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Socialist Lawyer > Issue 48

Modern day slavery

Two hundred years after the abolition of the British slave trade, mhuman trafficking is denounced by the UN and the British government as "a crime that demands the value of human life and is a form of modern day slavery". Judith Farbey, barrister, evaluates the government's Action Plan on Tackling Human Trafficking and calls for the political will to implement a human rights based, victim-centred approach.

‘Human trafficking is a crime that demeans the value of human life and is a form of modern day slavery.’ Thus states the UK Action Plan on Tackling Human Trafficking which the Government published in March 2007 on the same day as signing the Council of Europe Trafficking Convention.

Modern day slavery is graphically illustrated by the actions of a child trafficking gang broken up by police in 2006 and triggering arrests as far and wide as Italy, Bulgaria, Germany and Austria. According to police, the gang had trafficked mostly Bulgarian children aged eight to 13, keeping them like slaves in Western Europe and forcing them to steal money which was then plied into drugs. The vulnerability of the young victims does not need spelling out, but the gang appeared to have the consent of the parents who rented out the children on a contract basis as a result of their own poverty. The case illustrates how human trafficking raises issues affecting social, economic, criminal and immigration policies. At national level, anti-trafficking measures provide real opportunities for joined up Government. This article considers how the UK Action Plan focuses on the multiple policy aspects of human trafficking and on Government-wide, cross-departmental, objectives.

What is human trafficking?

The Convention defines trafficking in the same way as the earlier Palermo Protocol. Under article 4 of the Convention, trafficking in human beings means ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation’.

Exploitation includes ‘at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’. The victim’s consent to the intended exploitation is irrelevant. In addition, the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation counts as trafficking even if this does not involve any of the means set out above.

Human trafficking must be distinguished from people smuggling. In its report on Human Trafficking, the Joint Committee on Human Rights (JCHR) cites the definition of smuggling in the Protocol Against the Smuggling of Migrants by Land, Sea and Air and sets out a useful and succinct explanation of the difference: ‘First, trafficking is carried out with the use of coercion and/or deception, whereas smuggling is not, indicating that the latter can be a voluntary act on the part of those smuggled. Second, trafficking entails subsequent exploitation of people, while the services of smugglers end when people reach their destination. Third, trafficking can take place both within and across national frontiers, whereas international movement is required for smuggling. Finally, entry into a state can be legal or illegal in the case of trafficking, whereas smuggling is characterised by illegal entry’.

The UK Action Plan recognises: ‘Some victims of trafficking enter the UK illegally, but many are migrants who have found themselves in a situation where they are being exploited.’ There can be no doubt that trafficking has a transnational dimension or that individual trafficking gangs spread their tentacles across borders. On one important level, trafficking raises issues of border control. Among other immigration measures, the Convention stipulates that Parties ‘shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in human beings’. Parties must also adopt measures to prevent commercial transportation from being used for trafficking. Domestic measures must ensure that travel or identity documents are ‘of such quality that they cannot easily be misused and cannot readily be falsified’. However, trafficking is not simply a problem about immigration and the Convention recognises this by advocating a broad, holistic approach, rooted in human rights. It seeks to promote a coordinated approach under which agencies of the State not only criminalise trafficking but also undertake measures such as awareness raising, social and economic initiatives, and training programmes.

In this way, law enforcement personnel, professionals, the media and civil society each play their part in decreasing demand for exploitation and in protecting the victims of exploitation. Under the scheme of the Convention, these activities should take place against the backdrop of gender mainstreaming. Educational programmes should stress the ‘unacceptable nature of discrimination based on sex, and its disastrous consequences’.

