On 30th January 2023, there were significant changes to UK policy that will impact victims and survivors of modern slavery.
To understand why the sweeping changes are harmful, it is vital to understand the current context of modern slavery in the UK. The changes are part of an ongoing trend towards curtailing and restricting support and protection for victims and survivors of slavery.
There are serious issues in accessing the national identification and support mechanism, called the National Referral Mechanism (NRM). First responder organisations – a select group of public and voluntary sector organisations that have been granted permission or responsibility to make referrals of potential victims of trafficking to the NRM – are facing increased pressure. Some first responders have serious capacity constraints, meaning they may not be able to make any new referrals. If potential victims are not referred to the NRM, they will not be identified and provided with support. This creates an extreme risk of people being left stranded with no support and no hope of escaping exploitation.
What are the key changes?
Examples of the key changes that Hope for Justice are focusing on include:
1. Changes to the ‘Reasonable Grounds’ threshold
A ‘Reasonable Grounds’ decision indicates whether the competent authority – the technical term for one of the decision-makers within the Home Office who reviews a referral into the NRM – believes the individual may be a potential victim or survivor of slavery.
The threshold for a Reasonable Grounds decision will now be based on ‘objective factors but falling short of conclusive proof’ instead of the previous level: a ‘suspicion that cannot be proven’. Sections of the Modern Slavery Act 2015 have been amended so that assistance and support are only provided when there are Reasonable Grounds to believe that someone is, rather than may be a victim of modern slavery.
Concerns: Expecting a survivor of slavery to provide immediate evidence of their exploitation undermines trauma-informed practice. In practice, the policy change is unworkable as many survivors (including those in detention) often have only the clothes they are standing up in when they leave situations of exploitation. No other victim of any other crime in the UK is required to provide evidence that they are a victim prior to being safeguarded and supported.
These new changes increase the burden for first responder organisations. They may be required to submit additional evidence to substantiate their referrals, where they believe that someone may be a victim of trafficking. In practice, we imagine this will worsen existing capacity shortages and will increase the risk of victims being left with no alternative to escape exploitation.
First responders are already almost overwhelmed by the need for their services. Adding an additional responsibility, without addressing the existing problems, will make the situation even more critical. Some first responder organisations have already been refusing or unable to refer potential survivors due to lack of resources and capacity, even though they have a responsibility to do this. Requiring them to undertake more work more will only exacerbate this issue. The changes also fail to address existing issues, such as many first responders having insufficient training, or no training at all – this was recently highlighted in a briefing issued by our colleagues at Kalayaan, a charity supporting migrant domestic workers.
Rising numbers of suspected victims of modern slavery do not want to be referred into the NRM system – this is clear from the increase in what are called ‘duty to notify’ statistics. These show that the number of adults identified as potential victims of modern slavery but who do not wish to be referred for formal support increased by 47% in the most recent set of annual statistics, from 2,175 in 2020 to 3,190 in 2021. Based on the quarterly figures published so far, when statistics for the whole of 2022 are revealed, we expect to see a large rise again.
There are many reasons why potential victims do not consent to enter the NRM, such as a fear of (or lack of trust in) the authorities, often resulting from negative experiences during their exploitation; previously being failed by services; concerns over their immigration status; not self-identifying as a victim; fearing retaliation from their perpetrators if they disclose details; and poor training on the behalf of the first responder organisation that engages with them, or fails to spot the signs that they may be a victim.
Regardless of their reason for not engaging with the NRM, this decision sadly leaves potential victims at risk of re-trafficking, and without access to safe housing, legal advice or caseworkers. These figures are likely to increase if there are more and more barriers put in place, as we are seeing.
Hope for Justice is also very concerned that changes to the Reasonable Grounds threshold will lead to fewer victims being identified, allowing traffickers to continue exploiting people. Any threshold for identification ought to be low – in our experience, victims of trafficking often present themselves or are identified without any evidence. Hope for Justice has supported victims where the only thing they have had with them has been a receipt. We are concerned that raising the threshold will exclude victims, who can be in incredibly vulnerable positions, from accessing safety. For survivors who have been detained, for example in prisons, the situation will be even more acute.
