.
Models of Practice
Despite growing awareness of the requirements of a multi-agency response there is little empirical evidence to support the effectiveness of specific interventions or services for victims (Clawson et al, 2009). In the UK much of the focus to date has been on the identification of victims of trafficking in humans (Hynes 2010). While necessary as an initial step, this has perhaps deflected from providing and evidencing effective rehabilitation and reintegration services, not least because such assistance requires far more intensive work and follow up. The IOM (2007: 105) note that: “There have been few in-depth evaluations of long-term reintegration programmes and long term follow-up of victims can be difficult as those victims assisted move on with their lives and lose touch with service providers, little is known about best practices for long-term reintegration”.
Despite the absence of evidence through evaluation research it is possible to identify characteristics of services that appear promising, although these conclusions relating to best practice have generally been made from overviews, manuals, fact sheets, non peer reviewed journals, commentaries, and anecdotal observations and experiences (Gozdziak and Collet, 2005; Clawson et al 2009), rather than specific evaluations of programmes and services. Importantly, international guidelines provide general guidance on models of intervention aimed at victims of trafficking regardless of the form of exploitation they have experienced. Rather than distinguishing in this regard, they argue for a holistic approach that takes account of the individuals’ circumstances and needs and which is able to respond appropriately on that basis. A comprehensive continuum of care is highlighted as a key priority for support provision. IOM (2007: 60) notes:
“While recognising that trafficking victims share a number of common experiences and circumstances, staff should acknowledge the individuality of victims, including individual, cultural, gender and age differences and differing experiences of persons before during and after being trafficked, and to the extent possible, provide personalised care and assistance. Throughout the assistance process, staff should strive to provide the most appropriate protection, assistance and support measures appropriate to the needs and circumstances of individual victims”.
The importance of a continuum of care, from identification to reintegration, is highlighted by the United Nations (UNODC, 2008) and by Clawson et al (2009) in their review of the literature on appropriate services for victims of trafficking. However, they also note that the role of a case-manager is critical in supporting the victim (also ensuring they are not required to repeatedly tell their story with the potential risks of re-traumatisation) and also supporting other providers and agencies (law enforcement, attorneys, counsellors and others) to direct their services to meet the needs of the victim.
In the USA the Trafficking Victims Reintegration Programme criteria for determining the successful re/integration of victims is centred around the following characteristics of service provision:
- safe and affordable accommodation
- legal status
- professional/employment opportunities
- education and training opportunities
- security and safety
- healthy social environment (including anti-discrimination and anti-marginalisation)
- social well-being and positive interpersonal relations
- economic well-being/viability
- physical well-being
- mental well-being
- access to services and opportunities
- motivation and commitment to re/integration process
- legal issues and court proceedings
- well-being of secondary beneficiaries
The United States bases its victim protection and support on the Traffic Victim Protection Act (TVPA) 2000, and its amendments, the Trafficking Victims Protection Reauthorization Acts (TVPRA) of 2003 and 2005. Under this Act guidelines for protection of victims while in custody, victim access to medical assistance, information and translation services are provided. The U.S. also provides federal funding for social services to provide benefits for dependent children of victims (or potential victims) of trafficking, and to minors who are siblings of trafficking victims. It also offers options for restitution, such as a civil action provision allowing victims to sue their traffickers in federal court (Shinkle, 2007:3). Unfortunately, however, stereotypes and fear of immigration repress the realisation of a holistic human rights centred approach. Health and Human Services Commission (2008) highlights similar challenges including the lack of legal redress in their examination of responses to trafficking in Texas.
The emphasis on identifying and certifying victims in the US impacts on access to federally-funded services, including immigration relief, employment placement, housing, health care services, and counselling (Shinkle 2007:2). Without law enforcement certification, the victims are likely to be viewed as criminals and be deported (Haynes 2007:350). Victim certification takes the form of “a letter from a law enforcement official stating that they are a potential witness to human trafficking, or that they are complying with all “reasonable requests for assistance” from US law enforcement” (Shinkle 2007:5). However, this gives significant discretion to officials who may be reluctant to see victims who have not been rescued as ‘certifiable’ (Srikantiah, 2007; Segrave et al, 2009; Hoyle et al, 2011). It may also be difficult for victims experiencing significant trauma to co-operate with law enforcement agencies. Segrave et al (2009) discuss provisions for women victims of trafficking for commercial exploitation focusing on Australia, Thailand and Serbia. While detailing responses and provisions across the three countries they also note the distinction between short-term assistance for ‘victims’ and longer-term assistance for ‘witnesses’ with longer-term support linked to assistance with prosecutions. Haynes (2007:346) challenges the law and order emphasis as perpetuating myths that “most trafficking victims are rescued by law enforcement officials; that they are rescued from actively and visibly abusive environments; that only those who are rescued are really victims and those who escape or are arrested or detained are not; that if a person is not visibly a victim, she is probably a criminal; and that someone who has broken the law cannot also be a victim of trafficking”.
