Manager of the ACTion to Combat Modern Slavery Hub
Co-ordinator of the Humber Modern Slavery Partnership
The Modern Slavery Guidance for England and Wales, which has recently been updated to reflect many of the changes introduced through the Nationality and Borders Act, came into effect from 30 January 2023. Here Andrew Smith lays out in detail important information about those changes for anyone who is working in this area.
It is worth saying there are numerous updates of great significance to the Modern Slavery Act. Rightly so there are grave concerns about the changes to the Reasonable Grounds [RG] threshold, time limits on evidence gathering at Conclusive Grounds [CG] stage, and disqualifications. I know colleagues around the country are working hard to disseminate all known information about these policy changes to their partnership areas and networks. These changes will have many expected and undoubtedly even more unknown impacts on how first responders are able to quickly identify and refer potential victims of modern slavery.
The changes to the Reasonable Grounds threshold and the evidence required, along with the inevitable period of adjustment for first responders, could certainly have an impact on how quickly and effectively local authority child National Referral Mechanism [NRM] decision-making pilot areas are able to suitably refer, and then safeguard, young people they suspect are being exploited. Regardless of any future NRM decision-making processes, it is important young people and adults across the county continue to be supported away from exploitation and those that would do them harm.
The changes to time limits on evidence gathering also mean there is now more onus on First Responders to give as much information and specific evidence as possible when submitting a referral. The online NRM referral form has been updated to reflect these changes to ensure first responders include all relevant information when gathering evidence before submitting the referral.
Clearly, there is also the urgent need for all organisations to reflect these changes in any first responder training across the country. Training is not only an investment in the professionals we trust to identity and refer potential victims but is vital to ensure we are fulfilling our moral and legal duties to all people that have suffered or are suffering trafficking and exploitation.
It is definitely too early to make any firm assertions on what these changes will mean for the wider anti-slavery system in the UK, but what is clear is that implementing blanket changes based on hostile immigration control will have disastrous consequences for many genuine victims who are unable to ‘evidence’ their traumatic and life changing experiences.
Summary of changes extracted from Section 49 Statutory Guidance:
- Changes to the Glossary – Added ‘Additional Recovery Period’, ‘Bad Faith’ (p.13), ‘Nationality and Borders Act 2022’, ‘Public Order’ (p.16), ‘Public order disqualification’, ‘Public order disqualification request’ (p.17) and ‘Victim of Human Trafficking or Slavery (VTS)’ (p.18). Updated ‘Reasonable Grounds Decision’ and ‘Recovery Period’ (p.17).
- Definition of human trafficking – ‘transferring or exchanging control over’ has been added to Action under the definition of human trafficking (p.21). Sec.2.25 is new and sets out that abuse which happens on route and is not connected to the purpose of travel does not necessarily constitute as trafficking (p.24). Sec.2.26 is new and sets out the definition of sexual exploitation in relation to the Slavery and Human Trafficking (Definition of Victim) Regulations (p.24)
- Indicators of modern slavery – Sec.3.7 is new and sets out that when determining if someone is a victim of modern slavery, regard may be had to the person’s age, family relationships and physical or mental disabilities, which impair a person’s ability to protect themselves.
- Reasonable Grounds Decision – The Reasonable Grounds Decision threshold is no longer ‘suspects but cannot prove’ and is now ‘based on objective factors but falling short of conclusive proof’. Sec.7.4 and 7.8 are new (p.61).
· The section on Making a Reasonable Grounds decision has been completely updated (p.129-174) and now means that a victim’s own testimony alone is no longer sufficient for a +RG decision. There needs to be additional information or evidence, such as medical, witness or expert statements or police reports submitted. Country reports or travel records will not be enough in themselves. Types of evidence are listed at the bottom of p.130-1.
· ‘The relevant competent authority will take reasonable steps to gather all available information before making a decision within the 5-day decision-making timeframe’. Where there is insufficient evidence provided, the competent authority can question if the RG threshold is met.
· The RG section now includes information on inconsistent and incomplete accounts, including a list of circumstances for why there might be a lack of detail or reasons for delayed disclosure, in order for the competent authority to assess credibility. If the individual had multiple opportunities to raise information ‘and fails to do so until action is brought against them, such as an Immigration Enforcement removal direction, then this should be weighed in the balance with all other evidence and may damage their credibility.’
· Sec.14.50-14.81 are new. Sec.14.83 has a new line added: ‘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’.
