The policy of the reflection period provided in the UK exemplifies the CAT’s failure to protect trafficked persons human rights and guarantee responses which make
individuals physical and psychological recovery possible. The reflection period illustrates the CAT’s internal contradiction between its rhetoric and the realities of the rights it provides. While the reflection period provided in the UK is consistent with the CAT this policy contradicts the principles of a genuine human rights approach and conflicts with the UK government’s message about trafficking in persons and its responses to those affected. The reflection period is the same
duration in each of the four regions of the UK because providing trafficked persons a reflection period is considered to be an immigration issue which is an area of policy controlled by the UK government.
Article 13.1 of the CAT requires ‘Each Party shall provide in its internal law a recovery and reflection period of at least thirty days, when there are reasonable grounds to believe that the person concerned is a victim’ (Appendix A). This right is upheld in the UK. People who receive a positive RG decision are entitled to a forty-five day reflection period. The UK government presents this as a generous and substantial
120 length of time, highlighting the additional fifteen days as evidence of commitment to supporting trafficked persons. For example the Government’s Strategy states, ‘The UK grants a minimum forty-five day period – this is fifteen days more than the thirty day minimum standard’ (HM Government. 2011. p9). The UK government’s draft Modern Slavery Bill echoes this, ‘We are required to provide victims with thirty days for ‘reflection and recovery’ but fund an additional fifteen days’ (Home Office. 2013. p13).
An evaluation of the reflection period against the duration required by the CAT finds the UK’s response exceeds expectations. This emphasises the limitations of the rights granted to trafficked persons by the CAT. It is not evidence of a government
committed to providing comprehensive protection and support. Forty-five days cannot guarantee trafficked persons meaningful access to their rights required by the CAT. Forty-five days does not fulfil the CAT’s purposes for the reflection period which requires it ‘shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities.’
The SA has not publicly challenged the problems with providing only forty-five days for a reflection period. Instead the SA upholds and defends the UK government’s rhetoric. It presents the reflection period as providing sufficient time by suggesting recovery can happen very quickly. The SA ‘one year review’ quotes a trafficked person supported by a sub-contractor who explains their surprise at how quickly they
recovered, “That I could pull my life back together so quick. I was quite surprised, I thought it would take a lot longer to pull it back together” (Salvation Army. 2012. p10). This carefully selected quote to portray the reflection period as satisfactory demonstrates how ‘giving a voice’ to trafficked persons does not guarantee their participation as empowered advocates for their own rights.
Abigail Stepnitz critiqued the inadequacy of the forty-five day reflection period in her evidence to the 2010 Scottish Parliament Equal Opportunities Committee inquiry into migration and trafficking when she was the national coordinator at the PP. She highlighted it does not meet internationally recognised minimum standards, ‘The forty-five day reflection period . . . is not even at the minimum end of what is
121 2010). The 2004 report by the Council of Europe Experts Group on Trafficking in Human Beings both called for a minimum ninety day reflection period,
A period of three months is a minimum time frame in which to ensure that the presumed trafficked person receives appropriate assistance and support, such as secure housing, psychological counselling, medical and social services, and legal consultation (Experts Group on Trafficking in Human Beings. 2004. p3). In 2006 the Joint Committee on Human Rights recommended that the UK
government introduce a minimum ninety day reflection period. Many of the Council of Europe member countries provide a minimum of ninety days for the reflection period. For example Norway provides a six month reflection period, while Romania, Poland, Slovenia and the Netherlands all provide three months.
There was consensus from participants in the fieldwork interviews that the reflection period in the UK does not provide the time necessary for reflection and recovery. A clinical psychologist explained,
based on our expertise as the psychological people, psychological recovery does not occur in forty-five days and in fact does not even occur in ninety days which is the best practice model we’d like to see (Appendix B.
Interviewee 16).
One interviewee in particular strongly criticised the inadequacy of the duration of the reflection period given the experiences people have suffered,
forty-five days is nowhere near along enough. It’s an absurd amount of time for somebody who may well have been through significant trauma and trauma that is likely to be long lasting, life lasting, forty-five days is almost an insult, ‘oh you know forty-five days, we’ll allow you forty-five days to reflect’, it’s astonishing (Appendix B. Interviewee 7).
Another interviewee explained,
forty-five days is not long enough. It sounds quite long when you say it in weeks – its six and a half weeks. But when you consider that a victim may be coming out of ten, fifteen years of servitude in any form to then have six weeks to be expected to get their lives straight and make decisions about what they want to do with the rest of their life it’s a bit like throwing them in at the deep end to an extreme really. . . . six weeks is a very short amount of time to get your head straight coming out of any sort of circumstances never mind one where you’ve had no control of your own life (Appendix B.
122 It is not only support organisations who consider forty-five days insufficient. A
Detective Sergeant (DS) questioned the limitations of the length of time to access support,
The support network that kind of kicked in didn’t give them a lot in terms of long term benefit. There was short term benefit . . . They are almost put back on their feet. I think they have something like a six week turn around or something ridiculously quick to get them from where they were to back into normal functioning life (Appendix B. Interviewee 17).
