Recent changes in the law mean that in England and Wales, Competent Authority decision makers must decide whether, if someone is not a victim of trafficking ,they are nonetheless a victim of another form of modern slavery. Therefore in addition to victims of trafficking, Modern Slavery includes victims of slavery, victims of servitude and victims of forced or compulsory labour.
There thus appears to be some protective procedural consideration measures afforded to vulnerable affected victims, however what needs to be considered is whether in practical reality, when compared to other forms of protection, such as recognition as a refugee/humanitarian protection or even a grant of Discretionary Leave to remain further to Article 3 of the ECHR, those recognised as victims of modern slavery in the UK are automatically afforded and enjoy any real practical or enduring rights such as a grant of discretionary leave or even settlement. Having regard to Home office policy however, it is clear that, a person will not normally qualify for Discretionary Leave to remain solely because they have been identified as a victim of modern slavery or trafficking. Therefore even with a conclusive status decision, there is no automatic grant of discretionary leave although this may be granted if the individual is co-operating with the Police or owing to their personal circumstances.
The recent case of K, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3668, goes to confirm that even where the Secretary of State agrees that a person is indeed a victim of trafficking, she is nonetheless entitled to refuse to grant them Discretionary Leave for failure to show they meet the criteria for entitlement to a residence permit.
In light of the fact that there is no automatic entitlement to a grant of discretionary leave to remain even following a positive conclusive grounds decision, then the rights flowing from a positive asylum decision are such that resort to advancing a well prepared, accompanying asylum claim is more advantageous.
(1)THE TRAFFICKING CONVENTION
The UK Government signed the Council of Europe Convention on Action against Trafficking in Human Beings on 23 March 2007. The Convention was ratified by the UK on 17 December 2008, and came into force on 1 April 2009. This led to the creation of the UK’s National Referral Mechanism (NRM) in 2009.
The Council of Europe Convention on Action against Trafficking in Human Beings, provides:
“ARTICLE 4
Definitions
a For the purposes of this Convention: a “Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
b The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking inhuman beings” even if this does not involve any of the means set forth in subparagraph (a) of this article;
d “Child” shall mean any person under eighteen years of age;
e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article.
ARTICLE 12
Assistance to victims
- Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
b access to emergency medical treatment;
c translation and interpretation services, when appropriate;
d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f access to education for children.
2 Each Party shall take due account of the victim’s safety and protection needs.
3 In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.
4 Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.
5 Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims.
6 Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.
7 For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.
ARTICLE 13
Recovery and reflection period
1 East Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carries out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory.
2 During this period, the persons referred to in paragraph 1of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2.
3 The Parties are not bound to observe this period if grounds of public order prevent it or if is found that victims status is being claimed improperly.
ARTICLE 14
Residence permit
1 Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
a the competent authority considers that their stay is necessary owing to their personal situation;
b the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
2 The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.
3 The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.
4 If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1.
5 Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.
ARTICLE 15
Compensation and legal redress
1 Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand.
2 Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law.
3 Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.
ARTICLE 16
Repatriation and return of victims
1 The Party of which a victim is a national or in which that person had the right of permanent residence at the time of entry into the territory of the receiving Party shall, with due regard for his or her rights, safety and dignity, facilitate and accept, his or her return without undue or unreasonable delay.
2 When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.
3 At the request of a receiving Party, a requested Party shall verify whether a person is its national or had the right of permanent residence in its territory at the time of entry into the territory of the receiving Party.
4 In order to facilitate the return of a victim who is without proper documentation, the Party of which that person is a national or in which he or she had the right of permanent residence at the time of entry into the territory of the receiving Party shall agree to issue, at the request of the receiving Party, such travel documents or other authorisation as may be necessary to enable the person to travel to and re-enter its territory.
5 Each Party shall adopt such legislative or other measures as may be necessary to establish repatriation programmes, involving relevant national or international institutions and non governmental organisations. These programmes aim at avoiding re-victimisation. Each Party should make its best effort to favour the reintegration of victims into the society of the State of return, including reintegration into the education system and the labour market, in particular through the acquisition and improvement of their professional skills. With regard to children, these programmes should include enjoyment of the right to education and measures to secure adequate care or receipt by the family or appropriate care structures.
6 Each Party shall adopt such legislative or other measures as may be necessary to make available to victims, where appropriate in co-operation with any other Party concerned, contact information of structures that can assist them in the country where they are returned or repatriated, such as law enforcement offices, non-governmental organisations, legal professions able to provide counselling and social welfare agencies.
7 Child victims shall not be returned to a State, if there is indication, following a risk and security assessment, that such return would not be in the best interests of the child”.
(2)THE RELEVANT EU DIRECTIVE
DIRECTIVE 2011/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, which came into effect on 6 April 2013, provides inter alia:
“Article 2
Offences concerning trafficking in human beings
- Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
- A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
- Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs”.
(3)RELEVANT POLICIES
As to be clarified further below, the NRM was established in order to implement the UK’s trafficking obligations under Trafficking Convention and came into force in the UK on 1 April 2009. There is however notably no governing legislation giving effect to those obligations. There are no Immigration Rules which grant leave due to human trafficking or modern slavery. This is instead set out in various policies of the Secretary of State.
As noted at paragraph 60 in the recent decision of K, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3668, the primary issue in R (on the application of Atamewan) v Secretary of State for the Home Department [2014] 1 WLR 1959, [2013] EWHC 2727 (Admin) was whether the Home Office policy in force at the time was unlawful. Lord Aikens LJ explained at paragraphs 69 and 70 in Atamewan that the reference in the relevant 2010 Guidance to the approach to be adopted as regards historic victims of trafficking was wrong in law, as had been conceded on the Secretary of State’s behalf. Since judgment in the Atamewan case, however, the Guidance has been amended; it no longer contains the deficiencies identified by Aikens LJ precisely because it was changed in the wake of his decision and with effect from 30 October 2013. Further noted in K, R at paragraph 61, there have been as many as five separate policies in force in the period from October 2013 to the present, namely:
(i) Victims of human trafficking – Competent Authority Guidance (v.1.0 – 24 October 2013) (the ‘Competent Authority Guidance’);
(ii) Victims of human trafficking: Guidance for frontline staff, (v. 5.0 – 21 January 2013) (the ‘Frontline Staff Guidance v.5.0’);
(iii) Chapter 9 EIG (v.5.3 – 27 November 2013 (‘Ch 9 EIG’); although in the period from 31 July 2015 to date, two versions of the published policy were amended (largely to cover victims of trafficking and modern slavery as a result of the Modern Slavery Act), namely
(iv) Victims of Modern Slavery – Competent Authority Guidance (v.2.0 – 31 July 2015) (the ‘Competent Authority Modern Slavery Guidance’), and
(v) Victims of Modern Slavery – Frontline Staff Guidance (v.2.0 – 31 July 2015) (the ‘Frontline Staff Modern Slavery Guidance’).
