Hope for Justice UK Legal Director, Phillipa Roberts, has looked for a way to protect slavery survivors who are EEA Nationals from homelessness and hunger. Here she tells us how her team found the answer in some very familiar legislation.
Recent changes to UK welfare assistance rules have cut traumatised, modern slavery-survivors adrift. That has been the unintentional but impacting result of amendments to eligibility for Job Seekers Allowance and Housing Benefit for European Economic Area (EEA) Nationals. In fact, the changes have made it very challenging for almost all the trafficking survivors Hope for Justice are working with to receive financial support – at a time when they are most vulnerable.
Jobseekers Allowance: The first closed door
Since January 1st 2014, EEA jobseekers have been unable to receive Job Seekers Allowance (JSA) unless they can show that they have been resident in the UK for a minimum of 3 months. This three month requirement is part of a more stringent Habitual Residency Test (HRT) for EEA nationals. The HRT is a two stage test; to pass, an EEA national must demonstrate:
• a ‘Right to Reside’ in the UK, and;
• ‘Actual Residence’ in the UK.
To show a ‘right to reside’, an EEA national must prove that they are exercising their treaty rights; that they are seeking work and have a ‘genuine chance of being engaged’ (under Regulation 6 of the Immigration (European Economic Area) Regulations 2006).
To assert ‘actual residence’, a claimant must show that they are currently resident in the UK and have been for ‘an appreciable period of time’ (this has been interpreted by the UK government as at least three months for JSA). The residency must be voluntary and the claimant must show a settled intention to make the UK their home for the time being.
This can be very difficult to prove for trafficking survivors who’ve spent their months in the UK in captivity.
How can they prove the ‘appreciable period of time’ that they have been present here when they were never registered at an address by their controllers or paid a wage into a bank account of their own?
As a result of this more stringent test, most of our survivors from the EEA seemed set to fail to qualify for Job Seekers Allowance.
The door to that particular financial assistance seemed to close.
Ideally our survivors would be classed as ‘retained workers’ and not subject to the HRT. Unfortunately this is becoming increasingly difficult to demonstrate based on the UK’s two tier approach to EEA workers which includes a minimum earnings threshold.
For most trafficking survivors this is close to impossible to demonstrate. How can you show you’ve been a worker whilst in the UK, if your pay was diverted into someone else’s account or if your trafficker was paid cash-in-hand for the labouring you did?
Actually, in European Law the definition of “worker” is wide and can include work in exploitative conditions (see JA v Secretary of State for Work and Pensions  UKUT 122 (AAC) 16th April 2012. Yet this broad definition does not seem to have reached UK decision makers.
Furthermore since January 2014 any EEA national who managed to establish a right to reside as a retained worker or a jobseeker (by passing the HRT) is only entitled to JSA for a ‘relevant period’ of six months. After this time EEA nationals must attend an interview and provide ‘compelling evidence’ of a genuine prospect of work in order to continue receiving JSA; a more demanding requirement than under European Union Law. This period was subsequently shortened to 3 months in November 2014 for EEA jobseekers.
The situation got worse as the year wore on. In the cases where we are able to advocate for reconsideration and successfully overturned negative decisions on Job Seeker’s Allowance, we faced a new challenge. From April 1st 2014 any EEA nationals in receipt of JSA are no longer able to automatically access Housing Benefit.
Housing Benefit: The second closed door
Housing Benefit is central to the continued recovery of survivors because, once the 45 day government-funded ‘recovery and reflection’ period comes to an end, most victims are not yet ready to return to society and require follow-on housing. Unfortunately, most follow-on housing providers will only accept applications from survivors who are in receipt of Housing Benefit.
On far too many occasions, this inability to find a placement for a victim without Housing Benefit entitlement has led to emergency calls being made to our team by a safehouse about to exit a survivor the very next day (occasionally on that day) without accommodation to send them on to. The survivors suddenly faced the fear and uncertainty associated with homelessness. For some individuals this was the unravelling that they so desperately needed to avoid as their time in restorative care drew to an arbitrarily abrupt end.
