Use of international law: A case study in trafficking Shu Shin Luh www.gardencourtchambers.co.uk @gardencourtlaw

Structure Sources of law Rights of victims Application in domestic context as: Foundation of executive policy Interpretative aid to construing content of human rights Free-standing obligations with direct effect Relevance to judicial policy / common law www.gardencourtchambers.co.uk @gardencourtlaw

What is trafficking? Per the Lord Chief Justice in R v L and Ors [2013] EWCA Crim 991 [2014] Crim LR 150: 2.This vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully, and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated and, in the vast majority of cases they are: but not always. www.gardencourtchambers.co.uk @gardencourtlaw

Sources of Law International instruments European instruments Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, UN Convention against Transnational Organised Crime (“the Palermol Protocol”) ILO Forced Labour Convention, 1930 (No 29) & Protocol of 2014 ILO Convention No 182 on Worst Forms of Child Labour European instruments European Convention on Human Rights, Article 4 Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) EU Anti-Trafficking Directive (2011/36/EC) Charter on Fundamental Rights, Article 5 www.gardencourtchambers.co.uk @gardencourtlaw

Sources of Law Domestic law Modern Slavery Act 2015 Executive Policy – National Referral Mechanism (“NRM”) Victims of Modern Slavery: Guidance for Frontline Staff Victims of Modern Slavery: Competent Authority Guidance 3 staged process: ([23] of R (TDT) v SSHD [2018] EWCA Civ 1395) (1) Referral: where there are indicators of trafficking, referral made to HO or UK Human Trafficking Centre ("UKHTC"), a unit within the National Crime Agency. (2) Initial ‘Reasonable Grounds’ decision: within 5 days of referral. If positive, 45-day recovery & reflection period, with associated support (3) Final ‘Conclusive Grounds’ decision: determination following inquiries of whether individual is a victim of trafficking. Consequential decisions are made on residence permits / continued support www.gardencourtchambers.co.uk @gardencourtlaw

What is trafficking? Defined in Art 4(a), ECAT & Art 2, Directive (applied to Art 4 ECHR per Rantsev v Cyprus and Russia (2010) 51 EHRR 1 @282) For the purposes of this Convention: (a) "Trafficking in human beings" shall mean [(1) action] the recruitment, transportation, transfer, harbouring or receipt of persons, [(2) by means] of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, [(3) for the purpose of exploitation]. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used. www.gardencourtchambers.co.uk @gardencourtlaw

Rights & Obligations Right to be identified as a victim: Art 10 ECAT (implicit in Art 11, Directive) Right to support and assistance on there being reasonable grounds to believe individual is victim: Art 12(1)-(2) ECAT, Art 11-16, Directive Right to residence permit: Art 14, ECAT, recital 17, Directive Right to compensation from traffickers and access to domestic scheme: Art 15 ECAT, Art 17 Directive & recital 19. Non-punishment of victims (provide possibility of not imposing penalties on victims for involvement in unlawful activities to extent they have been compelled to do so): Article 26, ECAT, Article 8, Directive Investigation of crimes: Art 27 ECAT, Art 9, Directive. www.gardencourtchambers.co.uk @gardencourtlaw

Foundation of Executive Policy R (Atamewan) v Home Secretary [2013] EWHC 2727 (Admin) [2014] 1 WLR 1959: challenge to SSHD policy of not identifying ‘historic’ victims of trafficking, i.e. where trafficking circumstances happened years ago Question for the Court: whether Arts 4(a) & 10 ECAT obliged identification of ‘historic’ VoTs Concession of SSHD: “although CAT had not been transposed into domestic law by legislation and so did not have “direct effect”, in so far as the guidance purported to give effect to the terms of the CAT and failed to do so, that would be a justiciable error of law. … to the extent that the NRM decision was itself based on the terms of the guidance, if they were, in turn, based on an erroneous interpretation of the CAT, then the NRM decision could be challenged by judicial review because that decision would then have been based on a misdirection as to the legal basis for the relevant wording of the guidance.” www.gardencourtchambers.co.uk @gardencourtlaw

Foundation of Executive Policy (2) R (Galdikas) v SSHD [2016] EWHC 942 (Admin) [2016] 1 WLR 4031: challenge to SSHD support system for VoTs under NRM not providing for those recognised VoTs who remain in UK but have no residence permits Question for Court: Whether duty to assist under Art 12 ECAT extended beyond the NRM process to recognised victims of trafficking who do not have a residence permit SSHD contended ECAT as unincorporated treaty was not justiciable; resiled from Atamewan concession Court held: ECAT on its own not justiciable but SSHD guidance adopts aspects of ECAT. Where Govt adopts policy based wholly or partially on unincorporated treaty, if policy fails to achieve results required under that treaty, that aspect of policy is unlawful and decision applying policy in such way is unlawful. See PK (Ghana) v SSHD [2018] EWCA Civ 98 at [39]-[53] per Hickinbottom LJ and R (TDT) v SSHD [2018] EWCA Civ 1395 at [12] per Underhill LJ www.gardencourtchambers.co.uk @gardencourtlaw

