The Modern Slavery Bill has helped to raise the profile of the UK’s obligations to identify and assist victims of human trafficking. To date, whilst the rights of victims (or potential victims) of trafficking has increasingly been acknowledged in immigration law, there has not been a corresponding increase within extradition cases.
Although extradition proceedings should be expeditious and respect mutual trust, this does not obviate the duty of states to identify and assist victims and prevent re-victimisation (e.g. 2000 Palermo Protocol, 2005 European Convention and 2011 Directive).
Trafficking: A broad definition
An individual who has been trafficked has suffered a breach of their Article 4 rights (prohibition of slavery and forced labour) and, as with Article 3 this places positive obligations on states to prevent breaches in both requested as well as requesting jurisdictions, i.e. in this country irrespective of parallel obligations in, for example, Poland.
Procedurally, to be considered a victim of trafficking in the UK, the person must be found to be a victim following a three stage decision making process within the “National Referral Mechanism” (“NRM”). This process takes much longer than the 21 days envisaged for extradition proceedings. First, an initial referral is made by a designated first responder (such as the police or local authority, but most often a charity such as the Salvation Army) which inevitably takes some time. Second, a “reasonable grounds” decision should be reached by the competent authority (which must pass the low threshold of “I suspect but cannot prove”) within an optimistic target of 5 days. After the “reasonable grounds” decision, the individual is granted a 45 day “recovery and reflection period”. The aim is for the third stage, a “conclusive grounds” decision within that 45 day period (on the balance of probabilities).
There are two competent authorities in the UK. The UK Human Trafficking Centre within the NCA deals with all cases involving a UK or EEA national. The Home Office deals with cases where trafficking is raised as part of an asylum and immigration claim.
Although the NCA have the dual role of certifying EAWs and hosting a major part of the NRM decision making process, practitioners cannot assume that they will be notified of a pending or final determination that the subject of an EAW is a victim of trafficking.
The identification gap
Once a public authority is aware of a potential victim, then further action must be taken to establish whether or not they are a victim. The Home Office guidance to frontline staff acknowledges that often, victims will not identify themselves. There is, however, no mechanism at present for the CPS or the extradition courts to directly refer potential victims identified during an extradition case to the NRM. In any event, neither the CPS nor the first instance court has demonstrated any inclination to engage with this difficult topic. The consequence is a gap in the identification process in extradition cases that can only be filled by astute practitioners and self-referrals. This undermines what is meant to be a comprehensive framework for the protection of victims.
Although “victim status” may not be a trump card against extradition, there is a clear public interest in the identification and assistance of victims. Once the facts have been established, they are extremely likely to be relevant in deciding extradition issues such as proportionality, oppression and the passage of time. It could also be argued that any such finding, whether preliminary or conclusive, should in any event be transmitted to the requesting jurisdiction.
A further review
On a positive note, following combined written evidence from 4 practitioners, the House of Lords Committee did call for a Government commission to review the interaction of obligations in extradition law as a result of the various anti-trafficking conventions: (Recommendation 8).
Doughty Street benefits from a range of specialists in this area of law across various disciplines within criminal and civil proceedings. Readers can watch a related recent presentation here.