eli – victims of human trafficking - Centre for Youth & Criminal Justice

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Transcript eli – victims of human trafficking - Centre for Youth & Criminal Justice

Child Victims of
Human Trafficking
The Legal Framework
KIRSTY THOMSON
HEAD OF WOMEN AND YOUNG PERSONS’ DEPARTMENT
LEGAL SERVICES AGENCY
Legal Services Agency
BACKGROUND
Legal Services Agency

Legal Services Agency (LSA) is Scotland's largest law centre tackling
the unmet legal needs of those in disadvantage. It does so through
the provision of legal advice, representation in courts/tribunals,
research, publications, seminars and education.

It is 25 years old this year.

LSA undertakes work in the following areas:
Protecting the rights of refugee and migrant women and children
through its Women and Young Persons’ Department

Preventing homelessness, defended eviction and mortgage
repossession through its Court Department

Mental health, dementia and social welfare law through its Mental
Health and Legal Representation Projects
Women and Young Persons’
Department


The Women and Young Persons’ Department provides legal advice
and representation to:
Refugee and migrant women who have suffered gender based
violence through its Women’s Project; and

Refugee and migrant children and young people (up to age 25)
through its Young Person’s Project.
The Department has a wider policy remit to improve outcomes for its
client group in Scotland and offers:
free second-tier advice to lawyers, organisations and individuals who
are assisting or supporting its client group; and

contributes to training, research and policy in issues that directly affect
its client group at a local and national level.
Women and Young Persons’
Department (2)
•
Women’s Project - 3 female lawyers and has been in existence since 2005.
•
Young Persons’ Project – 2 lawyers and has been in existence since the start of
2012.
•
Both Projects are funded to utilise a human rights based approach in the
provision of its services.
•
Both Projects are based in Glasgow but have a national remit where possible.
•
The Department retains a unique perspective within Scotland in relation to
human trafficking.
•
National remit
•
Works with both adult and child victims of human trafficking
•
Works with different types of exploitation
•
Provides direct legal service provision as well as contributing to
policy/research.
Human Trafficking and the
Department

The Women’s Project (1 April 2013 – 31 March 2014)


52 (34%) of the women and girl children assisted by the Project disclosed that they had been
trafficked to the UK.

40 (26%) of the women and girl children have disclosed trafficking for the purposes of
commercial sexual exploitation and

12 (8%) have been for other purposes.
The Young Persons’ Project (1 January 2013 – December 2013)

26 (31%) of the children and young people assisted by the Project disclosed that they have
been trafficked to the UK.

15 (18%) of the children and young people have disclosed trafficking for the purposes of
domestic servitude,

13 (16%) have disclosed trafficking for forced labour,

7 (8%) have disclosed trafficking for sexual exploitation and

2 (2%) have disclosed trafficking for forced marriage.
Human Trafficking and the
Department (2)
Legal advice and assistance provided to these clients covers the
following areas:•
immigration
•
international protection/asylum
•
identification as a victim of human trafficking through the
identification system which operates in the UK (the NRM)
•
age assessment
•
access to financial/welfare support
•
access to housing
•
non criminalisation (in conjunction with criminal lawyers)
•
criminal injuries compensation
Human Trafficking

Local authority had been contacted in this case at the point of arrest.

They were asked to do an age assessment and assessed Loan at her
stated age.

They raised serious indicators of human trafficking and referred her case
to the formal identification mechanism in the UK who suspected she
may have been trafficked but had yet to make a conclusive decision.

Indeed, all professionals who encountered Loan at this time felt that she
may have been a victim of human trafficking.

At the point of sentence, the local authority asked the court to suspend
sentence until it had been identified whether or not she had been
trafficked. This was refused.

Loan pled guilty on the basis she would get a reduced sentence.
The Legal
Standards
STATE RESPONSIBILITIES
The International Standards

There are a number of international standards from the
United Nations (UN) and the International Labour
Organisation (ILO).

The UN Convention of the Rights of the Child

The most important standard is the UN Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially
Women and Children (the Trafficking Protocol)

It provides a definition of trafficking in persons which has
since been widely adopted in the international
community.
Human Rights Based Approach

The Trafficking Protocol /Trafficking Directive are largely framed
against a criminal justice background.

This is in contrast to the Council of Europe standards which are
entirely located within a human rights framework and consequently
is often where the greatest protection for victims is found.

Not unsurprising therefore that law enforcement often takes priority
in a state’s response to human trafficking BUT

Even the criminal justice standards recognise that the best means to
achieve criminal prosecutions is to provide for the protection of
victims in a way that respects their human rights

Therefore, the failure of a state to prioritise the human rights of a
victim is a failure to act in compliance with international law.
Due Diligence (1)

Human trafficking is a crime largely perpetrated by
individuals and not states.

However international law and the jurisprudence from
the European Court of Human Rights makes it clear that
public authorities within member states must act with
due diligence.