Options for continued presence in the United States take the form of the T-Visa or the U-Visa which may allow certified victims, and sometimes family members, to stay in the United States while an investigation against their traffickers is pending. However, the application process to obtain a T-Visa and its accompanying protections is complicated and often inaccessible to victims who do not speak English, are not familiar with the US legal system, have little or no income of their own, and are not guaranteed legal counsel. While victims are guaranteed the right to counsel, such counsel is not automatically provided on the victims’ behalf, and they may not seek the available benefits without the aid of government, nongovernmental, or non-profit advocates.
As with Europe, it is argued that the US framework could be strengthened by instruments designed to enhance the human rights approach to victims. Shinkle (2007) argues for the institution of a reflection period, along the lines of that mandated in Europe, allowing survivors to access vital services and evaluate their options with the advice of qualified legal and human services personnel in order to make fully informed decisions about their options. “Providing services, legal counsel, and protection, independent of a survivor’s decision to participate in law enforcement efforts would, Shinkle (2007:7) argues, further strengthen the credibility of the human rights approach”.
The IOM Handbook on Direct Assistance for Victims of Trafficking (IOM 2007) identified the following factors as key to successful work with victims of trafficking. However, IOM stress that each case must be dealt with individually, on a case by- case basis, with appropriate interventions matched to specific needs. National Action Plans for victim assistance should include the following elements of provision:
- Legal Assistance
- Reinsertion Into the Education System
- Vocational Training
- Micro-enterprises and Income-generating Activities
- Job Placement, Wage Subsidies and Apprenticeship
- Housing and Accommodation
The ILO (2006) identified the key components of a multidisciplinary approach and noted the importance of standardised database and data collection systems for use by relevant professionals for analysis and referral purposes; facilities for recording a trafficking victim's personal history; standardised incident notification forms; a handbook for practitioners, indicating the roles of various professionals in a multi-agency approach, and including required professional skill, relevant procedures, and available resources; a directory of organisations and services able to work with trafficking issues; an accessible list of laws and regulations relating to trafficking, with accompanying guidelines on how to enforce them.
There is little evaluative research on the most effective models, especially on the topic of long-term needs and reunification (Busch-Armendaiz et al 2011; Macy and Johns 2011). This focus on longer term needs is especially important in the UK because most of the focus of service provision to date has been on immediate safeguarding.
There has also been some debate about the appropriateness of specialised service provision for trafficking victims, or improved access to more generic services because:
“Service providers and policymakers sometimes operate under an assumption that clients will quickly access mainstream services, and that those mainstream services will be adequate. However, clients’ needs and the structure of both mainstream services and services for victims of human trafficking are not always in harmony. For example, time-limited services are not able to accommodate trauma-related needs that may not be evident during the first six or seven months of services.” (Busch-Armendariz et al 2011: 13)
Fundamentally, there is no easy solution, or quick fix, when addressing the needs of trafficking victims (USAID 2007). Identifying appropriate short, medium and long-term responses, and therefore developing appropriate interventions, is a key challenge. In light of the absence of evaluative data on service provision, the components which contribute to promising practices for the U.S. Department of Health and Human Services (2008) require: the incorporation of safety planning (for workers and victims), collaboration across a number of agencies, ongoing development of trust and relationship-building, culturally appropriate approaches, trauma-informed programming, and the involvement of survivors in service development and provision. However, as Clawson and Dutch (2007: 10): “Providing these services can take months or years: the timeline for serving each victim is different and often unpredictable”.
Caliber (2007: 72) also identified collaborative and comprehensive services as key to effective provision for victims of trafficking and noted that characteristics of effective initiatives were: passion, dedication, experience, diversity, flexibility, institutionalised commitment (beyond individuals), client centred approach, cultural sensitivity, comprehensiveness (can handle a case from start to finish), mutual understanding and respect, shared vision and one voice.
Clawson et al (2009) identify the following barriers and challenges to accessing and providing services. For victims, this includes: an inability to self-identify as having been trafficked; lack of knowledge of services; fear of retaliation; fear of law enforcement/arrest/deportation; lack of trust; shame/stigma; PTSD; cultural and language barriers; lack of transport. For providers this can include: the hidden nature of trafficking which makes it difficult to identify and reach victims; lack of awareness/training; lack of adequate resources or services; cultural/language barriers; ineffective co-ordination of services; safety concerns. Caliber (2007) identified housing and medical needs as key areas where providers experienced difficulty in meeting the needs of clients. Insufficient resources and capacity along with funding constraints and ongoing service needs were characteristics of the difficulties experienced by service providers.
