Modern slavery cases in the immigration system
This briefing looks at the relationship between the UK’s modern slavery laws and the asylum system, and recent debate about whether modern slavery laws are being exploited by people trying to avoid being removed from the UK.
Modern slavery refers to human trafficking and slavery, servitude and forced or compulsory labour.
The system for identifying and supporting victims of modern slavery (the National Referral Mechanism or NRM) handles cases involving British citizens and people with permission to stay in the UK as well as foreign nationals who do not have immigration permission. British citizens were the most common nationality referred to the NRM between 2019 and 2021, followed by Albanian and Vietnamese citizens respectively.
In 2022, Albanian was the most common nationality among individuals referred into the NRM, comprising 27% (4,613) of referrals. British was the second most common nationality, comprising around 25% (4,185) (and 27% or 4,588 referrals when taking into account dual-British nationals). Eritrean was the third most common single nationality, with 1,171 referrals (7% of the total).
Modern slavery cases and the immigration systemThere are different legal frameworks for recognising victims of modern slavery and people in need of asylum, and the processes for identifying people eligible under each system are distinct. Some people’s cases involve both.
Unlike the process for claiming asylum, individuals cannot directly apply to the decision-making authorities to be recognised as a victim of modern slavery. Only ‘first responder organisations’, who are trained to recognise the indicators of modern slavery, are authorised to refer potential victims to the NRM.
Foreign nationals without immigration permission may typically enter the modern slavery process when potential indicators of slavery are identified after they have claimed asylum, been intercepted as an irregular entrant, or when immigration enforcement action against them has been initiated. Entering the modern slavery identification process might have practical implications for how the person’s underlying immigration case is handled. But potential or confirmed victims of modern slavery are not automatically eligible for permission to stay in the UK. Temporary leave as a victim of trafficking or slavery is only granted when necessary for the victim’s recovery, to pursue compensation, or to cooperate with an investigation.
Overview of National Referral Mechanism process (adult cases)Two designated ‘competent authorities’ in the Home Office can decide whether a person is a victim of modern slavery.
The first decision is whether there are reasonable grounds to believe the individual is a potential victim of modern slavery. Where possible, these decisions should be made within five days of the first responder’s referral. A new approach, requiring reasonable grounds decisions to be based on “objective factors”, took effect on 30 January 2023.
People with a positive reasonable grounds decision must then wait for the competent authority to make a conclusive grounds decision on their case. Subject to certain exceptions, people with a positive reasonable grounds decision are eligible for a reflection and recovery period of at least 30 days or until they receive their conclusive grounds decision. During this time, they cannot be removed from the UK. In practice, average waiting times for conclusive grounds decisions are considerably longer than 30 days.
Concerns the modern slavery laws are an immigration loopholeOver the past couple of years successive Home Office Ministers have said the modern slavery system is being abused by some people who do not qualify for permission to stay and are trying to evade removal from the UK.
They have cited statistics showing an increase in the number of modern slavery referrals and some changes in the nationality of victims. They also highlight an increase in the number of late referrals to the NRM, for example initiated after immigration enforcement action has begun or after a foreign national offender has served their sentence and is due to be deported.
Factors commonly raised as potentially relevant to perseived abuse are the low threshold for making a positive reasonable grounds decision; the protection from removal given to people waiting for a conclusive grounds decision; and lengthy decision-making times for conclusive grounds decisions.
The protections given to potential victims of modern slavery have also been identified as relevant to the Home Office’s ability to manage its caseload of people arriving by small boat.
Various external stakeholders, including the former Independent Anti Slavery Commissioner, Professor Dame Sara Thornton, have questioned the evidential basis for the Government’s assertions and expressed concerns that rhetoric about abuse is undermining protections to victims.
Changes made by the GovernmentPart 5 of the Nationality and Borders Act 2022 made changes to the Modern Slavery Act and related policy. The Johnson Government said the changes would help decision-makers to distinguish more effectively between genuine and non-genuine accounts of modern slavery and identify victims as quickly as possible. Most of the provisions in Part 5 came into force on 30 January 2023.
The Sunak Government has recently announced new measures intended to increase removals of Albanian nationals, including a new agreement which will enable the UK to return to Albania adults identified as victims of modern slavery. Provisions in the Illegal Migration Bill published on 7 March (not considered in this briefing) would also affect potential victims of modern slavery.