Transcript The Rights of EEA National Victims of Human Trafficking

Access to Special Non-contributory
Benefits: Challenges faced by EEA
victims of human trafficking and
pregnant EEA women
London
19 January 2012
STRUCTURE OF THIS SESSION
1. Challenges faced by EEA-national victims of
human trafficking
2. Challenges faced by pregnant EEA nationals
The Problem of EEA Trafficking –
First Year of the NRM
EU Member State
Number of Victims
1.4.09 – 31.03.10
Bulgaria
2
Czech Republic
23
Estonia
1
Hungary
3
Latvia
1
Lithuania
8
Poland
11
Romania
26
Slovakia
30
Total
105
Problems that EEA Trafficking Victims Have with the
Right-to-Reside Test (in AIRE’s Experience)
• Traumatisation, making it unlikely that they will
be able to seek or find work or self-employment.
• Not likely to have family members in the UK
through whom they can exercise residence rights.
• More likely to be ‘A2 nationals’ (especially
Romanian, facing greater restrictions.
• Fearful of return to their countries of origin,
limiting their options.
OPTIONS AVAILABLE TO VICTIMS OF TRAFFICKING
Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 16.V.2005)
Article 13 – Recovery and reflection period
1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are
reasonable grounds to believe that the person concerned is a victim… During this period, the Parties shall authorise the
persons concerned to stay in their territory.
2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained
in Article 12, paragraphs 1 and 2.
This provision does not enable the individual to enter the benefits system, however it does ‘buy’
some time in which an advisor can consider how to proceed in advising them.
Article 12 – Assistance to victims
1. 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:
a) standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure
accommodation, psychological and material assistance;
b) …
2. Each Party shall take due account of the victim’s safety and protection needs.
This applies to all special non-contributory benefits, but it is not clear how it applies to EEA
nationals after their recovery-and-reflection period, if they are not otherwise exercising Treaty
rights, unless…
OPTIONS AVAILABLE TO VICTIMS OF TRAFFICKING
Article 14 – Residence permit
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in
both:
a) the competent authority considers that their stay is necessary owing to their personal situation;
b) the competent authority considers that their stay is necessary for the purpose of their co-operation with the
competent authorities in investigation or criminal proceedings.
2. The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests
of the child and, where appropriate, renewed under the same conditions.
3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of
the Party.
4. If a victim submits an application for another kind of residence permit, the Party concerned shall take into account
that he or she holds, or has held, a residence permit in conformity with paragraph 1.
5. Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure
that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.
In the UK, the authorities give Discretionary Leave to Remain to some trafficking victims. This
applies to all victims of trafficking, including EEA nationals. It can be particularly useful for
Bulgarians and Romanians, who will be able to work with Discretionary Leave to Remain and may
be able to complete one year’s work and so have the same rights (to work and access benefits as a
jobseeker) as other EEA nationals.
Questions?
J.S. v SSWP [2010] UKUT 131 (AAC)
FACTS
The Claimant was a French national who came to the UK on 10 July 2006. She undertook a series of jobs, and
enrolled on a Post-Graduate Certificate in Education (funded by a student loan), but withdrew from the course when
she fell pregnant. In March 2008 she ceased working altogether as the demands of her work as a nursery school
carer were too great given her condition. She was unable to find lighter work, and on 18 March 2008, claimed
income support. Her claim was refused on the basis that, at the material time, she did not have a right to reside
under Art.7 (2004/38/EC),
HELD:
- That ‘worker’ could not include someone who was not working and had no contract of employment due to
pregnancy;
- That ‘pregnancy’ was deliberately not included in Art.7(3) of EC Directive 2004/38 and should not be read into
it (influenced by the fact that pregnancy was considered in a different context in Art.16 and hence not entirely
outside of the drafters’ considerations);
- That as people other than pregnant women were excluded from Art.7(3), this was not a case of direct
discrimination; and
- That indirect discrimination resulting from the right to residence test is justified under domestic and Community
law (Patmalniece).
J.S. v SSWP [2010] UKUT 131 (AAC)
CHILD POVERTY ACTION GROUP comments on the judgment
The Court of Appeal were wrong on the following grounds:
1. J.S. is factually and legally different to the case of SSWP v Dias [2009] EWCA Civ 807 on which
the Court relied heavily, where the situation preventing the claimant from working was child-care
responsibilities. Child-care responsibilities are very different to becoming pregnant in that only
women can become pregnant;
2. That subsequently, the discrimination faced by J.S. was direct rather than indirect discrimination;
and
3. The DWP’s hypothesis of ‘benefits tourism’ was too far fetched to be afforded any weight by the
Court, especially in light of the fact that heavily pregnant women are unlikely to travel far, and
unlikely to be offered employment in their condition.
http://www.cpag.org.uk/
Human Rights and Special Non-Contributory Benefits
Special non-contributory benefits are a form of ‘property’
protected by Article 1 of Protocol 1 to the ECHR. An
argument was made (not involving an EEA national) that
refusing a pregnant woman income support might violate
Article 14 ECHR taken with Article 1 of Protocol 1, but
the UK’s Upper Tribunal dismissed this. CM v SSWP
[2009] UKUT 43 (AAC).
Perhaps though the argument could be made in relation to
EEA nationals, invoking not only the ECHR but also the
EU Charter of Fundamental Rights.
Questions?