Some general strategies for good practice in the development of collaborative and co-ordinated services are provided by Clawson et al (2009: 21) and include:
- “Safety planning (for staff and client)
- Collaboration across multiple agencies
- Foster trust and relationship building constantly
- Ensure culturally appropriate approaches
- Establish trauma-informed programming
- Involve survivors”.
Taking the available evidence into account, some key considerations in the provision of assistance and support can be identified:
Safe and secure accommodation
The United Nations (UNODC, 2008) highlight the importance of the physical protection of victims and provision of shelter depending on individual needs, accompanied by programmes of support. IOM (2007) notes that provision of shelter can take a variety of forms and can be specialised for victims of trafficking only, or may house others in need of similar assistance (such as victims of domestic violence). However Clawson and Dutch (2007) have noted that victims of trafficking who are housed with other victims in, for example, refuges can be treated inappropriately by other residents. Culturally appropriate and trauma-informed provisions are a necessary part of the process of securing and maintaining a safe space for victims. Financial support should be available to cover the costs of accommodating victims of trafficking and to ensure that they have access to financial resources while accommodated. Given the difficulties that victims may have in securing employment and other, affordable housing, Clawson et al (2009) note that there should be an option to extend the length of time that victims of trafficking can spend in emergency and transitional housing.
Physical health interventions
IOM (2007: 88) note that victims of trafficking are likely to have particular health problems as a result of the exploitation they have experienced (for example HIV/AIDS, sexually transmitted diseases and PTSD. They are often more vulnerable to significant health risks and may require treatment for stomach problems and headaches which may also be symptomatic of emotional difficulties; chronic back, hearing, cardiovascular or respiratory problems as well as requiring optical and dental care. Comprehensive medical examinations should be provided by health providers who are aware of the needs of victims of trauma. Long-term follow-up medical treatment may be needed and should be provided as required. Zimmerman and Borland (2009) provide detailed guidance for health providers caring for victims of human trafficking. They note the complexity of victims health needs as a result of the cumulative health risks experienced throughout the trafficking process and beyond, when victims may be isolated or detained in ‘hostile environments’ including detention centres and prisons. Their guidance is based on materials aimed at responding to victims of other forms of abuse (domestic violence, sexual abuse or child abuse) and for other vulnerable populations.
Trauma/mental health interventions
Given the extent and complex nature of the mental health problems which can affect victims of human trafficking, trauma-informed services are a crucial part of a victim’s recovery (Williamson, Dutch and Clawson, 2008). To date there is little evidence-based research on the treatment outcomes of victims of human trafficking, however it appears that the health needs of victims of trafficking are similar to those of other groups such as migrant labourers, victims of sexual abuse or domestic violence and victims of torture and therefore models of effective intervention are likely to be similar. (Zimmerman, 2003; IOM, 2006). While different therapeutic options may be considered, it is clear that addressing the psychological consequences of human trafficking requires long term and comprehensive therapeutic interventions.
Konrad (2008) notes that many European countries prioritise illegal immigration over human trafficking; similarly, victims are often seen as instrumental to the prosecution of traffickers rather than prioritised in terms of their human rights. The United Nations (UNODC, 2008: 142) highlight the importance of supporting victims through “direct and indirect means, timely notification of critical events and decisions, provision in full of information on the procedures and processes involved, support of the presence of victims at critical events and assistance when there are opportunities to be heard”. In particular they note the obstacles which victims can encounter due to culture, race, language, resources, education, age or citizenship. They further note (2008: 145): “The development of close links between non-governmental organisations working in the fields of human rights and legal aid with law enforcement agencies and victim support programmes is optimal and facilitates the protection of and assistance to victims”.
Gender appropriate responses
The EU Directive refers to taking into account “the gender perspective”. And
Recital 3 notes that “assistance and support measures should also be gender-specific where appropriate”. The particular needs of women trafficked for the purpose of sexual exploitation may be addressed in a woman’s refuge or other safe place where interventions associated with physical and sexual trauma can be accessed. However, evidence from the US (Clawston and Dutch, 2007) highlights that specific services may be required within these organisations as women may also experience stigmatising and racist attitudes from other women using these services (see also Stepnitz, 2009). The Poppy Project (2008: 26) also emphasise that the extreme violence and psychological stress that women have experienced as victims of trafficking “requires specialist and long-term assistance from dedicated support agencies, with a history of supporting victims of violence against women”.