In addition, there was also the Asylum Policy Instruction on Discretionary Leave (v.6.0 – 24 June 2013) (the ‘Asylum Policy Instruction’), guidance, replaced by the Asylum Policy Instruction on Discretionary Leave (v.7.0 – 18 July 2015).
The case of K, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3668, also among other matters, referred to the Competent Authority Guidance which was stated to make clear that the guidance is based on the Council of Europe Convention on Action against Trafficking in Human Beings. It was noted in K,R that the Guidance was thus “based” on the Trafficking Convention but it is not the Trafficking Convention itself.
The current relevant policies are :
- Victims of modern slavery – frontline staff guidance , Version 2:
The guidance which is 54 pages in length came into effect on 31 July 2015 and applies to all decisions made on or after that date. The guidance in respect of trafficking references is based on the Council of Europe Convention on Action against Trafficking in Human Beings which focuses on:
-protecting victims of trafficking and safeguarding their rights
-preventing trafficking
- promoting international co-operation on trafficking
- prosecuting traffickers
The guidance gives information for frontline staff in the Home Office to help them identify and help potential victims of modern slavery (including human trafficking) in England and Wales or is a potential victim of trafficking in Scotland and Northern Ireland. It reflects relevant provisions of the Modern Slavery Act 2015 and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.
The guidance tells staff how to:
-identify potential victims of modern slavery in England and Wales because they are a potential victim of human trafficking or because they are a potential victim of slavery, servitude, or forced or compulsory labour (identified in England and Wales)
-identify potential victims of human trafficking in Scotland and Northern Ireland
-refer potential victims to the NRM
-make sure victims have access to the services they are entitled to
- Victims of Modern Slavery: Competent Authority guidance , Version 2:
The Guidance which is 108 pages in length came into effect on 31 July 2015 and applies to all decisions made on or after that date. The guidance in respect of trafficking references is based on the Council of Europe Convention on Action Against Trafficking in Human Beings which focuses on:
-protecting victims of trafficking and safeguarding their rights
-preventing trafficking
-promoting international co-operation on trafficking
-prosecuting traffickers
The guidance gives information for staff in Competent Authorities in the Home Office and UKHTC to help them decide whether a person referred under the National Referral Mechanism (NRM) is a victim of modern slavery (including human trafficking) in England and Wales, or is a victim of trafficking in Scotland and Northern Ireland. It reflects relevant provisions of the Modern Slavery Act 2015 and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.
The guidance is to help staff in Competent Authorities:
- decide whether a person is a victim of modern slavery because they are either: -a victim of slavery, servitude, or forced or compulsory labour (identified in England or Wales)
- -a victim of human trafficking or
- ensure victims’ rights are protected
- co-operate with partners in the NRM (for example, the police, local authorities National Crime Agency and non-governmental organisations)
- Home Office Circular, Modern Slavery Act 2015 – Issue date: 09 July 2015, Implementation date: 31 July 2015:
The circular is addressed to: Lord Chief Justice, Justices of the Supreme Court, President of the Queen’s Bench Division, Master of the Rolls, Senior Presiding Judge, Lords Justices of Appeal, Chairman of the Judicial College, High Court Judges, Presiding Judges, Resident Judges, Crown Court Judges, District Judges (Magistrates’ Courts), Chairmen of the Justices, Director of Public Prosecutions, HM Chief Inspector of Constabulary, Chief Officers of Police in England and Wales, Director General of the National Crime Agency, Police and Crime Commissioners in England and Wales, Mayor’s Office for Policing and Crime, College of Policing, HM Revenue and Customs, Chief Crown Prosecutors, Attorney General’s Office.
- The Asylum Policy Instruction, Discretionary Leave, Version 7.0, published on 18 August 2015 provides inter alia:
“3.5 Modern Slavery cases (including trafficking)
Victims of slavery, servitude and forced and compulsory labour who are conclusively recognised as such by the National Referral Mechanism (NRM) may be eligible for DL based on the same criteria of personal circumstances, helping police with enquires and pursuing compensation as victims of human trafficking, and this provision applies across the UK.
A person will not normally qualify for DL solely because they have been identified as a victim of modern slavery or trafficking – there must be compelling reasons based on their individual circumstances to justify a grant of DL where they do not qualify for other leave such as asylum or humanitarian protection.
As part of the positive reasonable grounds decision letter issued by the Competent Authority of the NRM the potential victim of human trafficking in the UK, and modern slavery in England and Wales, will be asked if they would like to be considered for DL in the event of a positive conclusive grounds decision from the NRM. Where they indicate they would like to be considered for DL this will be considered under the criteria relating to personal circumstances, helping police with enquires and pursuing compensation detailed in the Competent Authority guidance once a positive conclusive grounds decision is issued. The person will not need to fill in an application form or pay a fee for an initial consideration of DL on this basis. A person who has claimed asylum will receive automatic consideration for DL on this basis if they are not granted asylum or humanitarian protection.
For further guidance on considering DL in modern slavery cases and for cases of modern slavery and human trafficking in Scotland and Northern Ireland see the Competent Authority guidance.
………………….
5.4 Modern Slavery cases (including trafficking)
Where a person qualifies for DL under the criteria relating to personal circumstances, helping police with enquires or pursuing compensation the period of leave to be granted will depend on the individual facts of the case and should normally be sufficient to cover the amount of time it is anticipated they will need to remain in the UK. However, leave should normally be granted for a minimum of 12 months, and normally not more than 30 months (2.5 years). A further period of leave may be granted if required and appropriate. For further details of the duration of leave in modern slavery cases see the Competent Authority guidance”.
(4) THE UK ‘S NATIONAL REFERRAL MECHANISM (NRM)
When the Tracking Convention was ratified by the UK and came into force on 1 April 2009, this led to the creation of the UK’s National Referral Mechanism (NRM) in 2009.
The NRM is a victim identification and support process. It is designed to make it easier for all the different agencies that could be involved in a trafficking case (for example, the police, Home Office – including Border Force, UK Visas and Immigration and Immigration Enforcement – the National Crime Agency, local authorities, and non-governmental organisations) to co-operate, share information about potential victims and facilitate their access to advice, accommodation and support.
