At the same time, we are seeing a record number of referrals of potential victims of modern slavery into the NRM.
We thought it might be helpful to outline some key points about the NRM and modern slavery mechanisms in the UK for our community.
In this Legal Update, we cover the following information:
Please note that at Right to Remain, we believe that anyone who has lived through trafficking or modern slavery is a survivor – but the legal term used by the Home Office is ‘victim’ of trafficking, so that is the word we will be using in this Legal Update.
What is modern slavery (or trafficking)?
Trafficking, modern slavery, and smuggling are all words that are often grouped together. However, they all mean different things. We try to break down the meaning of each one below.
In the UK, modern slavery includes:
- Human trafficking
- Slavery, servitude and forced or compulsory labour
Trafficking is one element (this means one part) that falls under the broader definition of “modern slavery”.
Trafficking is the movement of somebody (through “recruitment, transportation, transfer, harbouring or receipt”) who is being controlled by another person, or by more than one other person.
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”.
To fit the definition of “trafficking” the movement and control must be for the purpose of exploitation.
You can read more about this on the Anti-Trafficking and Labour Exploitation Unit (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 for the purposes of exploitation.
What is the NRM?
The National Referral Mechanism (NRM) is a department of the UK Home Office which is responsible for identifying and deciding whether someone should be given protection because they are 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 Red Cross, 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 (about whether or not they are a victim of trafficking) is ongoing.
An initial decision on whether someone is a victim of trafficking, called a “reasonable grounds decision”, should be made after five days of entering the NRM. However, like many aspects of the asylum and immigration system, there can be lots of delays.
This decision should be based on a balance of probabilities – this means that there is a 50% or more chance that the person is a victim of trafficking.
With a positive reasonable grounds decision, and while waiting for a second decision – called a “conclusive grounds decision” – the person is entitled to support, which is provided by the Salvation Army and its partners. To find out more about the support that people in the NRM are entitled to while waiting for a conclusive grounds decision, you can read this leaflet drafted by the Salvation Army.
If someone receives a positive conclusive grounds decision, they may be eligible for discretionary leave to remain. Importantly, discretionary leave to remain is not refugee status. You can read more about discretionary leave to remain (DL) in modern slavery cases in the Home Office guidance, from page 10 onwards.
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).
To learn more about the NRM procedure, take a look at the guide drafted by Migrants Organise.
Asylum claims and NRM referrals
People who have claimed asylum may also have been trafficked. They may have claimed asylum because of a fear of persecution in their country, and have experienced trafficking on the way to the UK, for example, by being forced into slavery while on 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. It is important to remember that asylum is based on a future risk. So, asylum claims based on being a victim of trafficking in the past will usually require a person to prove, for example, that they would be at risk of re-trafficking if returned to that country or that they would be at risk of other harm on the basis because they have been trafficked before. This could be because of how the society in a certain country would view someone who has been trafficked.
However, not all victims of trafficking will have an asylum claim. Being recognised as a victim of trafficking can lead to other types of leave to remain in the UK in itself, though only in certain situations.
For example, some victims of trafficking – who are recognised by the Home Office as a victim of trafficking following a “conclusive grounds” decision – 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 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 it decides that leave to remain is needed because of “personal circumstances”. This could include, for example:
- A medical condition where leave to remain is needed to receive treatment 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.
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 example, the Home Office is saying that deception was used to obtain that immigration status, then the trafficking may be an important factor to consider in their immigration case. For example, if someone was forced by their traffickers to lie about how they came to the UK or how they spent their time here.
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.
To learn about the current backlog of NRM decisions by the Home Office, read this article by Free Movement.
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