Migration, Slavery and the Law – the UKAWJ annual conference

This year’s event was held at the Park Regis Hotel in Broad Street, Birmingham on Friday 8 November 2019.

The day started with the Vice President Sarah Asplin LJ welcoming delegates, speakers and guests, referring to the amazing programme that lay ahead. As Sarah predicted, it would prove to be a richly rewarding day, with a feast of stimulating ideas.

We were very fortunate to have judges who attended from Germany, France, Ireland and Spain. The participation of judges from Spain and Germany allowed for a comparative session in the afternoon, considering the approach of these jurisdictions alongside that of the UK to the issues of human trafficking.

We were also very privileged that our President Baroness Brenda Hale was able to attend the conference for the whole day, given the many demands on her time.  The association had the opportunity to thank her not only for her attendance today, but also for being a beacon for the association since its formation, and for creating so many milestones along the way.

Sarah Asplin informed delegates of the “100 year programme” which started with an event in March this year in the Supreme Court, chaired by Lady Hale. This event took the format of a dialogue between Lady Hale, Baroness Butler Sloss and Justice Teresa Doherty with three academics.  A similar interchange of ideas between judiciary and academics has since taken place in Oxford, at the London School of Economics, with another to follow in Edinburgh.

The UKAWJ is very keen to hold events across the country and in as many regions as possible, and Sarah invited those members present (and those reading this article!) to consider whether they would volunteer to be the focus for an event in their particular region, and assist with the arrangements.

Turning to the speakers, as usual the calibre of those addressing the conference was excellent. The quotations in this article from the programme will hopefully convey a sense of their expertise in their respective fields. 

Our first speaker was Parosha Chandran who addressed the title “Current issues facing the judiciary – modern slavery and human trafficking”.

Parosha Chandran is a human rights barrister based in London and a world-leading expert on the law relating to human trafficking for the UN, Council of Europe and OSCE. She has contributed to key international legal guidance on trafficking, provides judicial training and has advised on legislation including the Modern Slavery Act 2015.  She is a Legal Advisor to Parliament’s Modern Slavery Project which supports Commonwealth States in improving their trafficking and modern slavery laws. She is the General Editor of the leading textbook, “Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK” (LexisNexis, 2011). In 2018 she received the distinction of being appointed the first Professor of Modern Slavery Law at King’s College London.

Presently in her 22nd year of practice at the bar, she has worked for the last 17 years to protect rights of trafficked victims in UK and abroad.

She gave a helpful overview of the international and domestic legal definitions and framework. This included the Palermo Protocol article 3(a) and the 4Ps: prosecution of traffickers; protection of victims; and prevention strategies by states – and the overarching concept of partnership. Further, the use of the Article 4 prohibition of slavery and forced labour which enabled positive obligation arguments to be brought against member states. And she echoed the views of a later speaker that the National Referral Mechanism, which was created as an identification scheme for victims, cannot cope with the number of referrals and is not working effectively.

Parosha also addressed the common prejudices or misconceptions about issues of race and consent, concepts of “deserving” or “undeserving” victims, and how these concepts can be manipulated. She described a range of “trafficking traps” used to capture victims and the importance of identifying “abuse of a position of vulnerability (APOV)” as well as more overt means of trafficking. This may be a personal vulnerability, such as an addiction; the traffickers trapping victims by abusing their vulnerability, confining them, and creating “debts” in order to keep the victim trapped and exploited.

We had the benefit of hearing Parosha’s experience from cases she had been involved in, both in English courts and those brought/ pending in the European Court of Human Rights. Further, she reminded delegates that the issue is not confined to international trafficking, and highlighted cases of internal trafficking; of the differences and interplay between human trafficking and people smuggling; of the vital importance of witness protection, recognition of the terrible impact of psychological damage on a witness’s evidence, the consequences of states’ failures to take adequate protective measures for witnesses in court, and how the trajectory of the police is shifting from considering a person from the perspective of whether they are an illegal immigrant, to considering whether the person is a victim of trafficking, and obtaining crucial intelligence. 

In addition, Parosha addressed the inadequacy of compensation for victims in criminal cases, the scope and adequacy of ‘non-punishment’ provisions and whether the Modern Slavery Act 2015 is compatible with the relevant EU directive.

