By Eamonn O’Reilly
- Modern Slavery Act
The Modern Slavery Act 2015 is the UK legislation prohibiting modern slavery and human trafficking. It is applicable in England and Wales, but near-identical legislation applies in Scotland[1] and in Northern Ireland.[2]
There are two key offences prohibited under the Modern Slavery Act:
- Slavery, servitude, and forced or compulsory labour; and
- Human trafficking.
- Slavery, Servitude, and Forced or Compulsory Labour[3]
The offence of slavery, servitude, and forced or compulsory labour includes:
- Labour exploitation where the victim works for the offender or for some other person;
- Domestic servitude where the victim is exploited by a partner, relative, or any other person;
- Sexual exploitation where the victim is sexually exploited by one or more people; and
- Criminal exploitation where the victim is exploited to commit illegal activities, including gang activity, theft, begging, fraud, and money laundering.
- Human Trafficking
The offence of human trafficking has been committed if any of the following actions have been taken with the intention to exploit the victim or with an expectation that the victim would be exploited either by the offender or by any other person:
- Recruiting a victim;
- Transporting or transferring a victim;
- Harbouring or receiving a victim; or
- Transferring or exchanging control over a victim
The offence of human trafficking is committed when moving the victim from one country or state to another; however, it can also be committed within a single country, within a single city, or even within a single property. There is no requirement to cross international borders for the offence to be perpetrated.
The offence of human trafficking has occurred (and is punishable under UK law) if either:
- Any part of the offence occurs in the UK, or
- A UK national is involved in any part of the offence in any part of the world.
- Important to Note
- Consent
For both offences (slavery, servitude, and forced or compulsory labour; and human trafficking), it is irrelevant whether or not the victim provides consent. This means that an offender is punishable by law even if the victim has agreed to comply with the offender’s demands or requests.
Consent is irrelevant because:
- It may have been obtained by force or threat of force;
- The victim may see no reasonable alternative to consent; or
- The offender may be abusing a position of trust or influence.
- Illegal Activity
In many cases, victims of offences under the Modern Slavery Act are forced into illegal activity, including but not limited to the following:
- The cultivation, preparation, transportation, or trade of drugs;
- Prostitution;
- Theft or pick-pocketing;
- Benefit fraud or money laundering;
- Begging; and
- Gang activity.
Such criminal activity is not punishable by law if the individual has been identified as a victim of modern slavery under the National Referral Mechanism (see later) and has been compelled to participate in these activities or sees no reasonable alternative other than to participate.
- Remuneration
Victims may be compensated in some way for their exploitation, either financially or through the receipt of non-financial benefits. Such compensation is irrelevant to their status as victims of slavery, servitude, and forced or compulsory labour or victims of human trafficking.
- Victims and Offenders
Under the Modern Slavery Act, the victim may be an adult or a child, and the offender may be a partner, a parent, a relative, an acquaintance, or any other person.
- National Referral Mechanism[4]
The National Referral Mechanism (NRM) is a UK-wide framework which aims to identify victims under the Modern Slavery Act and to ensure they obtain the appropriate support
- Identification and Referral
Potential victims enter the NRM through a referral by a designated first responder organisation. Such organisations include:
- Police forces;
- Local authorities;
- Border Force;
- UK Visas and Immigration;
- Immigration Enforcement;
- the National Crime Agency (NCA);
- the Gangmasters and Labour Abuse Authority (GLAA); and
- certain charities (including the Salvation Army, Migrant Help, and Unseen)
These organisations are tasked with identifying potential victims under the Modern Slavery Act and gathering information on their circumstances. Individuals cannot refer themselves to the NRM directly; they must go through a first responder organisation.
Some charities, such as the Salvation Army or Trafficking Awareness Raising Alliance (TARA), may act as both support provider and first responder, or they may act as support provider alongside another first responder organisation. Support providers offer guidance and assistance to potential victims of trafficking, e.g., directing individuals to legal advice, assisting with repatriations plans, etc.
Once a potential adult victim has been identified, that person must provide their informed consent for their case to be referred. Potential child victims (under the age of 18) can be referred without their consent.
