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October 3, 2022

Modern slavery is not a legal loophole

In August, Hope for Justice responded to an article in the Telegraph in which the then immigration minister, Chris Philp MP, described modern slavery legislation as a loophole in the UK’s immigration system:

 

‘I saw case after case where serious foreign criminals – including sadistic rapists and brutal murderers – used last-minute modern slavery claims to prevent deportation,’ he wrote. ‘This often followed years of repeated asylum and human rights claims that were eventually dismissed by the courts.’  

 

In response, we, together with 28 other anti-trafficking organisations, issued a statement expressing our concern at the apparent attempt to restrict the already basic, and inconsistent, support offered to survivors of modern slavery in the UK. This, however, is not the only article to have framed people claiming to be victims of modern slavery as, at best, charlatans, and at worst, criminals. We want to rebut and correct some of the myths and misinformation we are seeing, and instead share the true facts: 

 

Being recognised as a victim of modern slavery is a long and difficult process  

 

Potential victims of modern slavery are assessed through the National Referral Mechanism (NRM). Only designated First Responders can refer people to the NRM – including the police, local authorities, the Home Office and certain charities. The determination is then made by the Single Competent Authority (SCA) or the Immigration Enforcement Competent Authority (IECA), both based in the Home Office. Initially, they make a ‘reasonable grounds’ decision, which amounts to saying ‘I suspect but cannot prove’ that this individual is a victim of modern slavery. Then, evidence is gathered and a ‘conclusive grounds’ decision is made as to whether, on the balance of probability, the person has been trafficked. 

 

This process is by no means simple – the most recent NRM data show that the average (median) time it took to go from referral to a conclusive grounds decision was 536 days. This not only has a harmful impact on survivors’ wellbeing but also limits the number of cases that legal professionals can take on.  

 

The NRM data also demonstrates that the argument that large numbers of people are falsely claiming to be victims of modern slavery is utterly unfounded. In the second quarter of 2022, the Home Office issued 4,033 reasonable grounds decisions – 90% of which were positive – and 1,386 conclusive grounds decisions – of which 91% were positive. The number of referrals to the NRM are certainly rising, but that is by no means the result of false claims. 

 

Not everyone who claims to be a victim of modern slavery is from outside the UK 

 

The idea that the rise in the number of people claiming to be victims of modern slavery is down to increasing awareness of a ‘loophole’ in our immigration system rests on the assumption that the vast majority of these individuals were born outside the UK. Yet, in recent years, UK nationals were the nationality most commonly referred to the NRM – in 2020, they made up 34% and in 2021, 31%. In around one-third of all cases processed by the NRM, therefore, residency status cannot be a driver for coming forward, because they are already UK citizens. 

 

As it stands, being recognised as a victim of modern slavery doesn’t guarantee UK residency 

 

Fundamentally, even those 2 in 3 victims of modern slavery exploited in the UK but who were born elsewhere are not guaranteed leave to remain just by going through the NRM process: 

 

  • Only those who receive a positive Reasonable Grounds decision are entitled to legal aid for immigration advice, and they are rarely able to actually access it in practice. Between 2015 and 2017, only 124 victims of trafficking, out of a total of 9,411 people referred to the NRM, received legal aid for either immigration advice or advice on a trafficking compensation claim. 
  • Those who receive a positive Conclusive Grounds decision may apply for discretionary leave to remain (DLR) if it is necessary for their personal safety; to pursue compensation (but only if it would be unreasonable for them to pursue the claim from outside the UK); or because they are helping police with a criminal investigation relating to their case. In other words, the standard for being granted DLR is even higher than being classified as a victim of modern slavery. 
  • Accordingly, the rate of DLR grants to recognised victims remains low. Every Child Protected Against Trafficking (ECPAT UK) found, between 2016 and 2019, less than 12% of people who received positive Conclusive Grounds decisions, and who were subject to immigration control, were granted a period of DLR in the UK. 
  • Even when DLR is granted, confirmed victims of modern slavery are often only permitted to stay for a short length of time. The maximum grant is for a period of 30 months, but ECPAT found that the majority (75%) of DLR grants issued between 2016 and 2019 were for just 7-12 months. 

 

Fears, therefore, of thousands of migrants using a modern slavery claim as a shortcut to UK residency are completely unfounded. They would first have to be referred to the NRM by a First Responder working for an agency like the police, Border Force, Immigration Enforcement, or UK Visas and Immigration – bodies few irregular migrants would like to encounter. Then, they would need to wait around 18 months to have their case conclusively decided – during which time, they would not be able to work, access mainstream benefits, or open a bank account.  

 

Even those who are conclusively recognised as a victim of modern slavery, have only about a 1 in 10 chance of being granted leave to remain, and the amount of time they are able to stay is likely to be half the amount of time they spend going through the NRM process.  

 

Hope for Justice have continuously argued that victims who receive positive Conclusive Grounds decisions should be automatically given leave to remain. There is currently a crisis in access to legal aid, which is necessary to make an immigration claim, which leaves victims of modern slavery at serious risk of destitution, homelessness, deportation and re-trafficking. Being granted leave to remain after going through the scrutiny of the NRM process would give victims the safety and stability they need to recover from their experiences.  

 

As a result, they would be in a better position to help bring their perpetrators to justice – which is vital if we are going to put a dent in the $150 billion earnings which organised criminal gangs generate annually from human trafficking. If we criminalise victims of modern slavery rather than those who profit from their suffering, then we will never put an end to it. But if we recognise, support and empower survivors, then we stand a chance of rescuing others, restoring lives, and preventing exploitation.