To qualify for Housing Benefit an EEA national needs to show they have a ‘right to reside’, beyond the right of a Jobseeker, for example through ‘retained worker status’. As stated above, this is difficult to demonstrate.
2015 amendments compound the situation
In recent months help has become even more inaccessible. Following a government memo dated 9th February 2015, the ‘genuine prospect of work’ provisions are now being applied to all “stock cases”; that is, to all EEA nationals whose entitlement to JSA started prior to the 1st January 2014. As a result all EEA nationals now have to provide compelling evidence to show that they have a ‘genuine prospect of work’ to continue receiving JSA after a three month notification period. The stakes are high; if they don’t provide such evidence, their right to reside will end and their award of JSA will terminate and, consequently, so will their entitlement to Housing Benefit.
Decision Makers: Failed by the System, Failing Victims
The unenviable task of recognising the deserving falls to the staff of the Job Centre Plus for Job Seekers Allowance and to Local Authorities for Housing Benefit. These teams are rarely able to recognise the unique position of trafficked people and the complex law that applies to their cases because they have never been trained to do so. In some instances, this has sadly been the case even when a survivor has been able to show their status as a trafficking victim, as recognised by the Government by receipt of a ‘Reasonable Grounds Decision’ or ‘Conclusive Grounds Decision’ of trafficking from the UK Human Trafficking Centre.The confusion has resulted in some decision makers failing to make decisions at all or else not confirming their decisions in writing, leaving victims’ cases in limbo with no rights of reconsideration or appeal. This has lead Hope for Justice to refer victims to a public law solicitor to apply for judicial review. Often decisions are erratic with victims who have endured similar trafficking experiences and are now in similar circumstances, receiving very different decisions.
Crossing into Illegality?
Quite aside from the moral repugnance of this reality, it can be argued that the current situation of welfare entitlement is in breach of European Law . Eurosceptics stay with me; there is a case to be made that offering social welfare protections to victims of modern slavery represents the best of our society.
Why Welfare Benefits at All? Understanding Trauma and Trafficking
As a combination of these various changes take their toll and the 45-day government-funded safehouse period comes to an end, many of our clients face destitution and homelessness. You might be wondering, ‘why do these people even need to fall back on welfare provisions? They’re out of the situation of exploitation now, why can’t they simply begin to work?’. The real question you need to ask – the one you ask after you’ve heard survivors tell stories of months or years of degradation, beatings, financial control, intimidation, anxiety for family members who’ve been threatened, sexual violence, malnourishment and/or exhaustion – is;
How incredible is the human spirit that these survivors want to work again?
Especially after just 45-days. These people are broken and, in the lion’s share of cases, exited from government-funded aftercare too soon. They are far too terrified to return home yet in so many of our cases they want nothing more than to work, many of us could learn much from their appreciation of and desire for an ‘honest’ job. The major barrier to their employment now is language.
Until these former slaves in our country can raise their level of English they’re unlikely to find non-exploitative work. This is when they are easy prey to traffickers. In fact we know of unscrupulous individuals and gangs who wait around outside homeless shelters and even safehouses, offering work to those using the services. In this interim, when they’re exited from the safehouse but not yet proficient enough with English to land a job, human trafficking survivors without access to welfare benefits are extremely vulnerable to homelessness and re-exploitation.
When they need it most, the law has excluded these individuals from accessing welfare support. It’s a sorry state of affairs as these are exactly the kind of people our society has designed the Welfare State to assist; hard-working victims of crime, people coming to terms with long-term trauma and needing only interim assistance as they prepare to return to work. Instead, without welfare or work, they face food insecurity and homelessness making them vulnerable to re-exploitation or being found by their trafficker. Many feel forced into returning home, something that most fear profoundly as the networks of their traffickers often extend to survivors’ home towns.
This isn’t just a personal disaster for our clients; it’s a disaster for us all. Once survivors leave our country or fall off the radar into homelessness, a case developing against a perpetrator can collapse.
