Forum Home → Discussion → Residence issues → Thread
Trafficking and Right to Reside
Hi folks…buckle up as this could be a bumpy ride. I have a client who was “brought” into the county around about 2009 from Czech Republic as a child along with siblings. Allegedly father had murdered mother and children brought to “uncle” here in UK. Following social services referral the children were brought into local authority care due to abuse. 2 girls were found to have learning disabilities. Older girl 14 was pregnant. My client was very quiet and herself fell pregnant a while later. Initially allowed to keep her baby and successfully claimed Income support and Child tax credit. Baby removed as she was unable to protect and care for him. For a time around this my client fell off the radar. Later found to be living with a couple who were exploiting her for sex trade and had taken her passport and all documents from her.
A police operation uncovered her and I helped her with a Universal Credit claim. Habitual residence failed stating no right to reside.
I argued at MR stage she had a right as a worker and stated she had worked under the direction of another (exploiters) and there had been economic activity between them in respect of bed and board. I claimed she was temporarily incapacitated from looking for work due to poor mental health following exploitation.
MR decision was still no right to reside and now awaiting an appeal tribunal.
Has anyone got any caselaw which could help at all ? Any thoughts appreciated also
this might help
[ Edited: 28 Nov 2018 at 05:38 pm by Vonny ]It’s a while since I dealt with it but I had a similar sort of case that we resolved using the mechanisms provided by the Convention on Human Trafficking, referred to in the Rightsnet story linked by Vonny. Somebody else can probably explain it better but it is (or certainly was) possible to obtain a 1 year permit giving temporary leave to remain for EEA nationals who are victims of trafficking that gave access to benefits where no alternative right to reside can be established. The permit is/was granted for the purpose of enabling the trafficked person to co-operate with police investigations and prosecution of those involved. The National Crime Agency referred our case through the National Referral Mechanism as I recall.
The following links provide further info although the Aire Centre training paper is now 7 years old so things may well have moved on.
http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism
http://www.airecentre.org/data/files/Comic_Relief_Materials/Edinburgh/EU_Law_paper__-_EDINBURGH.pdf
https://www.freemovement.org.uk/home-office-stance-on-residence-permits-for-trafficking-victims-is-unlawful/
If this route is still viable it will be too late for the current appeal but could help to get a new UC claim in payment whilst you wait for it?
Edit Although thinking about it ours was a HB case so may be different for UC
A couple of possibilities:
Jany & Others on unlawful sex work as effective and genuine economic activity. It’s a mixed bag in terms of supporting or undermining your case. A lot of the discussion is about whether the appellants were employed as opposed to self-employed, but you can probably draw some helpful conclusions about sex work being economic activity of one kind or another. But there are some question marks about coercion which might not be helpful - see para 52.
The other case is [2016] UKUT 0445 (AAC) about a trafficked person doing forced labour. If Jany gets you over sex work as economic activity hurdle, this case is more helpful on the coercion issue
PS cross-posted with the other two - the trafficked worker case is the same one Vonny mentions.
We had an enquiry about an older person who claimed to have been trafficked and worked here for over 20 years - maybe different circumstances to your client but this is what we were told. Posting as it might offer some useful sources of support and in case this thread gets referenced for similar in the future. Removed any identifying details.
Due to the circumstances of this particular client, I am not sure that we should be offering advice around their right to reside and benefit entitlements as things stand. I’ve contacted the Human Trafficking Foundation who gave me the following advice (they’re a second-tier organisation so they cannot advise individuals).
They recommend that the client and support worker contact an organisation called ATLEU who specialise in working with individuals affected by trafficking. They are a newly established charity providing legal representation to victims of trafficking and labour exploitation. They assist victims to obtain safety, recovery and redress. I’ve spoken to them and they asked that details are sent through their email .(JavaScript must be enabled to view this email address) They are a small charity with limited capacity but they are set up to provide legal support and assistance to people in this person’s situation and I am sure they will do what they can to help.
The other contact suggested by the Human Trafficking Foundation was the Modern Slavery Helpline 08000 121 700 who could explain about the National Referral Mechanism for people in this person’s situation. However, they strongly advised contacting ATLEU in the first instance to see what their overall assessment of this person’s situation might be. The NRM is a government scheme and knowing the client’s rights and circumstances in full before contacting these could very well be in their best interests.
In light of the above, I would be cautious about making benefit claims until issues such as the client’s immigration status are clarified, given their claim to have been working here for more than 20 years. Claiming benefits without an appropriate immigration status, or with a restriction on claiming public funds, can see people being removed from the country.
Hi WROtyne,
You might want to keep in your back pocket, the information here.
https://www.housing-rights.info/brexit-news.php
In 3-4 monthes you might just need to prove your clients 5 year residence.
Not a great help now, I know.