A forty-five day reflection period requires people to make life changing decisions about cooperating with the authorities while they are only beginning the long process of recovery and still experiencing multiple symptoms of mental illness. Zimmerman et al (2006) studied the physical and mental health effects of trafficking upon
women. The study interviewed 207 women trafficked for sexual exploitation or who had experienced sexual abuse during their trafficking experience (Zimmerman et al. 2006. p6). The research found 71% of the women experienced ten or more mental health symptoms within the first fourteen days of being supported. Between twenty- eight and fifty-six days this had reduced slightly to 52%. A forty-five day reflection period requires people to decide whether they wish to assist a criminal investigation or apply for leave to remain or asylum during this time when the majority of women in the study were suffering from ten or more symptoms. After ninety days only 6% of the women were experiencing ten or more symptoms (Zimmerman et al. 2006. p11). An evaluation of the reflection period against the UK government’s rhetoric
describing the harm of trafficking in persons must conclude that forty-five days is enormously inadequate. People who have suffered human rights violations are treated as if they have only experienced a minor misdemeanour. A member of the Cross Party Group on Human Trafficking in the Northern Ireland Assembly,
considered what a response consistent with the UK government’s rhetoric would look like,
they [trafficked persons] have been subjected to the most horrendous crime, a heinous crime. Surely we should have more compassion for these people and at least allow them a longer time to recover in our country before they are returned to their country? And forty-five days I think is too short. Yes, France is right, ninety days, but I would say six months to a year would be a better time (Appendix B. Interviewee 18).
123 The UK government is not oblivious to the arguments that forty-five days is
inadequate and considerably shorter than the reflection periods provided by the majority of signatories to the CAT. It has been recommended numerous times that the reflection period should be extended to a minimum of ninety days. The UK government has resisted such recommendations to protect its control over
immigration into the UK. This is prioritised over the protection of trafficked persons. For example, the UK Government’s official reply to the 26th Joint Committee on Human Rights report on human trafficking explained the UK had not yet signed the CAT because it was continuing to examine its impact upon ‘immigration controls’,
We are wholly sympathetic to the objectives behind the Convention and will take into account the comments made by the Committee. We are continuing to assess the level of risk associated with some of the Convention provisions and how we might implement them safely without placing more vulnerable people at risk whilst maintaining effective immigration controls (HM Government. 2006. p20).
The UK government has argued providing a substantial reflection period would be a pull factor for immigration. Concern about the reflection period’s potential impact on immigration controls caused the long delay between the CAT being opened for
signature on 16th May 2005 and the UK government signing the CAT on 17th December 2008 (Harvey. 2008. p218). Labour MP Meg Munn demonstrated this when she answered a question in the House of Commons in 2006 for the Minister for Women, ‘We are concerned about one aspect of the convention—that the automatic reflection period may be a pull factor in respect of immigration.’ In 2006 Paul Goggins, a Home Office Minister in the Labour government expressed the government’s concern about the negative consequences of the reflection period, "People will claim to be victims of human trafficking when they're not, they'll use it as a way of extending time here" as quoted in (Jobe. 2009. p279).
The concerns that an extended reflection period would act as a pull factor for
immigration are unsubstantiated assertions. The 2006 Joint Committee on Human Rights report dismissed such arguments as ‘largely, if not entirely, unfounded’ (Joint Committee on Human Rights. 2006. p65). The 2013 US State Department ‘Global Report on Trafficking in Persons’ declared that countries offering support ‘have not found false claims to be a problem’ (US State Department. 2013. p19). However the argument that these concerns not supported by evidence should influence the
124 response to trafficked persons is accepted outside of government. The 2013 report by the left of centre IPPR argues,
These issues need consideration: the duty to people who are victims of crime and the duty to safeguard people whose lives are in danger; the risk of
encouraging irregular migration and the practical ability to provide this support must influence our response (Cherti, Pennington and Grant. 2013. p54).
The ‘duty to safeguard people whose lives are in danger’ is subordinate to controlling immigration.
A genuine human rights approach should not focus on the arbitrary length of time of the reflection period. Trafficked persons require an individualised response ensuring they have sufficient time to access support enabling their physical and psychological recovery and to make informed decisions about what they do next. The forty-five days reflection period is a one-size-fits-all approach which cannot effectively respond to the enormity of the different characteristics, experiences and requirements of each individual. An individualised response requires the duration of support matches the requirements of each person. The forty-five day reflection period forces peoples’ needs to match the pre-determined duration of support. During a debate in the Northern Ireland Assembly on the findings of GRETA’s evaluation of the UK’s responses to trafficking in persons, MLA Rosaleen McCorley argued for such an individualised response,
I do not believe that a limit should be set. It must be borne in mind that people are traumatised by their experiences. It is not really possible to know what a person has been through in any given case, so limiting the period of reflection and time for consideration does not help. It should be more flexible (Northern Ireland Assembly. Official Report. 2012. p19).