The JCHR has reminded the Government that trafficking: ‘should be seen not merely as organised immigration crime, but also as a grave violation of fundamental human rights. The human rights of victims should be at the core of the UK response to trafficking.’ The European Commission has stated that the ‘needs and rights’ of victims ‘shall be at the centre of the EU policy against human trafficking. This means first and foremost a clear commitment of EU institutions and Member States to follow a human rights centred approach and to promote it in their external relations and development policies’. It follows that UK policy on trafficking should extend beyond border controls and border crime. How does the UK Action Plan reveal the sort of holistic approach advocated by the Convention? This question can be answered by reference to three principal policy areas: prevention of trafficking at source, investigation and prosecution of perpetrators, and protection for victims.

Preventing Trafficking at Source

The UK Action Plan is clear that the Government seeks to implement measures to tackle the root causes of human trafficking. The remit is cross-departmental, involving the Home Office, the Foreign & Commonwealth Office (FCO) and the Department for International Development (DfID). The three prongs to this work are ‘awareness raising measures which highlight the dangers of trafficking, actions to address the factors that make poor people vulnerable to trafficking, and work designed to build capacity in source and transit countries to deal with organised immigration crime’.

The Government has recognised that economics is a driving force for trafficking. The UK Action Plan cites ‘poverty and social exclusion’ as underlying causes of exploitation and confirms that the Government will ‘continue to increase our development programme budget to reach the UN target of 0.7% of national income by 2013 which supports country-led approaches to improve governance and security, health and education, and decent work opportunities for poor people’.

The Plan highlights in particular DfID’s £6 million donation to the Mekong Sub-Regional Project to Combat Trafficking in Children and Women. DfID also supports Save the Children’s anti-trafficking work in the Greater Mekong region. In addition, the UK’s existing global commitment to reducing child poverty and to promoting universal primary education are seen as useful means of reducing the causes of child trafficking. This aspect of the Government’s anti-trafficking work is very ambitious and aspirational: it will address ‘the increasing inequality in prosperity between and within countries and the increasing demand for cheap labour and other exploitative services’. There is thus a clear cross over between antitrafficking measures and the Government’s global anti-poverty agenda.

In addition to anti-poverty policies, the UK Action Plan relies a great deal on existing economic measures for tackling organised immigration crime. The Plan makes reference to the Government’s Migration Fund which aims to ‘reduce the entry of people causing harm to British society’ and ‘support the development of effective and sustainable returns arrangements’. Reflecting some of the more controversial aspects of the Government’s general immigration policy, the Fund seeks to ‘help to manage migration in third countries where this helps UK interests’, as well as to ‘increase [...] understanding of legal and illegal migratory flows’ and to ‘improve protection of genuine refugees and internally displaced persons’. The UK Action Plan emphasises various objectives of the Fund including improvement in law enforcement functions, utilisation of a multi-agency approach and sharing best practice. More specific action to combat trafficking includes (from the FCO’s Drugs & Crime Fund) a regional anti-trafficking project in the Western Balkans and work with Romanian and Bulgarian anti-trafficking agencies.

As a further tool, the Government believes in awareness raising campaigns both in the UK and abroad. The UK Human Trafficking Centre (UKHTC) has undertaken campaigns in Romania and Bulgaria. The Department for Trade and Industry (now the Department for Business, Enterprise and Regulatory Reform) and the Gangmasters Licensing Authority (GLA) have produced information on workers’ rights in various languages. Advertisements and posters in the UK have ‘explained ways in which instances of possible exploitation can be reported’. The FCO will publicise abroad successful UK prosecutions for trafficking in an attempt to deter traffickers.

The UK Action Plan also argues that the Government has taken steps to deter demand for forced labour, citing the GLA’s licensing system and the civil and criminal penalties for employing illegal migrant workers. The system of civil and criminal penalties does not target traffickers in particular and is more properly regarded as part of the Government’s ongoing efforts to strengthen the UK’s borders against illegal migration as a whole. However, more specific to trafficking, the Government also seeks to ‘target men who might use massage parlours, saunas or other kinds of brothel, through men’s magazines, websites or other targeted media’ by way of advertisements raising awareness of human trafficking. According to the Plan, ‘such publicity techniques had an effect on the behaviour and attitudes’ of some men. The Government recognises that the success of awareness raising campaigns, which aim to prevent trafficking at source and to reduce demand, can only be ascertained through proper evaluation mechanisms.