The specific health needs of women who have been trafficked and the importance of recognising and acknowledging gender-based violence and forms of exploitation are highlighted by Zimmerman (2003). The way in which trafficking impacts on women and the consequences of abuse experienced through a variety of forms of exploitation highlights the need for gender sensitive responses at all stages of the provision of care and support for women victims.
Guidance published tends to centre on statements of good practice rather than empirical evidence of what may actually work in practice. Given that recognition of trafficking in human beings is a relatively new concept in terms of policy and practice responses this may explain the absence of empirical baseline data for effective intervention. But the complexity of the issue is also likely to contribute to this, alongside the focus that is often given to immigration control and the securing of borders rather than needs of victims and human rights issues. There is very little evidence of ‘outcomes’ in the available literature; while short term outcomes may be clear (ie safety, housing, health), the longer term aims of interventions may be less so.
Key to models of care and support for victims are:
- Comprehensive and co-ordinated services
- Suitable, safe and secure accommodation
- Easily accessible advice
- Support with communication and linguistic barriers
- Provision of medical and psychological support
- Victim-centred approaches
- Individualised and holistic care
There is a need to ensure however, that resources are targeted and based on rigorous methods of evaluation.
UK Policy Responses
In 2007 the UK Government published the UK Action Plan on Tackling Human Trafficking which among other things, announced the establishment of the UK Human Trafficking Centre (UKHTC) which aimed to facilitate and foster closer links between the immigration service and law enforcement. UKHTC also aimed to develop a wider focus on trafficking, going beyond the more explicit attention often given to trafficking for sexual exploitation. UKHTC is a multi-agency organisation led by the Serious Organised Crime Agency (SOCA). Its role is to provide a central point of expertise and coordination in relation to the UK’s response to the trafficking of human beings. The Centre seeks to facilitate a coordinated, cooperative and collaborative way of working within the UK and internationally. The UKHTC’s partners include police forces, the UK Border Agency, HM Revenue & Customs, the Crown Prosecution Service, the Gangmasters Licensing Authority, NGOs including charitable and voluntary expert groups.
The UKHTC Website states that supporting the victims of trafficking and bringing to justice those responsible will always be the mainstay of the UKHTC’s work. Prevention efforts form a key component of the UKHTC’s proactive strategy to reduce harm and protect victims of human trafficking. The National Referral Mechanism (NRM) is a central plank of UK policy and aims to support the identification of victims. It is presented as a ‘vital step’ in ensuring that the human rights of trafficked people are protected. The operation of an NRM approach is based on the recognition “that many actors - including both government and civil society - must co-operate to develop a truly effective and comprehensive protection structure for trafficked persons” (OSCE/ODIHR, 2004: 11). However concerns have been expressed that few victims of labour exploitation are being identified and protected internationally through NRMs (ODIHR, 2007).
One of the challenges of the centrality of the ‘victim’ status to the NRM process is that exploited individuals, particularly migrants, in both the sex industry and labour sectors may not perceive themselves as victims. This is frequently the case for trafficked migrant domestic workers, many of whom do not want to be referred to the NRM preferring instead to move on to other employment. Kalayaan (2011) highlights criticisms of the NRM for failing to accept the victimisation of migrant domestic workers. The failure, more generally, to identify victims trafficked for the purpose of forced labour is also reflected in the failure to distinguish between forced labour and labour exploitation. Specifically, the Gangmasters Licensing Authority “is currently confined to the oversight of labour in the food and agricultural sectors, while exploited foreign labour may now be found in the service and construction industries as well as in care homes”. (Equality and Human Rights Commission, 2011:9)
The UK Border Agency (UKBA) acts as the ‘competent authority’ to identify a victim of trafficking if the person is within the immigration or asylum system. In all other cases, UKHTC fulfils this role. Competent authorities will take up to five days to reach a ‘reasonable grounds decision’. Following a positive decision, a 45 day period of reflection and recovery will be provided. ‘Conclusive evidence’ can lead to consideration of a one year renewable residence permit. However, the Anti-Trafficking Monitoring Group (2010) noted that women whose cases are decided by UKBA as the competent authority were significantly less likely to get positive decisions at ‘reasonable’ or ‘conclusive’ grounds than women whose cases were decided by UKHTC. The UKBA has also been challenged for an ‘inherent conflict of interest’ arising from its dual role in dealing with both asylum and trafficking cases (Easton and Matthews, 2012). Concerns about decision-making and lack of any right to appeal decisions have led to the implementation of a review stage to allow an authority other than the decision maker to audit a sample of decisions, and to hold regular case reviews involving a range of partners including NGO support providers.
