The UK Government has today agreed to withdraw and reconsider new rules that came into force four months ago that were already proving harmful to victims and survivors of modern slavery.
The Home Office’s decision follows a legal claim brought by two claimants who gave credible accounts of having been trafficked, but who were given a ‘negative’ decision anyway under the new rules and the new “objective evidence” test. Hope for Justice argues that this demand for objective evidence at the point of reporting does not apply to the victims of any other serious crime.
Hope for Justice has been advocating strongly against these rules and other elements of the Nationality and Borders Act, and we welcome today’s news and the result secured by the claimants’ representatives at Matrix Chambers and Duncan Lewis Solicitors Ltd.
Phillipa Roberts (pictured), Head of Policy and Research at Hope for Justice, said: “We welcome the fact that the Government have withdrawn the reasonable grounds threshold policy and that they intend to review it and issue new policy. As soon as the New Plan for Immigration was announced, which became the Nationality and Borders Bill, Hope for Justice and our colleagues at other anti-trafficking organisations identified the potentially devastating impact of raising the reasonable grounds threshold on the ability of victims to be identified through the National Referral Mechanism system and therefore to access necessary safeguarding and support. The harmful impact of these measures could have been avoided if survivors and civil society organisations had been listened to at that time.
“We are also strongly advocating against the Illegal Migration Bill, which is currently going through Parliament. It will further negatively impact the ability of survivors to be identified, access safeguarding and support. There must be impact assessments and scrutiny before legislation is introduced that could harm those seeking refuge and victims of modern slavery.”
The Secretary of State for the Home Department has agreed to withdraw, reconsider and revise parts of the Modern Slavery Statutory Guidance which required a potential victim of trafficking to produce ‘objective’ evidence corroborating a credible account of human trafficking in order to receive a positive reasonable grounds decision.
In January 2023, the Secretary of State for the Home Department published new Statutory Guidance under section 49 of the Modern Slavery Act 2015 (“the Guidance”). The Guidance introduced a new test which required potential victims to produce objective evidence of their trafficking at the pre-reasonable grounds decision stage. In particular, it provided that:
“The decision maker must agree with the statement 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 (human trafficking or slavery, servitude, or forced or compulsory labour)’.
A decision maker must base their decision on objective factors to have real suspicion and therefore meet the RG threshold. An ‘objective’ factor is a piece of information or evidence that is based in fact. Ordinarily, a victim’s own account, by itself, would not be sufficient absent objective factors to have real suspicion.”
Home Office statistics show that there has been a significant drop in positive reasonable grounds decisions since the new Guidance came into force. In 2022, 88% were positive. In the first quarter of 2023 (in which there were 4746 referrals), this dropped to 58%.
The Claimants, AS and BXR, were two potential victims of trafficking who received negative reasonable grounds decisions notwithstanding giving credible accounts of being trafficked.
The Secretary of State has now agreed to withdraw the Guidance. She has:
- Stated it is her intention to devise and publish new Guidance by 10 July.
- Stated that in the interim period until publication, no negative reasonable grounds decisions will be made.
The concession follows AS and BXR issuing claims for judicial review on the basis that the relevant parts of the Guidance were unlawful because they:
- induced breaches of Article 4 of the European Convention on Human Rights;
- were irrational at common law (the fact of someone not having objective evidence of their trafficking circumstances at the point of referral into the NRM being not rationally connected to whether that person is a genuine victim of trafficking) and undercut the statutory purpose of the Modern Slavery Act 2015; and
- were procedurally unfair.
AS and BXR were represented by Chris Buttler KC and Katy Sheridan, and Raza Halim from Garden Court, instructed by Duncan Lewis.
