On 28 June 2023, in a huge victory for survivors of modern slavery, the Home Office withdrew and agreed to review a cruel test introduced in the Modern Slavery Statutory Guidance. The withdrawal was in response to a judicial review challenge brought by two survivors who had received negative decisions. They are represented by the public law team at Duncan Lewis Solicitors. 

To learn more about modern slavery, the National Referral Mechanism (NRM), and definitions like ‘reasonable grounds decision’, read our Legal Update. 

What happened?

In January 2023, the Home Office published a new test under section 49 of the Statutory Guidance on Modern Slavery, which expected survivors of modern slavery to produce objective (this means factual) evidence of their trafficking in order to receive a reasonable grounds decision. A survivor’s own account (testimony) was not to be accepted as objective evidence. This made it very difficult for survivors of modern slavery to get the protection they needed from the Home Office. How were they to gather objective evidence of their experience so early on in the process?

To learn more about the difficulties of providing objective evidence, read this blog by Helen Bamber Foundation.

The negative impacts of this new test are clear. In 2022, 88% of cases received a decision that they were potential victims of trafficking. In the first quarter of 2023 this figure had dropped to 58%. 

A judicial review challenge was brought by two survivors who received negative reasonable grounds decisions, even though the Home Office had said that their own accounts of their experiences were believable. 

Before the case reached the hearing stage, the Home Office agreed with the legal challenge and said that it would publish different rules by 10 July. The Home Office also promised that no negative reasonable grounds decisions would be made until then. 

What does this mean?

This is a significant victory for migration justice and survivors of modern slavery, pushing against a policy that should not have been brought in in the first place. 

It is shocking that such an unreasonable test was created and put such a heavy burden on some of society’s most vulnerable to bring evidence of their experience, when instead what they require from us all is not suspicion but our collective support. This is particularly true when we acknowledge how the NRM system has been pushed to its limits, as outlined by this demand made by long-term first responder charity Kalayaan.

The fact that the Home Office agreed to withdraw the policy before the hearing stage confirms how unworkable and unfair the new test was, and how strong the judicial review arguments were. 

Duncan Lewis Solicitors, responsible for bringing the challenge, said: 

This is an incredible win for our clients and many other survivors of trafficking who would have otherwise received negative RG [reasonable grounds] decisions as a result of the 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 survivors of trafficking to fall at the first hurdle. The impact that a negative decision would have on a survivor of trafficking is huge. A negative decision results in a survivor of trafficking being left without any support including accommodation, casework support and financial support and would place them at significant risk of further exploitation.