Why we reject the Immigration Enforcement Migrant Victims’ Protocol
By LAWRS and FLEX
How we got here
In December 2018, Liberty and Southall Black Sisters brought the first ever super-complaint in UK history. The super-complaint was submitted against both the National Police Chiefs Council (NPCC) and the Home Office and challenged the harmful practice whereby police share victim and witness data with the Home Office for immigration enforcement purposes. This complaint was grounded in a long-recognised concern that prioritising immigration enforcement over safeguarding puts victims and witnesses at risk, causes serious distress and is wholly counterproductive to the prevention of crime.
In response to the super-complaint the investigative ‘Safe to Share?’ report was published by a group of police watchdogs in December 2020. The report reaffirmed that Home Office and police practice was causing victims and witnesses of crime with insecure or uncertain immigration status to be fearful of coming forward, worsening the risk of abuse and exploitation. Further, it concluded that significant harm is being caused to the public interest and that there is no evidence that data sharing arrangements safeguard victims of domestic abuse. The independent report asked the Home Office to produce a review of this practice and its legal framework.
The Review – failing victims
The Government laid its review of data sharing on migrant victims and witnesses of crime (the Review) before Parliament at the close of 2021. While recognising that data sharing for immigration enforcement can be a contributing factor to victims not reporting crime and that exploiters and perpetrators ‘often use the victim’s immigration status to exert fear or control’ the Home Office failed to implement the changes that could prevent this. Instead, disregarding the evidence put forward by victims/survivors, by the anti-trafficking sector, and the ending violence against women and girls (VAWG) sector, the Home Office proposed an Immigration Enforcement Migrant Victims’ Protocol (the Protocol). The Protocol, which is yet to be implemented, will prevent immigration enforcement action against victims only while criminal investigations and proceedings are ongoing, and while the victims are being supported. It is unclear how victim status will be determined and there is no process for people who are witness to crime. As said by the Latin American Women’s Rights Service and Southhall Black Sisters, the Protocol demonstrates the Home Office’s ‘unwillingness to soften, let alone dispense with, the harmful and discriminatory impact that its immigration policies have on those who are most in need of protection.’
Why we reject the Immigration Enforcement Migrant Victim’s Protocol
The Protocol fails to address the key concerns of victims with insecure migration status. Immigration enforcement will always be at odds with victim support and protection. Delaying immigration enforcement action until the post-investigation and proceeding period does not remove the victims’ and witnesses’ fears but merely defers the point at which the harms are triggered in some cases. Nevertheless, the Home Office insists that Immigration Enforcement holds a safeguarding function, going against the findings of the ‘Safe to Share?’ report in relation to domestic abuse victims, and the consistent position of the anti-trafficking and VAWG sectors and victims alike. Prioritising immigration enforcement undermines safeguarding and leaves victims vulnerable to continued exploitation and abuse by dissuading them from seeking help.
The European Union Agency for Fundamental Rights’ 2019 research [NR1] on eight countries including the UK, found that migrant workers rank their insecure status as the main reason they chose not to report exploitation. In this sense, the Home Office’s approach plays into the hands of exploiters who target those with insecure immigration status with impunity. The active involvement of immigration enforcement will have a detrimental effect on victims and witnesses with insecure or uncertain immigration status, leaving them unprotected.
Standing in solidarity with our colleagues supporting migrants and victims in the UK, we reject the Protocol – which only serves to worsen the Government’s hostile environment. As the Home Office is currently approaching organisations to add a fig-leaf of legitimacy to the Protocol despite its known flaws, we join the call to refuse to engage with the Home Office in the development of the Protocol or the campaign to raise awareness around it. No one is safe until everyone is safe.
Secure Reporting Now
The anti-trafficking and ending VAWG sectors recognise the need to establish secure reporting policies and procedures so that individuals with insecure immigration status feel able to engage with authorities in the first instance. In doing so law enforcement and labour market enforcement authorities must end the practice of sharing data on victims’ and witnesses’ migration status with immigration enforcement. As demonstrated by practice and guidance around the world, this is a workable and realistic solution.
Where secure reporting practices are in place, labour market enforcement authority and police referrals would also enable victims to access vital culturally and linguistically appropriate support from specialist organisations. Moreover, it would help them to receive legal advice to regularise their status and access the holistic support they need from those who can provide safe spaces and have expertise in safeguarding. As recognised by the Home Office, victims must be ‘treated first and foremost as victims’ regardless of their immigration status.
Where secure reporting pathways do not exist for victims, the provision of support and protection will be limited by increased distrust of authorities, victims not coming forward to report crimes, reduced identification of victims and perpetrators, and ultimately, the continued empowerment of exploiters who have an additional weapon in their arsenal to coerce victims. As set out in the explanatory report to the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT), ‘the greater victims’ confidence that their rights and interests are protected, the better the information they will give.’
 The police super-complaints system allows designated organisations to raise issues on behalf of the public about harmful patterns or trends in policing.
 Home Office, (2021) ‘Guidance – Review of data sharing: migrant victims and witnesses of crime,’ para. 18.
 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings – CETS 197 – Action against Trafficking in Human Beings, para. 181.