When the Modern Slavery Act 2015 was introduced, it was heralded by the government as a momentous piece of legislation which would “give protection to the victims who need it”. The Act introduced a reformed system for identifying, supporting and protecting victims of modern slavery or human trafficking in England and Wales. But how does that system work in practice and has it lived up to the government’s high expectations?
The Modern Slavery Act is the key piece of legislation providing statutory protection and support for people identified as potential victims.
Sections 1 and 2 of the Act distinguish between “slavery” and “trafficking”, which are separate criminal offences. The difference is more important for criminal lawyers dealing with prosecutions under the Act than it is for immigration lawyers trying to help victims. Immigration lawyers tend to talk about trafficking, as that is about movement of people, so we’ll use that term in this article.
The most relevant sections of the Modern Slavery Act for an immigration practitioner are in Part 5, covering “Protection of Victims”. Section 52 places various public bodies, such as local councils and the police, under a “duty to notify” the Home Office when they encounter potential victims of trafficking. The Home Office system for processing such referrals, deciding whether someone is actually a victim and providing support is called the National Referral Mechanism (NRM).
Until recently, NRM decision-making functions were handled by a combination of UK Visas and Immigration, Immigration Enforcement and the National Crime Agency. That system is now being replaced with a ‘Single Competent Authority’ to combine decision-making into a single organisation. The Single Competent Authority came into being — on paper, at least — in April 2019. It is ultimately part of the Home Office, so sometimes we talk informally about decisions about trafficking victims being made “by the Home Office”.
In reality, it is often an immigration lawyer who is the first person to realise that someone is a potential victim. But only a designated ‘first responder’ organisation can make a referral to the NRM.
This often leads to a sort of double referral. First, the lawyer refers their client to a first responder. There are a variety of ways this can be done. For example, the Salvation Army has a referral email address or can be contacted by phone.
The list of first responders is:
- police forces
- certain parts of the Home Office:
- UK Visas and Immigration
- Border Force
- Immigration Enforcement
- National Crime Agency
- local authorities
- Gangmasters and Labour Abuse Authority (GLAA)
- health and social care trusts (Northern Ireland)
- Salvation Army
- Migrant Help
- Medaille Trust
- Tara Project (Scotland)
- NSPCC (CTAC)
- New Pathways
- Refugee Council
The first responder is likely to get in touch directly with the potential victim to take further details of their experience. If they agree that the person could be a victim, it will then make a formal referral to the NRM.
Referral rates are mixed. In 2019, only around one in five potential victims identified by UK authorities were then referred into the NRM, according to a recent Freedom of Information request by After Exploitation. It also found that some first responders had “much lower rates of referral than others”.
It is only when a person is referred into the NRM, and has received a decision that there are “reasonable grounds” to consider that they are a trafficking victim (see below), that they become eligible for legal aid, counselling and housing. The Modern Slavery Act does not provide for pre-referral support. So a person’s ability to access support may depend upon which first responder they encounter.
The same Freedom of Information request revealed that a quarter of potential victims encountered by the police were not referred into the NRM. One possible explanation for this could be the lack of education around how trafficking victims are assessed, as well as the differences in the evidential standard between criminal law and the NRM framework. The evidential standard used in the NRM framework is the “balance of probabilities”, i.e. it is more likely than not that X is a victim of trafficking. The criminal standard of proof — eg if trying to convict someone of trafficking or slaveholding — is “sure” or “beyond a reasonable doubt”. It is easy to see why some police officers may impose an unjustifiably high threshold on potential victims when deciding whether to refer.
For example, a client of mine was refused a referral to the NRM by the police on the basis that there would be a poor chance of conviction of the perpetrator. The same client was subsequently referred by the Salvation Army.
Reasonable grounds decision
Once the Single Competent Authority receives a referral, it must first decide whether, on the information available, “it is reasonable to believe that a person is a victim of human trafficking or slavery”. The test is, “I suspect but cannot prove this person is a potential victim of human trafficking” (as it’s expressed in Home Office guidance on the Modern Slavery Act).
As the standard of proof is low, most people referred to the NRM will receive a positive reasonable grounds decision — that is, the Single Competent Authority provisionally thinks they are a trafficking victim. The person has passed the first (but not the last) hurdle. The Single Competent Authority will aim to make a reasonable grounds decision within five working days.
As an immigration practitioner, in order to contact the Home Office about a client in the system, a specific NRM authority form is required. Even then, the decision will often be served to the potential victim directly or to a first responder. Given the lengthy delays discussed below, the client has often moved on or fallen out of contact with the first responder, meaning that decisions don’t reach their lawyer quickly. This shortens the window for any legal challenge.
