Trafficked into detention

Trafficked people in detention are being denied the full protection of the Home Office’s flagship system for protecting victims of modern slavery, according to new research by Detention Action. Once in detention, they are treated as irregular migrants to be removed, and find it difficult to access support for victims of modern slavery. In this piece originally published for Unlocking Detention, Advocacy Coordinator Susannah Wilcox explains how these revelations came to light through Detention Action’s casework and what our research found. 

Detention Action is far from a specialist trafficking organisation. What we have always been specialists in, however, is listening to the concerns of the people we support in detention. Our work is driven by the stories people tell us about the barriers and frustrations they face while detained indefinitely.

One of the stories that has emerged over the last few years is about the difficulty that people in detention face in gaining advice, support and recognition of their experiences of trafficking. People have told us about the physical, psychological and sexual abuse inflicted on them by people who promised them a better life in the UK, about having to work long hours in dangerous, exploitative conditions, and about their fear of retribution if they failed to pay off the debts they owed to their traffickers. After being encountered by police or immigration officers in cannabis farms, nail bars and brothels, many of them have been prosecuted for crimes relating to their exploitation rather than offered advice and support. Some of these people have been referred into the National Referral Mechanism (NRM), the government’s trafficking decision-making process; many have not. Few have received specialist advice and support in their own language about the options available to them. Even fewer have received a positive ‘reasonable grounds’ decision, the first stage in the NRM decision-making process, which the Home Office itself describes as a ‘low threshold’ and which should trigger release from detention.

Alarmed by the regularity with which people with obvious indicators of trafficking were receiving negative reasonable grounds decisions with no apparent specialist advice or support, we did some investigating of our own. For 6 months, we kept track of all of the Vietnamese men we met in Harmondsworth, Colnbrook and the Verne IRCs with clear indicators of trafficking. We hoped that by focusing on Vietnamese men detained from cannabis farms and nail bars – a group widely recognised as affected by trafficking and exploitation – we would get an indication of the ‘best case’ scenario. We assumed that those with recent and highly visible indicators of trafficking would be more likely than others to access recognition and support. However, what we found surprised and concerned us.

Of the 19 Vietnamese men we met over that 6 month period, 16 disclosed indicators of trafficking. Of that core group of 16, only nine had been referred into the NRM and only two of those had received a positive reasonable grounds decision, a success rate of just 22% that falls well below the overall success rate of 74-90% at the reasonable grounds stage. Many of the men were also marginalised or vulnerable for other reasons. 15 spoke little or no English, and 11 disclosed serious health problems, including cancer, seizures, type 1 diabetes, tuberculosis, PTSD, anxiety, depression and suicidal ideation. During the six months, none of the men were removed to Vietnam, despite seven being detained for six months or more and two for more than a year. Ten were released on bail or temporary admission, begging the question of the purpose of detaining these men, particularly given that many were unwell and had been recognised as ‘adults at risk’ by the Home Office.

Chi [not his real name] was trafficked from Vietnam as a teenager, where he had been living on the streets after the death of his parents. He was beaten by his traffickers in France before being smuggled across to the UK in a lorry. On arrival, he was locked in a house with another boy where they were forced to grow cannabis. Chi was arrested from this house and given a 16 month sentence for cannabis cultivation, aged 16. Around this time, he was referred into the NRM and received a negative reasonable grounds decision. After spending 8 months in prison, he was detained for almost a year. During this time, he made contact with a solicitor with expertise in trafficking who arranged for a new NRM referral to be made and lodged a judicial review of his second negative reasonable grounds decision. Despite this, he continued to be detained. Chi was told that he had been refused bail because ‘they say if I go out, I will make cannabis again. Every judge say this’. A few weeks later, Chi was released into supported accomm1odation by the Home Office, after 11 months in detention.

Chi is indicative of the 16 men we met during those 6 months, but he was also one of the lucky ones. Assisted by a solicitor with expertise in trafficking, he was able to challenge the Home Office and Tribunal narrative that insisted on seeing him as an undocumented migrant at risk of absconding and reoffending who should remain in detention. Prompted by Chi and the others, we began wondering what it was that was skewing the operation of the NRM for potential victims of trafficking in detention.

After much head-scratching, we identified several structural factors contributing to this failure to identify, advise, support and eventually release victims of trafficking in detention. First, the Home Office is facing a problematic conflict of interest between its responsibility to identify and protect victims of trafficking and its role in detaining and removing undocumented migrants. By prioritising the latter, the Home Office tends to view people who have been trafficked and lack formal immigration status through the lens of ‘immigration control’ – as problematic potential reoffenders and absconders rather than as victims in need of support. They are detained and, once in detention, have less access to independent organisations who can provide advice and support and make NRM referrals where appropriate. Instead, it is primarily the Home Office that makes NRM referrals for people in detention, and these are often incomplete or otherwise inadequate. It is also the Home Office making the reasonable grounds decision, and the Home Office deciding to maintain detention. Without any independent checks and balances in place, the Home Office is able to dictate the outcome of the process.

Second, this failure to adequately identify victims of trafficking in detention turns out to be exacerbated by the lack of effective procedural safeguards. People with a positive reasonable grounds decision are usually (though not always) released from detention. However, given the high rate of negative reasonable grounds decisions for people in detention, neither the NRM nor the Home Office’s new Guidance on Adults at Risk in Immigration Detention is providing a clear and effective safeguard to ensure that potential victims of trafficking are identified and released into supported accommodation where they can access the support and advice they need.

Third, indefinite detention causes harm and prevents effective access to the NRM by denying victims of trafficking a safe space where they can talk openly and access independent advice. People in detention are denied access to an environment that is conducive to recovering from the trauma associated with trafficking or to building relationships with trusted advisors that allow them to fully disclose their experiences. Specialist trafficking organisations tend to work with people outside detention, and staff and organisations working with people inside detention often lack the expertise required to identify and support victims of trafficking.

Taken together, these factors mean that the NRM is failing to adequately identify and protect victims of trafficking in detention. The Home Office’s conflict of interest leads to poor-quality NRM referrals and decision-making, and there are few effective safeguards against this for victims of trafficking who cannot access adequate advice or space to disclose their experiences.

Concerned by what we found, we’ve been talking to the Home Office, MPs, solicitors and specialist trafficking organisations to brainstorm ideas about how the system could be reformed to better support people who have been trafficked into detention and are unable to find their way out. Read our briefing to find out more and see the recommendations we’re making.