For victims of trafficking who need legal aid, the current position is unacceptably ambiguous
The Legal Aid Agency (LAA) has changed its interpretation of the law, and failed to make this clear to anyone who needs legal aid.
The change affects victims of trafficking. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought immigration work for victims of trafficking into scope, stating at Sch 1 para 32(1):
Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where –
(a) there has been a conclusive determination that the individual is a victim of trafficking in human beings, or
(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.
This year, the LAA told my client that work to represent a victim of trafficking with a positive reasonable grounds decision, who is going through the government’s identification system for victims (the national referral mechanism (NRM)) and asking for discretionary leave at the end, was no longer considered to be in scope.
Work to help the victim be identified would not be covered, even when it was a precursor to the case for discretionary leave. Also, the victim was not ‘applying’ for leave (so not covered by LASPO) because they would be ‘automatically’ considered for leave by the Home Office once confirmed as a victim. The LAA has conceded that work related to the NRM will be funded when there is a ‘significant overlap’ with an asylum case. But if you have no asylum case and are a potential victim of exploitation needing discretionary leave, it seems you are not important enough to fund.
This is, in ATLEU’s view, unlawful. Our client was granted permission in a judicial review against the lord chancellor in mid-October. However, the LAA continues to defend its position. This is an alarming new interpretation for the thousands of victims who will be affected.
The Salvation Army has just published a report showing it has had a more than 300 per cent increase in the number of victims entering its service from 2011 to date (Supporting adult victims of modern slavery: update on the sixth year of The Salvation Army’s victim care & coordination contract, October 2017, page 5). With more victims being identified than ever before, the government now appears to feel it is appropriate to leave them without an immediate right to immigration advice, putting them at potential risk of further exploitation.
The LAA is also incorrect in assuming that victims are all ‘automatically’ considered for leave, showing a misunderstanding of the NRM process, and it does not appreciate how hard it is to get discretionary leave even if you are ‘automatically’ considered.
It is unacceptable that the LAA’s new position, four years post-LASPO, has not been made clear in a public statement. All legal aid lawyers should be told how they can claim compensation for any work they will not be paid for.
Those left in scope of LASPO were meant to be the people with the most serious problems. But if victims of trafficking are no longer guaranteed protection, who will be next?
ATLEU's client is represented by barrister Catherine Meredith, assisted by Zoe Harper, of Doughty Street Chambers.

About the author(s)

Carita Thomas is a solicitor at ATLEU.