The environment of disbelief – the impact of the Nationality and Borders Act 2022

Eliza Stachowska is Advocacy Advice Coordinator and Independent Modern Slavery Advocate at Hope for Justice, working every day with survivors of modern slavery. In this article, she shows the harmful impact of new legislation on the survivors we work with, since it came into force four months ago.

The Nationality and Borders Act 2022 (NABA) introduced several changes that are already adversely impacting survivors of modern slavery and human trafficking.

Since February 2023, the process under which victims are officially identified through the National Referral Mechanism (NRM) has become much more stringent. These changes are likely to prevent many survivors from being able to access the much-needed support and recovery period.

NABA changed the decision-making process and raised the threshold a person needs to reach to get a positive ‘reasonable grounds’ decision and can enter the statutory support services.

The old test was based on a belief that a person may be a victim of human trafficking or modern slavery based on a “suspect but cannot prove” approach. (After a positive reasonable grounds decision, they then got support, usually in a safe house, while further objective evidence was gathered – enough for a ‘conclusive grounds’ decision to be made on whether someone was a victim on the balance of probability.)

But the new initial reasonable grounds test since February 2023 requires that initial belief to be supported immediately with ‘objective evidence’. This means that a decision-maker in one of the two competent authorities at the Home Office must now be satisfied that there are “reasonable grounds to believe, based on objective factors but falling short of conclusive proof, that a person is a victim of modern slavery”.

What does this change mean in practice for victims and those supporting them?

Survivors’ accounts of their exploitative experiences are no longer sufficient on their own to meet the reasonable grounds threshold. Until recently, the initial decision was a starting point for further investigation into the case – it gave time for us to gather objective evidence while the person is in a safer place and able to start their recovery.

Now though, there is an expectation that the victim/survivor must present evidence to support their disclosures straight away, at the point of identification and referral. Those referring them to the NRM (first responders) now need to be asking for and submitting not just a narrative, but also the potential victim’s travel documents, or reports by the police or medical or legal professionals, for example, to confirm what the victim is saying has happened to them.

There are many barriers to fulfilling this new requirement.

Firstly, people who are exploited do not gather evidence of their exploitation while being exploited.

Secondly, victims are traumatised and often unable to recall in detail their experiences.

Thirdly, their traffickers usually make sure that they don’t “officially exist” or have access to agencies that could then corroborate their story.

A few months in and we are seeing the impact of these harmful changes across the anti-slavery sector. Positive reasonable grounds (RG) decisions have collapsed from 88% on average last year down to 58% in the latest quarter. For adults only, the figure is even lower: 49%.

The government itself confirmed that this decrease “is likely to be a result of the change in the test for reasonable grounds decisions”.

More specifically, the Human Trafficking Foundation reports in its latest briefing: “The sharp decline in positive RG decisions in the first quarter of this year is likely a reflection of these challenges, rather than a rise in people being referred to the NRM who have not experienced modern slavery.”

Further evidence of the shocking fall in positive decisions comes from our colleagues at the Programme Challenger and Hope for Justice’s own community engagement teams who support survivors and other agencies with referrals to the NRM.

We have had a few negative RG outcomes and we are in the process of challenging them.

The changes create an environment of disbelief of victims’ narratives. It discourages them from even coming forward.

The number of NRM referrals will decrease. Fewer survivors will be safeguarded, fewer crimes will be investigated and fewer traffickers will be prosecuted.

The expectations and additional responsibilities put on victims and those supporting survivors are unjust. Do victims of other serious crimes have to prove that they have been a victim at the time they report the crime, before they can be safeguarded and supported?