In 2011 the UK Government made a commitment to protect the level of funding available to victims of human trafficking at £2 million for the next two years (HM Government, 2011: 3). From the 1 July 2011 funding was provided to the Salvation Army as central contractor with a case-management function and responsibility for overseeing and co-ordinating the provision of care by sub-contracting to other agencies. The model now in place aims to provide funding which will follow victims to the organisation which will support them (notably Kalayaan, Migrant Help, Poppy Project, Medaille Trust).
The model of victim care currently operating in England and Wales aims to bring support providers together in a single support network with the aim of concentrating expertise. This brings together care providers for victims of forced labour alongside victims of trafficking and other vulnerable groups such as victims of domestic violence. This model was introduced in 2011 and to date there is no evidence of how it is working.
Solace (2009) has produced guidance for local authorities to identify and assist victims. This guidance, based on the study of local authority provision across Europe and applied to the UK sets out information on identification of victims; support of victims; assistance with repatriation; prevention of human trafficking; partnership working.
The Anti-Trafficking Monitoring Group (2010) has highlighted some of the challenges for the UK in providing assistance and support to victims indicating: access to medical treatment was problematic; delays in identifying victims and access to services during this time; barriers associated with the NRM which meant fewer people were referred than approached agencies; identification of victims based on immigration rather than victim status (Care, 2011).
Amnesty International (2008) noted that a number of victims of trafficking were detained or imprisoned. Not only does this limit the access of victims to support services, it is also likely to have a detrimental impact on the individuals’ physical and mental health and compounds the difficulties they are likely to experience in disclosing their circumstances to authorities. Preliminary research on the criminalisation of migrant women in the UK (Hales and Gelsthorpe, 2012) highlights the way in which victims of trafficking can end up in the prison system in England and Wales, criminalised for committing offences to survive or being detained for lack of documentation. While there is, to date, no evidence of the extent to which this happens in Scotland, it is likely that the situation is similar to the rest of the UK. Amnesty International (2008: 13) has stated that: “Victims who have been trafficked into the UK should never be detained, or suffer imprisonment for any reason which is a direct or indirect result of their situation as a victim of trafficking”. In some cases, there would appear to be a perception that potential victims of trafficking may be better protected if they are in detention (whether immigration or police). This has been noted as a reason given by the UK Border Agency for keeping a potential victim in immigration detention in the past despite the fact that this contradicts international good practice.
Article 8/Recital 14 of the EU Directive states that penalties should not be imposed on victims of trafficking for their involvement in criminal activities which they have been compelled to commit as a result of being trafficked. There is currently no system in place to review the process of avoiding the punishment of victims for involvement in criminal activities to which they have been compelled to commit as a direct consequence of being subject to trafficking. At present the Crown Prosecution Service are working with criminal justice partners and UKHTC to identify a ‘practical mechanism’ to monitor the effectiveness of existing arrangements (Special Representative, 2012: Appendix 1).
Provision of care and support in Scotland
The Scottish Government has responsibility for the care and support of victims of trafficking and the oversight of local authority provision. It currently funds two organisations to provide dedicated care and support for victims of trafficking:
Trafficking Awareness Raising Alliance (TARA) of Glasgow Community and Safety Services provides a service for adult women trafficked for sexual exploitation. TARA is funded by the Scottish Government and Glasgow City Council and provides support to women over the age of 18, who have been recovered in Scotland, and where there are concerns that they have been trafficked for commercial sexual exploitation.
Migrant Help supports male and female adult victims of labour exploitation and domestic servitude, and adult male victims of sexual exploitation.
In the financial year period 2011-12, the Scottish Government funding across both services totalled £724, 000. In 2009-10 there were 107 potential victims of trafficking referred to Migrant Help, and 2010-11 there were 134. During 2010/11 TARA provided support to a total of 57 women. Of these women, 45 were provided with long term support, and 12 with short term support. Of the 56 women newly referred during this period 21 received long term support and 12 short term support. 24 women were already receiving support prior to April 2010. Approximately 70% of these women were supported by the project to engage with the Police.
Most referrals to TARA and MH come from the central belt, particularly Glasgow which is a dispersal city. Referrals to both services come from a range of agencies: for TARA the majority from the police and the Scottish Refugee Council closely followed by immigration solicitors; for MH referrals come from a range of sources mainly from the police (80-90%), or the SCDEA as well as UKBA, voluntary agencies, social services and the courts. Although Glasgow-based, TARA and MH will support victims across Scotland and have been attempting to raise awareness of their services with police forces across the country.
