Katharina Theil and Emily Soothill of  the modern slavery and trafficking team at Leigh Day summarise a recent human rights discussion by a panel of experts on the topic

On Wednesday 2 December 2015, a panel of experts came together as part of the Law Society’s Human Rights in Collaboration Programme to discuss the plight of victims of trafficking and the legal challenges that they face.

Shanta Martin, a partner at Leigh Day representing the claimants in Antanas Galdikas & Others v DJ Houghton Catching Services & Others, introduced this landmark case as a case study for the event. Six Lithuanian men are accusing Kent-based DJ Houghton Catching Services Limited, and the company’s director and secretary, Darrell Houghton and Jacqueline Judge, of liability for trafficking the men and subjecting them to severe labour exploitation while working as chicken catchers.

Despite the shocking statistic that around 2,340 potential victims of trafficking were referred to the UK’s National Referral Mechanism (NRM) in 2014 alone, this is the first case of its kind in which a British company has been taken to the High Court by victims of trafficking seeking compensation for their alleged abuse and mistreatment. Just one day after the event, on 3 December 2015, it was announced that DJ Houghton Catching Services Limited has been denied a new licence to operate as a gangmaster.

Simon Cox, migration lawyer for the Open Society Justice Initiative, said traffickers threaten victims of trafficking that if they seek help, they will be deported. Sharing police data with immigration enforcers makes the traffickers’ threats credible. Law enforcement agencies dealing with serious crime - police, social services and labour inspection - must guarantee a ‘firewall’ for migration data of victims of trafficking and witnesses - this data must not be shared with immigration officials. While immigration control is a legitimate interest, it must not undermine the state’s crucial legal duty to combat serious crime and protect victims of trafficking. You can read about the work of the Migrants' Rights Network on their website.

Catherine Kenny of Kalayaan expanded on this in relation to the plight of migrant domestic workers. As a ‘First Responder’, Kalayaan tries to refer many potential victims of trafficking in to the NRM. Although the system is designed for the protection of victims of trafficking, shortfalls within the system mean that people are often reluctant to come forward. A particular challenge is the current visa system, introduced in 2012, which ties migrant domestic workers to their employers, often forcing them to remain with an employer despite exploitation. This has been confirmed by a recent independent review into this visa arrangement, which called for an immediate end to the current system which ties workers to their employers. Read Kalayaan’s press release. In addition, Kalayaan has found that the UK authorities will often presume that ‘respectable’ employers are innocent. Against this backdrop, it may not seem surprising that there has been no conviction upheld for trafficking an adult to the UK for domestic servitude and - within the confines of the current visa system - it seems unlikely that this will change in the near future.  

Discussing the availability of private law remedies, Shanta Martin noted the importance of obtaining compensation for victims of trafficking. Due to the absence of a specific tort of trafficking, in civil cases such as Antanas Galdikas & Others v DJ Houghton & Others it is necessary to employ causes of action creatively to cover all angles of suffering that victims of trafficking have gone through.

Shu Shin Luh, Barrister at Garden Court Chamber, and Catherine Meredith, Barrister at Doughty Street Chambers, discussed the availability of public law remedies. Both noted that the State has a duty to protect potential victims but implementation is a major problem. While assistance for children has a clear statutory framework, and binding EU law makes protective provision for adults, such duties are routinely denied or breached by the State. The stark reality for victims of trafficking, even from the EEA, is often dire with many facing destitution and street homelessness once support under the NRM comes to an end. Leigh Day is currently seeking to challenge what they see as the failure of the Home Office to provide a comprehensive system to provide assistance and support to victims of trafficking and, importantly, the High Court has recently granted permission for a judicial review hearing.

In conclusion, it is clear that victims of trafficking face a myriad of legal issues at each stage of their journey. A common theme running throughout the evening was the apparent emptiness of the legal space surrounding victims of trafficking. Far more needs to be done to ensure that the current legal framework is not merely symbolic and instead can be used effectively to alleviate the plight of victims of trafficking in the UK and overseas.