Children with various types of immigration status can be victims of trafficking. For example, they may be British, European Economic Area nationals, in the United Kingdom on a visa, undocumented children born in the UK or visa over-stayers. Many trafficked children will, therefore, need immigration advice and representation.
In all cases where immigration status is a live or potentially live issue, trafficked children should be referred to an immigration adviser as soon as possible.
Being recognised as a victim of trafficking through the National Referral Mechanism will not necessarily determine a child’s immigration status.
In the UK, when a child or young person receives a positive Conclusive Grounds Decision in the NRM, the Competent Authority should consider whether they require a residence permit. This would be a renewable residence permit, granted for a minimum of 12 months and up to 30 months (2 ½ years). However, they do have discretion to provide a permit for less than 12 months or more than 30 months should it be considered appropriate.
Residence permits can be granted to trafficked children in the UK in the following circumstances:
- they have particularly compelling personal circumstances which justify a grant of leave to allow them to remain in the UK (such as medical conditions, mental health issues, need for recovery);
- they need to stay in the UK to pursue a claim for compensation against their traffickers; or
- the victim needs to stay in the UK to assist with police enquiries (the victim needs to have agreed to cooperate with the enquiry, and the police must make a formal request for them to be granted leave on this basis).
In some cases the police may request that a residence permit is granted. However, in most cases the child will need legal assistance to collect the evidence to show why they require a residence permit. This evidence should be submitted before a conclusive grounds decision is made.
There is often an interaction between child trafficking and the Refugee Convention (particularly where a child would be at risk of re-trafficking or exploitation on return). The UN High Commission for Refugees (UNHCR) has produced guidance on human trafficking and the Refugee Convention.
If someone is recognised as a victim of trafficking, and depending on their nationality, they may be able to show that they are a refugee and entitled to refugee status in the UK due to their particular circumstances and the lack of protection or access to protection in their home country.
Where the Home Office finds that a trafficked child is not a refugee and is not eligible for leave on any other basis, the Home Office may still grant a child a period of limited leave under the immigration rules (called ‘UASC leave’) until the age of 17.5 years old, or for 2.5 years, whichever is shorter. This leave is granted to children in cases where there are no adequate reception arrangements in their country of origin.
It used to be the case that children in these circumstances would be granted ‘discretionary leave’. However, although discretionary leave does still exist, it is generally no longer granted in these circumstances.
Grants of leave on this basis should be very carefully scrutinised and legal advice sought, because this type of leave shows that the Home Office has refused to grant the child leave as a victim of trafficking. Grants of leave on this basis will also mean that the child’s asylum claim has been refused.
