London 1 9 January 2012

1. Access to Special Non-contributory Benefits: Challenges faced by EEA victims of human trafficking and pregnant EEA women London 19 January 2012

2. STRUCTURE OF THIS SESSION Challenges faced by EEA-national victims of human trafficking Challenges faced by pregnant EEA nationals

3. The Problem of EEA Trafficking – First Year of the NRM

4. Problems that EEA Trafficking Victims Have with the Right-to-Reside Test (in AIRE’s Experience) Traumatisation, making it unlikely that they will be able to seek or find work or self-employment. Not likely to have family members in the UK through whom they can exercise residence rights. More likely to be ‘A2 nationals’ (especially Romanian, facing greater restrictions. Fearful of return to their countries of origin, limiting their options.

5. OPTIONS AVAILABLE TO VICTIMS OF TRAFFICKING Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 16.V.2005) Article 13 – Recovery and reflection period 1.   Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim… During this period, the Parties shall authorise the persons concerned to stay in their territory. 2.   During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2. This provision does not enable the individual to enter the benefits system, however it does ‘buy’ some time in which an advisor can consider how to proceed in advising them. Article 12 – Assistance to victims 1.   Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance; … 2.   Each Party shall take due account of the victim’s safety and protection needs. This applies to all special non-contributory benefits, but it is not clear how it applies to EEA nationals after their recovery-and-reflection period, if they are not otherwise exercising Treaty rights, unless…

6. OPTIONS AVAILABLE TO VICTIMS OF TRAFFICKING Article 14 – Residence permit 1.   Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: the competent authority considers that their stay is necessary owing to their personal situation; the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings. 2.   The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions. 3.   The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party. 4.   If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1. 5.   Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum. In the UK, the authorities give Discretionary Leave to Remain to some trafficking victims. This applies to all victims of trafficking, including EEA nationals. It can be particularly useful for Bulgarians and Romanians, who will be able to work with Discretionary Leave to Remain and may be able to complete one year’s work and so have the same rights (to work and access benefits as a jobseeker) as other EEA nationals.

7. Questions?

8. J.S. v SSWP [2010] UKUT 131 (AAC) FACTS The Claimant was a French national who came to the UK on 10 July 2006. She undertook a series of jobs, and enrolled on a Post-Graduate Certificate in Education (funded by a student loan), but withdrew from the course when she fell pregnant. In March 2008 she ceased working altogether as the demands of her work as a nursery school carer were too great given her condition. She was unable to find lighter work, and on 18 March 2008, claimed income support. Her claim was refused on the basis that, at the material time, she did not have a right to reside under Art.7 (2004/38/EC), HELD: That ‘worker’ could not include someone who was not working and had no contract of employment due to pregnancy; That ‘pregnancy’ was deliberately not included in Art.7(3) of EC Directive 2004/38 and should not be read into it (influenced by the fact that pregnancy was considered in a different context in Art.16 and hence not entirely outside of the drafters’ considerations); That as people other than pregnant women were excluded from Art.7(3), this was not a case of direct discrimination; and That indirect discrimination resulting from the right to residence test is justified under domestic and Community law (Patmalniece).

9. J.S. v SSWP [2010] UKUT 131 (AAC) CHILD POVERTY ACTION GROUP comments on the judgment The Court of Appeal were wrong on the following grounds: J.S. is factually and legally different to the case of SSWP v Dias [2009] EWCA Civ 807 on which the Court relied heavily, where the situation preventing the claimant from working was child-care responsibilities. Child-care responsibilities are very different to becoming pregnant in that only women can become pregnant; That subsequently, the discrimination faced by J.S. was direct rather than indirect discrimination; and The DWP’s hypothesis of ‘benefits tourism’ was too far fetched to be afforded any weight by the Court, especially in light of the fact that heavily pregnant women are unlikely to travel far, and unlikely to be offered employment in their condition. http://www.cpag.org.uk/

10. Human Rights and Special Non-Contributory Benefits Special non-contributory benefits are a form of ‘property’ protected by Article 1 of Protocol 1 to the ECHR. An argument was made (not involving an EEA national) that refusing a pregnant woman income support might violate Article 14 ECHR taken with Article 1 of Protocol 1, but the UK’s Upper Tribunal dismissed this. CM v SSWP [2009] UKUT 43 (AAC). Perhaps though the argument could be made in relation to EEA nationals, invoking not only the ECHR but also the EU Charter of Fundamental Rights.

11. Questions?