(5)FRONT LINE STAFF/ FIRST RESPONDERS
The key role that frontline staff (often called first responders) play in the national referral mechanism (NRM) process is to identify a potential victim of human trafficking in any part of the UK (or slavery, servitude, or forced or compulsory labour where identified in England or Wales) and refer to the NRM.
Only organisations classed as first responders can refer a potential victim of modern slavery into the NRM. Anyone outside the NRM who wishes to raise modern slavery concerns, can do so through a first responder. First responders are: The Home Office; Local authorities; Health and Social Care Trusts (HSC Trusts); Police; POPPY Project; National Crime Agency (NCA); Trafficking Awareness Raising Alliance (TARA); Migrant Helpline; Kalayaan; Gangmasters Licensing Agency; Medaille Trust; Salvation Army; Barnardo’s; National Society for the Prevention of Cruelty to Children (NSPCC); Unseen UK.
(6)COMPETENT AUTHORITIES
Decisions about who is recognised as a victim of modern slavery or trafficking are made by trained specialists in designated Competent Authorities.
The UK Human Trafficking Centre (UKHTC) within the National Crime Agency and the Home Office are the UK’s two designated Competent Authority decision makers under the National Referral Mechanism (NRM). The Home Office itself also has a number of Competent Authorities which currently include, UK Visas and Immigration NRM HUB (Leeds (England cases);Cardiff (Wales cases); Glasgow (Scotland and Northern Ireland cases); Third Country Unit; Detained Cases ; Operational Support and Certification Unit (OSCU); Criminal Casework (dealing with deportation cases relating to EEA and Non EEA nationals).
(7)THE MODERN SLAVERY ACT 2015
The Modern Slavery Act received royal assent on 26 March 2015 and some provisions in that Act come into force on 31 July 2015 in England and Wales. This includes a number of provisions extending existing support for victims of human trafficking to victims of slavery, servitude and forced and compulsory labour.
The 2015 Act is intended to ensure that the National Crime Agency, the police and other law enforcement agencies have the powers they need to pursue, disrupt and bring to justice those engaged in human trafficking and slavery, servitude and forced or compulsory labour. The 2015 Act also introduces measures to enhance the protection of victims of slavery and trafficking. In addition, the 2015 Act includes provisions for a new Independent Anti-slavery Commissioner. The Act generally extends to England and Wales only, although some sections apply to Scotland and Northern Ireland, including sections relating to the Independent Anti-slavery Commissioner.
In 2014, the Home Secretary committed to extending the support offered through the NRM, including accommodation and subsistence, to victims of all forms of modern slavery. This change in the NRM for supporting cases identified in England and Wales commenced from 31 July 2015. In Scotland and Northern Ireland, however, only trafficking cases (rather than all modern slavery cases) will be processed through the NRM.
Victims of slavery, servitude and forced and compulsory labour who are conclusively recognised as such by the NRM will be eligible for discretionary leave based on the same criteria as victims of human trafficking, and this provision applies across the UK.
Prior to the commencement of Part 1 of the Modern Slavery Act 2015 trafficking offences in the UK were contained in the following legislation:
-Sections 59a of the Sexual Offences Act 2003 (as amended by the Protection of Freedoms Act) and Section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (as amended by the Protection of Freedoms Act)
-Section 22 Criminal Justice (Scotland) Act 2003 (as amended by Section 46 of the Criminal Justice and Licensing (Scotland) Act 2010)
-Section 47 Criminal Justice and Licensing (Scotland) Act 2010
Part 1 of the Modern Slavery Act 2015 introduces the consolidated slavery and trafficking offences, tougher penalties and sentencing rules, ensures the main offences are subject to the toughest asset recovery regime under the Proceeds of Crime Act 2002, introduces bespoke slavery and trafficking reparation orders, and provides for the detention and then forfeiture of vehicles, ships and aircraft used for the purposes of trafficking.
The Modern Slavery Act 2015 contains 2 main modern slavery offences punishable by up to life imprisonment:
-slavery, servitude and forced or compulsory labour
- human trafficking
The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 also established new offences of human trafficking and slavery, servitude and forced or compulsory labour, punishable by up to life imprisonment.
A new statutory defence for victims in the Modern Slavery Act and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 also strengthens protections against inappropriate prosecution of victims of slavery and trafficking for crimes committed as part of their exploitation
(8) HUMAN TRAFFICKING
| The essence of human trafficking is that the victim is coerced or deceived into a situation where they are exploited. Article 4(a) of the Trafficking Convention set out as above provides the definition of human trafficking. |
Human trafficking consists of 3 basic components:
- Action.
- Means.
- Exploitation.
All 3 components must be present in an adult trafficking case. However, in a child trafficking case the ‘means’ component is not required as they are not able to give informed consent.
Human smuggling is not a form of modern slavery. Human smuggling occurs when an individual seeks the help of a facilitator to enter the UK illegally, and the relationship between both parties ends once the transaction ends. Many of those who enter the UK illegally do so by this route. The purpose of human smuggling is to move a person across a border illegally, and it is regarded as a violation of state sovereignty. The purpose of modern slavery is to exploit the victim for gain or other benefit and is regarded as a violation of that person’s freedom and integrity.
The apparent consent of a victim to be controlled and exploited is irrelevant when one or more of the following has been used to get that consent: the threat or use of force; abduction; fraud; deception; the abuse of power or of a position of vulnerability; the giving or receiving of payments or benefits
It is not necessary for there to have been means for a child to be a victim, because children cannot give informed consent. Any child who is recruited, transported, or transferred for the purposes of human trafficking is considered to be a potential victim, whether or not they have been forced or deceived.
Under the Convention, a person is a ‘victim’ even if they haven’t been exploited yet, for example because a police raid takes place before the exploitation happens. This is because, under the definition of trafficking, trafficking occurs once certain acts are carried out for the purpose of exploitation. So, it is the purpose which is key, rather than whether or not exploitation has actually occurred.
- Exploitation:
To be a victim, someone must have been trafficked for the purpose of ‘exploitation’ which may take the form of either:
- sexual exploitation
- forced labour or services
- slavery or practices similar to slavery
-servitude
- forced criminality
- removal of organs (also known as organ harvesting)
- Trafficking: exploitation: sexual exploitation:
The Home office recognises that in most cases involving human trafficking for the purpose of sexual exploitation, the victim is female; however, that there are also male victims.
The majority of female victims of trafficking identified in the UK are exploited through prostitution. Many are beaten, raped and abused. They may go abroad based on false promises of good jobs and economic opportunities, in order to earn money and make a better life for their children or family.
The forcible or deceptive recruitment of women and girls for forced prostitution or sexual exploitation is a form of gender related violence.
- Trafficking: Exploitation: Forced labour
Forced labour is not restricted to a particular sector of the labour market but cases have been identified in the sectors of manufacturing, food processing, agriculture or hospitality.
Forced labour represents a severe violation of human rights and is a restriction of human freedom. The International Labour Organisation (ILO) defines forced work as:
‘All work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself volunta
- Trafficking: exploitation: forced criminality
Forced criminality is understood as the exploitation of a person to commit: pick-pocketing, shop-lifting, drug cultivation or other similar activities which are subject to penalties and imply financial gain.
As noted in European Directive 011/36/EU, these must be understood as a form of forced labour or services as defined in the 1930 ILO Convention (No. 29) concerning Forced or Compulsory Labour.
Therefore, the exploitation of a person for criminal activity only falls within the scope of the definition of trafficking in human beings when all the elements of forced labour or services occur.
- Trafficking: exploitation: removal of organs (organ harvesting)
This type of trafficking involves exploiting people by their internal organs, which are used for transplant. Traffickers can force or deceive their victims into giving up an organ. Organs commonly traded are kidneys and liver, but any organ that cannot regenerate and can be removed and re-used could be the subject of this illegal trade.
The World Health Organization (WHO)’s Guiding Principles on Human Organ Transplantation (1991) states the commercialisation of human organs is ‘a violation of human rights and human dignity’.
Section 3 of the Human Tissue Act 2004 requires ‘appropriate consent’ for organ donation. Section 33 of this act outlines the restriction on transplants involving a live donor.
The EU Organ Directive (2010/53/EU) requires organ donation to be voluntary and unpaid. However, compensation may be granted to make good the expenses and loss of income related to the donation, but avoids any financial incentive.
- Trafficking: exploitation: domestic servitude
Domestic servitude often involves people working in a household where they are:
- ill treated
-humiliated
- subjected to exhausting working hours
-forced to live and work under unbearable conditions
-forced to work for little or no pay
(9) MODERN SLAVERY( NOT INCLUDING TRAFFICKING)
If someone is found not to be a victim of trafficking(victim not trafficked as no element of movement), the Competent Authority must go on to consider whether they are the victim of another form of modern slavery, which includes slavery, servitude and forced or compulsory labour.
Because slavery and servitude are more serious forms of forced and compulsory labour, once the Competent Authority has determined whether an individual is a victim of this form of exploitation they can make the NRM decision.
For an individual to be a victim of slavery, servitude and forced or compulsory labour where the victims have not been trafficked, they must have been subject to a means, or threat of penalty through which that service was derived.
The UN Convention No. 29 concerning forced or compulsory labour defines ’forced or compulsory labour’ as ’all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.
’Penalty’ may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. Consent is a factor in forced and compulsory labour, but a victim may have given consent in a situation where they felt they had no viable alternative, in which case they could still be subject to forced or compulsory labour. Slavery, servitude or forced or compulsory labour must include this threat of penalty. Deception must of itself constitute a threat of penalty to establish means.
For a person to be a victim of slavery, servitude, or forced or compulsory labour where the victims have not been trafficked there must have been a service derived via the threat of penalty. “Service’ or labour includes forced labour, domestic servitude, sexual services, forced criminality. These forms of service could take place in a variety of industries or in private homes.
Servitude and slavery are more serious forms of forced or compulsory labour. For the purposes of the NRM, the Competent Authority will only need to determine whether an individual has been the victim of slavery, servitude, or forced or compulsory labour.
(10)SLAVERY
- Modern Slavery: Forced or compulsory labour (victim not trafficked)
UN Convention No. 29 concerning forced or compulsory labour defines ’forced or compulsory labour’ as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.
Labour is the provision of any service, not just manual labour. ’Penalty’ may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. Consent is a factor in forced and compulsory labour, but a victim may have given consent in a situation where they felt they had no viable alternative, in which case they could still be subject to forced or compulsory labour.
For a person to be a victim of forced or compulsory labour there must have been 2 basic components:
- Means: Threat of penalty – eg threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability.
- Service: As a result of the means an individual provides a service for benefit, e.g. begging, sexual services, manual labour, domestic service.
However, there does not need to be a means used for children as they are not able to give informed consent. Child forced or compulsory labour (victim not trafficked as no element of movement) will therefore consist of one basic component: service.
Where a case meets the test for forced and/or compulsory labour, they would receive a positive conclusive grounds decision.
(11)SERVITITUDE
- Modern Slavery: servitude
’Servitude’ means an obligation to provide a service that is imposed by the use of coercion.
Servitude is an ’aggravated’ form of forced or compulsory labour. The fundamental distinguishing feature between servitude and forced or compulsory labour is in the victim feeling that their condition is permanent and that the situation is unlikely to change.
(12)FORCED LABOUR
- Modern Slavery: slavery
The 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.
This concept of ownership is what makes slavery distinct – for example a situation where an individual was being controlled by another would not meet this threshold, unless there was clear evidence the person was being used as a commodity. It is a form of servitude with the additional concept of ownership.
(13)CHILD VICTIMS
In cases of potential child victims, it is not possible for a child to give informed consent, so the Competent Authority does not need to consider the means used for the exploitation – whether they were forced, coerced or deceived etc.
No child’s case should be considered without contacting individuals who specialise in children from a Local Authority and an NGO.
Modern slavery is child abuse that requires a child protection response. Potential victims under 18 years of age should be immediately referred to the relevant Local Authority children’s services (or the Health and Social Care Trust Children’s Services in Northern Ireland) by the Competent Authority if they haven’t been referred already by the first responder.
The relevant police force should be informed and involved.
Any child who is recruited, transported or transferred for the purposes of exploitation, or is directed to perform, labour is considered to be a potential victim of modern slavery, whether or not they have been forced or deceived. This is because it is not considered possible for children to give informed consent.
Where an adult was trafficked or a victim of modern slavery as a child, but only referred to the NRM in adulthood, they will be assessed against the child criteria for the purposes of determining whether they a victim of trafficking/modern slavery but as they are an adult at the time of the referral, they must consent to their case being referred to the NRM.
In some cases a person referred to the NRM may claim to be a child but it is suspected that they are an adult. In such cases the Competent Authority and other agencies within the NRM will continue to treat the individual as a child until age is established. However, whether an individual is a child or an adult must be established before the Competent Authority reaches its conclusive grounds decision. The first responder would have commissioned an age assessment where appropriate.