Without witnesses there are no prosecutions and without prosecutions these traffickers can continue committing the kinds of crime that tear the very fabric of our communities. For the sake of compassionately undoing the hurt done to survivors, and for putting those who would profit from it behind bars, we had to find an alternative way of looking at cases. Our Team had to make sure survivors didn’t disappear down the cracks created by these amendments and we wanted to do it fast.
An Answer: Discretionary Leave to Remain
So, how to prove the residency of the unregistered resident? How to show a genuine chance of work for those who can’t possibly work right now? All these problems arose because these victims were EEA nationals to whom stringent regulations had to be satisfied, so what if, effectively, they weren’t any more?
Any survivor (EEA National or not) with a positive Conclusive Grounds Decision from the Competent Authority is entitled to apply for a “residency permit” (See Art. 14 European Convention on Human Trafficking) which is interpreted in the UK as discretionary leave to remain (DLR). If you’re granted DLR this opens up welfare entitlement. For our survivors with DLR it is irrelevant that their country of origin is within the European Economic Area as their right to reside is separate to their status as an EEA National. With DLR status our clients have rights to access vital support. Here are two examples:
Under the Jobseeker’s Allowance Regulations 1996, Reg. 85A, a person claiming JSA needs to satisfy the Habitual Residency Test if they are a ‘person from abroad’, like an EEA national. Under Reg. 85A (4) a person who is not considered ‘a person from abroad’ and therefore not subject to the Habitual Residency Test, is someone with DLR.
Under Housing Benefit Regulations 2006, Reg. 10 ‘a person from abroad’ must satisfy the Habitual Residency Test. Under Reg. 10 (3B) a person with DLR is not considered ‘a person from abroad’ and not subject to the Habitual Residency Test.
In both these examples, it’s clear to see that DLR should circumvent the rules on habitual residency and create an entitlement to access welfare benefits. This was our way around these – we hoped unintended but nonetheless crippling – amendments to welfare entitlement. We assisted a client with their first grant of DLR in September 2014 and have been engaging with the police and immigration solicitors to secure DLR for multiple survivors since. A grant initially is for up to 12 months plus 1 day but extensions can be requested.
How Can Survivors of Human Trafficking be Eligible for Discretionary Leave to Remain?
To support an application for DLR our Team turned to the Home Office Guidance on Discretionary Leave which states that a grant of discretionary leave should be considered where a UK Competent Authority has conclusively identified that a person is:
A. A victim of trafficking, and;
i. The individual’s personal circumstances are so compelling that it is considered appropriate to grant some form of leave; or
ii. Where the victim has lodged a legitimate compensation claim against the trafficker and a grant of leave would help secure justice for the trafficked person and assist in ensuring the trafficker faces the consequences of their actions. (Leave must only be granted where it would be unreasonable for them to pursue that claim from outside of the UK); or
iii. If an individual is cooperating with an ongoing police investigation in relation to their trafficking case and their presence is required for this purpose.
Our Team works hard to ensure survivors receive advice on compensation cases and we work with police forces to support ongoing investigations and prosecutions (when survivors wish to do so).
A Final Thought: Where To Next?
It’s not all upside of course, securing a DLR decision can take several weeks, it isn’t guaranteed and during the interim the survivor must battle the anxiety of financial insecurity. However, in our experience it’s still the better outcome in the long run because it provides eligibility for welfare assistance – recipients are initially granted one year and one day.
As I sum up, let me make clear, we do not consider this some kind of ‘loop hole’ that we’re delighted to have found, these provisions exist to support people exactly such as these. It just seems that there should be no need to utilise such provisions at all. Instead, in a perfect system, victims should automatically qualify for support as is suggested by the Trafficking Convention and Directive, and our Team should be able to focus on advocating for compensation and supporting victims through the prosecution of traffickers. Until then, we will use this familiar DLR legislation to put shelter over the heads of trafficking survivors and food back onto their tables.