Interpretative Aid to Human Rights Article 4, ECHR provides: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. Per ECtHR in Rantsev held it imposes certain positive obligations Systems Duty to implement measures to combat trafficking Operational / Protection Duty to take steps to protect individual VoTs Investigative / Procedural Duty to investigate situations of potential trafficking and prosecute perpetrators Role of ECAT in defining scope of Art 4 (@104 Chowdury v Greece (21884/15) [2017] ECR 300 "… [T]he member States' positive obligations under Article 4 of the Convention must be construed in the light of the Council of Europe's Anti-Trafficking Convention and be seen as requiring, in addition to prevention, victim protection and investigation, together with the characterisation as a criminal offence and effective prosecution of any act aimed at maintaining a person in such a situation … The Court is guided by that Convention and the manner in which it has been interpreted by [the Council of Europe's Group of Experts on Action against Trafficking in Human Beings]." www.gardencourtchambers.co.uk @gardencourtlaw

Interpretative Aid to Human Rights (2) SSHD v Hoang Anh Minh [2016] EWCA Civ 565: appeal against finding that a negative RG decision made in breach of policy also ipso facto breached Art 4 ECHR Court held: ECAT has wider scope than Art 4 ECHR Art 4 ECHR investigative duty does not arise in context of NRM identification decisions because that duty relates to criminal investigations. NRM support is humanitarian. Art 4 ECHR duty in any event is triggered on ‘credible suspicion’, not on making of allegation. It equates to the ‘reasonable grounds’ threshold for an initial decision in the NRM. It thus only arises where positive RG decision made. www.gardencourtchambers.co.uk @gardencourtlaw

Interpretative Aid to Human Rights (3) Problems arising from SSHD v Hoang Anh Minh Only procedural obligation under Art 4 ECHR considered, not protective obligation. ECAT deals separately with duty to identify (Art 10) and duty to investigate crimes of trafficking (Art 27) but seen as same in judgment Investigative duty predicated on a victim being identified; but if no obligation on state to identify, what impact on effectiveness of investigative duty? Tethering of trigger for Art 4 ECHR to specific structure of domestic regime Strasbourg developments post-Hoang: J and Ors v Austria (58216/12) [2017] ECHR 37 @108: positive obligation to identify relates to support for those who are (potential) VoTs. Separate and distinct from duty to investigate whether an offence of trafficking has been committed. Chowdury v Greece (21884/15) [2017] ECHR 300 @110: Duty to protect includes “facilitating identification by qualified persons and assisting victims in their physical, psychological and social recovery.” www.gardencourtchambers.co.uk @gardencourtlaw

Interpretative Aid to Human Rights (4) R (TDT) v SSHD [2018] EWCA Civ 1395: on scope and nature of protection duty toward VoT in respect of safe release from immigration detention Focus of case on protection obligation, not investigative obligation. Court held: Whilst ECAT does not have force of law domestically, it is source of certain obligations arising under Art 4 ECHR and NRM policy: [12] Art 4 ECHR obligations and obligations under NRM policy (reflecting ECAT) need to be analysed separately. No automatic read-across: [31] Designations of NRM stages / decision-makers is “purely domestic construct” – does not follow that threshold for Art 4 in particular case cannot arise before a positive RG decision: [35]. Where case crosses “credible suspicion” threshold (per Rantsev @286), protection duty triggers under Art 4 ECHR. This can be some time before an initial RG decision is made: [35]. TDT found way around effect of Hoang. Clarity on different strands of Art 4 duty. www.gardencourtchambers.co.uk @gardencourtlaw

Interpretative Aid to Human Rights (5) But see R (A and B) v Criminal Injuries Compensation Authority & the Lord Chancellor [2018] EWCA Civ 1534: challenge to bright line rule in CIC Scheme preventing VoTs with unspent convictions from receiving award in breach of Art 4 / 14 ECHR Court’s obiter comments (accepting Art 4 ECHR construed with Art 15 ECAT meant right to access compensation fell w/in ambit of Art 4 ECHR): I am troubled by the posited inexorable expansion (or extrapolation) of rights and duties … so that a straightforward ECHR prohibition on slavery and the like, commanding it must be hoped universal support, somehow encompasses the terms of access to a national compensation scheme. In short, on the Appellant’s case, the Art. 4 prohibition not only requires the prevention of trafficking, the prosecution of offenders, and the protection o f victims or potential victims but leaps to the provision of state compensation. … it is a major leap… No consideration by Court of objective of right of compensation as fund for VoT recovery per Art 15 ECAT. www.gardencourtchambers.co.uk @gardencourtlaw

