The government has legal duties to support and accommodate victims and potential victims of trafficking under international law (the Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’)); domestic human rights law (Article 4 of the European Convention of Human Rights (‘ECHR’)); and retained EU law (Directive 2011/36/EU (‘the EU Trafficking Directive’)). It also has a duty to follow its own statutory guidance (Modern Slavery Act 2015 – Statutory Guidance for England and Wales).
In summary, these duties are to provide victims with support and accommodation in relation to their individual recovery needs. This should be provided for as long as it is necessary to assist victims in their recovery (for a minimum of 45 days), and the provision of support and accommodation should not be contingent on a victim’s willingness to cooperate in criminal proceedings.
Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’)
Article 12(1) of the Convention states that:
Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
- Standards of living capable of ensuring their subsistence, through such measures as appropriate and secure accommodation, psychological and material assistance;
- Access to emergency medical treatment;
- Translation and interpretation services, when appropriate;
- Counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
- Assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
- Access to education for children.
Article 12(1)(a) states that accommodation provided to victims must be appropriate and secure. Appropriate and secure should be understood in relation to what is necessary to ‘assist victims in their physical, psychological and social recovery’. What is appropriate and secure will therefore differ depending on the differing needs of individual victims.
In the Explanatory Report to the Convention, there is further explanation about the duty to provide appropriate and secure accommodation. The report states that:
Victims who break free of their traffickers’ control generally find themselves in a position of great insecurity and vulnerability. […] Article 12 applies to all victims, whether victims of national or transnational trafficking. It applies to victims that have not been granted residence permit […]. (paragraph 146)
With regard to accommodation, it states:
The type of appropriate and safe accommodation depends on the victim’s personal circumstances (for instance, they may be living in the streets or already have accommodation, and in the latter case it will be necessary to make sure that the accommodation is appropriate and safe and does not present any security problems). Where trafficking in human beings is concerned, special protected shelters are especially suitable and have already been introduced in various countries. Such refuges, staffed by people qualified to deal with questions of assistance to trafficking victims, provide round-the-clock victim reception services and are able to respond to emergencies. The purpose of such shelters is to provide victims with surroundings in which they feel secure and to provide them with help and stability. As a guarantee of victims’ security it is very important to take precautions such as keeping their address secret and having strict rules on visits from outsiders, since, to begin with, there is the danger that traffickers will try to regain control of the victim. The protection and help which the refuges provide is aimed at enabling victims to take charge of their own lives again. (paragraph 154)
In short, it is clear that the duty to provide appropriate and secure accommodation is not only a duty to alleviate street homelessness. It is also a duty to prevent re-trafficking and to assist victims in their physical, psychological and social recovery from their trafficking experiences.
ECAT also requires that victims are given a ‘reflection and recovery period’ of at least 30 days. In the UK, the reflection and recovery period is at least 45 days, and begins when a positive reasonable grounds decision is made. Support and accommodation should be provided to victims in this period (and following it) if it is required to assist recovery.
Finally, Article 15(2) of the Convention states:
Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.
ECAT is an international treaty. the Convention has not been formally ‘incorporated’ into domestic law, which is the way treaties become binding laws in this country. However, the government previously confirmed that where guidance was intended give effect to ECAT, it would be unlawful if it did not do that (This was confirmed by the case of R (Atamewan) v SSHD). Under s.49 Modern Slavery Act 2015 the government must publish guidance explaining how it will carry out its duties to victims of trafficking and modern slavery. This guidance was eventually issued in 2019 and is updated from time to time. It is called ‘Modern Slavery Act 2015—Statutory Guidance for England and Wales’ and explains how the public authorities should help, protect and identify victims of trafficking and modern slavery.
Finally, it is important to remember that the Convention is not EU law and is not affected by Brexit. The Council of Europe is distinct from the EU.
Article 4 ECHR
Article 4 ECHR imposes an absolute prohibition against slavery, servitude, and forced labour:
- No one shall be held in slavery or servitude.
- No one shall be required to perform forced or compulsory labour.
The European Court of Human Rights has held that this also extends to trafficking in the case of Rantsev v Cyprus and Russia.
Although the wording of Article 4 only prohibits slavery, the government also has ‘positive obligations’ under Article 4 to assist victims in their recovery. The European Court of Human Rights, in the case of Chowdury v Greece, has held that the measures that are reasonably expected of the state following an Article 4 duty being triggered are, at a minimum, appropriate measures of assistance to aid victims in their physical, psychological and social recovery . This likely includes (though is not limited to) financial subsistence payments and appropriate and safe accommodation.
Additionally, the UK Supreme Court, in the case of MS (Pakistan), has held that obligations under the Convention inform the state’s obligations under Article 4 ECHR.
The ECHR is not EU law and is not affected by Brexit.
The EU Anti Trafficking Directive (2011/36/EU)
Paragraphs 1 and 2 of Article 11 of the EU Trafficking Directive state:
- Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate and safe period of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, and in this Directive.
- Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.
Paragraph 5 of Article 11 of the Directive also states:
- The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate
To rely on EU rights in domestic courts, those rights must be ‘directly effective’. It is ultimately unclear whether the right to appropriate and safe accommodation is a directly effective right.
This is further complicated by the UK’s withdrawal from the EU. During the transition period, which ended on 31 December 2020, it was possible to rely on directly effective EU rights in UK courts. However, from 1st January 2021 it is not possible to rely directly on the Anti Trafficking Directive unless they are rights that have been retained in UK law. In practical terms, most rights under the EU Directive are covered by the Convention and the ECHR.
The Statutory Guidance
Chapter Eight and Annex F of the guidance detail the support available to adult victims . The guidance explains how the government discharges its duties under the above legal instruments. The guidance will be discussed throughout this section.
The government must follow its own guidance unless there is a good reason for it not to do so. A failure to follow the guidance without good reason is unlawful and could form the basis of a legal challenge.
Although it is positive that the government has published its policies in detailed guidance, it is important to remember that a policy being in the guidance does necessarily mean that the policy complies with ECAT or Article 4 ECHR. Policies in the government’s guidance that are not compliant with the state’s obligations under the Convention and Article 4 ECHR can and should be challenged in court.