Human Trafficking & Modern Slavery Victims: Protection Mechanisms & Discretionary Leave

Modern slavery, in particular human trafficking, is an international problem and victims may have entered the UK legally, or on forged documentation or clandestinely, or they may be British citizens living in the UK. Modern slavery includes human trafficking, and slavery, servitude and forced or compulsory labour. Exploitation takes a number of forms, including sexual exploitation, forced manual labour and domestic servitude. Victims may prefer not to report their experience due to the fear of repercussions or they may not simply recognise themselves as victims.

Unfortunately, the number of potential victims progressively increased over the last decade. Work by the Home Office Chief Scientific Adviser has estimated that in 2013 there were between 10,000 and 13,000 potential victims of modern slavery in the UK. Being a victim of human trafficking or modern slavery has tremendous repercussions on the victim mental, psychological and physical status the UK governmental apparatus established mechanisms to protect vulnerable people from exploitation and provide enhanced support to victims.

“Human trafficking” refers to a phenomenon of coercion and deception which forces the victim into a situation where they are exploited. Article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) defines ‘human trafficking’ as: ‘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.’

Human trafficking consists of 3 basic components:

  • action
  • means
  • purpose of 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. Child human trafficking will therefore consist of 2 basic components: ‘action’ and ‘purpose of exploitation’.

In addition to victims of trafficking, modern slavery includes:

  • victims of slavery
  • victims of servitude
  • victims of forced or compulsory labour

Slavery, servitude and forced or compulsory labour cases do not necessarily entail human trafficking. A victim may have been seriously exploited, but there was no action (element of movement), which means they do not meet the definition of a trafficking victim. In such cases protection and support is still available through the NRM where the person is a victim of slavery, servitude, and forced or compulsory labour, and Discretionary leave may be available. Slavery, servitude and forced or compulsory labour are prohibited by Article 4 of the European Convention on Human Rights and illegal across the UK, but each jurisdiction has its own legislative framework of prohibitions. For the purposes of the NRM the UK recognises that slavery, servitude and forced or compulsory labour have the same meaning as they do under Article 4 of the European Convention on Human Rights. This ensures a consistent approach for victims across the UK.

In order to verify whether a person is a victim of of modern slavery (including human trafficking, and slavery, servitude, and forced or compulsory labour) the Single Competent Authority should make 2 decisions:

1. A reasonable grounds decision to establish whether someone is a potential victim.

2. A conclusive grounds decision on whether they are in fact a victim.

Specifically, the key steps in the NRM process are as follows:

  1. Identify a potential victim of modern slavery and refer to the National Referral Mechanism – first responders, who are specified statutory authorities and Non-Governmental Organisations, have a responsibility to identify potential victims and refer cases to the SCA
  2. Reasonable grounds decision made by the SCA to determine whether it either:
  • suspects but cannot prove this person is a potential victim of human trafficking
  • suspects but cannot prove this person is a victim of slavery, servitude, and forced or compulsory labour
  • concludes there are not reasonable grounds to believe this individual is a victim of any form of modern slavery

If there is a positive reasonable grounds decision the person is given a minimum 45 day recovery and reflection period in England, Wales and Northern Ireland. In Scotland the person is supported for the period set by Ministers, currently 90 days, or until a conclusive grounds decision is made, whichever is the earlier, however in some cases support may be offered beyond the 90 days if a conclusive grounds decision has not yet been made. Support relates to the immediate and ongoing needs of the potential victim while the SCA makes a substantive conclusive grounds decision.

This reasonable grounds decision should be made within 5 working days of referral to the NRM where possible. The reasonable grounds decision acts a filter for potential victims referred to the NRM based on the information available at that time. This will be followed by a substantive conclusive grounds decision on whether someone is formally recognised as a victim, with a higher threshold.

3. Conclusive grounds decision made by SCA

The conclusive grounds decision should generally be made as soon as possible after 45 calendar days. A decision can only be made when sufficient information about the case has been shared or made available by interested parties to the SCA. The test to use for the conclusive grounds decision is whether, ‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or slavery, servitude, and forced or compulsory labour. This threshold is higher than the reasonable grounds test, but lower than the criminal standard of proof.

The SCA must first consider whether there are sufficient grounds to decide that the individual is a victim of trafficking. If there are not sufficient grounds, then the SCA must go on to consider if there are sufficient grounds to decide that the individual is a victim of slavery, servitude, and forced or compulsory labour. Following a positive conclusive grounds decision by the SCA, the SCA will take a further decision on whether an individual qualifies for a grant of discretionary leave, in line with the Convention and the UK Government’s commitment to extend this provision to victims of slavery, servitude and forced or compulsory labour across the UK.

Victims of modern slavery also make asylum claims. Where they do it is for the Home Office to make decisions on the asylum claim once a conclusive grounds decision has been taken. A positive conclusive grounds decision does not result in an automatic grant of immigration leave. However, if the Home Office is the Competent Authority it will automatically consider whether a grant of discretionary leave (DL) is appropriate under the following criteria:

  • those relating to personal circumstances
  • assisting police with enquires
  • pursuing compensation once a positive conclusive grounds decision is issued

All outstanding asylum decisions should be taken before any consideration is given to whether the victim is eligible for discretionary leave. If it is decided that a grant of leave is appropriate and the length of that leave is more generous than any discretionary leave grant, that leave should be granted. This may be the case where the person qualifies for a grant of asylum or humanitarian protection or for leave to remain on the basis of family or private life.

The Modern Slavery Human Trafficking Unit (MSHTU) cannot determine eligibility for or issue discretionary leave. If the Home Office is not the Competent Authority an individual would need to apply for discretionary leave under the modern slavery policy following a positive conclusive grounds decision. The police may also make a formal request to the Home Office on behalf of a person.

If you require legal assistance with a human trafficking case or any other form of modern slavery, please do not hesitate to contact our Immigration advisers on 020 3693 7591.