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U-turn on modern slavery by Legal Aid Agency

As the High Court hears a challenge to the government’s refusal to grant legal aid to those seeking to show they victims of trafficking, Carita Thomas looks at how hundreds of vulnerable people are being let down and left to navigate a complex system alone

We have come a long way on combating modern slavery in the UK and there is much to be proud of. But with every new announcement that modern slavery is this government’s priority, we should question what this means for victims.

Away from the headlines,  survivors of exploitation are often sidelined. Ensuring meaningful rights for survivors, making them more than the passive vessels to whom crimes have occurred, should always come first.

Unfortunately, this is not happening. The latest example is the government’s new approach to free legal advice for survivors. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was a law that was meant to prioritise civil legal aid for ‘serious issues’. Victims of modern slavery were considered a priority group and so were allowed legal aid for advice about an application for leave to enter or remain, once the government decided that they were a possible or definite victim of trafficking.

For the four years since LASPO came into force, I have worked as an immigration lawyer giving legally aided advice to survivors of modern slavery, helping them secure a legal right to stay in the UK so they can start to rebuild their lives. I could take on a case to help a survivor going through the government’s system for identification, the National Referral Mechanism (NRM) as soon as they were accepted as a possible victim of trafficking. I could then advise them on their right to obtain discretionary leave to remain at the end of the NRM process.

Getting a decision that you are a victim of modern slavery is vital for getting discretionary leave. You need that decision to be eligible for discretionary leave. But discretionary leave is not automatic even if you have been accepted as a victim. Very few victims are given discretionary leave (only 12% of all victims in 2015) so you need to show good evidence and understand the law and Home Office policy to argue why leave is justified.

In practice, the decision about discretionary leave usually comes on the same piece of paper as the final decision about whether someone is a victim. To get my clients leave to remain, I would have to argue why they were victims, and alongside this, argue why it is necessary for them be given leave to remain.

This year the Legal Aid Agency (LAA) told me that work to secure the positive identification of victims of trafficking who are going through the NRM was not covered even when it was connected to an application for leave to remain (and a precursor to getting that leave). This is despite the agency conceding that work connected to the NRM would be covered by legal aid if there was a ‘significant overlap’ with work in an asylum case.

The LAA also said that work to help someone obtain discretionary leave at the end of the NRM was no longer considered to be in the scope of LASPO because the Home Office will automatically consider a confirmed victim for a grant of leave, so there is no application being made by that person.

We have issued a judicial review against these decisions on behalf of our client who received them. We were refused permission on the papers but have a further hearing in the High Court today (11 October).

The scope of those affected could be huge. The NRM statistics for the end of 2016 confirmed there had been a year on year increase in potential victims referred into the NRM: 1745 victims in 2013, 2340 in 2014, 3266 in 2015, 3805 in 2016. Some individuals will have asylum claims for which they can still get free legal help. But all potential victims should have the right to free immigration advice on whether they might qualify for discretionary leave to remain at the end of the NRM – and that right will now be denied to them.

The House of Commons Work and Pensions Committee said in an inquiry this year that the NRM ‘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 to properly to respond to the needs of victims.’ Now survivors of modern slavery will have to navigate this complex process with no legal advice before or during the process.

Victims are scared and seeking safety. They need a safety net of support, the reassurance of legal status so they are not always looking over their shoulder in fear of their abusers or of being removed unceremoniously from the country. Recovery does not truly start until someone feels safe. The new headline must now be that the government is failing survivors, despite the rhetoric, because its policies deny survivors real protection.

About Carita Thomas

Carita Thomas is a solicitor at the Anti Trafficking and Labour Exploitation Unit, a charity providing legal representation to victims of trafficking and labour exploitation.

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