Prosecuting perpetrators of human trafficking

As the root causes of trafficking are not going to go away, long-term economic policies need to mesh with specific, detailed and immediate legal provisions. Transnational measures need to be supplemented by effective implementation of national laws. The Government has indeed sought to bolster the domestic legal framework and its implementation. Recent measures in the UK aim to shift human trafficking to the mainstream of police functions and law enforcement activities.

The UKHTC, established in October 2006, brings together the police and other law enforcement agencies such as the CPS, Serious Organised Crime Agency (SOCA) and the Border and Immigration Agency (BIA). The UKHTC aims for a multi-pronged approach, combining law enforcement and training of law enforcement personnel with preventive measures and public awareness campaigns. In addition, Operation Pentameter 2 was launched at the beginning of October 2007 which will ‘involve a campaign of activity throughout the United Kingdom’ aiming to ‘discover the extent’ of trafficking. It follows Pentameter 1, a nationwide police operation, which confirmed 84 women as victims of trafficking and led to 232 arrests.

Recent years have seen burgeoning numbers of immigration offences reach the statute books, not least in the area of trafficking. The Sexual Offences Act 2003 has created offences of trafficking a person into, within or out of the UK for sexual exploitation (ss.57-60). The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 has created specific offences of trafficking a person for other forms of exploitation such as slavery or forced labour (ss.4-5). Both under the 2003 Act and under the 2004 Act, the maximum sentence on conviction on indictment is 14 years. The Violent Crime Reduction Act 2006 amended the Sexual Offences Act 2003 to allow the forfeiture and detention of land vehicles, ships and aircraft used in trafficking for sexual exploitation. The Action Plan confirms that ‘the Government is committed to keeping the legislation on trafficking under review’ to ensure its effectiveness and deterrent effect. The Government accepts that ‘hitherto the focus of enforcement activity has been on trafficking for sexual exploitation’ and recognises the need to develop a response to other forms of trafficking. Further legislation may therefore be enacted.

As in its efforts to combat trafficking at source, the Government advocates a multi-agency response to enforcement of anti-trafficking laws. Those agencies include the UKHTC, SOCA, the Child Exploitation and Online Protection Centre (CEOP), the Scottish Crime and Drug Enforcement Agency (SCDEA) and the Trafficking Working Group which has been formed by Scottish police forces. The UKHTC ‘will continue to take forward the development of a victim centred approach to trafficking’ and ‘will play a key role in coordinating work across stakeholders’. It will work not only with other Government agencies but also with NGOs. Given the transnational aspect of trafficking, the UKHTC aims as a ‘key objective’ to establish good working relationships with foreign law enforcement agencies. It has already engaged with Europol, Interpol, the USA, Canada, Ireland, Nigeria, Poland, the Netherlands and France. Consistent with a victim-centred approach, the UKHTC employs a Victims’ Co-ordinator and has established a special group to address victim issues.

SOCA’s organised programmes against immigration crime cover ‘source countries, nexus points on route to the UK, exploitation of illegal migrants in the UK and trafficking of people, in particular women and children for the vice trade’. SOCA’s Liaison Officers work in more than 100 posts in almost 40 countries. Liaison Officers collate overseas intelligence, carry out intervention activity and liaise with UK and international agencies.

CEOP was launched in April 2006. It fosters links in the UK and internationally ‘to deliver a holistic approach that combines police powers with the dedicated expertise of business sectors, government, specialist charities and other interested organisations’. It focuses on tackling child sex abuse but does not deal with child labour.

