The Modern Slavery Statutory Guidance has been updated to reflect the changes introduced by the Nationality and Boarders Act 2022 (The Act). The guidance came into effect from 30 January 2023 and makes a number of significant, and concerning, changes to the NRM process.
The guidance introduces a number of new changes including a reduced Reflection and Recovery Period (30 days instead of the previous 45 days), additional recovery periods and an updated definition of human trafficking. It also sets out the indicators of modern slavery and confirms that, when determining whether a person is a victim of modern slavery, regard can be had to a potential victim’s age, family relationships and physical or mental disabilities which impair a person’s ability to protect themselves. However, the most concerning changes from a criminal justice point of view are set out in detail below.
New threshold for Reasonable Grounds decisions
A decision maker must now find that there are reasonable grounds to believe, based on objective factors but falling short of conclusive proof, that a person is a victim of Modern Slavery before reaching a positive reasonable grounds decision. This represents a higher threshold than the previous position, in which a positive reasonable grounds decision indicated that the SCA suspect but cannot prove that the referred person was a victim of trafficking.
Decisions will still be made within 5 days of the referral, however, the guidance is clear that a victim’s account alone is no longer sufficient; there needs to be additional ‘objective’ information or evidence. The guidance goes on to list the types of information and evidence that may be considered, distinguishing between ‘general evidence’ and ‘specific evidence’. ‘General evidence’, such as information about the prevalence of human trafficking in a particular country and travel documents consistent with a victim’s account, will provide context but, alone, will no longer be sufficient for a positive reasonable grounds decision. Although a non-exhaustive list, ‘specific evidence’ includes Modern Slavery expert Reports, medical evidence, the views of trusted third parties such as social services and Independent Child Trafficking Guardians, witness statements from independent sources and whether there are any indicators of Modern Slavery contained within the referral itself.
The guidance also includes information on inconsistent and incomplete accounts to assist decision makers in assessing credibility. If a person has had multiple opportunities to disclose information and doesn’t do so until action has been bought against them, this will be weighed against the available evidence in assessing credibility.
New Threshold for Reasonable Grounds (RG) Decisions: A positive RG decision will indicate that a person has been found to be a VoT “based on objective factors but falling short of conclusive proof”;
‘Public Disorder’ Disqualification
A decision maker can decide to exclude a person from receiving NRM support where they pose a threat to public order. The circumstances in which a person will be deemed a threat to public order are set out in s.63 of the Act. Disqualification requests can be raised by the Competent Authority and the Foreign National Offender Returns Command where removal or deportation action is being pursued.
In relation to British citizens, requests can be raised by the Competent Authority where the person is in detention or on licence or where 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.
‘Bad Faith’ Disqualification
Decision makers can also consider making a ‘bad faith’ disqualification where they believe that there is, on the balance of probabilities, sufficient evidence to decide that an individual has claimed to be a victim of modern slavery in ‘bad faith’. According to the guidance, that is where they, or someone acting on their behalf, have knowingly made a dishonest statement in relation to being a victim of modern slavery. ‘Bad faith’ disqualifications will be triggered by information provided by the first responder or from within the Competent Authority itself. Children, or those who received their positive reasonable grounds decision whilst they were still under 18, are exempt from disqualification on the grounds of ‘bad faith’.
There is no mechanism for appeal for either type of disqualification. In both cases the victim will loss access to their recovery period or support, protection from removal or temporary permission to stay as a victim of human trafficking or slavery. Decisions must be made within 30 days of the disqualification referral where possible and a ‘second pair of eyes’ review must take place on all decisions resulting in a disqualification.
Home Office decision makers can now disqualify children and adults from the right to an NRM assessment on the grounds that they are a “threat to public order”. Anyone over the age of 18 can also be disqualified on the basis that they have claimed to be a VoT “in bad faith”.
The Nationality and Boarders Act 2022 was enacted as a result of the Home Office’s plan on immigration. That much is clear. The Act provides for various methods in which a person can be stripped of the protections afforded to them as a potential victim of Modern Slavery. However, in their overzealous bid to prevent the alleged increase of people seeking referrals to ‘frustrate the removals process’, the government has made it even more difficult for victims of modern slavery to be identified and receive the support that they often, so desperately need. Children and young people who have been criminally exploited consistently make up a large proportion of the referrals made to the Competent Authority.
The increased threshold for a reasonable grounds decisions will mean even greater delays in victims of modern slavery being referred to the NRM and receiving appropriate support whilst enough ‘objective evidence’ is gathered to support the initial referral; that is, if any such evidence can in fact be gathered. For many victims, all that is available is their accounts of what has been happening to them. Now the Government is telling them that this is not enough. It will mean that those working with victims of modern-day slavery will in effect have to work backwards, obtaining reports and as much as collateral information as possible before a referral is even made.
The ‘Public Disorder’ and ‘Bad Faith’ disqualifications are incredibly concerning. Decision makers are being given wide discretion to make these disqualifications and there is no standard to which they must be ‘satisfied’ in order to disqualify a person from NRM support on ‘public order’ grounds, which will undoubtedly lead to inconsistent decision making.
S.63 of the Act sets out the circumstances in which a person may pose a threat to public order. This is wide reaching and includes a person who has committed any of the offences contained within schedule 4 of the Modern Slavery Act 2015; offences such as racially or religiously aggravated assaults and public order offences, robbery, violent disorders and assault with intent to resist arrest are included.
Where consideration is being given to disqualification on public order grounds in relation to victims of modern slavery who are British Citizens or non-detained foreign national offenders, the victim, or their representatives, will only have 10 working days to provide further information. Extensions will only be granted in exceptional circumstances. It is disconcerting that the 10-day period to provide information does not apply to detained foreign national offenders where the competent authority is satisfied that it has enough information to make a decision.
Thankfully, at least, children, and those who have received their reasonable grounds decisions before turning 18, are exempt from ‘bad faith’ disqualification following campaigns by organisations such as Just For Kids Law. However, those who also work with adult victims of modern slavery must be alive to this issue. Whether a person has claimed to be a victim of modern slavery in ‘bad faith’ is very broad and there are no examples contained within the guidance.
These changes give real cause for concern that a large cohort of children, and adults alike, could be excluded from NRM investigation and support. This will in turn undermine the efficiency of the overall framework and inhibit our ability as practitioners to successfully defend exploited individuals accused of crime. This development will likely reduce our ability to tackle child criminal exploitation; A reduction in the number of children being assessed by the NRM will lead to decreased intelligence regarding modern slavery and its true magnitude and fewer prosecutions of the real perpetrators.
Written by Sabrina Neves, Solicitor at GT Stewart Solicitors and Ruth McGregor Hamann, Youth Justice Legal Centre
 Home Office’s plan on Immigration (Chapter 6) - https://www.gov.uk/government/consultations/new-plan-for-immigration/new-plan-for-immigration-policy-statement-accessible