Therefore, whilst states cannot be held responsible for
the acts of private individuals, they can be held to
account for their own failures to prevent, protect and
prosecute acts of human trafficking
Due Diligence (2)


The European Court of Human Rights has made it clear that in order
to meet the standard of due diligence in the area of human
trafficking, states have positive legal responsibilities to ensure the
following:
that a legislative and administrative framework is in place designed to
punish traffickers;

that individuals are identified and protected from trafficking (which at a
minimum would include the rights contained within the Trafficking
Convention); and

that human trafficking is investigated and if possible prosecuted
Provide victims with a powerful tool to ensure that states do indeed
prioritise their human rights within any anti-trafficking response.
Concept of a Victim – Definition (1)

The Act (What is done)


Recruitment, transportation, transfer, harbouring or receipt of persons.
The Purpose (Why it is done) For the purpose of exploitation, which includes
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exploiting the prostitution of others,
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sexual exploitation,
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forced labour,
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slavery or similar practices

removal of organs.

forced begging,

the exploitation of an individual in criminal activities

illegal adoption

forced marriage.
Concept of a Victim – Definition (2)

In order to ensure that an individual obtains the relevant protections
they are entitled to under international law, they require to be
recognised by the state as a victim.

Problems with the definition of who is a victim of human trafficking

Problems with Definition – lack of understanding of its development
in international law and its components.

Problem therefore with internal acts of trafficking and/or not
involving organised crime. Over-concentration on movement.

Problem with recognising exploitation – commercial sexual
exploitation over criminal activities. The “losing” of victim status with
the latter.
Concept of a Victim - Formal
Identification

The key to a state meeting its international obligations, and
therefore the cornerstone of victim protection, is the early
identification of victims of human trafficking

Within most European states, victims are formally recognised as such
through formal identification systems called National Referral
Mechanisms (NRMs).

The basic aim of an NRM, as defined by the OSCE, is to ensure that
the human rights of trafficked persons are respected and to provide
an effective way to refer victims of trafficking to essential services
required for their recovery and protection.
The Problem with NRMs in
International Law
Many countries have adopted identification mechanisms which are
referred to as NRMs but which vary in how closely aligned they actually
are to the OSCE principles.
 Many are law enforcement led which can limit the access that victims
have to the rights and protections they are entitled to under
international law.
 Individual is not recognised as a victim unless that status has been
formally conferred on him or her through a formal framework such as
an NRM.
 This is despite International and European legal standards being clear
that where an individual meets the definition of a victim of human
trafficking, they are to be recognised as a victim with all the rights and
responsibilities that this entails. Such rights do not stem from a formal
status conferred on a victim but from the victim’s experiences
themselves and international law.

VICTIM RIGHTS
INTRODUCTION

In order to ensure that states do meet their international obligations,
victims of human trafficking have a right to access the following
regardless of whether they have been formerly identified as a victim.

Access to information on available remedies in a language victims
understand.

Access to support and assistance to facilitate rehabilitation.
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Access to legal assistance and free legal aid for the duration of any criminal,
civil or other action against the traffickers.
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Guarantees of non-repetition (states must take all measures necessary to
protect a victim including effective prosecutions and sanctions and
international protection/residence permits for foreign victims).

Access to restitution including restoration of liberty.

Access to compensation.
A Particular Focus on Children (1)


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International law recognises that children have particular needs
and require additional protections and rights which it provides,
This makes the identification of child victims of trafficking crucial.
Age Assessment

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In case of uncertainty about the age of the trafficked person, he or she
should be presumed to be a child in order to receive immediate
assistance, support and protection
Guardian/Representative

There is a requirement that a child be provided with a guardian or
representative, from the moment a child is identified by the authorities,
in a situation where the parents cannot represent the child because of
a conflict of interest between them, or because they are absent.
A Particular Focus on Children (2)

Individual Assessments


Trafficking Directive requires individual assessments of the
circumstances of each child victim to be carried out taking into
account the child’s needs and concerns with a view to finding a
durable solution.
Specific assistance, support and protection to child victims of
human trafficking who are defined as being under the age of 18.

Equivalent to a “looked after” child in Scotland regardless of his
or her age.
GUIDING PRINCIPLES FOR THE ASSISTANCE AND
SUPPORT TO CHILD VICTIMS

Trafficked children should never be placed in a juvenile justice detention facility, including a
police

cell, prison or special detention centre for children.

Care and support for trafficked children should be made available as a right and should never be

conditional on the child’s cooperation with criminal justice authorities.
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Every child under the jurisdiction of a State is entitled to care and protection on an equal basis.
This means that non-national child victims should enjoy the same rights as national or resident
children.

Children should be given information about their situation, their entitlements, services available

and the possibilities for family tracing and contact, as well as reunification and/or the repatriation

process.
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The privacy of children should be protected.
From: OHCHR, Commentary on the Recommended Principles, p. 166-169.
Scotland
PROTECTION OF VICTIMS OF HUMAN TRAFFICKING
Problem Areas

Devolution

Policy response as opposed to a legislative response

Implementation of the NRM – Red Herring

Confusion and lack of awareness and understanding regarding
legal responsibilities and therefore victim rights

Peculiarities of the Scottish System – Age as an example
Devolution

In terms of interventions in the area of human trafficking,
immigration is a reserved matter.