Protecting victims of trafficking

The Plan also recognises that ‘any end to end strategy requires a supportive balance between its different strands and that there is a need for a strong enforcement arm to have the corollary victim provision’. Chapter III of the Convention deals with measures to protect and promote the rights of victims. Under article 10(2), if a party to the Convention has reasonable grounds to believe that a person has been the victim of human trafficking, that person shall not be removed from the territory until the process has been undertaken to identify him or her as a victim. Victims must receive assistance in their physical, psychological and social recovery including accommodation, medical treatment, translation and interpretation services, information about their legal rights and access to education for children. The Action Plan sets out the various means by which the UK seeks to fulfil its protective duties to victims.

Under article 13 of the Convention, each party must provide victims with a ‘recovery and reflection period’ of at least 30 days. The period must be sufficient for victims to escape the influence of traffickers and take an informed decision on co-operating with the authorities. Victims must not be expelled from the territory during this period. Moreover article 14 allows victims of trafficking to reside in a State when the authorities consider that their stay is necessary for investigation or criminal proceedings. We must wait and see how the UK will implement these provisions on ratification of the Convention. Whilst victims of trafficking may currently be granted humanitarian protection or even (in some circumstances) refugee status, the implementation of these provisions of the Convention would mark a radical change to immigration law. The Plan alludes to the provisions without casting light on how the UK will implement them.

The Action Plan emphasises that it is UK policy to avoid the criminalisation of victims of trafficking. Hence victims should not usually be prosecuted under section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 because their circumstances are likely to constitute a defence to entering the UK without a passport. Moreover, the CPS can exercise discretion to discontinue a case on the basis that it is not in the public interest. The Plan says that it is ‘difficult to envisage circumstances where it would be in the public interest to prosecute genuine victims of human trafficking for immigration offences’. Where prosecutions for immigration offences have taken place, they are (according to the Action Plan) attributable to a ‘lack of awareness’; it is hoped that better training will ameliorate the problem. The Convention, which mandates a child-sensitive approach to the development of anti-trafficking measures, provides that States ‘shall take specific measures to reduce children’s vulnerability to trafficking, notably by creating a protective environment for them’. The Action Plan, which dedicates a Chapter to child victims of trafficking, affirms that children have special and different protection needs flowing from ‘a reduced capacity to assess risk and an increased dependence on others’. A number of cross-departmental projects and schemes aimed at providing assistance to health and education professionals are in train.

Child victims exemplify how victims of trafficking may not always be the victims of organised crime. Children may enter the UK accompanied by family members who then force them into illegal labour for the family or for others. It may be particularly difficult to identify this sort of victim, as there is no obvious investigative target for law enforcement agencies and these victims, even more than others, may not understand how to approach protective agencies. This is part of the wider problem that trafficking for forced labour is often ‘a hidden problem within families and communities making it harder to identify and detect’. The Action Plan recognises that research in this area is required even to establish the scale of the problem.

Conclusion

There can be no doubt that the UK Action Plan contains plenty of food for thought. In some ways, its approach is evolutionary – building on existing measures within the spheres of economic, criminal and immigration policy. The major exception – and a huge step forward – has been the establishment of the UKHTC. The Convention too provides a detailed framework for further developments with which the Government will have to grapple sooner or later. Whilst the Convention contains provision for strong border controls, it recognises that crossing borders is only one aspect of the overall scourge of trafficking.

Border controls do not assist in tackling exploitation and the other root causes of trafficking. By the time a trafficked woman or child arrives at a border, she may already have been the victim of exploitation and is already in a dangerous position. Victims of trafficking may appear to immigration authorities like regular migrants: they may have regular visas and some may not need visas at all if travelling within the EU. A human rights based, victim-centred approach should extend far beyond strict immigration measures. The Government’s decision to sign the Convention marks a significant step forward. It must now harness the various agencies and departments – inside and outside Whitehall – to deliver the full range of Convention protections.

Judith Farbey is a barrister at Tooks Chambers

This article can be found in the print edition of Socialist Lawyer number 48, December 2007.