Support after a positive reasonable grounds decision
Section 50 of the Modern Slavery Act gives the Secretary of State the power to make regulations “providing for assistance and support” where there are reasonable grounds to believe that someone is a trafficking victim, in line with the government’s promise that the NRM would be a “place of safety”. To date, no regulations have been introduced under this section.
Those seeking support must rely on the Home Office guidance, which states that, following a positive reasonable grounds decision, people are eligible for:
- Access to support such as “accommodation, material assistance, financial support, translation and interpretation services”;
- Access to legal aid for immigration advice;
- Medical care and counselling.
Support services are generally delivered by a range of organisations such as councils, charities and other third parties, meaning that there is no consistent approach.
Conclusive grounds decision
A reasonable grounds decision is not the end of the matter. A person can pass the reasonable grounds test and receive support for a while, but still end up being rejected. To be officially confirmed as a victim of trafficking requires a “conclusive grounds decision” in the person’s favour.
To make a conclusive grounds decision, the Single Competent Authority must decide whether, “on the balance of probabilities, there is sufficient information to decide if the individual is a victim of modern slavery”.
The guidance states that a conclusive grounds decision will be made “no sooner than 45 calendar days” after the reasonable grounds decision. This is to give people a minimum period of support before it is, potentially, taken away again. But there is no target for making a final decision once the 45 days are up.
In practice, a year’s wait is not uncommon and some cases drag on even longer. I regularly challenge delays of over two years. In one recent case where the client had been waiting that long for a decision, the Home Office stated that it would need a further four months. The lack of an official target makes it tricky to use the law to chivvy them along.
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This is reflected in official statistics. Around 80% of people referred into the NRM in 2019 were yet to receive a conclusive grounds decision by 10 February 2020.
When a person receives a positive conclusive grounds decision, they exit the NRM. As we’ll see in the next section, a positive decision is a good thing for a trafficked migrant in terms of their right to stay in the UK. But it can mean that, somewhat contradictorily, people exit the support system. Victims often find themselves being moved on from NRM accommodation with only 14 days’ notice.
A recent challenge to this by the charity ATLEU succeeded in getting the Home Office to reinstate NRM support for someone with a positive conclusive grounds decision, on the basis that they had specific unmet needs as a victim of trafficking. This offers some hope for victims, but many are still left in a vulnerable position. They may stop receiving financial support and accommodation and fall into destitution. There have been cases where people have been re-trafficked to the UK; one client of mine was trafficked on three separate occasions.
Where the person receives a negative conclusive grounds decision it is possible to ask for internal reconsideration or to challenge the decision by judicial review. It is also possible to ask a first responder to re-refer the individual to the trafficking mechanism if new evidence becomes available. In another case of mine, the victim’s mother arrived in the UK and was able to provide corroboratory evidence about the person’s experiences. Unlike a fresh claim in asylum law, there is no formal standard for what constitutes “new evidence” and it is up to the first responder to decide whether a new referral should be made.
Next steps after a conclusive grounds decision
In some cases, a person may have been identified as a potential victim at their asylum screening interview. The Home Office then refers them into the NRM. The asylum claim will usually remain pending until a conclusive grounds decision is reached — meaning that many already slow asylum cases are held up by the NRM backlog.
A positive conclusive grounds decision can be helpful to an asylum claim. It can demonstrate that parts of the asylum seeker’s story have already been accepted as true by the Home Office. But it does not automatically lead to a grant of asylum. Although identified victims of trafficking fall into a “particular social group” under the Refugee Convention, often someone will have to demonstrate other vulnerabilities in order to be granted asylum. A negative conclusive grounds decision is likely to damage the person’s credibility in the asylum system.
Confirmed trafficking victims may also be entitled to a grant of Discretionary Leave. Anyone who is found to be a victim of human trafficking will automatically be considered for this. Discretionary Leave will not be issued when an asylum claim is pending or any other kind of leave is an option. It is only granted to trafficking victims where the Home Office considers it necessary:
- owing to personal circumstances (such as safeguarding children)
- to pursue compensation, or
- for the victim to assist a police investigation
If an asylum claim is refused, the Home Office will automatically consider Discretionary Leave. No further application is required.
The Modern Slavery Act is doing little for trafficking victims. Its main purpose is the criminal aspect: the prosecution of perpetrators. Only a very small part of the legislation is dedicated to the victim.
A Modern Slavery (Victim Support) Bill was introduced in the House of Lords in 2017 but failed to pass into law. An updated version was introduced in January 2020 and is awaiting its second reading. The Bill would help to rectify some of the issues highlighted above: it proposes access to support and assistance before a reasonable grounds decision and would allow support to continue after a conclusive grounds decision. It also clearly defines “support” and “assistance”, which the Modern Slavery Act does not.
The existing legislation’s focus on criminality is perhaps why there has been little impetus to bring about any uniformity in the way victims are referred and treated in the system, or to introduce regulations which could make the process into the place of safety it was supposed to be.