Migrant Help (MH) have dedicated accommodation for victims which has 13 bedrooms with staff attendance on a 24 hour basis. Flats can be accessed across the country as required. Individuals accessing the service are given fully furnished accommodation and the equivalent of state benefits every week alongside other supports they may need including access to healthcare, interpreters, contact with family back home; depending on individual need.
TARA do not have dedicated accommodation but can access supported accommodation for women as required. Concerns were expressed by respondents in other agencies about the ease with which safe and appropriate accommodation could be obtained. For example TARA will sometimes fund accommodation in Women’s Aid shelters but this depends on whether spaces are available and how these spaces are then funded. They will provide women with a source of income and other resources as appropriate. From a basic crisis response, they will subsequently advocate for women with existing services and provide them with a safe space where the women can discuss and explore their experiences. Women will be referred on to other services to support their needs.
For victims who claim asylum, most are placed in accommodation provided by the UK Border Agency and respondents expressed serious concerns as to whether this accommodation is always safe and appropriate. There is a gap regarding accommodation provision in Scotland if an individual has not claimed asylum and is a potential victim of human trafficking (having not yet entered the identification process). This again, highlights the importance of identification systems as paramount to ensuring victims are able to access support services.
Health provision and trauma intervention
Both TARA and MH will refer victims on to medical services and can access community based health care as required. Access to mental health services for women (within the 45 day reflection period) proved impossible with difficulties identified in accessing appropriate psychological assistance in appropriate time frames. As a result, TARA currently have a psychologist based in their offices two days per week, although funding is time-limited. As one worker noted:
Women respond differently - you can’t pigeon-hole them. Some women, we are astonished at how resilient they are while others have very little resilience about what has happened to them. It depends on the individual, her education, background, whether she has children or not, asylum status, post-traumatic stress disorder - if she is showing signs of that, mental health issues…women are vulnerable before being trafficked and quite often we have to deal with some of those vulnerabilities as well as the impact of trafficking on them.
Practical support and links to other services
Financial and practical support is provided by both TARA and MH. Support can be intensive initially although reducing over time and as victims become more settled or linked into mainstream services. Part-time workers at TARA provide out-of-hours support and a support group operates once a week where women can benefit from peer support. Service provision is focused around individual needs.
A worker from Migrant Help noted:
Everyone has different needs. We do the longer-term care here. So we can make appointments for people who have positive conclusive grounds decision to claim job seekers allowance, get national insurance
numbers so they can take up employment at some point, we have arrangements with a number of local authorities to attend ESL courses to improve their English, systems in place to get registered with GPs and dentists, if there are issues with sexual health we can get them examined at the Sandyford clinic, so we have systems in place that can provide a comprehensive service for victims. Even after they have been through the system and left, people still tend to keep in touch…
MH also noted that while services in Glasgow are more aware of trafficking both police services and local authorities outside the city are often less aware. The Equality and Human Rights Commission (2011) noted that there was a lack of awareness among front-line workers across professions including health, law, licensing authorities and labour market regulators about the nature and indicators of trafficking. This was exacerbated by geographical factors, with very few referrals to the NRM coming from outside Glasgow.
Other specialist provisions in Scotland include the Legal Services Agency (LSA) which provides legal advice to refugee and migrant women and children through its Women’s Project and Young Person’s Project. In 2011, 41% of the Women’s Project’s clients identified as being victims of human trafficking.
Legal services are based on the following principles:-
- early and effective legal advice
- a human rights-based approach
- a holistic service is provided to clients
- assistance is tailored towards the needs of each particular client and provided within a safe environment
- solicitors work closely, and in partnership with, statutory and third sector organisations
The LSA, as part of its wider policy remit, is funded to improve outcomes for its client base in general and to safeguard and promote the rights of refugee and migrant women, children and young people across Scotland. It offers free second-tier advice to lawyers, organisations and individuals who are assisting or supporting refugee and migrant women, children and young people in Scotland and contributes to training, research and policy in issues that directly affect refugee and migrant women, children and young people at a local and national level. The project is Glasgow based but has assisted potential victims of human trafficking throughout Scotland. Their approach has been defined and implemented in order to comply with international good practice in this area, is unique to the UK and is funded and supported by the Scottish Government.
The perception from solicitors in England and Wales, according to an LSA respondent, is that the Scottish Government (through its legal aid scheme and funding of part of the Women’s Project) has better supported legal services than the rest of the UK. Yet there is only one legal Department which provides legal services to victims, a key component of international good practice. As noted in EHRC (2011) it is important to ensure that victims of human trafficking obtain effective legal advice provided by those who have knowledge and training in this area (both within and outwith LSA).
