Note: Since this page was published, the government has confirmed that legal aid will still be available, in some circumstances, for victims of domestic violence and victims of trafficking who don’t meet the residence test. This page will therefore be updated shortly to reflect these changes.
ECPAT UK gives the following example of a victim of child trafficking who would be unable to access legal aid under the government’s proposals:
Nadia was trafficked when she was 15, entering the UK illegally. She was forced into sexual exploitation. She was 16 when she first saw an immigration adviser after she escaped. She had been so traumatised by her experiences that she could not discuss them and it took a number of appointments to take clear instructions and advise her properly on her options, including seeking asylum.
Nadia would not get legal aid to assist with any of her potential legal issues, from immigration to any other civil matter such as advice on getting immigration bail or community care help, for example, to challenge an age assessment.
When she received a negative decision from the Home Office about her status as a trafficking victim, she was unable to challenge the decision because there is no formal appeal in the National Referral Mechanism she could not access legal aid for a judicial review. This means Nadia may not receive the appropriate support and protection required as a victim of sexual exploitation and may be put at further risk of harm and abuse.
Trafficking victims need civil legal aid to challenge a decision that they are not a victim of trafficking, for example. Establishing that a person is a victim of trafficking is an important starting point for securing support to begin recovery from the traumatic experiences of being trafficked. Under the current proposals for legal aid, many victims of trafficking will not be able to secure the help and support they need, because they do not meet the ‘residence test’ or because of changes to Judicial Review funding.
Trafficking victims also need civil legal aid to apply for leave to remain in the UK. Under the legal aid proposals, victims of trafficking who claim asylum will continue to receive legal aid. Many victims of trafficking have no current fear of return to their country of origin, but still have valid grounds for remaining in the UK – because they have established family ties here, because they have been here for many years, or because they wish to cooperate with a police investigation against their traffickers, for example. A victim of trafficking without an ongoing initial asylum will not receive legal aid to challenge a decision that she is not a victim of trafficking; no legal aid to challenge a decision to refuse to assist her to recover; no legal aid to challenge a decision not to accommodate her with her children; no legal aid to keep her traffickers away from her should they seek to find her; and no legal aid to prevent the local authority from taking her children into care; and no legal aid to seek compensation for her trafficking experiences.
Victims of trafficking are often brought to the UK to carry out illegal work, typically prostitution or working in cannabis farms, for example. They are often given false documents to enter the country. Some victims of trafficking are wrongly prosecuted for these offences and rely on an experienced legal aid lawyer to advise them properly on their defence. Criminal solicitors paid a minimum rate, and in receipt of a fixed fee regardless of whether the client pleads guilty or not, are much less likely to be able to take the time to unravel a victim of trafficking’s often complicated story, and ensure that they are not convicted for an offence which was not their fault. This is likely to lead to more victims of trafficking being wrongly convicted, resulting in miscarriages of justice and additional expense to the prosecution, courts and prisons.
Read more about the impact of the proposed changes on victims of trafficking: