In June, the Home Secretary agreed to withdraw rules in the Modern Slavery Statutory Guidance that required potential victims of modern slavery and trafficking to submit ‘objective’ evidence in their claims.
The rules, which were introduced in January 2023, created a higher threshold of proof for individuals seeking pre-confirmation (reasonable grounds) of their victim status. All claims are made through the National Referral Mechanism (NRM), the government’s system for identifying and confirming victims of modern slavery and human trafficking (MSHT) and processed by Home Office-trained staff. However, the new rules stated that:
“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.”
Within months, this was subject to a legal challenge by two potential victims of MSHT who had been denied a reasonable grounds decision. The day before the case was heard in the High Court, the Home Secretary deferred, and new guidance was published on 10 July 2023.
The swift turnaround went somewhat under the radar given the plethora of legislative and policy changes that have been introduced to address immigration over the past few years. Alongside the government’s ill-fated Rwanda policy and the repeated pledges to ‘Stop the boats’, the Illegal Migration Bill completed its passage through Parliament before the summer recess.
The new Illegal Migration Act further increases restrictions on the level of support and protection available for potential victims of MSHT, following in the footsteps of the Nationality and Borders Act 2022, which also reduced the extent of temporary leave to stay in the UK for formally confirmed (conclusive grounds) victims. By way of justification, the Home Secretary has claimed that ‘modern slavery laws are being abused by people gaming the system’; the Office for Statistics Regulation and the Home Affairs Select Committee have both requested specific evidence of these abuses, but say that none has so far been provided. The Home Office’s own referral data also contradicts the idea that the system is being exploited, with around 90 per cent of referrals receiving positive conclusive grounds decisions between 2020 and 2022.
The Joint Committee on Human Rights report was not sparing in its criticism at the Bill stage, citing its departure from many of the UK’s commitments to international law. The Committee’s Chair, Joanna Cherry KC MP said:
“By treating victims of modern slavery as ‘illegal migrants’ subject to detention and removal, this Bill would breach our legal obligations to such victims and would risk increasing trafficking of vulnerable people.”
The House of Lords, meanwhile, made a series of amendments to the Bill, including removing a subsection that would give the Home Secretary the power to detain victims of MSHT by further paring back the leave to remain provisions of the Nationality and Borders Act. This amendment was rejected by the government,
“…because it is necessary to ensure that the National Referral Mechanism is not used as a loophole by persons arriving illegally to make false claims to avoid being detained in or removed from the United Kingdom.”
Meanwhile, the concepts of trafficking and smuggling are regularly conflated by both government and media commentators. This serves to reiterate the message that migrants entering the UK in small boats are purposely circumventing the system to exploit it and are therefore not ‘genuine’. The logic, of course, is that their choice of journey negates any access they may have to support and protection as victims of MSHT. Once again, the statistics challenge the rhetoric, with 80 per cent of NRM referrals from small boat arrivals receiving positive conclusive grounds decisions since 2018.
Yet even those individuals who are found to be ‘genuine’, i.e. confirmed victims, are not automatically entitled to leave to remain or even a successful asylum claim. To achieve either of these requires encountering yet another set of legal hurdles, all while continuing to manage trauma.
Nonetheless, the government consistently maintains its commitment to supporting victims of MSHT and ‘protecting the vulnerable’. It is difficult, in light of its actions, to see how these words ring true. Although the diminishing tolerance of immigration can be explained away as voter appeasement, it is harder to see how the government can defend the fact that its actions knowingly and negatively impact some of the most vulnerable people – people that the UK has, through international and domestic law, committed to protect.
The fact is that referrals to the NRM have increased exponentially over the past decade, rising from 2,337 in 2014 to 16,938 in 2022. This has not only resulted in a growing backlog – the average wait for a decision is now over 500 days – but as the proportion of confirmed victims remains consistently high, the government is required to provide support for more and more individuals. And support costs money. The Home Office analysis of NRM referrals from small boats and detention cohorts repeatedly noted that these referral figures are likely to increase over time.
The Home Office’s January–March 2023 NRM data showed that positive reasonable grounds decisions fell by approximately 30 per cent in that period, likely as a direct result of the ‘objective’ evidence rules in the Modern Slavery Statutory Guidance. The amended guidance now acknowledges that the victim’s account is sufficient but is couched in language that suggests that reasonable grounds will only be met if additional supporting evidence is provided. It also states that the decision maker should consider information that undermines the claim, a subtle inclusion that could be inferred as an alternative method to maintaining these new lower figures.
When the July-September 2023 NRM data is published, we can start to draw conclusions as to whether this is borne out. What is clear, however, is that the government now sees victims of modern slavery and human trafficking as collateral damage in its ongoing fight to reduce immigration.
Dr Anne-Marie Greenslade is a Senior Lecturer in Law at Leeds Beckett University and a contributor to Modern Slavery and Human Trafficking: The Victim Journey.
Modern Slavery and Human Trafficking edited by Carole Murphy and Runa Lazzarino, is available to order on Bristol University Press for £85.00 here.
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