The Child Trafficking Advice Centre (CTAC), part of the National Society for the Prevention of Cruelty to Children (NSPCC), operate a child trafficking advice and information line which offers direct assistance to professionals dealing with children who show signs of having been trafficked.
(14)SOME CONSIDERATIONS – REASONABLE AND CONCLUSIVE GROUNDS DECISION
The Council of Europe Convention on Action against Trafficking in Human Beings stipulates a 2 stage process for identifying victims of trafficking.
The first part is the Reasonable Grounds test, which acts as an initial filter to identify potential victims. The reasonable grounds decision has consequences for the potential victim in terms of protection and support (and potential further stay in the UK if they are subject to immigration control).
The second is a substantive Conclusive Grounds decision as to whether the person is in fact a victim. This 2 stage test covers all human trafficking cases in any part of the UK (and slavery, servitude, or forced or compulsory labour in England or Wales).
Competent Authorities are entitled to consider credibility as part of their decision making process at both the reasonable grounds and conclusive grounds stages. When Competent Authority staff are assessing the credibility of an account, they must consider both the external and internal credibility of the material facts.
If the applicant fit the definition of human trafficking or modern slavery, there is reliable supporting evidence and the account is credible to the required standard of proof, the Competent Authority should recognise the person as being a victim of human trafficking or modern slavery.
In cases of child trafficking, the Competent Authority must keep in mind the child’s:
-added vulnerability
-developmental stage
-possible grooming by the traffickers and modern slavery facilitators
Potential victims of modern slavery may rely on documentary evidence to support their claim in the NRM.
Experience and qualifications of the individual providing the supporting evidence will be relevant in considering what weight to attach to an expert report and every case must be considered on its merits. However if there are clear, robust reasons why the reasonable or conclusive grounds test is not met, there is no requirement to accept the assessment of an expert report simply because it states the reasonable or conclusive grounds test is met.
Where an expert report is considered when assessing a claim under the NRM, and other information is available, all the information and relevant reports should be considered. If there are several expert reports all must be taken into account. A decision should not rely on an expert report alone without considering all relevant information. A decision should not rely on an expert report without making independent enquiries into the potential victim’s circumstances and credibility.
Where a potential victim of modern slavery relies on medical evidence it should be from a medical practitioner who is qualified in the appropriate field including information such as the relevant physical or mental condition, when that condition has been diagnosed and why that condition or any treatment relating to it is relevant to human trafficking or modern slavery.
Any evidence supplied must be capable of being verified by the Competent Authority where appropriate.
A potential victim of modern slavery is a potential victim of a crime. All credible cases should be referred to the police – either on the victim’s behalf where they consent, or as a third party referral where they do not.
A credible allegation includes one where the potential victim is naming either:
- a trafficker
- other victims
-a place of exploitation
– providing another piece of key information that may require investigation
The Competent Authority does not need to refer a case to the police if the person claims to be trafficked or a victim of modern slavery but provides no relevant details that the police could investigate. A decision not to refer an adult case to the police should be reconsidered if further information arises.
When sharing information with the police, the Competent Authority should be aware that: Potential victims are under no obligation to cooperate with the police themselves and some potential victims may not want the police to be involved at all.
In some cases the police may not pursue a case unless the individual engages with them directly. It is not for staff in the Competent Authority to press the police to pursue a criminal investigation or convince the potential victim to cooperate. However, staff in the Competent Authority must note the outcome of the referral to the police on the file.
It may also be helpful to discuss a case with the police to gather any additional information to help with the conclusive grounds decision.
Although an active police investigation (or Crown Prosecution Service (CPS) or Crown Office and Procurator Fiscal Service (COPFS) prosecution) may give weight to a claim of trafficking or modern slavery offences, potential victims are not obliged to cooperate with the police at any stage in the National Referral Mechanism (NRM) process.
When considering the case, staff must not penalise a potential victim who is unwilling to cooperate with the police. Where staff are considering a case with an ongoing investigation, they should liaise with the police to establish when an appropriate point to make a conclusive grounds decision would be taking into account timescales for decision-making, given any additional information the investigation might provide.
(15)REASONABLE GROUNDS DECISION
The expectation is that the Competent Authority will make a reasonable grounds decision within 5 working days of the NRM referral being received at the UK Human Trafficking Centre (UKHTC) where possible.
This is designed to determine whether someone is a potential victim. When the Competent Authority receive a referral, they must decide whether on the information available it is reasonable to believe that a person is a victim of the crime of human trafficking (in Scotland and Northern Ireland) or modern slavery (in England and Wales).
The test the Competent Authority must apply is: whether the statement ‘I suspect but cannot prove’ (the person is a victim of human trafficking in Scotland and Northern Ireland or the person is a victim of modern slavery which includes human trafficking or slavery, servitude, or forced or compulsory labour in England or Wales):
-is true
-whether a reasonable person having regard to the information in the mind of the decision maker, would think there are reasonable grounds to believe the individual had been a victim of human trafficking or modern slavery.
For England and Wales cases: indicators of all forms of modern slavery are likely to be similar – it may not be initially clear to the Competent Authority whether a potential victim has been subject to human trafficking or slavery, servitude, or forced or compulsory labour. So to reach a positive reasonable grounds decision the Competent Authority just needs to determine that, on the information available, it is reasonable to believe that a person is a victim of the crime of modern slavery; the Competent Authority does not need to distinguish at the reasonable grounds stage which form of modern slavery they have experienced.
Reasonable suspicion would not normally be met on the basis of an unsubstantiated claim alone, without reliable, credible, precise and up to date:
-intelligence or information
- evidence of some specific behaviour by the person concerned
Where reliable, credible, precise and up to date intelligence, information or evidence is present, it must be considered in reaching a reasonable grounds decision.
If a person is a victim of human trafficking (in Scotland and Northern Ireland) or modern slavery (in England and Wales) then they are a victim of a crime. The Competent Authority can explore information about the alleged offence in consultation with Intel (in Home Office cases) or the police, as part of the reasonable grounds assessment.
It is not necessary to prove that an offence has taken place, or for there to be an ongoing criminal investigation to find that an individual is a victim of human trafficking (in Scotland and Northern Ireland) / modern slavery (in England and Wales) in need of protection.
If after contacting the first responder, support provider, police or Local Authority (in the case of children) there is not enough information or evidence to conclude that the reasonable grounds or conclusive grounds test is met, the Competent Authority is entitled to make a negative decision.
