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Caselaw on Human Trafficking and RTR
Hello all,
Client came from Latvia to the UK in 2004 under the understanding that he would be working as an escort going with people to restaurants/social occasions etc. Unfortunately the reality was that he was forced into prostitution. Client eventually managed to get out of this situation but has struggled since. He has had periods of street homelessness, difficulties with alcohol misuse, has been under mental health services due to psychosis.
Client’s situation is currently a little more settled. He has fairly stable accommodation staying with a friend and has been living on his DLA (although he has recently failed his PIP migration which is a separate issue I’m assisting with). However if he is to move towards more independence he’ll need to be be able to claim ESA and HB for a place of his own.
I’ve looked at CJSA/215/2016 concerning Trafficking and JA v SSWP (ESA) [2012] UKUT 122 concerning illegal/cash in hand work counting as work for RTR purposes. Both of these seem supportive of a general principle that client could have gained worker status whilst doing the sex work, which he could then potentially retain.
However a big stumbling block seems to me that client is A8 national and unsurprisingly the sex work was not registered. Is this fatal to his argument?
CJSA/215/2016 mentions applying for discretionary leave to remain under the immigration rules. Does anyone have any experience of this? Whilst client remains a victim of trafficking in terms of the effect it has had on his life, a long time has elapsed since he has been subject to any coercion.
Any feedback/advice would be much appreciated.
think your client needs immigration advice. freedom of movement EU provisions are a wholly different ball game from RTR as a victim of trafficking ( i know that from reading immigration cases where the home office regularly get it all wrong and stuff ends up at appeal).
We have had clients in this situation who were given a year’s discretionary leave to remain. It was normally the police dealing with the trafficking who obtained this, and this would be my first port of call, but there are possibly other ways of obtaining this. Ruth
Hi both, thanks for your responses, I will suggest to client that he sees an immigration adviser to see if he has a good case to apply for discretionary leave under the immigration rules.
For the moment (in the absence of any advice to the contrary) my analysis of the EU RTR situation is that the case law re. illegal work/trafficking does not override the requirements that were on A8 nationals to have their work registered and so he can’t rely on retained worker status. My previous advice to him has been to try and find some kind of work under the understanding that if he find he cannot cope and has to stop again he has a better chance of arguing that the work was genuine and effective and that he retains his worker status.
These links may also be of help Sam, although I can’t guarantee that they are still completely up to date:
[Edit - sorry, wrong link put here, now removed, will try to find the one I meant to paste]
From an Aire Centre training session (
http://www.airecentre.org/data/files/Comic_Relief_Materials/Edinburgh/EU_Law_paper__-_EDINBURGH.pdf
) :
11. Get a residence permit as a victim of human trafficking. Article
14 of the Trafficking Convention provides that victims of trafficking
should get residence permits either when ‘the competent authority
considers that their stay is necessary owing to their personal
situation’
or ‘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’. EEA nationals are eligible for
these permits, which in the UK take the form of discretionary leave to
remain from the UK Border Agency of one year, renewable…EEA
nationals who have discretionary leave to remain are entitled to
access benefits.
[although from what I have read it is actually a 45 day discretionary period that is given first followed by a 12 months period under certain circumstances]
[ Edited: 25 Jan 2017 at 08:09 pm by BC Welfare Rights ]Perhaps an unpleasant area to be looking at but is it possible to argue that the work he did was “self employment” and therefore exempt from the registration requirements?
We received an enquiry today from local Age UK about someone who had been in UK for 21 years as trafficked worker and their possible benefit entitlement/right to reside (Polish origin).
After speaking to the Human Trafficking Foundation (who are second tier and can’t help), they advised of a new small charity called ATLEU as being a good starting point, before contacting the Modern Slavery Helpline, to ensure affected individuals get as much legal advice and guidance before undertaking anything more formal.
They also strongly advised against making any speculative benefit claims until basic immigration issues are dealt with first.
Thought this might be useful to share if anyone has similar cases in the future.