This was a thorough, thought provoking and fascinating talk which set the tone for the rest of the day.

Sherry Peck is the Chief Executive of Safer London charity, who addressed the subject “County Lines – children at risk of crime and exploitation”. Her experience is wide ranging and includes work as a Director at The Children’s Society and Head of Commissioning in a number of Local Authorities. Sherry is passionate about empowering and enabling young people and ensuring they are at the heart of developing solutions to live safe and successful lives.

Safer London was set up in 2005 with a grant from the Metropolitan Police Authority providing core funding to support young people at risk of crime. For over a decade they have worked to reduce violence and crime, promote gender equality and healthy relationships, and seek to find young people genuine alternatives to gangs and crime.  Following the riots of 2011, the organisation decided to change its model of operation from a grant giving organisation to one of direct delivery which it was anticipated would allow it to respond better to the needs of young people and help fill gaps within the sector where there were no services being provided.  Since going it alone they have helped tens of thousands of young people escape the dangers of gangs, crime, and exploitation – but not only that  – they have equipped them with the skills to make the right choices going forward so they can be the best that they can be.

Sherry described the charity’s work and what it does to help children in greater London. The focus of the charity is on children and young people who have been affected by violence and exploitation, including but not confined to county lines. 

The charity works with children and young people between the ages of 8 to 29 in every London Borough. This is a wide age bracket, with children as young as 8 being identified as victims who have been exploited or affected by violence. She addressed the misconceptions about the children and young people who are affected, as these issues cut across race, age and class: 40% are girls.

With parallels to the themes of the first speaker being apparent, Sherry described examples of how children ended up with “debts” to drugs dealers and debt bondage; the adverse impact of adverse childhood experiences and toxic environments, rendering young people vulnerable to being targeted by organised crime gangs.

She described how the charity adopts a “trauma informed response”, and a “contextual safeguarding” framework; the power of peer group work, and the charity’s work in protecting people from adversity and increasing resilience. She also addressed the ‘drivers’ for violence, the impact of trauma on children’s brain and neurological development, the charity’s gang exit programme, and the prompt rehoming/ relocation of families at risk from severe violence and exploitation.

She explained the practical interventions used to address mental health and emotional issues where more traditional routes/ referrals were not appropriate – this included psychiatrists meeting young people on buses, in burger bars and in stairwells, with positive outcomes; keeping consistent case workers to avoid the need for children to repeat traumatic accounts and / or accounts of behaviours that they may be ashamed of, and how the case workers becomes the child’s advocate.

Lastly, against the background of such serious issues, she described the charity’s “Year of hope” project.

The next session looked at “Asylum and the experience of South Asian women”. Naseem Jivraj is researching for a PhD based on work she has done with South Asian women seeking asylum in the UK. Many of the women involved come from broken marriages in which they have experienced forms of gendered violence, others are victims of human trafficking. Whatever their particular circumstances, they rarely seek help due to feelings of being legally, economically and socially subordinated in their marital household, a situation which is reinforced by having their passports taken away by their husbands. They also feel disadvantaged because of poor English and social skills which affect their confidence to assert themselves. Some fear being tainted by the stigma of a broken marriage.  The legal precariousness that these women face is compounded by the unavailability of legal aid, and a lack of robust legal representation.

Naseem spoke about her anthropological study in which she looked at the daily lived experience of 10 women across 3 cities who had no legal status in the UK; the study addressed the precarious legal, social, emotional and economic situation following the breakdown of their (brokered or forced) marriages and family connections.

The women were from a variety of backgrounds, and their ages ranged from 17-30 when they came to the UK. Some were from rural backgrounds, some from urban backgrounds. Some were from lower class families, others middle class. Some women had good language skills, others had none.

Naseem told delegates of three case studies, and the practical experiences of the women who had struggled to obtain legal status, their difficulties and hardships, and the corrosive effect on their mental health and wellbeing. Issues included isolation, being cut off by their own families for having brought shame on the family for the breakdown of an abusive marriage; lack of basics including shelter and food; lack of opportunity to learn English, lack of opportunity to work and lack of understanding about the complex system they were in.