Where the assessment of credibility undermines an individual’s account to the point that the reasonable grounds standard of proof can no longer be met, the Competent Authority must conclude that the subject is not a victim of human trafficking or modern slavery.
(16)POSITIVE REASONABLE GROUNDS DECISION-RECOVERY AND
REFLECTION PERIOD
The Trafficking Convention requires that potential victims of trafficking are provided with a period of a minimum of 30 days reflection and recovery, during which they will receive support, including accommodation, subsistence and access to relevant medical and legal services, and potential eligibility for discretionary leave if they are recognised as a victim. The UK provides this support to potential victims referred to the NRM for a longer period of 45 days.
If the Competent Authority makes a positive reasonable grounds decision, the individual must be given support if they want it during a 45 day recovery and reflection period. This temporary period provides the conditions for a full evaluation to conclusively decide if the person was a victim of human trafficking or modern slavery at the date of the reasonable grounds decision. This is a not an immigration decision.
The recovery and reflection period is a legal concept that triggers certain rights and measures under the Council of Europe Convention on Action against Trafficking in Human Beings and in no circumstances should the Competent Authority deny an identified victim these rights where the victim indicates they want them. This recovery and reflection period is being extended to cover positive Reasonable Grounds decisions in all modern slavery cases in England and Wales.
As part of the positive reasonable grounds decision letter, the potential victim will be asked if they would like to be considered for discretionary leave in the event of a positive conclusive grounds decision from the National Referral Mechanism (NRM).
The Home Office will consider whether they need to grant temporary admission (TA) or temporary release (TR) to a person who will have a 45 day reflection and recovery period.
A grant of TA or TR is not a grant of leave to enter or remain in the UK.
If the person does not have a valid form of leave the Home Office will grant a 45 day period of TA or TR to allow for the recovery and reflection period.
If the potential victim of trafficking or modern slavery is in immigration detention they will normally need to be released on TA or TR by the Home Office unless in the particular circumstances, their detention can be justified on grounds of public order.
If the reasonable grounds decision is positive, the Home Office should not take any negative asylum decision until the conclusive grounds decision is made, as it may have a bearing on the asylum claim.
If the Competent Authority decides that there are not reasonable grounds to accept the person is a potential victim of human trafficking or modern slavery, they will not offer support for a 45 day reflection and recovery period and the Home Office will not consider or grant them TA or TR.
The Competent Authority should draft a minute explaining the reasons for the negative reasonable grounds decision and keep it on file. They must send the minute of reasons to the victim.
The Home Office Competent Authority may take an asylum decision for any outstanding asylum claim at the point a negative reasonable grounds decision is taken. Other outstanding Immigration applications can be concluded.
(17)CONCLUSIVE GROUNDS DECISION
When a Competent Authority makes a positive reasonable grounds decision, at the end of the recovery and reflection period they then have to conclusively decide whether the individual is a victim of human trafficking (Scotland and Northern Ireland) or modern slavery (England and Wales).
The Competent Authority is responsible for making a conclusive decision on whether, ‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or modern slavery. This is referred to as the Conclusive Grounds decision.
The Competent Authority’s consideration of the case in England and Wales is in 2 parts:
- Are there sufficient grounds to decide that the individual is a victim of trafficking?
- If not, are sufficient grounds to decide that the individual is a victim of slavery servitude, or forced or compulsory labour.?
There are therefore 3 potential outcomes for each case:
- recognised as a victim of modern slavery (human trafficking)
- recognised as a victim of modern slavery (slavery, servitude or forced and compulsory labour)
- insufficient evidence to recognise the individual as a victim of modern slavery, including trafficking
The expectation is that a Conclusive Grounds decision will be made as soon as possible following day 45 of the recovery and reflection period. There is no target to make a conclusive grounds decision within 45 days. The timescale for making a conclusive grounds decision will be based on all the circumstances of the case.
At the conclusive grounds decision stage, the Competent Authority must consider whether, ‘on the balance of probabilities’, there is sufficient information to decide if the individual is a victim of human trafficking or modern slavery.
The ‘balance of probabilities’ essentially means that, based on the evidence available, human trafficking or modern slavery is more likely than not to have happened. This standard of proof does not require the Competent Authority to be certain that the event occurred.
In reaching their decision the Competent Authority must weigh the balance of probabilities by considering the whole human trafficking or modern slavery process and the different and interrelated actions that need to have taken place. To make their decision they must weigh the strength of the indicators or evidence presented, including the credibility of the claim, and apply common sense and logic based on the particular circumstances of each case.
The Competent Authority must make every effort to secure all available information that could prove useful in establishing if there are conclusive grounds.
If they cannot make a conclusive grounds decision based on the evidence available, they must gather evidence or make further enquiries during the 45 day recovery and reflection period.
The Competent Authority must gather this information, where appropriate, from:
-the first responder
-support provider
-police
- Local Authority (in the case of children)
If the Competent Authority decides that there are not conclusive grounds to accept the person is a victim of human trafficking or modern slavery, the Competent Authority must not offer any further support for a further recovery and reflection period (including further Temporary Admission (TA) or Temporary Release (TR) in order to receive support as a victim).
The Competent Authority should draft a minute explaining the reasons for the negative conclusive grounds decision and keep it on file. They must send the minute of reasons to the victim.
The decision minute should clearly indicate the outcome being made on the case: in England and Wales, insufficient evidence to recognise the individual as a victim of modern slavery.
The decision letter should include a full and detailed consideration explaining the reason for the decision in every case.
Where the Home Office is a Competent Authority and there is a live immigration case the decision letter should also offer assistance in making a voluntary return (if there are no reasons to remain).
Only those with a positive conclusive grounds decision may go on to be considered for discretionary leave based on criteria set out in the trafficking Convention. Those with a negative conclusive grounds decision will not receive a consideration based on this criteria.
(18)POSITIVE CONCLUSIVE GROUND DECISION
The Competent Authority should draft a minute explaining the reasons for the positive conclusive grounds decision and keep it on file. They must not send the minute of reasons to the victim.
In England and Wales the decision minute should clearly indicate which of the 2 outcomes are being made on the case:
- Recognised as a victim of modern slavery (human trafficking).
- Recognised as a victim of modern slavery (slavery, servitude or forced and compulsory labour).
Once a conclusive grounds decision has been taken, any outstanding claim for asylum should be decided.