Gender responsive provision
Trafficking is internationally accepted as a form of gender-based violence and the Scottish Government provides funding to support service providers in this area. Funding to TARA is based on an acknowledgment of the gendered nature of trafficking and the need to provide dedicated services to support women victims. The Scottish Government Violence against Women Fund provides funding for projects that will improve the support provided to women (and children) who have experienced gender-based violence. One of the specific outcomes of this Fund is an “improvement in the support available to women and children who have experienced commercial sexual exploitation, including trafficking, prostitution and pornography” according to an LSA respondent. A criticism could be that this explicit reference to commercial sexual exploitation ignores trafficking for other purposes such as forced marriage, domestic servitude and sexual violence without a commercial nature. These other forms of violence and exploitation are more often than not gender-based.
However, the Scottish Government does make it clear that they are keen to support services that improve support for all women and children who have experienced gender-based violence and support for other types of trafficking can therefore be provided under this Fund. This Fund has supported the Women’s Project of the Women and Children’s Department at LSA to provide a specialist service for all victims of human trafficking provided there is gender-based violence and the Scottish Government has been a flexible funder in this regard.
In Scotland there is no specific service that provides legal advice to adult male victims of human trafficking (as LSA will do for women victims) which means that advice is obtained through other asylum/immigration solicitors based in Glasgow. A respondent from LSA indicated that they were unclear whether these solicitors simply provided asylum/immigration advice or whether they also provide advice for those identified as being a victim of human trafficking, (compensation etc as noted in the Directive (article 11(6) and article 17)).
As of January 2012, LSA has set up a separate project (Young Person’s Project) which works with refugee and migrant children and young people (up to 25) in Scotland supported by funds from Paul Hamlyn Foundation and the Scottish Government. This provides a resource for adult males up until this age. However, it is important that adult males over this age also receive appropriate support.
LSA is one of a few legal service providers of advice and assistance to victims to make applications for criminal injuries compensation (Article 17). Individuals are not generally aware of their right to apply for compensation unless advised of this, in contradiction to the Directive and international good practice. In the applications LSA has made in this area, it reports struggling to get appropriate legal aid to cover advice and notes that the Government should lead on making the right to access compensation more widely known along with information on how individuals can access the compensation scheme. This would require the provision of training to non legal service providers who could assist individuals to make these claims on their own. Officials who administer the scheme in the Criminal Injuries Compensation Authority would also benefit from training and awareness-raising on the issue of human trafficking.
Obstacles to service provision
Respondents were of the view that responses to human trafficking in Scotland were developing and improving. However, frustration was expressed at the obstacles that the wider system can place on the provision of care and support for victims. Improvements in awareness-raising by the police and other agencies were noted as significant and likely to have a wider impact. However it was noted that crucial gaps in knowledge remained.
Given that TARA and MH aim to link victims into mainstream services (such as health) it is important that front-line workers who may come into contact with victims are aware of the potential consequences they may experience. Article 18 of the EU Directive requires member states to take appropriate measures to raise awareness of training and promote regular training for officials likely to come into contact with victims. It is evident that more training is required for those who provide support, although there is evidence of good practice in some areas that could be replicated across Scotland. In particular, it would appear that training is required around the identification of victims of trafficking for the purposes of domestic servitude and forced labour, particularly in relation to cannabis cultivation where poor practice continues across Scotland in these areas. Both TARA and MH are working proactively to ensure this information is available to other service providers.
Identification and the NRM
Difficulties had been experienced with the requirement to complete and submit a referral form within 72 hours of someone being potentially identified as a victim of trafficking before a reflection period would be awarded. It was felt that this could put pressure on workers to take a disclosure at a point where a victim was potentially very vulnerable. This was seen to present a challenge for agencies who were attempting to take a victim-led approach and who believed themselves to be in effect, removed from the decision-making process with the ultimate decision about a victim’s status taken by a ‘competent authority’. One worker noted: “Sometimes it just feels to us as though it is a vetting process. It isn’t about getting her to safety and moving her on, it’s about identifying her, it’s about whether she is telling the truth or not. And that can be very difficult”.
Support agencies also noted challenges in the identification of victims where police divisions or other professionals did not have much experience with trafficking victims and were unable to identify factors which would indicate trafficking. This could be particularly problematic where the police are First Responders and paperwork was not completed appropriately, causing problems at a later stage in the process. Workers also indicated that attitudes towards prostitution could be reflected in the practices of the authorities. “Decision letters quite often will say ‘you knew you were coming to work as a prostitute’…which will put the women off. The women we support are quite often very clear its not prostitution, they have been held and raped, so language is very important too”.
