By Dr Samantha Currie, Senior Lecturer in Law, University of Liverpool
Survivors of trafficking, or other forms of ‘modern slavery’, can benefit considerably from legal advice and representation. Research led by Samantha Currie at the University of Liverpool’s School of Law and Social Justice has highlighted, however, that there are substantial barriers to them accessing it in England and Wales. The project, funded by the Modern Slavery and Human Rights Policy and Evidence Centre, involved interviews with lawyers and support workers who work with people who have experienced trafficking or modern slavery.
Importance of legal advice for survivors
The importance of accessing legal advice was emphasised strongly by participants. It was seen as particularly key to being formally recognised as a ‘victim of modern slavery’ under the National Referral Mechanism (NRM), the victim identification framework, and securing immigration status in the UK. These in turn are foundational to the ability of survivors to make progress towards recovery and reducing their vulnerability to re-trafficking.
Presently, being recognised as a victim of modern slavery does not lead to an automatic grant of leave to remain in the UK, and many participants underlined this as problematic. The quote below, from an immigration solicitor, captures a common sentiment expressed about how securing a client’s immigration status is crucial:
[Legal advice] is the core thing that will enable…other things to happen. Without immigration status the person can’t work, can’t claim mainstream benefits, can’t access mainstream banking. I suppose they’re stuck in this world, in the NRM for years and years and years…whereas if you get status you can actually leave that and become a mainstream member of society, which kind of takes you out of…that trafficking process. (Immigration solicitor 1)
Limited capacity of legal aid solicitors
The research found that survivors faced significant challenges finding legal aid solicitors able to take on their case. Participants recognised that some parts of the country have no or few legal aid immigration solicitors, and even areas that do have such a legal aid presence can have a high demand for legal advice owing to the inability of lawyers to take on certain work.
There are huge parts of the country where you don’t really have a legal aid service or you have to travel quite a long way to go there to find a lawyer. People are already so snowed under. If you’re in an area where you’re the one legal aid provider for this huge radius, you’re already going to be lacking capacity. (Immigration solicitor 2)
Support provider participants who worked with modern slavery survivors also acknowledged the challenge of trying to access legal aid solicitors able to take on clients they were supporting. The need for people to travel to different geographic areas was mentioned frequently.
Outside of London you would probably really struggle. I know that in some areas you have people travelling really far to find an immigration representative, and that’s just any immigration representative, not even an immigration representative who has expertise in the area of the claim. (Support provider 1)
The research found that the fees available to immigration legal aid lawyers contribute to the capacity issues. Immigration legal aid lawyers are paid standard fixed fees, as opposed to being paid on an hourly rate for work carried out on a case. These fees, which do not change to reflect the time needed to work on a case, are too low to cover the effort necessary on usually very complex cases involving modern slavery survivors. The cases often contain complicated and interconnected immigration issues that run over a long period of time, and clients often also have other legal issues ongoing not directly related to the immigration case but which may nevertheless impact on it (such as ongoing criminal cases).
While it is possible to charge for the actual time spent on cases if the work carried out exceeds a certain threshold – the ‘escape fee’ stands at three times the value of a fixed fee – relying on this is felt by lawyers to be too financially risky and so is inadequate to address the situation.
The result is that cases involving clients who experienced modern slavery are often not financially viable for lawyers to take on. Those who do may limit the time spent on the case, with obvious impact on the quality of the advice. The heavily restricted time afforded to solicitors to work on cases and pursue the relevant legal avenues was hindering the potential for survivors of modern slavery to have their legal case pursued to its fullest potential.
A legal aid lawyer is constantly under pressure to have to bring in sufficient fees to cover some calculation of their pay, two and a half times or twice or three times or something, and so if that’s the pressure you’re under then quite often you might opt for the cases which are going to be more straightforward, and particularly with the way fixed fees are, you will opt for the cases which are more straightforward and which are going to mean that you can meet your targets more easily. Trafficking cases, unless you get them on to hourly rates, are going to be more difficult because you’re going to have to spend more time on them. Unpicking that 2,000 pages of Home Office papers takes hours and hours. (Immigration solicitor 3)
The lawyers that were based in larger firms, with a number of different legal departments, talked of how there was an acceptance within the firm that trafficking cases would run ‘at a loss’ but be offset by gains in different departments. This strategy enabled them to run the case in a more expansive way than otherwise would have been possible. Clearly, this was not an option available to those lawyers in smaller, less diversified law firms. However, many of the practitioners in smaller firms talked of their tendency to work long hours on client cases involving modern slavery/ trafficking, often at weekends and on an ‘unpaid’ basis. This came at a personal cost and many shared their misgivings about the effect and sustainability of their work with such clients, from a financial and emotional perspective.
I think it’s a barrier to firms wanting to do their best for their client, because they’re put in a situation where, if they really did their best for their client, their business just wouldn’t function, they’d go bust, because the fees don’t cover the amount of work that you need to do, to do a really good job…So a lot of us who practice Legal Aid, you just have to make the choice of like, am I going to do a shoddy job, you know, or am I going to do a proper job and donate some weekend time that I can’t bill for…at a certain point it does get unsustainable, you know, for people and for firms…It makes me think how long can I work this way. Maybe I shouldn’t say it, but I do think, just on a personal level, how much longer can I work this way? I’m not sure… (Immigration solicitor, Liverpool)
Recommendations for reform
The research report puts forward a number of recommendations aimed at improving access to legal advice for survivors of modern slavery. A priority recommendation is to pay legal aid immigration lawyers representing survivors of modern slavery on an hourly-rate basis. This would ensure that lawyers could be paid appropriately for the work carried out, providing a much-needed boost to the sustainability of the system.
The report also recommends that there should be entitlement to legally aided advice before being referred into the NRM. This is based on another finding of the research, that the entitlement of survivors to legal aid comes too late in the process, only after they have been referred into the NRM as potential victims. The research highlighted that the referral itself can be very confusing and disheartening, and leave people not fully understanding what referring to this framework entails.
The research summary and report can be accessed here.
The research involved a collaboration between researchers at the University of Liverpool’s School of Law and Social Justice, the Right’s Lab at the University of Nottingham, the Anti-Trafficking and Labour Exploitation Unit and Lucy Mair, a Human Rights Barrister at Garden Court North Chambers.
The research was funded by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC)
About the Modern Slavery PEC
The Modern Slavery PEC was created by the investment of public funding to enhance understanding of modern slavery and transform the effectiveness of law and policies designed to prevent it. With high-quality research it commissions at its heart, the Centre brings together academics, policymakers, businesses, civil society, survivors and the public on a scale not seen before in the UK to collaborate on solving this global challenge.
The Centre is a consortium of six academic organisations led by the Bingham Centre for the Rule of Law and is funded by the Art and Humanities Research Council on behalf of UK Research and Innovation (UKRI).
The views expressed in the report are those of the authors and not necessarily of the Modern Slavery PEC.