The case of R (on the application of Y) v Secretary of State for the Home Department  EWHC 1075 (Admin) may change the way in which the Home Office approach ‘historical’ trafficking cases.
Y left China, was smuggled into Sweden and then stayed in an unknown country. She was raped about twice a month by three Snakeheads. She was then brought to the UK made to do housework and raped. Others were released when they paid their ‘debt’ but Y could not; she had lied to the Snakeheads. Finally, an arrangement was made with a man called M who paid some money for her release. She was not sold to M and had freedom to come and go. She moved in with M and they are very happy together.
The Home Office argued that there was no commercial exploitation, no attempt to sell Y or to attempt to re-traffick her when she could not pay the debt. In other words, there were no actions “for the purpose of exploitation.” The judge rejected this as irrational:
…she was detained (“harboured” in the terms of the Convention definition) for a further six months during which she was forced to submit to sex and to work in the house without pay. The smuggling process had by then ended and the only reasonable conclusion is that the Snakeheads decided to use her by way of punishment or payment in kind. That means that she was being kept for the purpose of exploitation, and that is trafficking. The decision to the contrary cannot be supported.
The Home Office had also failed to address the period before entry to the UK and this failure also rendered the decision unlawful.
Still a victim of trafficking?
The decision letter also argued that as Y had had time for “reflection and recovery” she was no longer a victim of trafficking. The Home Office’s supplementary guidance issued in 2009 looks at when a person “is” a victim. Paragraph 9 states that,
… where a person’s circumstances do not require protection or assistance at the time of that assessment, the person is unlikely to be a victim…
Paragraph 10 considers whether:
the person was under the influence … of traffickers … [when] they came to your attention; whether the person requires a period to recover from the influence of traffickers; if the person has suffered physical or emotional wounds from the trafficking experience and requires time to recover.
Paragraph 18 concludes that it is possible to decide that someone “has been a victim …, but at the time their case is considered [but] that their specific circumstances do not [now] engage the Convention…”
The judge decided that this approach was wrong. Paragraph 173 of the Convention’s Explanatory Notes, in relation to Article 13 states as follows:
One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. A victim’s recovery implies, for example, healing of the wounds and recovery from any physical assault. It also implies that victims have recovered a minimum of psychological stability.
Paragraph 183, in relation to Article 14 states:
for a victim to be granted a residence permit … the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory …
Was Y was still a victim of trafficking at the time of decision? Does the Convention bar the conclusion that victim status may cease or that it prevents a consideration of whether that status subsists at the Reasonable Grounds stage? The judge concluded that this consideration of current circumstances and need for protection and assistance is intended to apply at the Reasonable Grounds, as well as at the Conclusive Decision stage. Article 4(e) defines a victim as someone who is subject to trafficking. Article 10(2) refers to a person who has been a victim of trafficking to ensure that she receives the assistance provided for in Article 12 to assist victims in their physical, psychological and social recovery. He goes on to comment that the Home Office cannot know what particular measures are required to assist the victim without considering the extent of her physical, psychological or social recovery. The recovery and reflection period required by Article 13 is triggered when there are Reasonable Grounds to believe that the person is a victim. The differences in tense are explicable by different consequences: after the recovery and reflection period, the assistance and protection is not absolute or never-ending, but is limited to the need to assist victims in their physical, psychological and social recovery and must be tailored to their personal situation.
The Convention, far from prohibiting consideration of current circumstances at the Reasonable Grounds stage when those circumstances appear to have significantly changed (i.e. trafficking has become ‘historic’), requires consideration to take place in order to comply with the duties under Articles 12 and 14.
This matches with what we know about trauma: a person survives it but never returns to what they were.