Resource

Summary

This document contains recommendations primarily for members of the Judiciary, with some features that are relevant to the Legal Aid Agency and HMCTS staff. These recommendations have been produced urgently in light of the COVID-19 public health crisis and may be updated in the future. This document is not intended to be comprehensive in that it does not cover issues affecting particular groups, such as unaccompanied minors or those in detention, in any significant detail.

It is important that standards of procedural fairness are maintained for the most vulnerable people during the COVID-19 public health crisis. Practices and procedures may need to be adapted in light of the current crisis, but the right to a fair hearing, which is protected in domestic and international law, together with the  procedural protections that enable effective engagement with decision- making regarding other fundamental rights should not be compromised.

It is imperative that claims for international protection from those fleeing persecution are subject to the highest standards of fairness. 

The spirit of existing guidance, which helps promote access to justice for vulnerable people, should be followed, but may require adaptation. This includes statutory guidance, Home Office internal guidance and Tribunal guidance for statutory appeals. The European Council has also produced (pre-COVID-19) guidance on video-conferencing.5 All parties working in this field should be aware of the requirements of the Equality Act 2010 in respect of people with a protected characteristic and in particular those who may require reasonable adjustments due to disability. Judges, may find the toolkits and training materials published by the ‘Advocates Gateway’ helpful. The Helen Bamber Foundation has published the ‘Trauma-Informed Code of Conduct for All Professionals Working with Survivors of Human Trafficking & Slavery’ and is a contributor for the ‘Slavery and Human Trafficking Survivor Care Standards’. 

During the COVID-19 public health crisis, it is our frontline and clinical experience that many survivors of torture, human trafficking/modern slavery and other extreme human rights abuse (‘survivors’) are experiencing a deterioration in their mental and physical health due to issues including isolation, uncertainty, disruptions in treatment, delays, concerns about their and their family members’ health, fear for the future, lack of childcare, difficulties with accommodation and destitution issues. Survivors may also find the experience of ‘lock-down’ triggers traumatic memories of captivity or self-confinement, which were a characteristic of past persecution, leading to an increase in trauma symptoms and a decrease in coping mechanisms. 

Asylum seekers are a particularly vulnerable group, due to combined issues including histories of past persecution, displacement, destitution and language barriers. Individual features of vulnerability, such as poor health or the impact of trauma, may not be readily apparent and will be even more difficult to identify during the current crisis where survivors are contacted predominantly remotely. Individuals may not self-identify vulnerabilities. In this context there are particular risks to welfare and to access to justice where international protection and modern slavery/human trafficking casework is undertaken by remote means rather than face-to-face. 

Remote international protection or NRM casework/hearings during the COVID-19 public health crisis includes contact by a range of methods including email, instant messaging, online FAQs, telephone and video-conferencing. These recommendations are intended to inform good practice in the use of these approaches. It should be recognised that remote means of communication can be more tiring than in-person meetings and so it is not realistic to expect people to complete the same volume and length of hearings as has traditionally been the case. This tiredness will impact on all professionals involved in proceedings, including interpreters. In addition (as discussed below), it should be recognised that remote hearings and interviews by definition reduce the opportunities to identify when a person is struggling to participate effectively, because visual cues and full-body language cues are reduced.