2. Exemptions and disqualifications due to ‘bad faith’ and public order
This provision can deny access to a recovery period if victims have made a claim in ‘bad faith’, which is defined as they, or someone on their behalf, having made a dishonest statement in relation to being a victim of modern slavery. Public order disqualifications will be made when someone is deemed to have been a ‘threat to public order’, or is a ‘risk to national security’.
Concerns: We are concerned that the scope of ‘bad faith’ and ‘public order’ exemptions may be too broad. From the cases we have worked with, we have seen that victims and survivors of trafficking can be left with criminal records as a result of their exploitation. We do not think that being able to identify who should be exempt will be straightforward. In fact, we are worried that these exemptions will exclude the exact people the NRM is supposedly designed to protect.
Frequently, we support people who have been given been forced into committing crimes by traffickers, who exploit their vulnerability. Hope for Justice also sees many survivors of trafficking who have been targeted by traffickers specifically because they have previous criminal convictions (and thus may find it harder to find legitimate work, or are vulnerable in other ways). We believe that the NRM should protect the most vulnerable from harm, not exclude them.
The ‘bad faith’ provisions fail to take into account that victims can be told by their traffickers what to say. Trauma can also impact testimonies, and victims can change elements of their story due to fear of repercussions until they are in a safe place.
Why are these changes happening?
In 2021, in the New Plan for Immigration, the Government outlined its intention to clarify the Reasonable Grounds threshold “to ensure decision-makers can properly test any concerns that an individual is attempting to misuse the system”. It determined that there existed a “lower threshold” for Reasonable Grounds in the UK, compared to the Council of Europe Convention on Action against Trafficking in Human Beings (known as ECAT). It is important to note that this is an international treaty, NOT EU law – the UK remains a member of the Council of Europe, which is an entirely separate entity than the EU, and remains a signatory to ECAT. The UK has other important international obligations (including via the European Convention on Human Rights) to prevent modern slavery, ensure victims are identified and perpetrators are held to account.
Regardless of this, the New Plan for Immigration policy paper duly had many of its provisions brought into effect, by changes to the Modern Slavery Act 2015 through Section 60 of the Nationality and Borders Act 2022.
The new measures are not aligned with the principles of ECAT. Instead of increasing protection, the policy creates additional barriers and increase the risk of harm. The Government has not provided any evidence to substantiate claims that there is widespread misuse of the NRM system, and that such vexatious claims should therefore be dealt with via a negative decision of modern slavery.
Overall, Hope for Justice recommends that the focus should be placed on addressing existing issues that hinder victims and survivors from accessing support and protection. Ideally, we would recommend that the Nationality and Borders Act provisions outlined in this article were not implemented at all. However, failing that, we believe that the priority should be implementing the following steps:
- Prioritise safeguarding concerns above all: The safety of a person must be a priority, to prevent harm. No other matters should take precedence.
- Ensure there is training for first responder organisations: The quality of referrals from first responders varies greatly. Poor-quality referrals are common, which can prevent victims from accessing vital support. These issues are likely to be exacerbated by the January 2023 policy changes. Training must be provided to mitigate harm.
- Allocate extra resources: Additional resources must be assigned to ensure that existing issues with capacity are addressed, and that the policy change can be implemented without causing more safeguarding concerns.
- Review the policy based on feedback from survivors and experts: Survivors and experts offer a wealth of expertise, based on evidence and experience. Incorporating their perspectives will improve policy and the UK’s response to the complexities and realities of modern slavery.
- Ensure policy is compatible with international legal international obligations, such as of ECAT: To ensure that policy reflects the high standard of protection offered to victims through ECAT, policy must reflect both the language and the underlying principles of the Convention and its explanatory report.
- Enable NGOs to apply for first responder status: It is vital that there are first responder organisations that are independent from the state. These organisations can refer potential victims of modern slavery to the NRM and play a key role in ensuring victims of modern slavery are identified and can access support. The current list of NGO first responder organisations are limited in number and not geographically spread across the country. The Home Office reviewed this situation in 2019, but no guidance has been issued to allow new organisations to apply for first responder status. There needs to be a transparent process to ensure NGOs can apply for the status, to promote effective identification of victims.