- Recovery Period – The recovery period was reduced from 45 days to 30 in the previous iteration of the guidance.
· Sec.8.20 has been edited to include that the recovery period will not be observed where a public order or bad faith disqualification apply, or it’s been decided not to provide an additional recovery period (p.69) [does not apply to children]. Previously the guidance said a recovery period will not be observed where ‘grounds of public order prevent it’.
· There is a new sec.14.86-14.127 on Making an Additional Recovery Period, including a table showing the decision-making framework (p.136-147). In most cases, a victim will not get a second recovery period if they have had a +CG and made a new NRM referral for exploitation that took place before the first RG decision was made. This is different to if victims are re-trafficked after the initial NRM referral.
- Evidence Gathering at Conclusive Grounds stage – When making a CG decision, the competent authority can now ask a victim or their legal representative for information to be provided within (a minimum) of 14 days and send a reminder for this after 7 days.
· If this deadline can’t be met, the victim or legal representative can request an extension. This should be requested along with evidence for why the information can’t be provided and an updated timeframe for when it can. The competent authority will then use the criteria listed in the guidance when deciding whether to grant the extension. A CG decision will be made on the basis of the information available to the competent authority.
· Sec.14.138-14.142 and 14.144 (p.150) are new. Consideration minutes and case records: Lines 5-8 of sec.1.174 are new, as is line 5-10 of 14.177 and line 5-9 of 14.178. The public order and bad faith points in the list in 14.207 are new.
- Public Order Disqualification – Updated section p.166-176. For definition of public order see glossary p.16.
· Where the public order disqualification applies, the victim will not have access to a recovery period or support, protection from removal, a CG decision, or Temporary Permission to stay as a Victim of Human Trafficking or Slavery.
· This can apply to victims currently in the NRM who received their RG decision before 30 January 2023 (individuals in Modern Slavery Victim Care Contract [MSVCC] accommodation who receive a disqualification are provided with 9 working days of move-on support).
· Disqualification requests can be raised by the Competent Authorities and the Foreign National Offender Returns Command where removal or deportation action is being pursued and the victim meets the public order definition. Disqualification requests can be raised by Competent Authorities where a British citizen is in detention or on licence or a British citizen has presented with challenging behaviours in modern slavery support, and it has been identified by the competent authority that the individual meets the public order definition.
· The disqualification decision should be made within 30 working days of the disqualification referral wherever possible. First Responders must always make an NRM Referral or a Duty to Notify, even where the individual is likely to meet the public order definition.
· There is a new Public Order Decision-Making framework table on p.172, which includes information on criminal exploitation, child referrals and threatening behaviour in MSVCC support. ‘A second pair of eyes review will take place on all public order disqualification decisions resulting in a disqualification’.
- Bad Faith Disqualification – New section p.177-183 updating the previous section on improper claims.
· ‘An individual may be considered to have claimed to be a victim of modern slavery in “bad faith” where they, or someone acting on their behalf, have knowingly made a dishonest statement in relation to being a victim of modern slavery’.
· Decisions to disqualify individuals on grounds of bad faith may be made for all cases referred into the NRM before, on, or after 30 January 2023, even if a +CG decision has been made. The disqualification may only be applied where an individual has received a +RG decision.
· Where the bad faith disqualification applies, the victim will not have access to a recovery period or support, protection from removal, a CG decision, or Temporary Permission to stay as a Victim of Human Trafficking or Slavery. Any RG or CG decision will be revoked.
· Children (those under 18 at the time of the RG decision) are exempt from disqualification on grounds of bad faith.
· The consideration of whether to apply the bad faith disqualification will be triggered by evidence from the First Responder, or from within the Competent Authority where evidence of bad faith arises during the CG decision-making process. Where First Responders have concerns about an individual’s credibility, they should indicate this on the referral form.
· Individuals will be given the opportunity to provide explanatory evidence once the decision maker has communicated their intention to apply the disqualification. Credible explanations for gaps in evidence or a lack of credibility are listed on p.180. A second pair of eyes review must take place on all bad faith decisions resulting in disqualification.
- Temporary Permission to Stay for Victims of Human Trafficking or Slavery (VTS) – p.217 Non-European Economic Area [EEA] and EEA nationals will automatically be considered for a grant of VTS if they do not already have the right to stay.
· Victims will need a positive CG decision to be considered for VTS
· Additional guidance is here