Naseem explained how vulnerable a woman in these circumstances can become once they obtain legal right to remain in the UK, as they lose their Home Office accommodation and support, they are not aware how to operate in society, and become vulnerable to exploitation and coercion by others. In one case study, ‘support’ from another woman from her community turned out to be coercive treatment, servitude and pressure with the ulterior motive of wanting the vulnerable woman to marry a brother overseas, who would then come over on a spousal visa.

The case studies presented a very bleak picture of the women’s experiences, their vulnerability to further abuse and the crushing effect on their mental and emotional health of their loneliness, destitution, lack of support and the absence of anyone to trust for sound advice.  Naseem succeeded in her aim of giving delegates some insight into the lived experience of the women that they may come across as judges. As she said, “Having right to remain is not a tick in the box.”

The afternoon session was devoted to a panel discussion regarding the practical and international perspectives of trafficking: “Practical issues in responding to migration, trafficking and slavery – an international perspective.” This allowed fascinating insights into the approaches and priorities of other jurisdictions. This summary will not do any of the panel justice but there were some interesting parallels with the presentations of the earlier speakers.

Maria Gavilán, a Spanish Judge and academic, referred to trafficking human beings as the second most lucrative crime in the world. It is a means of disconnecting people from their roots – emotional, familial, religious, social etc. She referred to data and statistics from UN regarding trafficking, slavery, and the sale of children to settle debts. This is a Human Rights issue rather than being about immigration. It concerns people who have already been stripped of their human rights, and this is where the focus should be concentrated.  She emphasised the importance of an adequate pre trial phase, with training for the assessment of victim evidence, investigation and international cooperation.

Petra Leister is probably Berlin’s most prominent prosecutor who is in a specialist department dealing with organised crime and trafficking. She spoke of the need for awareness concerning new forms of exploitation which may not be visible or recognised, and special education for police to recognise this type of crime. She echoed the observation of other speakers that the victim evidence is crucial, and she suggested a range of measures to promote their rights to secure their evidence as well as for their own dignity. This including liaison with NGOs to assist the victims with necessary support, protection of victims of trafficking from prosecution and / or punishment (for example for having false documents), funded legal advice and a compensation provision, and witness protection for the trial.

Senior Immigration Judge Judith Gleeson addressed the definition of Trafficking, the problems with the National Referral Mechanism, the inability of the system to cope with ever increasing numbers, and the lack of appeal from a negative NRM decision – the only remedy is judicial review.

Judith set out a helpful overview and relevant recent cases, including cases involving first instance assessments of age, and research into the effect of trauma on a witness’s ability to give a credible account. There are a number of papers on the judicial intranet which describe the very position in France and the approach to asylum claims by victims of trafficking, who are given leave to remain and the ability to work.

Rhona Smith (Moderator), Judith Gleeson, Petra Leister and Maria from Madrid

Professor Rhona Smith acted as moderator for the session. She is UNHCR Special Rapporteur on the situation of human rights in Cambodia, is Head of the Law School at the University of Newcastle, and author of International Human Rights Law (8th ed, 2017). She has previously worked in various universities in the UK and held visiting positions at a number of institutions overseas. Her principal areas of interest are international human rights, human rights/civil liberties and public law. Much of her previous work has focussed on human rights capacity building in education and justice sectors.

Professor Smith identified the scale of the crime, with many countries being both senders of, and destinations for, trafficked people; the need for a multifaceted approach, with the problem being considered across the world; the need to focus on the Palermo protocol 4Ps; the need for coordination between police, immigration and NGOs; the importance of judicial training; the lack of protection from the NRM to someone who has been trafficked; and the pressing need for Improved joined up thinking. It is 200 years since slavery was abolished, but there is a need for greater awareness of the issues, and what can happen to people to help combat the scourge. 

Words used by those present to describe the day included invigorating, interesting, inspiring and enriching. The UKAWJ annual conference is a welcome opportunity for judges from all jurisdictions and all levels to get together and share ideas, knowledge and learn from each other.

We hope to see you next year!

This blog post was prepared by the Hon. Christine Bispham.   The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.