From November 2021, a new department will be responsible for some decisions about whether someone is a victim of trafficking.
Since 2019, these decisions have all been made by a “Single Competent Authority”. Now, some people’s cases will be passed by the Single Competent Authority to the “Immigration Enforcement Competent Authority”.
Read below for an explanation of trafficking and the process followed to determine if someone is a victim of trafficking. Go to the bottom of the post if you just want to know about the changes to the decision-making body.
What is trafficking?
Trafficking is the movement of somebody (through “recruitment, transportation, transfer, harbouring or receipt”) when that person is in the control of others. That control can take the form of “threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”. The movement/control, to fit the definition of trafficking, is for the purpose of exploitation.
Read more at the ATLEU website here.
Trafficking is not the same as smuggling (the secret, usually illegal, moving of someone across a border) – trafficking must, by definition, involve threat/force/abduction/fraud/deception etc, and smuggling does not. While smuggling can involve many types of harm, the smuggler is providing a service for the person being smuggled, rather than moving than for the purposes of exploitation.
Trafficking is one element that falls under the broader category of “modern slavery”.
How does trafficking fit into asylum and immigration applications?
People who have claimed asylum may also have been trafficked. They may have claimed asylum because of a fear of persecution in their country [link to What is Asylum page of toolkit], and have experienced trafficking on the way to the UK, for example, by being forced into slavery in Libya or another part of their journey.
People may have realised they are a victim of trafficking, or been told they are a victim of trafficking, and claimed asylum on this basis. Asylum is based on a future risk, so successful asylum claims based on being a victim of trafficking will usually require providing that someone would be at risk of re-trafficking if returned (or at risk of other harm on the basis they have been trafficked before).
Not all victims of trafficking will have an asylum claim, however. Being recognised as a victim of trafficking can lead to leave to remain in the UK in itself, though only in certain situations.
Some victims of trafficking – who are recognised by the Home Office as a victim of trafficking following a “conclusive grounds” decision (see below) – can be granted discretionary leave to remain. This discretionary leave may just be for a couple of months, or it may be up to thirty months’ leave to remain (it is very unusual to be granted leave for a longer period than this).
Discretionary leave to remain will usually only be granted by the Home Office if they decide that leave to remain is needed because of “personal circumstances”, which may include a medical condition; leave to remain is needed to pursue a compensation claim, usually against the perpetrator of the trafficking and/or exploitation; or if the victim of trafficking is helping police with their enquiries. Read more at the ATLEU website here.
Some people may have come to the UK on a visa, or successfully applied for leave to remain in the UK and it later becomes clear they are a victim of trafficking. This may affect their immigration status, though not always. If, for the example, the Home Office are saying that deception was used to obtain that immigration status, then the trafficking may be an important factor to consider in their immigration case (if they were forced to use deception, for example).
Some people may be in the UK with no immigration status at all – they are undocumented. If they are a victim of trafficking, and recognised as such, then discretionary leave may be available to them if they fit the criteria described above.
How does someone get recognised as a victim of trafficking?
To be recognised by the Home Office as a victim of trafficking, a person has to be referred to the National Referral Mechanism (NRM).
Someone can only be referred into the NRM by a “first responder”. First responders include Migrant Help, Salvation Army, the police, local authorities and several charities. You can find a full list of first responder organisations on the Home Office website here.
If someone is believed to be a victim of trafficking, they can refer themselves to a first responder. Support workers can also refer someone, if they have that person’s consent. You can read more about how to tell if someone is a victim of trafficking on the ATLEU website here.
Once referred to the NRM, the person cannot be removed from the UK while the decision-making process is ongoing.
An initial decision on whether someone is a victim of trafficking – a “reasonable grounds decision” should be made after five days of entering the NRM (though, like many aspects of the asylum and immigration system, there can be lots of delays).
The threshold for this decision is low – there is not a high burden of proof on the potential victim. If someone receives a positive reasonable grounds decision, they will then wait for a “conclusive grounds decision”.
This decision should be based on a balance of probabilities – ie there is a 50% chance or more the person is a victim of trafficking. This second decision should only be made after 45 days have passed since the reasonable grounds decision has been made. This is meant to be a recovery period. The Nationality and Borders Bill, currently going through parliament, proposes cutting this period to 30 days. With a positive reasonable grounds decision, and while waiting for a conclusive grounds decision, the person is entitled to legal aid and secondary NHS care without charge.
If someone receives a positive conclusive grounds decision, they may be eligible for discretionary leave to remain (see above). They will be allowed 45 days “move on period” before the rights they had prior to the decision are stopped.
Negative reasonable and conclusive grounds decisions can be challenged. You can ask for a reconsideration of the decision (ask the decision-maker to reconsider); or a judicial review of the decision may be possible (an independent process in court). Read more about judicial reviews in our guide here. If there are other ongoing asylum/immigration matters, the Tribunal can also consider the decision. Read more about appeals and the Tribunal in our guide here.
What has changed?
Since 2019, decisions on whether someone is a victim of trafficking have been made by the “Single Competent Authority”.
As of November 2021, the Single Competent Authority will still receive all NRM referrals but will then pass on some of these referrals to the new body, the Immigration Enforcement Competent Authority.
The IECA will deal with potential victims of trafficking if they fall within the following categories:
- all adult Foreign National Offenders (FNOs) detained in an Immigration Removal Centre.
- all adult FNOs in prison where a decision to deport has been made
- all adult FNOs in prison where a decision has yet to be made on deportation
- all non-detained adult FNOs where action to pursue cases towards deportation is taken in the community .
- all individuals detained in an Immigration Removal Centre (IRC) managed by the National Returns Command (NRC), including those in the Detained Asylum Casework (DAC) process.
- all individuals in the Third Country Unit (TCU)/inadmissible process irrespective of whether detained or non-detained.
You can read more about the “inadmissible process” – new rules that are part of the asylum process since January 2021 – on our legal blog here.
The Home Office guidance on modern slavery that explains the IECA can be found here.
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