Home Office withdraws objective evidence test for trafficking decisions

The Home Office has, following a judicial review challenge for two claimants of Duncan Lewis, published new modern slavery statutory guidance which no longer requires a potential victim of trafficking and modern slavery to produce ‘objective’ evidence corroborating a credible account of their experiences in order to receive a positive reasonable grounds decision. Essentially, the Home Office is abandoning the higher “objective” standard of proof that was introduced earlier this year for trafficking cases.

Background

After the introduction of the Modern Slavery Act in 2015, the National Referral Mechanism (“NRM”) – the framework for identifying and supporting victims of trafficking and modern slavery – was extended to all victims in England and Wales. Having been introduced in 2009 in order to meet the country’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”), a referral into the NRM should be followed by a “reasonable grounds” decision five days later. This, in turn, allows victims to access support which includes, amongst other things, safe accommodation, psychological therapy, healthcare, legal aid and a designated support worker.

Importantly, a report published by the Human Trafficking Foundation in May 2023 reminds us that

if a person has experienced modern slavery, a negative reasonable grounds decision does not negate this fact or their needs that have arisen from the abuse; but the negative decision does prevent them from accessing support to aid their recovery.

Until 30 January 2023, the Home Office’s guidance was consistent with the Court of Appeal’s judgment in R (TDT) v SSHD [2018] 1 WLR 4922 where it was stated that the test for a reasonable grounds decision was “substantially the same” as the test for the protection and investigation duties under Article 4 of the European Convention on Human Rights. That is to say that decision makers were directed to establish the existence of a credible suspicion “where the putative victim’s account of having been trafficked was ‘not inherently implausible’” (TDT, para 38).

In practical terms, this meant that at least some of the indicators of trafficking mentioned in Article 4 of the European Convention on Action against Trafficking needed to be present in the victim’s account: various forms of the action, means and purpose of trafficking.

Following the publication of new statutory guidance introduced by Home Secretary Suella Braverman in January 2023, the threshold that victims had to meet was the provision of “objective evidence” in the form of expert reports, witness statements and police reports. The result was that caseworkers were directed not to make a positive decision even where an individual’s account was detailed, internally consistent and showed no signs of incredibility.

Given the obvious difficulties that victims face in obtaining such objective evidence after many months (let alone days) following their referral, it should come as no surprise that there was a sharp and immediate fall in the first quarter of 2023.

According to the NRM Statistics, the number of reasonable grounds decisions which were deemed positive fell from 88% in the whole of 2022 to 58% of those issued in the first quarter of 2023. As the new guidance only became effective on 30th January, it follows that the actual statistics from February and March are likely to be even lower than the 58% reported for the whole quarter. The Human Trafficking Foundation report highlights some of the most egregious effects of these decisions:

A negative Reasonable Grounds decision also means that a person without secure immigration status in the U.K. is not protected from removal and can be required to leave the U.K. before a reconsideration request is made. …

Partners reported that adults who were destitute when entering the NRM and provided with safehouse accommodation under the [Modern Slavery Victims Care Contract] prior to a Reasonable Grounds decision are required to leave the safehouse if they receive a negative decision. Whilst this has always been the procedure, the increase in negative Reasonable Grounds decisions due to a lack of objective factors provided at the initial stage, is leading to more people in this situation. Safehouses struggle to move individuals on without making them homeless, and partners reported that extension requests to the Home Office are not regularly being granted.

Inevitably, it was a scenario with similar facts to those predicted by the Human Trafficking Foundation which made its way to the High Court.

The case

Two claimants, AS and BXR, represented by Duncan Lewis Solicitors, received their reasonable grounds decisions in March 2023. Despite the Home Office accepting that their accounts met the three necessary components of human trafficking and modern slavery and showed no signs of being incredible, the lack of objective evidence meant that neither were accepted as potential victims.

In AS’s case, the support he received under the NRM was withdrawn, he was evicted from his Salvation Army safehouse and made destitute. In addition to the serious detriment caused by street homelessness in violation of his Article 3 ECHR right, the client was also exposed to a heightened risk of re-trafficking as a result.

Duncan Lewis issued urgent judicial review proceedings in May on this basis and they challenged not only the negative decision but also the new policy in regards to reasonable grounds decisions. It was argued that, by setting a threshold higher than “credible suspicion,” the new guidance was unlawful on broadly three grounds.

Firstly, it induced breaches of Article 4 of the European Convention on Human Rights. Secondly, it was irrational at common law because the fact someone did not have objective evidence of their trafficking circumstances at the point of referral into the NRM was not rationally connected to whether they were a genuine victim of trafficking and it also undercut the statutory purpose of the Modern Slavery Act 2015. Thirdly, it was procedurally unfair.

What has changed?

As a result of the challenge, the Secretary of State published new guidance on 10 July 2023.

The requirement for decision makers to agree with the statement 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’ has been removed.

Decision makers now need to consider ‘whether in all the circumstances, it is reasonable to expect supporting evidence or corroborating information in addition to information provided by the First Responder.’ This assessment will include ‘consideration of the circumstances of the referral, any information provided on the First Responder Referral Form, the type of exploitation, and the timing of a referral’ (14.55).

A new section has been added on further reasons as to why there may be a lack of supporting evidence which includes explicit reference to trauma and distrust of authorities amongst other factors (14.70-14.72).

In short, the new guidance acknowledges that ‘the need for supporting general or specific evidence is relative to the content of the account’ (14.63).

Though it remains to be seen how the guidance will be applied in practice by decision makers, this appears to be a positive change in policy. It should have been evident from the outset that the requirement for trafficking survivors to provide objective evidence was always going to be impossible and cause them to fall at the first hurdle.

It is hoped that the new guidance will ensure that victims continue to receive support and are offered a chance at recovery from their experiences.

If you received a negative reasonable grounds decision between January-June 2023 as a result of a lack of objective evidence, you are eligible to request a reconsideration of the decision on the basis of the new guidance.

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