Updates, commentary, training and advice on immigration and asylum law
Record high referrals for potential victims of modern slavery
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
On 3 November 2022, the latest quarterly release of statistics on modern slavery claims was published, covering 1 July to 30 September this year. During this period, 4,586 people were referred into the National Referral Mechanism (NRM) or via the Duty to Notify as potential victims of modern slavery. This is a 38% increase from the same period last year (3,317), a 10% increase on the previous quarter, and the highest number of referrals since the NRM was introduced in 2009. Of those, 75% were referred to the Single Competent Authority (SCA) and 25% to the Immigration Enforcement Competent Authority (IECA). 79% of referrals were male and 20% female. You can read more about the referral process here.
Who is being referred?
The top nationalities of people referred into the NRM in this quarter are Albanian, British and Eritrean. For Albanian nationals, 75% of referrals were for adults. For UK nationals, 80% of referrals were for children. The split is closer for Eritreans, where 38% of referrals were children and 56% adults. The most common reasons for exploitation in adults is considered to be labour, whilst children are more likely to be victims of criminal exploitation.
This quarter, 46% of people were referred to the NRM based on potential exploitation in the UK only, and 44% based on potential exploitation overseas only. 23% of referrals to the NRM were from UK nationals and it seems likely that most will relate to potential exploitation in the UK. This also means that over 20% of referrals are likely to refer to non-UK nationals who were potentially subject to exploitation in the UK. There is a separate category for exploitation that took place both in the UK and overseas.
The Home Office also received the highest number of Duty to Notify reports of adult potential victims since the process began in 2015. People who may be survivors of modern slavery could have previously been refusing to access the support available to them via the identification process in the NRM. The most common nationalities of people who refuse to enter the NRM are Albanians and Eritreans. It is unclear what, if any, research the Home Office has done into the reasons for this, but it is a cause for concern given that some of these people may be refugees.
Information is unfortunately not provided as to what proportion of people are also in the asylum system. This is an important comparison as we know that the delays in asylum processing create conditions ripe for exploitation, as detailed in this report from the British Red Cross and UNHCR, and this one by Christine Beddoe, Shpresa and others.
Are decisions being made?
As part of the referral process, reasonable and conclusive grounds decisions are made. A reasonable grounds decision is an initial, preliminary decision that a person is believed to be a victim of trafficking. A conclusive grounds decision is a final decision, although it can be challenged if the decision is negative. The SCA made positive reasonable grounds decisions in 87% of cases, and the IECA in 91% of cases. For conclusive grounds decisions, the SCA made positive decisions in 91% of cases, and the IECA in 93% of cases.
When the IECA was first announced concerns were raised about the conflation of immigration enforcement and the identification of survivors of modern slavery. Given the government’s rhetoric toward certain survivors, and the stated desire to reduce the number of modern slavery claims, I was concerned that the authority would be a refusal factory to its target cohort. The target cohort includes people detained in prisons and immigration removal centres, and those subject to the inadmissibility process. So far those fears have not been realised, but this may be because very few decisions are actually being made.
A total of 3,439 referrals were sent to the SCA and 1,147 to the IECA this quarter. 4,652 reasonable grounds decisions were made, which is slightly larger than the number of referrals. However, only 1,517 conclusive grounds decisions were made, meaning that the backlog has substantially increased overall, by 3,069 referrals.
There were 1,410 conclusive grounds decisions made this quarter by the SCA, which is 41% of the number of referrals going to the authority. But only 107 decisions were made by the IECA, which is 9% of the number of referrals going to the authority. The IECA is therefore deciding a much lower proportion of cases than the SCA, and the reasons for this are unclear.
Of the cases that were decided in this quarter, the time taken to make a conclusive grounds decision took the SCA an average of 561 days. It took the IECA an average of 217 days. The IECA figure must be used with caution as the department was only set up in November 2021. However, the IECA was added to the 8 November 2021 version of the statutory guidance, and between 8 November 2021 and 1 July 2022 (up to the end of the second quarter of 2022), there have been 236 days. So the average of 217 days to make a decision during this period starts to look worse already.
The resulting backlog
Looking at the number of conclusive grounds decisions made compared to the number of referrals to the IECA, the delays are likely to become considerably worse. The IECA appears to be significantly underperforming, even relative to the SCA. Digging into the spreadsheets themselves, the IECA received 393 referrals in 2021 (since they started operating in November that year) and 2,969 so far in 2022 (Table 1), yet the total number of conclusive grounds decisions made by the IECA is 265 (Table 20), just under 8% of the total number of cases referred to them. In contrast, over almost the same period, the SCA has received 12,498 referrals (Table 1) and concluded 4,990, almost 40%, of these (Table 19). In both cases, it is clear that the backlog is getting worse, not better.
27. This table, and the underlying data, make for very dispiriting reading. The table shows a remorseless increase in cases referred to the NRM. While it is true that the number of reasonable grounds decisions has matched the incoming caseload, the same cannot be said of conclusive grounds decisions. There was an increase in such decisions between 2017 and 2018 but the number in 2018 was only about half of what was needed to deal with the volume of incoming cases; and in 2019 it was only just over a third. Hence the increase in the backlog from 7,000 to 9,000 cases which at the current disposal rate will take between two and three years to conclude. The present average (mean) number of 462 days (i.e.15 months) to dispose conclusively of cases will inevitably worsen given the scale of the backlog.
28. The data also belies Garnham J’s projection in , based on the statistical evidence before him, that in 2018 the number of referrals would fall to 4,245 as well as his projection in  that the average length of time for making a conclusive grounds decision was falling. He estimated that for 2017 the average length of time for making such a decision had fallen to 327 days. In fact, it was 356 days, and rose sharply in 2018 to 462 days where it stayed for 2019.
The projection referred to above is from the case of R (O & Anor) v Secretary of State for the Home Department  EWHC 148 (Admin). At the beginning of 2019, Garnham J dismissed a challenge to delays in the NRM. He decided that the system was improving, concluding that “it appears from the evidence and the agreed statistics that the position is now improving. The problems appear to have been identified and resources are being devoted to improving the speed at which cases are determined.” In fact, the opposite has happened in the almost four years since this judgment was given.
As far as the impact of the delays is concerned, those who have received a conclusive grounds decision may be entitled to a grant of leave, including while any asylum claim is being considered. People who do not have leave are not permitted to work or access public funds during the period they are waiting for a decision. And the figures show that it is likely to take years for a conclusive grounds decision to be made. This is not a fair way to treat people who have already been through so much, yet there is no sign of the rate of decision-making improving, nor any political will to do so.