The Home Office’s National Referral Mechanism (NRM*) and Duty to Notify statistics for April to June 2023 demonstrate the devastating impact of the Nationality & Borders Act 2022 (NABA) on the protection of victims and survivors of trafficking in the UK.

^{*The NRM is the UK’s framework for identifying and referring potential victims of modern slavery and providing access to government funded support to help them recover from their abuse and help them remain out of exploitation.}

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A Worsening Trend

In the April to June period we have seen a significant increase in the number of negative first stage (‘Reasonable Grounds’) NRM decisions. In contrast with the 16% of negative first stage decisions in October to December 2022, before the updated Modern Slavery Statutory Guidance was updated after the NABA, this rate has increased to 75% in April to June 2023.

This increase has stemmed from the Government moving the goalposts. Along with provisions such as the ‘Public Order’ disqualification, from which the Government has had to retreat, the NABA imposed an unrealistic ‘objective’ evidence requirement, demanding that victims of trafficking produce ‘objective’ evidence of their trafficking experience. This was an impossible hurdle for many, as the very circumstance of their trafficking meant that they did not have access to the requisite documentation, or witnesses to corroborate their account.

This is also compounded by the fact that trauma, stigma and fear of reprisals often prevents people from disclosing often traumatic and intimate details for some time, for which they may also be penalised for ‘late disclosure’ where the Home Office can refuse their case on the basis of their ‘damaged credibility’. It is important to be clear that this requirement for ‘objective’ evidence was made of potential victims before they had accessed any government funded specialist support, which would then be able to assist them to reflect on and disclose more about their trafficking. 

A legal challenge brought by potential victims represented by Duncan Lewis Solicitors resulted in the Government agreeing to withdraw, reconsider and revise this evidence requirement, following arguments that it was in breach of international obligations, was irrational, undercut the statutory purpose of the Modern Slavery Act 2015 and was procedurally unfair.

While the Government had used unfounded and much-criticised assertions about abuse and misuse of the NRM system to justify their counterproductive changes, these statistics demonstrate that ‘bad faith’ claims were not a meaningful issue. Despite granting the power to exclude people from support and protection under the NRM where they are deemed to have claimed to be a victim of modern slavery ‘in bad faith’ (ignoring the fact that individuals cannot refer themselves into the NRM), zero ‘disqualification requests’ on bad faith grounds have been made, showing that this was not an serious issue.

Back to Square One

The Immigration Enforcement Competent Authority (the ‘IECA’ established in November 2021) has vastly increased its negative decisions at the final stage of the NRM process. The IECA was set up to make NRM identification decisions for adults who are subject to forms of immigration control, including any adults in respect of whom deportation is being pursued and those who are held in administrative immigration detention. In April to June 2023, the IECA rejected 66% of final stage NRM decisions, compared to 45% in October to December 2022 prior to the introduction of the NABA provisions. 

Additionally, despite the fact that the Government claimed the need to streamline decision-making as a reason for the creation of the IECA, the length of time taken by the IECA to make a first stage decision has increased from 19 days to 30 days. Home Office guidance states that these decisions should be made within five days where possible. 

The creation of the IECA marked a regressive step back to a two-tier system, as we saw with the two -designated Competent Authorities when the NRM was first set up in 2009. In 2014, the Government’s own review of the NRM found serious issues with having two separate decision making bodies (such as the conflation of asylum and trafficking matters), and in response set up a single, expert unit completely separate from the immigration system. After two years of this Single Competent Authority the Government established the IECA suddenly and without stakeholder consultation. The Taskforce on Survivors of Trafficking in Immigration Detention warned in November 2021 that this move would endanger victims and survivors of trafficking. We are now seeing the harms that were predicted unfold.

What Can We Expect

What the NRM statistics will denote in coming quarters is unclear. The Government’s retreat on the unrealistic ‘objective evidence’ threshold and the adverse ruling against the Home Office regarding ‘Public Order’ disqualifications may mitigate against some of the concerning trends we have seen. Nevertheless, the harms arising from the deliberately created culture of disbelief and having two distinct decision making systems resulting from the creation of the IECA will be harder to undo. This also takes place under the shadow of the recently passed ‘Illegal’ Migration Act, which freezes many victims of trafficking out of protection and support under the NRM, and threatens those who have entered the UK irregularly who come forward to report their exploitation with removal and indefinite detention.

Towards Meaningful Support

The Government has obliquely suggested its intention is to cut down the number of victims and survivors who can avail of support and protection, irrespective of the UK’s  international obligations and of the fact that this approach will mean people are left destitute, trapped in exploitation, and at risk of being re-trafficked. Rushing to simply preserve access to the NRM is a tempting option. However, we must recognise that even before the Government’s most recent onslaughts, the NRM was failing to meaningfully protect and support victims and survivors of trafficking. In their new report, the Helen Bamber Foundation have emphasised the need to ensure that people are provided with the conditions that allow them to recover from their trafficking experience and prevent their re-trafficking, such as a form of leave to remain with the right to work, access to benefits and housing, and a route to settlement. Rather than pushing to maintain the status quo of a limited NRM system, it is vital that we work towards a system centred on survivors and the support and options they need to put exploitation behind them.