The SA portrays the reflection period in the UK as providing an individualised response. Its six month reviews explains it ‘can be extended if required’ (Salvation Army. 2012.b). At the Home Affairs Committee in 2013 the MP Nicola Blackwood asked Ann-Marie Douglas, ‘Do you think that forty-five days is a long enough period for reflection, as it is called?’ Her disingenuous reply was, ‘I think the forty-five days is the minimum period, and some of our victims have remained within the service for more than forty-five days’ (Home Affairs Committee. 2013. p6). The PP’s depiction of the reflection period as wholly inadequate is juxtaposed against the SA’s portrayal of it as flexible and sufficient. GRETA supports the claim that the reflection period is
125 individualised, explaining it ‘can be extended, if there is evidence of on-going acute support needs related to their trafficking experience’ (GRETA. 2012. p108). This description of trafficked persons who require longer than forty-five days for
reflection and recovery as having ‘acute support needs’ emphasises the limitations of the CAT’s approach.
Claims of an individualised response are contradicted in policy and practice. People are pressured into exiting support after forty-five days and not to request that their reflection period be extended. The SA’s written evidence to the Home Affairs Committee makes no reference to reflection periods being extended in practice. It only explains that ‘Once the service user has received a conclusive grounds decision they are required to leave the service’ (Home Affairs Committee. 2013. p3). The CSJ explains sub-contracted organisations are under pressure to get people to exit support before they are ready and highlights the negative consequences of this,
they are under even more pressure to move victims on quickly, and before they are ready. This is dangerous: if aftercare providers are forced to move an individual into independence when they are not prepared, the risks of that person falling back into vulnerability are very high (Centre for Social Justice. 2013. p172).
I spoke to two members of staff from two sub-contracted organisations at a SA conference on human trafficking in April 2013. Their descriptions of the reflection period policy contradicted an individualised response. One of the support workers explained,
we have to work to some very restrictive boundaries (Appendix B. Interviewee 19).
The other highlighted that their organisation no longer attempts to get reflection periods extended because of pressure not to from the MOJ. Bindel, Breslin and Brown (2013) interviewed staff at the SA who explained they are required to refer people to other forms of support after their forty-five day reflection period expires. They could not elaborate on the nature of this support, only explaining nobody had ‘gone on the streets’ after leaving sub-contracted support (Bindel, Breslin and Brown. 2013. p54). This demonstrates the acceptance of the most minimal standards. The ATMG highlights that sub-contracted organisations have been advised to make people homeless after their reflection period expired so they would become entitled
126 to other forms of support through recognition as destitute (ATMG. 2013. p35). An interviewee from a sub-contracted organisation explained a response which
contradicts an individualised reflection period. A woman they had supported became homeless after they were required to stop supporting her because she had been with them for too long,
A woman that we worked with for a long period of time were still in contact with her but we had to move her on because she’d been with us too long . . . at the moment she has no recourse and no accommodation, so we get her food parcels, bits of cash, we can no longer accommodate her but we would not stop supporting her because we’re all she’s got (Appendix B. Interviewee 15).
Despite these pressures to not extend the reflection period significant numbers of people access government-funded support for considerably longer than forty-five days. This is the consequence of the competent authority frequently not making decisions within forty-five days. This is why Ann-Marie Douglas’s answer was described as disingenuous. An interviewee from a government-funded support organisation explained,
because of the lengthy decision making process the forty-five days is often academic rather than a reality (Appendix B. Interviewee 20).
The 2010 ATMG report highlighted that out of 139 people waiting for a CG decision seventy-four waited between forty-six days and three and a half months (ATMG. 2010. p36). GRETA’s evaluation report notes that between July and September 2011 the median waiting time for a CG decision was eighty-three days (GRETA. 2012. p49). The average wait for a CG decision for those supported under the SA contract is 104 days (Home Affairs Committee. 2013. p5). The fieldwork research for this thesis identified one case where a CG decision had taken nine months and the longest wait was over a year. If forty-five days does not provide the competent authorities enough time to determine whether a person is a ‘genuine victim’ then it cannot be considered sufficient for those people’s reflection and recovery.
Some argue these delays are beneficial because they provide people longer access to support. The CSJ report explains,
it is important to note that in some cases a slow decision from the Competent Authority can benefit a survivor. For someone who is recovering from a very traumatic experience and is in need of a high level of support, a delay in their Conclusive Grounds decision will allow them to access the support of aftercare providers for an extended period (Centre for Social Justice. 2013. p171).
127 An interviewee from an organisation supporting trafficked men spoke positively about the delay in receiving a decision because it meant extended support,
My view is that the reflection period for the clients that we’ve cared for has been sufficient because [in] a lot of occasions that reflection period has been much more than forty-five days because no decision has been made and with the cases we’ve dealt with that’s been a sufficient period of time (Appendix B. Interviewee 21).
A genuine human rights approach requires individuals have a reflection period which is sufficient for their physical and psychological recovery. The extended support in these delayed cases is not because of any intention to respond to the requirements of individuals. Any benefit is entirely unintentional. That it can be suggested people benefit when the NRM is failing is a damning assessment. Furthermore the delays in decisions can have very harmful consequences (Malloch, Warden and Hamilton- Smith. 2012. p36). People may suffer significant stress waiting for these decisions which may have very negative consequences for their overall mental health and wellbeing (ATMG. 2013. p17). A woman trafficked for domestic servitude described