Human trafficking and the formal identification of human trafficking
through a National Referral Mechanism are viewed by the UK
government to fall within the area of immigration and are therefore
reserved matters.

However, this is at odds with the fact that criminal law and victim
care are devolved matters in Scotland as are health and the
safeguarding and protection of children.

Therefore, the majority of public authorities tasked with victim
protection operate within the devolved competency of the Scottish
Parliament yet human trafficking remains a reserved matter.
National Policy instead of National
Legal Standards

UN Trafficking Protocol/COE Trafficking Convention

need to be specifically incorporated into national legislation to have
direct legal effect.

although some parts of these instruments have been incorporated, the
provisions which relate to the definition of human trafficking and the
victim protection measures have not been incorporated

These provisions by far provide the greatest protection for victims but
the UK, and therefore Scotland, has largely sought to comply with them
through the development of policy rather than legislation.
NRM - Policy

NRM created to comply with COE Trafficking Convention.

It is a creature of policy

Law/immigration enforcement led

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is not contained within any legislation in the UK including Scotland.
Indeed, its operation is largely detailed within Immigration Guidance.

The NRM system within the UK has attracted significant criticism from
both internal and external monitoring bodies.

It has been criticised for failing to adhere to the OSCE principles of
an NRM as it is not a referral body.

Its function is to receive requests and identify victims only.
However…………….

The Human Rights Act ensures that all legislation must be read in a
way which is compatible with the ECHR. Therefore, all public
authorities must act compatibly with these rights.

This is a powerful legal avenue for victims in terms of protection and
one that has been used with success in terms of the UK
government’s failure to protect victims and prosecute traffickers.

The EU Directives do have direct legal effect within the UK, including
Scotland, with EU law having supremacy over national law. These
are again powerful tools.

Other international legal standards give support to such arguments.
The NRM – A Red Herring?





In respect of children, identification and protection is the responsibility
of local authorities.
Social Work services within these authorities, through their local
procedures, will ensure the provision of, or access to, accommodation,
health, financial support, education and specialist counselling.
Where a child is deemed to be a potential victim of human trafficking,
child protection procedures should be instigated.
National legislation containing duties to promote and safeguard the
welfare of children. A child victim of trafficking is a child in need of
protection like any other child.
These legal responsibilities, international and national, apply regardless
of whether a child has been referred into the NRM or not. The NRM can
be a red herring in terms of ensuring public authorities act in
compliance with international law.
Need for Legal Standards

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
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
To date, no specific and comprehensive piece of legislation has been
introduced, by either the UK or Scottish Parliaments, in relation to
human trafficking.
There is therefore no national legal instrument which defines human
trafficking and sets out the rights and responsibilities in relation to victim
protection as contained within the International and European
standards.
Instead, the national legal standards which relate to human trafficking
within Scotland are found in a plethora of piecemeal national
legislation and policy focussing on law enforcement, immigration and
broader standards relating to the welfare of children.
Rights regarding victim care and support have largely been transposed
through policy initiatives and funding arrangements rather than through
legislation.
Human Trafficking Bill – focus on enhanced victim protection
Who is a child in Scotland

Age Assessment – no scientific way in which to determine the chronological
age of a child.

A child is often viewed as being 16 and under within Scots law and
practice.

Child protection procedures should be instigated but such procedures
however are often only relevant to children under the age of 16.

For children aged 16-18 other safeguarding procedures require to be
undertaken and these vary dependant on the local authority area.

Aside from the actual procedure, there can be ambiguity regarding the
level and type of support provided to those aged between 16 and 18

However, international law is clear that a child victim of trafficking is aged
18 and under. which could lead to differential and unlawful treatment in
terms of victim protection of those aged between 16 and 18.
Improvement needed

The introduction of key standards into Scotland has undoubtedly led
to greater awareness of human trafficking as a key issue that
requires tackled.

Gaps remain however in the understanding of the definition of
human trafficking particularly in the areas of internal human
trafficking, means of control by traffickers and the varied types of
exploitation involved.

It is also not just about foreign children.
It is not just about immigration

Immigration led approach masks the fact that for the most part,
many public authorities who have legal responsibilities within victim
protection fall within the devolved competence of the Scottish
Government (for instance police, the legal system and local
authority provision).

As a result of the International and European legal standards set out
earlier in this chapter, these public authorities within Scotland have
a duty to identify and protect potential victims of human trafficking
regardless of their identification and/or participation with the NRM.

Failure to do is a breach of international law.
Kirsty Thomson - 0141 354 1270
[email protected]

Telephone Advice Line, Tuesdays 2-4 – 0800 316 8450/0141 353 3354

Free Drop in, Wednesdays 10-12.30, Fleming House, 134 Renfrew
Street, Glasgow