Recovery & Reflection Period for Victims of Modern Slavery: Challenging The 45 Days Rule

From 1 November 2015, specified public authorities have a duty to notify the Secretary of State of any person encountered in England and Wales who they believe may be a victim of modern slavery. Frontline staff such as police authorities, authorised organisations and the Home Office have the duty to refer an individual to the National Referral Mechanism whenever they encounter a potential victim of modern slavery. Potential victims of modern slavery who have received a positive reasonable grounds decision (usually issued after 5 working days from the date of referral) are entitled to a minimum 45 days supported recovery and reflection period in England, Wales and Northern Ireland. In Scotland potential victims are supported for the period set by Ministers, currently 90 days, or until a conclusive grounds decision is made, whichever comes earlier, however in some cases support may be offered beyond the 90 days where a conclusive grounds decision has not yet been made.

First responders and SCA staff must ensure that this support is provided upon request following a positive reasonable grounds decision. In cases where an individual is destitute it may be provided from the day of referral.

After a recent judicial review challenge, the UK government has declared that new changes will be introduced in order to replace the 45-days rule with a “needs-based” system. The challenge led the Court to acknowledge that there was “real risk of irreparable harm to a significant number of vulnerable victims of slavery and trafficking if their support were to end after 45 days”. The claimants, LP and NN, had both received a conclusive grounds decision and managed to demonstrate that, due to their particular circumstance, their ordinary lives were depending on the receipt of the accommodation and support.

This led the Home Secretary to officially declare that “the issues raised by the Claimants in this judicial review challenge have led the Secretary of State to review the [National Referral Mechanism] system as it currently operates, particularly the range of circumstance victims may face following a [conclusive grounds] decision. In doing so, he has identified some aspect of that system that he considers to be unsatisfactory”.

Moreover, the Home Secretary acknowledged that recovery time “may vary from individual to individual and cannot be delimited by time alone”; in this light, “a new needs-based system which is both consistent with legal obligations and sustainable in the longer-term” appeared to be an urgent aspect to be introduced in replacement of the old 45 days rule.

Although for years victims of modern slavery have been prevented to access support and accommodation after the recovery and reflection standard period, it seems something is moving towards a new direction and reasonable steps in order to comply with the Modern Slavery Act 2015 are under consideration.