Vulnerable foreign national women in the criminal justice system, including trafficking victims, are facing inappropriate imprisonment and the threat of deportation at the expense of rehabilitation or support, according to a new report published today (17 September) by the Prison Reform Trust and Hibiscus Initiatives.

The report, Still No Way Out, found that foreign national women, many of whom are accused or convicted of non-violent offences and who have in many cases been trafficked or coerced into offending, are receiving inadequate legal representation, poor interpreting services and disproportionate punishment.

Its findings suggest that measures put in place to protect victims of trafficking and modern slavery are too often failing to prevent prosecution for offences committed as a consequence of exploitation by traffickers.

The report draws upon data from a number of sources, including evidence gathered by Hibiscus from its work with foreign national women in prison, published statistics, freedom of information requests, parliamentary questions, inspectorate reports and research studies.

A relentless focus in recent years by the Home Office and Ministry of Justice, driven by the government’s ‘hostile environment’ policy, to deport increasing numbers of foreign nationals in difficulties with the law has restricted the use of bail, proportionate alternatives to custody and access to rehabilitation and resettlement services.

‘Foreign national offender’ is a broad term encompassing those convicted of any offence without evidence of British nationality. Women classed as foreign nationals may have lived legally in the UK for many years, in some cases since childhood, and regard themselves as British. They may also have dependent children; yet their leave to remain may be revoked following a criminal conviction, so that they face possible removal or deportation to a country where they have no connection, leaving family and community behind.

Figures contained within the report show that more than half (53%) of foreign national women in prison supported by Hibiscus had problems relating to their immigration status. It recommends that foreign nationals with contested or uncertain immigration status should be guaranteed independent immigration advice and should not have to enter a plea on a criminal matter until legal advice has been provided.

The report also raises concerns about failures to identify and ensure the non-prosecution of victims of trafficking and modern slavery who have been compelled to commit offences, as required by law under section 45 of the Modern Slavery Act 2015.

Evidence from Hibiscus, confirmed in recent inspection reports and in discussion at a high-level roundtable held by PRT and Hibiscus in July 2018, suggests that despite police and prosecution guidance there is a disturbing failure to identify, protect and support victims of trafficking at an early stage and avoid prosecuting them for offences committed as a consequence of their exploitation by traffickers. Of the 585 foreign national women prisoners Hibiscus assisted between February 2013 to March 2017, 45 women were identified as victims or potential victims of trafficking, all of whom had disclosed information about their exploitation. This represents 8% of the total Hibiscus caseload.

Foreign national women are over represented in the criminal justice system, especially on remand. They account for around 8% of the general population in England and Wales, but over 12% of all women received into prison each year and nearly 19% of those remanded.

Figures compiled by Hibiscus, from the women they supported between 2013 and 2017, show that half were held in prison on remand; 49% of those given a custodial sentence were serving a year or less; and the most common offences for which the women were in prison were fraud (18%), theft (18%) and false document offences (10%)—all indicator offences for trafficking and coercion.

Foreign national women in prison receive little or no access to rehabilitative opportunities in prison and poor resettlement planning and support. Inspection reports highlight that support for foreign national women in prison, such as interpreting and immigration legal advice, varies considerably and that resettlement support is generally poor.

Prisons face significant challenges in meeting the needs of foreign national women and trafficked women in prison, due to a lack of information about prisoners before their arrival, the churn of women serving short sentences and a lack of resources to provide necessary support.

Official data and prison inspectorate reports show that access to open conditions, Release on Temporary Licence (ROTL) and Home Detention Curfew (HDC) remain very limited for foreign national women in prison. This is despite the fact that most have been convicted of non-violent, often minor, offences and many may not ultimately be deported. The overriding focus on their removal from the UK jeopardises fair treatment and rehabilitation.

Analysis of HM Inspectorate of Prisons surveys reveal that most foreign national women receive very poor levels of support to prepare them for release, and providers of ‘through the gate’ support are not explicitly required to address the distinct needs of foreign national women. Confusion over the respective responsibilities of prisons, the National Probation Service and Community Rehabilitation Companies has created additional difficulties for foreign national women, who are at increased risk of getting lost in the system.