(19)INTERVIEWS
At the Reasonable Grounds stage, the decision may be more likely to be based on evidence gathered from the first responder rather than through an interview process given the limited 5 day timescale in which the Competent Authority are expected to take a decision where possible which might not allow time for interviews. In some cases that might also be an inappropriate time to carry out a formal interview.
Interviews are more likely to be relevant to a conclusive grounds decision rather than a reasonable grounds decision.
Trafficking or modern slavery interviews do not have to be carried out with potential victims in all NRM cases. When the Competent Authority is considering the evidence it may be the case that the information submitted on the individual’s situation is so compelling that an interview is not necessary or it may be possible to clarify the modern slavery issues as part of the asylum process by asking relevant questions during an asylum interview. However, if the information provided is slim or contradictory an interview may help to clarify things for example by allowing the potential victims to comment on any inconsistencies. The interviewer must keep a verbatim (word for word) record of the interview and keep a copy on file.
Interviewing children suspected or known to be trafficked must be kept to a minimum. If staff have to interview potential child victims of modern slavery , they must do so in a sensitive manner which takes into account their age and maturity.
Where the Home Office is the Competent Authority they may interview potential victims of human trafficking or modern slavery to establish identity and immigration status. If a potential victim of human trafficking or modern slavery is not known to the Home Office, the Competent Authority must arrange for an initial status interview to be conducted by a warranted immigration officer to establish the person’s:
- identity
- nationality or citizenship
- immigration status in the UK
When it is decided that there are reasonable grounds of human trafficking or modern slavery, temporary admission can only be granted if the person’s identity is confirmed and they have been logged on the Home Office system (CID). In such cases, the Home Office must prioritise the status interview so it doesn’t delay the reasonable grounds decision.
NRM decisions and Asylum or Humanitarian decisions are 2 distinct and separate decisions. However an asylum interview may provide information that is also of relevance to the NRM decision where trafficking or modern slavery issues are clarified and investigated as part of the asylum process. There may therefore be good reasons to conduct a single interview in asylum claims relating to a person within the NRM process but this is not always possible.
Where the Home Office is the Competent Authority UKVI staff may be asked to conduct an asylum interview for cases where there is an ongoing National Referral Mechanism (NRM) consideration.
(20)CONSIDERATION OF DISCRETIONARY LEAVE GRANTS
If the Home Office make a positive conclusive grounds decision, this does not result in an automatic grant of immigration leave. However the Home Office should consider whether a grant of discretionary leave is appropriate following a positive conclusive grounds decision where an individual has requested leave. The Home Office Discretionary leave policy instruction set out above would need to be taken into account.
A person who is accepted as a victim of human trafficking or modern slavery will not be granted leave solely as a direct result of that decision unless they meet the relevant criteria. There is no automatic grant of immigration leave if there is a finding of fact that a person is a victim of human trafficking or modern slavery.
There are no Immigration Rules which grant leave due to human trafficking or modern slavery. However some people who receive a decision on human trafficking or modern slavery under the NRM may be eligible for a grant of discretionary leave if they ask for it. In some cases it may renewable if eligibility criteria continue to be met but is not on a route to settlement.
Someone will not normally qualify for a grant of leave solely because they have been identified as a victim of human trafficking or modern slavery – there must be compelling reasons based on their individual circumstances to justify a grant of discretionary leave, where they do not qualify for other leave such as asylum or humanitarian protection.
A grant of discretionary leave should be considered where the Competent Authority has conclusively identified an individual as a victim of trafficking (within the meaning of Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings) and either:
–they have particularly compelling personal circumstances which justify a grant of discretionary leave to allow them to remain in the UK for a longer period. When the Home Office makes a positive conclusive grounds decision, it may be appropriate to grant a victim of modern slavery discretionary leave to remain in the UK if their personal circumstances are compelling in line with Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings. This must be considered in line with the discretionary leave policy.
Personal circumstances might mean for example, to allow them to finish a course of medical treatment that would not be readily available if they were to return home. Such leave would normally be granted for the duration of the course of treatment or up to 30 months, whichever is shorter.
–they need to stay in the UK in order to pursue a claim for compensation against their traffickers ). Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings deals with the right of victims to compensation from traffickers. It may be appropriate to grant a victim of modern slavery who has been trafficked discretionary leave if they need to stay in the UK on the grounds that they are pursuing a claim for compensation against their traffickers. The same approach will apply to those pursuing a claim for compensation against their modern slavery facilitators.
– the victim needs to stay in the UK to assist with police enquiries (the victim needs to have agreed to cooperate with the enquiry, and the police must make a formal request for them to be granted leave on this basis). In line with the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention), the Home Office may grant a period of discretionary leave where a victim of human trafficking or modern slavery has agreed to cooperate with police enquiries. Where a person is conclusively found to be a victim of human trafficking or modern slavery and has agreed to assist with police enquiries from the UK, the police must make a request for them to be granted leave to remain on this basis. This may be extended where necessary, for example, where a criminal prosecution takes longer than expected and the police have confirmed or requested an extension.
(21)PERIODS OF GRANT OF DISCRETIONARY LEAVE AND SETTLEMENT
The period of leave will depend on the individual facts of the case and should be for the amount of time required, without further renewals being necessary in most cases. However, leave should normally be granted for a minimum of 12 months, and normally not more than 30 months (2 and a half years). However, shorter or longer periods may be granted if the facts of the case justify it.
Once the leave expires, a further period of leave may be granted subject to following the process whether by informal request or application form and fee as specified in the relevant guidance. Where they continue to qualify under the policy, further leave may be granted.
Where someone is granted an initial period of discretionary leave this does not necessarily mean they are entitled to further leave or settlement. Further details on granting or refusing discretionary leave and the duration of leave can be found in the discretionary Leave guidance.
(22)JUDICIAL REVIEW
There is no automatic right of appeal if after a decision is made under the NRM, no limited leave is granted by the Home Office. A person might be able to appeal to the First-tier tribunal (Immigration and Asylum Chamber) if the Home Office in some circumstances depending on the application they have made outside the NRM eg if their asylum claim is refused, if a human rights claim is refused or they have been refused a residence document under the European Economic Area (EEA) Regulations, eg the Home Office has decided to deport someone or refused to issue them with a residence document.
In some cases a refusal to grant immigration leave might attract an administrative review.
Where there is no right of appeal, in a relevant case, a claim for judicial review may be lodged.
Therefore where the Competent Authority has made a decision incorrectly, applicants can challenge that decision by way of Judicial Review. However, it may be appropriate for the Competent Authority to reconsider a decision. If specific concerns are raised that the decision is not in line with published guidance, the Competent Authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal and the decision should only be reconsidered where there are grounds to do so.
