Dispelling myths about representation for trafficking and modern slavery victims
At Hope for Justice, we have a dedicated team of Independent Modern Slavery Advocates, known as IMSAs, who work directly with survivors, offering legal advocacy and specialist support.
The team has provided the following information to help other practitioners, advocates, lawyers, support workers and agencies who represent victims of slavery with European Economic Area (EEA) status, as well as other readers who may want to find out more about the processes involved in advocating on behalf of victims of slavery.
MYTH: My client can’t have ‘worker’ or ‘retained worker’ status as his/her work in the UK was exploitative
TRUTH: Exploitative work does not prevent a person from being considered a ‘worker’.
The test is not whether the work carried out was legal, but whether it was “genuine and effective.”
Department for Work and Pensions (DWP) guidance states that representatives should consider the following when deciding whether work is “genuine and effective”:
-Whether work was regular or intermittent
-The period of employment
-Whether work was intended to be short term or long term
-The number of hours worked
-The level of earnings
As little as 5.5 hours could be sufficient to constitute genuine and effective work (as in the case of Genc v Land Berlin[1].
One of the main barriers facing victims of exploitative work is that there is very often limited, or no, documentary evidence to show that the work took place.
It is really important, therefore, that representatives:
-Gather as much evidence as they can, where it exists, to show that the person was in genuine and effective work, e.g. payslips, bank statements showing pay was deposited, employment contracts, records from HMRC
-Set out why the client’s work was genuine and effective. Explain to the decision maker that exploitative work does not fall outside the ambit of genuine and effective work
-Provide a copy of the client’s conclusive grounds decision (the National Crime Agency or Home Office’s decision on whether a person is a victim) and explain its significance. This should be put in writing and presented to the JobCentre
Download an extended version of this guidance by clicking here
MYTH: My client doesn’t need immigration advice because they are a European Economic Area (EEA) national
TRUTH: In the UK, EEA nationals do not enjoy automatic residence rights and access to public funds, unless they are exercising their EEA treaty rights, and can prove this.
Unfortunately, this has left numerous victims of slavery, who are EEA nationals and who are unable to work, facing destitution and even deportation.
To ensure their longer-term support and to reduce the risks of deportation, representatives of victims who are EEA nationals should refer them for immigration advice as soon as possible.
Housing and welfare representatives, advocates, support workers and agencies should also explore whether their EEA national enjoys status, including as a ‘worker’ or ‘retained worker’ (or they are temporarily unable to work due to illness or accident, or they are involuntarily unemployed and registered as a job seeker) because they could be eligible for support without a grant of leave. Again, it is important to act quickly.
Download an extended version of this guidance by clicking here
MYTH: My client did not register as a job seeker straight away, so they cannot have ‘worker’ or ‘retained worker’ status under The Immigration (European Economic Area) Regulations 2016 (I (EEA) Regs) even though they were previously engaged in genuine and effective work
TRUTH: Regulation (2)(b)(i) of the Immigration (EEA) Regulations does require a person to register as a jobseeker. However, a gap between the work ending and registration does not necessarily mean your client has lost worker status.
If the delay between your client’s work ending and registration as a job seeker is more than a few days, the relevant decision maker will consider whether there are reasonable grounds for the delay, or whether it is undue delay.
What should I do if my client is in this position?
-If they have not yet registered as a jobseeker, register them straight away (submit a claim for Jobseeker’s Allowance or Universal Credit); and
-Provide representations as to why the delay was reasonable and not undue. Examples include: 1) Your client was in a situation of modern slavery/human trafficking; 2) Your client was/is in an NRM safe house recovering from their exploitation; 3) Your client was/is destitute; 4) Your client’s health – mental, physical and/or suffering from an accident
Download an extended version of this guidance by clicking here
[1] C-14/09 [2010] ECR I-00931
Please note this post does not constitute immigration advice and is not intended to be used and/or distributed as immigration advice