Furthermore, the current limited availability of official data about the experiences of foreign national women in the criminal justice system and failure to monitor outcomes impede both understanding of their over representation in custody and progress to address this. The report recommends that the principle of ‘explain or reform’ adopted by central government, following the Lammy Review of racial bias in the criminal justice system, should be extended to include foreign national status.

Commenting, Katy Swaine Williams, Senior Project Officer at the Prison Reform Trust’s Transforming Lives programme to reduce women’s imprisonment said:

“Foreign national women remain largely hidden in our justice system, with the authorities focusing on their removal and not their rehabilitation. Our report reveals that very limited official information is recorded or analysed about the nature of these women’s offending and outcomes in terms of sentencing, reoffending and rehabilitation. Specialist support for foreign national women is scarce and criminal justice practitioners are often not equipped to ensure they understand the process and are fairly treated. Despite legislation to protect victims of trafficking, current processes are failing to identify vulnerable women and prevent their prosecution for offences they were compelled to commit.”

Commenting Adrienne Darragh, Chief Executive of Hibiscus Initiatives, said:

“This is an opportune time; we hope that this report, combined with the recently published Female Offender Strategy, confirmation from the Home Secretary of the move away from the ‘hostile environment’ and the commitment to implement David Lammy’s key recommendations will act as a catalyst in leading to positive changes in the experience of foreign national and trafficked women caught up in our criminal justice system.

“The government’s intention to imprison fewer women for non-violent crimes is very welcome. Acting on this report’s proposals will help ensure that vulnerable foreign national and trafficked women are not punished disproportionately and have equality of access to justice.”

Click here to download a copy of the full report.

A shorter, summary version of the report is also available by clicking here.

Victims behind bars – foreign national women trafficked into offending

Most foreign national women in custody in England and Wales who have been trafficked into offending are not getting the help and support to which they are entitled as victims of crime, a University of Cambridge report reveals.

The report’s authors found violence, intimidation and rape were common experiences of the women, but evidence of their suffering was often overlooked and they did not receive the protection guaranteed to them as victims of human trafficking under international law. In only one of the cases of human trafficking identified by the researchers did victim disclosures result in a full police investigation in relation to the actions of the perpetrators.

The research report by Professor Loraine Gelsthorpe and Dr Liz Hales, supported by the Economic and Social Research Council, examines the case management of migrant women in the criminal justice and immigration systems, including the identification of trafficked women.

On 30 September 2012 there were 616 foreign national women in prison, accounting for one in seven of the total female prison population.

From initial research interviews with 103 women in prisons and immigration removal centres, the offences of 58 women were linked with their victim status and, with consent, data was gathered on their progress through the criminal justice and immigration system. Within this group 43 were identified by the researchers as victims of human trafficking, and five more who had entered the country independently had worked under slavery like conditions. Of these:

• Nearly half (20) were forced to work in prostitution and fifteen in cannabis production.
• Eight worked in domestic servitude, two were acting as drug mules and eight were involved in street robberies and the sale of fake goods.
• Five had been trafficked as children; one of whom had been re-trafficked to the UK after being deported to Africa from the first destination country.

The women described to the researchers their experiences of violence, intimidation and rape at the hands of their traffickers and abusers, before ending up in the criminal justice system.

My uncle said that they would hold me for 6 years and then I could go … She (the mother of the household) and the children referred to me as slave. They also forced me to sleep with men … to this I lost my virginity as a child.
(woman who was trafficked at the age of 15)

The Latvian group came and said they would shave the head of the girls working for the other gang. They did this to one girl and she was hysterical as this happened – she was screaming and I still have flashbacks from the sound of the electric razor.
(woman, sex trafficked from Russia)

Some had harrowing stories of persecution in their countries of origin:

My husband had been killed and they were looking for me to tell them the names of the friends of my husband. They held me and tortured me – look at my legs, they sprayed the knees with solder gun. I went to another area and they still found me.
(woman who came from an area of conflict in Africa)

I had to escape. We are Bajuni [a persecuted group in Somalia] and my father and then all other family members were killed. They snapped the neck of my three year old daughter.
(woman from Somalia)

A common theme of all those interviewed was their confusion and sense of powerless after arrest. One victim of trafficking stated:

At the early stages at court the only thing I understood was the next hearing date and I just felt I was in their hands – like being in the hands of the people who brought me here.