Free-standing right with direct effect Galdikas v SSHD on post NRM support for recognised VoTs also argued on free- standing right to support under Art 11, Directive Issue concerned support for EEA nationals who do not have accrued rights of residence under EU law and require a residence permit as a VoT. Art 11(2, Directive imposes a free-standing duty to provide VoT w/ assistance & support after conclusion of NRM even if no criminal proceedings ongoing: [34], [44], [116] NRM policy must provide for support to recognised VoTs who are assisting police inquiries and / or requesting consideration of grant of residence permit to achieve result of Art 11, Directive. However, support provided in discharge of Art 11, Directive does not have to be same for VoTs in community and VoTs in detention: R (EM) v SSHD [2018] EWCA Civ 1070. www.gardencourtchambers.co.uk @gardencourtlaw

Free-standing right with direct effect (2) A & B v CICA and Lord Chancellor on bright line exclusion of CIC award for VoTs w/ unspent convictions also argued on right to effective access to victim compensation scheme under Art 17, Directive Court held: Access to scheme granted by ability to make application: [40] EU principle of effectiveness cannot confer additional rights on A & B (even where, on face of it, national law places substantive constraints on right to receive benefit that makes it excessively difficult for A to gain access to benefit): [44] Fact of A being trafficked after conviction meant more “impossible to conjure” any basis for conferring additional rights on A for compensation: [42] Domestic criminal law adequately safeguards against convictions for VoTs whose exploitation is linked w/ criminality so those VoTs won’t be excluded anyway: [43] Emasculation of principle of effectiveness in EU law? Irrelevance of object and purpose of relevant directive? www.gardencourtchambers.co.uk @gardencourtlaw

Relevance to Common Law Hounga v Allen [2015] UKSC 47 [2014] 1 WLR 2889: where VoT was trafficked to the UK from Nigeria as a domestic slave knew her entry into UK was obtained with false documents, is her employment claim for unlawful dismissal and racial discrimination defeated by common law defence of legality. Court held: Defence of illegality based on public policy of preserving integrity of legal system by not allowing claimant to profit from wrongful conduct Whilst considerations of public policy which militated in favour of the defence scarcely existed, application of defence in this context could encourage employers to enter into illegal employment contracts in belief that they could discriminate against employees with impunity and / or commit trafficking To uphold defence would “run strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims” and the public policy in support of the application of the defence should give way to the public policy against trafficking. www.gardencourtchambers.co.uk @gardencourtlaw

Relevance to Common Law (2) R v L and Ors [2013] EWCA Crim 991 [2013] 2 Cr. App. R 23: conjoined appeals of four VoTs against their convictions on basis that convictions were based on their exploitation. Court held: Considered provisions under ECAT and EU Directive regarding protection of VoTs Art 26 ECAT & Art 8 Directive require states to take measures so authorities can choose not to prosecute VoT for criminal activities which they have been compelled to commit. This is not same as immunity against prosecution: [13] However, where there is evidence that VoTs have been involved in criminal activities, the investigation and decision whether to prosecute, and the subsequent proceedings should be approached with greatest sensitivity. “Criminality, or … culpability of any victim of trafficking may be significantly diminished and in some cases effectively extinguished, … because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual or group of individuals. In such cases, abuse of process submission is likely to succeed. Culpability also bears on sentencing. www.gardencourtchambers.co.uk @gardencourtlaw

Relevance to Common Law (3) BUT see R v Joseph and Ors [2017] EWCA Crim 36: conjoined appeals of six VoTs against their convictions on basis that convictions were based on their exploitation. Arose from concern of effectiveness of court power to stay for abuse of process. Should common law defence of duress be developed in light of int’l obligations to VoTs? Defence requires threat of death or serious physical harm which is immediate and not something defendant voluntarily opened self to. What about long-term psychological coercion which may not involve dealth or physical harm? Court held: Accept common law defence of duress inadequate / unable to act as effective non- punishment safeguard BUT availability of statutory defence under s. 45 Modern Slavery Act 2015 (which removes immediate harm as requirement but imposes a ‘reasonable person’ in the VoT’s position test) is sufficient. Sentencing is fallback as is appeal against conviction, Remains to be seen whether perceived lacunaes in criminal justice process compatible w/ Arts 4 & 6: VCL v UK (77587/12) ; AN v UK (74603/12) www.gardencourtchambers.co.uk @gardencourtlaw

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