The reasonable grounds decision has consequences for the potential victim in terms of protection and support (and potential further stay in the UK if they are subject to immigration control). The Competent Authority decision may thus be subject to external scrutiny and judicial review and home office policy is that it must be of the highest possible standard, taking into account the expert views of those surrounding the individual.
As part of the Competent Authority decision making process, staff at the Competent Authority must keep a detailed consideration minute. When issuing a negative decision the Competent Authority must use this consideration minute as the basis for dealing with the key points in their decision. When issuing a positive decision, the Competent Authority must keep this minute on file.
The consideration minute must include all of the following:
-immigration history and case summary
-objective information on country in question
-findings of fact with detailed reasoning (clear credibility findings including reference to which events the Competent Authority accepts took place and which events the Competent Authority does not accept took place)
-why the definition of human trafficking or modern slavery is or is not met in respect of a reasonable grounds test
- decision outcome
-date of decision
Where a judicial review claim is relevant, decision minutes are considered to be within the scope of personal information. As such, the victim is entitled to make a subject access request to obtain this information, in accordance with Section 7, the Data Protection Act 1998 (DPA).
All subject access requests should be in writing, and should specify that the victim is seeking a copy of the consideration minute which accompanies their NRM decision.
(23)CONSIDERATIONS – MORDEN SLAVERY/TRAFFICKING AND ASYLUM- PARTICULAR SOCIAL GROUP
The criteria used to grant asylum is not the same as the criteria used to assess whether a person is a victim of modern slavery.
The fact that a person is a victim of human trafficking or slavery, servitude, or forced or compulsory labour does not, in itself, mean that they are refugee or need humanitarian protection. However, some victims may be able to establish that they have a well-founded fear of persecution for a reason covered by the Refugee Convention, for example, membership of a particular social group and may therefore have valid claims to refugee status. It may also be possible to establish a need for humanitarian protection depending on the individual circumstances of the case. To qualify for protection someone needs to demonstrate they are at risk of persecution or serious harm on return to their country of origin.
Women who are victims of trafficking may face serious consequences if they return to their home country, particularly if they were forced into prostitution or sexual exploitation. This may take the form of:
-reprisals or retaliation from trafficking rings or individuals
-discrimination from their community and families
-the risk of being re-trafficked or the risk of becoming a victim of modern slavery again
In some cases it will be necessary for staff to consider internal relocation. Staff must consider each case on its merits.
Staff must assess the evidence in the country reports on the current country situation for sufficiency of protection and specific trafficking support. For example is support available for victims of trafficking, and the police able to protect them from being retrafficked. This needs to be looked at in light of the applicant’s ability to move or seek protection.
Country Policy and Information Reports contain useful guidance about claims based on being a victim of trafficking. They also provide guidance on what is sufficient protection, how feasible the internal relocation is and include relevant case law for example on particular social group.
(24)CONCLUSION
When compared to the protection applicable to those applying for asylum and granted refugee status, there are several respects in which victims of trafficking are disadvantaged:
- Just as in the consideration of an asylum claim, a person whose case is being considered as a victim of modern slavery, does not need to fill in an application form or pay a fee for an initial consideration of discretionary leave on this basis. If however discretionary leave is granted as regards a victim of modern slavery, a request for an extension should in most circumstances be made using an application form and subject to payment of the relevant fee, unless the application is made within a fee exempt category or they qualify for a fee waiver. The only exception to this will be where the police make an informal request to the Competent Authority for discretionary leave to be extended. In such cases an application form should not be submitted and a fee will not be incurred. In comparison, a person granted refugee status for 5years, upon an application for settlement, although required to complete an application form, is not required at all to provide an application fee.
- Further for someone seeking compensation through the civil courts as a victim of modern slavery, this does not in itself merit victim status or a residence permit because when determining whether to grant a residence permit the Home Office must consider: the grounds of the claim; the likely length of the claim, and whether the person needs to be physically in the UK for the duration of their claim. Home Office policy is that in some instances it may be more appropriate to facilitate return to the UK nearer to the hearing date or to arrange video conferencing facilities; how credible the claim is; the type of compensation being sought.
- Requests for discretionary leave, or renewal of discretionary leave in relation to victims of modern slavery should be made by the investigating police force, rather than the victim or their representatives. Home Office policy is that a legal representatives should not make an application for leave to remain on the basis that their client is a witness in an ongoing investigation. Where therefore the police do not make a request for discretionary leave on behalf of the affected person, they are unlikely to be granted discretionary leave without the assistance of the police in this regard.
- Where an asylum claimant is having their claim considered or where they are granted refugee status , they are not usually expected to make a voluntary return home-unless they wish to do so. Home Office policy however in relation to victims of modern slavery is that as potential victims may wish to return home at any point, the Home Office must inform them of the opportunity and options available to make a voluntary return. It is considered important that involvement of victims is made in the process of return as soon as possible as this will aid their return and empower them to take control once they have returned. The policy guidance clarifies that there may also be voluntary return packages available specifically for trafficking victims. The policy continues clarifying that where a conclusive grounds decision is made (whether positive or negative) and the person is not eligible for a grant of leave they should be offered assistance in making a voluntary return. The Home office expect that victims who do not have a right to remain in the UK to return home. The Home Office must however give consideration to Article 16(2) of the Council of Europe Convention on Action against Trafficking in Human Beings which states, ‘When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary”.
- Any request for settlement from a person who has had a conclusive grounds decision from the NRM should be considered in line with the approach to settlement set out in the discretionary leave guidance. Every case will be considered on its merits. There is no requirement under the European Convention to issue indefinite leave to remain in relation to victims of modern slavery and the threshold for a grant of settlement outside the Immigration Rules is a high one. In comparison, where eligible, a refugee who has held refugee status continuously for 5years can apply for settlement.
Having regard to the fact, in particular that a positive conclusive grounds decision does not automatically lead to a grant of discretionary leave to remain, it is equally important that whatever considerable effort is being made in seeking to establish that an applicant is a victim of modern slavery, that the same effort applies to any accompanying asylum claim, for example in establishing that an exploited, trafficked and vulnerable woman falls into a particular social group for refugee purposes. Where successful in this regards, at least refugee leave of a substantive and real protective nature may be granted as opposed to temporary forms of support and fleeting allowances for recovery periods as a victim of trafficking with no real hope of any or lasting leave being granted by the Home Office.
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