Another common problem was the failure of the criminal justice and immigration agencies to ensure the provision of adequate interpreter support and access to documents in a language the women could understand. One victim of sex trafficking, arrested for use of false documents, said:

At the police station I was confused. They spoke quickly. They never asked if I needed an interpreter. I did not understand what was going on. I was crying … I just wanted to tell them everything – I wanted them to listen and understand. If I had been able to talk then maybe I would not be here.

Many women interviewed in prison were very worried about their children. One said:

I do not know where the children are living – I have no address, no phone number or the name of the carer. I think that they are all in one house, but I have not been able to talk to them on the phone. Because of how we were arrested I have not even been able to bring any photos of them into prison … I cannot sleep because I was so worried about the children.

The National Referral Mechanism (NRM) is a framework for identifying victims of human trafficking and ensuring they receive appropriate protection and support. It was introduced in 2009 to meet the UK’s obligations under the Council of European Convention on Action against Trafficking in Human Beings.

Only one quarter (11) of the 43 women identified by researchers as having been trafficked were processed through the NRM, and two of these women were not processed until after their sentence was completed. Even where referrals were made to the NRM that resulted in a positive decision and non-prosecution, the victims spent on average four months in custody. For the other 37 there was no formal recognition of their victim status and no access to appropriate support or temporary protection from deportation other than going down the route of applying for asylum.

All of the women interviewed indicated that they had been victims of physical and/or emotional abuse. Twenty-four women disclosed that they had experienced multiple rapes and for an additional two this had been an ongoing threat. Some women asked prison doctors for help with severe abdominal pains, heavy bleeding and discharge following extensive rape and sexual abuse.

Those who migrated to seek asylum disclosed that these experiences started prior to their move and were the key reasons for migration. For many, the hold and threats made by those who had recruited, moved and controlled them did not disappear on arrest.

Professor Loraine Gelsthorpe, at the Institute of Criminology, University of Cambridge, said:

This is important research in terms of access to justice.  The message is clear: the powerlessness of these women in the hands of their traffickers is terrifyingly replicated within the criminal justice system. Yet the legitimacy of the criminal justice system stands or falls on the way in which we treat victims as well as offenders.   There should be renewed efforts to recognise that ‘offenders’ can also be ‘victims’, and to ensure that appropriate credence is given to  women’s accounts of their own experience. We hope that the research will encourage government agencies to implement better training and procedures in relation to this.

The report’s findings and policy implications will be debated by MPs and Peers at a seminar convened by the Prison Reform Trust and the Institute of Criminology, University of Cambridge, which is taking place in the House of Lords on Wednesday 30 January 2013.

Parliamentarians will consider recommendations for a national strategy on foreign national women in prison, to form a discreet part of the government’s forthcoming strategy on women’s justice, and better monitoring and enforcement of the UK’s obligations under international law, including the EU Convention on Trafficking and the UN Bangkok Rules on the treatment of women prisoners.

Juliet Lyon, director of the Prison Reform Trust, said:

Many foreign national women languishing in British jails have been coerced or trafficked into offending. There are ways out of this mess but only if the government is prepared to redouble its efforts to catch the traffickers, who profit from their grubby trade, rather than allowing the burden of punishment to fall on vulnerable women, many of whom as this research shows, are victims themselves. It is shameful that terrified women who have been repeatedly raped and abused could find no one at police stations, courts or jails that they could trust or turn to for help.

The Criminalisation of Migrant Women, by Liz Hales and Loraine Gelsthorpe, is published by the Institute of Criminology, University of Cambridge.

No Way Out – foreign national women in prison in England and Wales is a Prison Reform Trust and Hibiscus briefing, supported by the Barrow Cadbury Trust.