Modern slavery is an umbrella term that encompasses several criminal offences: human trafficking, slavery, servitude and forced or compulsory labour, criminal, and sexual exploitation. According to the ILO, an estimated 40 million people were victims of modern slavery in 2016. Despite the numbers alarmingly rising each year, the UK’s efforts to provide support to modern slavery victims remains piecemeal.

WHAT IS THE NATIONAL REFERRAL MECHANISM?

The National Referral Mechanism (NRM) is the UK’s chief system designed to protect victims of modern slavery through identifying and supporting them. It has been under scrutiny by many human rights organisations and activists. As Anti-Trafficking Monitoring Group states, “the NRM fails to systematically identify, assist and protect victims of modern slavery”. As such, one of the fundamental problems with the NRM is the extent to which victims’ rights are undermined by the very authorities designated to protect them.

HOW DOES THE NRM PROCESS WORK? 

The first step in the NRM process is to identify victims by “first responder contact” through organisations such as the Home Office, the police, and NGOs.  Under s.52 of the Modern Slavery Act 2015, public authorities have a duty to notify potential victims to the Secretary of State. However, they fail to identify in many of the most obvious cases. In the case of R (TDT) v SSHD [2018] EWCA CIV 1395, the Court of Appeal held that the Home Office (HO) failed to identify and safeguard a victim of trafficking, despite clear signs and warnings of a potential victim, constituting a breach of article 4 of the ECHR. In this case, the victim’s solicitor alerted the HO, the police, and local Council that he is a child who showed many signs of a potential victim of trafficking, such that he must be moved into safe accommodation immediately. The HO failed to respond to this notification, despite a chasing letter sent. As such, inadequate safeguards led to the victim going missing and, in his solicitor’s view, certainly re-trafficked.

Further, exploitative practices are exceedingly normalised such that victims of modern slavery are unaware that they are victims. For example, in 2016, Tesco car wash workers were paid half the NMW, yet the police brought no criminal charges, neither did they refer the victims into the NRM process as the victims said they did not feel coerced to work. The hostile state has left migrants in a vulnerable position to believe that being paid £3.63 an hour is the best choice they have. Employers continue to benefit at the expense of their employees by paying them below the NMW to reduce labour costs. According to a report by Open Democracy, only six UK employers have been prosecuted for paying below minimum wage in six years, despite tax authorities finding more than 6,500 violations. Paying below NMW is illegal by law, yet states allow this exploitation to thrive and businesses to benefit.  

The second step is a reasonable grounds decision which is made by a “Competent Authority” (CA) within 5 working days. The decision is determined by a low “I suspect but cannot prove” threshold granting victims support for at least 45 days. However, the NRM system is flawed as the UK Visas and Immigration (UKVI), one of the bodies largely responsible for identifying modern slavery victims, is also one of the authorities that deports undocumented migrants. Victims’ NRM decisions are then based on their immigration status rather than on the support they need. As such, many victims are found to be “illegal” in the process and thereafter deported, without any regard to their safety and wellbeing. According to a NCA report, the UKVI rounded 71% of cases in 2017. The NRM decisions are then related to victims’ immigration status on whether they should face criminal proceedings, rather than on providing support.

The final step is a conclusive grounds decision which determines whether an individual is a victim of modern slavery. The decision is made “as soon as possible” after a 45-day reflection and recovery period. The CA decides “on the balance of probabilities” whether modern slavery is more likely than not to have happened. Following a positive conclusive grounds decision, victims are entitled to receive a further 45 days of support. However, the NRM process has an extremely low rate of success for victims whilst the total number of referrals increase annually. Out of 5154 referrals in 2017, only ~13% were successful meaning many victims are returned to exploitative conditions. Additionally, the process is often delayed; in 2017, 57% of referrals made were under pending decision. Victims thus receive delayed support, if any.

Undocumented migrants are especially vulnerable going through the NRM process. A negative NRM decision will likely result in deportation. Victims are being deported without having the chance to make their case due to poor legal advice and inability to afford quality legal support, meaning they will receive no support or compensation for the exploitation suffered.

CONCLUDING THOUGHTS

If a potential victim receives a positive conclusive ground decision, their support is withdrawn after 45 days, putting victims back into the exploitative system. However, the new Modern Slavery (Victim Support) Bill 2020 is pushing for 12 months of support for victims and provision of leave to remain for at least 12 months, as well as support during the waiting period of reasonable ground decisions. This victim-centred approach is a positive step forward, however, it fails to guarantee no extensive delays in the support services or support based on individual need. As such, it is unclear whether this Bill provides a beacon of hope for modern slavery victims and only time will tell.

Meanwhile, the NRM is failing to support modern slavery victims. Negative conclusive ground decisions leave victims to be re-exploited and further pushed into poverty. The NRM offers the opportunity of protection to migrants after they become victims of modern slavery. There is nothing substantial in the law that protects migrants before becoming victims in the first place. Victims are therefore almost preordained to be exploited and as discussed above, the NRM does not fulfil its functions properly to protect them. Until the UK adopts a streamlined counter modern slavery strategy, based on a victim-centred approach, modern slavery will continue to propagate.

Saamiya is an aspiring international human rights lawyer, focused on community impact and upholding people's rights. Saamiya holds a Bachelors in Law from the University of Bristol and is currently supporting refugees and asylum seekers at the UN Refugee Agency.

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