New test for ‘reasonable grounds’ decisions in Modern Slavery guidance withdrawn
At the end of June, the Home Office agreed to withdraw, review and revise its new policy that required a potential victim of trafficking to provide ‘objective’ evidence for their trafficking experiences in order to receive a first stage decision under the National Referral Mechanism (NRM).
Under the Modern Slavery Statutory Guidance published in January 2023, a potential victim bore the burden of producing a credible account of being trafficked such that "the decision maker must agree there are reasonable grounds to believe, based on objective factors, that a person is a victim of modern slavery". This new higher threshold for making ‘reasonable grounds’ decisions resulted in more victims receiving negative decisions and therefore being denied vital support under the NRM - in the first quarter of 2023 there was a significant drop of 30% in positive reasonable grounds decisions made. Concerns were also raised that people would be deterred from making referrals into the NRM if objective evidence was not available.
Barriers to providing 'objective' information
The withdrawal of the policy followed a legal challenge brought by two potential trafficking victims who had received negative reasonable grounds decisions, despite providing credible accounts of their trafficking experience. Drawing from our knowledge and experience, HBF provided a witness statement for that challenge, outlining reasons why a potential victim may not be able to obtain objective information or evidence. These include:
- The nature of trafficking is of isolation and control, so it is extremely rare for victims to have access to healthcare or social services who can corroborate their account, or anyone except their traffickers and others exploited alongside them. It is in the nature of modern slavery that traffickers will rarely provide their victims with documents and access to a phone to exert control. Survivors are unlikely to be focused on collecting objective evidence when they are leaving an exploitative situation.
- The disclosure of trafficking and exploitation is extremely difficult for survivors and that there is a risk of re-traumatisation if survivors are pressed to provide their accounts too quickly. The profound psychological impact of their exploitation requires trauma-informed care provided by their trusted specialist professionals.
- Shame around what they have experienced and fear of reprisals are significant barriers to disclosure for the survivors we work with. In HBF’s experience, it takes time and support for trafficking survivors to recover from the psychological control of their traffickers.
- Survivors of trafficking may be unaware that they are the victims of modern slavery or trafficking and so do not come forward with their experiences until it identified by first responders or other support organisations. It is frequently the case that survivors hear about the term 'trafficking' for the first time while speaking with a support organisation, and naturally they need some time to process and contextualise this information before coming to terms with the fact that their experience amounts to exploitation.
- A lack of access to interpreters leads to missed opportunities in picking up survivors’ trafficking indicators and their effective referral into the NRM. Problems include a lack of availability of interpreters; assumptions of authorities that interpreters are not needed; and survivors then not being given the option of using an interpreter. In addition, survivors are likely to hold many fears following their trafficking experience and they are frequently wary of people speaking their language in case the interpreter may somehow know the traffickers.
- Difficulty securing legal representation for victims of trafficking due to the well-documented capacity issues in the immigration legal sector. As victims of trafficking do not routinely have access to legal advice prior to entry into the NRM, or even before they receive a reasonable grounds decision, they are at a disadvantage when it comes to disclosure and obtaining evidence in support of their case at such an early stage.
- The significant amount of time and complex planning it takes to produce expert evidence, such as a medico-legal report or a letter of support from our therapy or counter-trafficking team. HBF’s timeframe for providing a medico-legal report is around five months, as set out in the Home Office policy on medical evidence.
- There is considerable delay in the sharing of information between relevant authorities and organisations. For example, obtaining the GP records for a survivor can take up to a month, and sometimes longer, because surgeries are now inundated with requests for such records.
Due to the above complexities and vulnerabilities that survivors of trafficking face, it will rarely be the case that they are in a position to provide objective information about their experiences at the time of being referred into the NRM or before a reasonable grounds decision is made.
The Home Office has now revised its policy and made clear that decision makers should consider ‘whether it is reasonable in all the circumstances’ to expect supporting evidence or corroborating information. The guidance now makes specific reference to the reasons why victims’ early accounts may be impacted by trauma and they may be distrustful of authorities and states that “a decision maker is entitled to consider all forms of evidence in reaching their conclusion – this is not restricted to objective evidence to prove or disprove an account”.
It remains to be seen how this is applied in practice by decision makers but we welcome these changes and hope they help ensure survivors of modern slavery are provided with the support they need to begin their recovery.