Home Secretary Concedes Important Claim Relating To The Prosecution Of Survivors Of Trafficking
In a significant development for survivors of trafficking, the Home Office has conceded a claim for judicial review relating to serious failures to identify and protect a survivor of trafficking and to instead prosecute him after he was forced at gunpoint to pilot a dinghy across the English Channel.
Upon arrival in the UK, our client informed the Home Office that he had been forced at gunpoint by smugglers to drive the dinghy. However, no referral was made to the National Referral Mechanism (“NRM”), the system for identifying and supporting survivors of modern slavery and trafficking. Instead, our client was prosecuted under sections 24(D1) and 25 of the Immigration Act 1971 and held on remand before being sentenced to eight months in prison.
Following his release from prison, our client brought judicial review proceedings challenging the Home Office’s failure to take any reasonable steps to investigate his account of trafficking and the practice of pursuing criminal charges and prosecutions against people arriving on small boats without conducting effective investigations into credible suspicions of human trafficking for criminal exploitation. The claim was due to proceed to a two-day hearing in the Royal Courts of Justice but has recently been settled by consent with the Home Office accepting that:
1) the Irregular Migration Intake Unit (“IMIU”) should have inquired further into our client’s account that he was forced at gunpoint to pilot the small boat across the channel and the IMIU should have referred our client (subject to his consent) into the NRM as a potential victim of trafficking in accordance with paragraph 4.7 of the Modern Slavery Act Statutory Guidance;
2) the IMIU failed to provide the relevant information to the officers in the Criminal and Financial Investigation Teams who decided whether or not to refer our client for criminal investigation and prosecution in respect of potential offences under sections 24(D1) and 25 of the Immigration Act 1971; and
3) our client should not have been referred for criminal charge and prosecution without any consideration of his account and any referral into the NRM.
As examined in our recent blog post, the Home Office, CPS and police have protective and investigative duties arising from the common law, Article 4 of the European Convention on Human Rights, the Modern Slavery Act and Statutory Guidance. The failure to comply with these obligations can have serious and life-altering consequences for the survivors of modern slavery, as demonstrated in our client’s case.
Although victims of trafficking are not immune from criminal prosecution, victim status may bear directly on whether there is sufficient evidence to bring a prosecution and whether there is a realistic prospect of securing a conviction. In any event, it may also bear on whether it is in the public interest to prosecute the victim notwithstanding the alleged criminal offending, particularly given the strong public interest in combatting trafficking and protecting its victims.
The Home Office has repeatedly made public statements about stopping smuggling gangs, and are clearly aware of the methods such gangs deploy against those seeking protection in the UK, many of whom will be potential victims of trafficking. However, research conducted by Victoria Taylor, an academic at the Oxford Centre for Borders and Criminology, in collaboration with Captain Support UK, Humans for Rights Network and Refugee Legal Support has found that a significant number of criminal defendants who have been prosecuted for offences of illegal arrival and facilitating illegal arrival by piloting a small boat stated in criminal court proceedings that they had been deceived, coerced and threatened, sometimes at gunpoint, by unscrupulous gangs to procure their piloting of the boat. This has resulted in the consequential commission of a criminal offence under ss24 and/or 25 of the Immigration Act 1971, all for the gang’s financial gain. Yet in none of these cases have steps been taken to consider whether these individuals may also be potential victims of human trafficking and investigate the circumstances of piloting the boat as a crime of trafficking committed by the smuggling gang.
As part of the settlement in this case, the Home Secretary has agreed to conduct a review of the referral form provided when deciding whether to refer someone for criminal investigation and prosecution, for appropriate amendments. It is hoped that this will ensure greater protection for survivors of trafficking in the future.
Emily Soothill, partner at Deighton Pierce Glynn, has said: “Unfortunately it is clear that potential victims of trafficking are regularly being convicted for ‘illegal arrival’ and imprisoned for many months, without ever being referred into the NRM, or having the circumstances of their potential trafficking and the link between this and their alleged offence considered. The concessions made in our client’s case are therefore significant and they underline the need for a robust and consistent application of the UK’s modern slavery framework to prevent survivors of trafficking from being wrongly treated as criminals”.
Emily Soothill, Catherine Dowle and Öykü Aktaş of Deighton Pierce Glynn are instructed by the Claimant. Counsel instructed in the claim are Stephanie Harrison KC of Garden Court Chambers and Shu Shin Luh of Doughty Street Chambers.