The operation of the NRM in Scotland has been criticised (Equality and Human Rights Commission, 2011) as being too centralised, lacking in accountability, creating a conflict of interest in decision-making and ineffective in tracking outcomes for victims or identifying patterns and trends in trafficking.
For both MH and TARA, one of the challenges in providing a service is the uncertainty for victims about what might happen to them while awaiting a decision about the right to remain in the UK or if they will have to return to their originating country. While it was acknowledged that it is in everyone’s best interests to have decisions made as quickly as possible and although the reflection period should be 45 days, the average length of stay for victims supported by MH has been 69 days before a decision was made, with some cases going well beyond this due to delays with UKBA. While improvements were noted in relation to UKHTC in terms of decision-making, staffing and multi-agency work, problems remained with UKBA in Scotland. It was noted that reorganization had recently taken place which should see two members of staff dedicated to working with trafficking cases. This, it was hoped would potentially lead to an improvement in terms of quality and speed in dealing with cases.
In respect of the reflection and recovery period of 45 days, there was some acknowledgement that in practice, it was too short to operate as a meaningful period of time to reflect and recover and therefore did not meet its intended aims.
Resourcing services is complex given the lack of accurate information about the extent of trafficking and numbers of victims. The number of victims referred to services can also be unpredictable and often numbers fluctuate in response to police operations and the subsequent rescue of victims. Previously services were funded on a case by case basis and allocated a set amount per night per victim. Recently a grant has been allocated with the provision of Government recuperation of any unspent monies. This was considered important in providing agencies with greater stability and was seen as a better way of supporting victims. There was an agreement in place with the Government that should a situation arise where a high number of people were rescued at one time the cost would be met and all identified victims would be supported.
Legal respondents in Scotland indicated their concern that potential victims of human trafficking are being prosecuted for crimes they have been compelled to commit. The Crown Office and Procurator Fiscal Service have Guidance on Human Trafficking Offences. This guidance contains a presumption against prosecution and notes that there is a duty on prosecutors to make full and proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking and to be proactive in establishing if an accused is a potential victim of trafficking. International good practice demands more than a presumption although the Directive does not dictate such a high standard itself.
Respondents noted with concern that the guidance (in its existing form) does not appear to be applied in practice, with limited awareness of it amongst social work practitioners (outwith Glasgow), duty solicitors, procurator fiscal service and even judges in Scotland. It would appear that training is required in this area to ensure that potential victims of human trafficking obtain the appropriate advice and support when detained and charged with a criminal offence.
Easton and Matthews (2011) outline the importance of victim access to good support services. Easton and Matthews (2011: 13) note:
“Although there were commonalities in relation to the vulnerabilities experienced by women, this does not suggest that a blanket approach to victims is appropriate… (…) victim support needs to be holistic, grounded in recovery from trauma, aware of gender based violence and responsive to individual needs. It must also connect with other strategic issues and operate in partnership with other key agencies”.
This should also be extended to take account of the cultural and social understanding and norms of victims.
In comparison to wider international systems, Scotland seems to be meeting the general requirements of providing support and assistance. This review finds that victims support services in Scotland generally comply with the requirements of the European Convention and Directive albeit there are some gaps that could be addressed. Specifically TARA and Migrant Help together provide a comprehensive and continuous response to police operations and the provision of victim support. Additionally identified victims of trafficking in Scotland are able to access accommodation (although this is sometimes a challenge for TARA who do not have dedicated accommodation), the equivalent of state benefits every week alongside other support they may need such as access to healthcare, interpreters, and contact with family back home depending on individual need.
Problems have arisen for agencies in accessing wider resources (notably mental health services and in the case of TARA, accommodation) and these challenges are currently being addressed. These specialist agencies work alongside other key agencies such as the police, LSA and other NGOs on an ongoing basis putting forums in place to ensure any problemsare addressed in a timely manner. One of the key challenges for support services has been uncertainty about funding. Providing short-term funding is deleterious to the establishment of services and their ability for longer-term planning.
Overall, agencies in Scotland provide good quality services and support and in doing so, meet the Scottish Government’s obligations under international treaties. In terms of key areas of the EU Directive, there is evidence that some areas of provision could be developed further. Respondents across agencies were of the view that strategic input was required from the Scottish Government in this area. In particular, there was a view that a ‘human rights based’ approach was not well understood across Scotland and in practice this should be the focus of training to ensure better support services for victims.
Email: Debbie Headrick