Once consent has been obtained (if required), the first responder (working for the first responder organisation) will complete a form and submit it to the Single Competent Authority. If no consent is provided by an adult potential victim, then a separate Duty to Notify the Home Office form (form MS1) must be completed and submitted instead. This form can be completed while maintaining the victim’s anonymity. This is not a referral to the NRM; it is instead used by the Home Office to get a clearer picture of the scale and nature of modern slavery and human trafficking.
Referrals are directed to the Single Competent Authority (SCA). The SCA is a single expert unit within the Home Office’s Serious and Organised Crime directorate which was established to process referrals from various first responder organisations. All consenting potential victims under the Modern Slavery Act are referred to the SCA, irrelevant of their nationality or immigration status.
- Reasonable Grounds Decision
Once referred, the SCA is expected to make a reasonable grounds decision within five working days of the potential victim being referred. This means that the SCA will decide whether or not they suspect (but cannot necessarily prove) that the referred is a victim of offences under the Modern Slavery Act. The reasonable grounds test has a relatively low threshold; however, such a decision will not normally be made in the absence of any intelligence (which may be provided by the first responder organisation) or some evidence of the behaviour of the offender.
If it looks like the reasonable grounds decision will be negative (i.e., there are no reasonable grounds to believe the person is a victim under the Modern Slavery Act), the SCA is obliged to contact the relevant first responder organisation, the support provider, the police, and the local authority (as appropriate) to make further enquires or to seek additional evidence or information on the case.
Any negative reasonable grounds decision must be reviewed by an experienced caseworker to ensure that the outcome is appropriate. SCA decisions may be subject to external or judicial review; therefore they must be beyond reproach.
Positive reasonable grounds decisions will entitle the potential victim to a minimum 45 day period of recovery and reflection (in Scotland this may be as long as 90 days). If the potential victim has no financial means, the period of support may be brought forward to the date of referral. During this recovery period, the potential victim (and possibly also their spouse, civil partner, or dependent children) are entitled to:
- Secure accommodation or outreach support;
- Medical assistance and hospital treatment;
- Translation and interpretation services;
- Counselling and information in a language they can understand;
- Representation at the criminal proceedings against their offenders;
- Access to legal advice;
- Children’s education; and
- An Independent Child Trafficking Advocate (ICTA) coordinator for children without a parent or guardian in the UK.
There is no requirement to report offenders to the police in order to receive this support. A positive reasonable grounds decision will be followed by a conclusive grounds decision.
- Conclusive Grounds Decision
The conclusive grounds decision aims to confirm whether the referred is more likely than not to be a victim of offences under the Modern Slavery Act and will identify the particular offence as either trafficking or as slavery, servitude, and forced or compulsory labour. The standard of proof required for the conclusive grounds decision is therefore higher than that required for the reasonable grounds decision.
It is expected that the SCA will make a conclusive grounds decision as soon as possible after the minimum 45 day period of recovery; however, there is no time limit for this. The length of time required to make a conclusive grounds decision will depend on the particular circumstances of the case. If the potential victim is subject to criminal proceedings (e.g., if they were being forced to steal or sell drugs), their conclusive grounds decision may be fast-tracked; however, a decision cannot be fast-tracked without gathering sufficient evidence. Conclusive grounds decisions may be put on hold until relevant evidence is available.
The SCA must make every effort to obtain all relevant information and evidence which may prove useful in reaching a conclusive grounds decision. This may be obtained from the relevant first responder organisation, the police, the local authority, the potential victim’s legal representative, or the ICTA coordinator (as appropriate). In addition, medical reports and the views of support providers and local authority children’s services (where appropriate) are considered by the SCA in making a conclusive grounds decision.
If the available information is insufficient, an interview with the potential victim may be required. Interviews are conducted only when necessary; by trained interviewers; and with regard to the potential victim’s state of mind. The SCA may delay an interview for highly vulnerable potential victims. Requests, e.g., for a female interpreter, will be accommodated as far as possible. The SCA may consider it appropriate to have a support provider attend the interview or to submit interview questions via the support provider, the police, or the local authority instead of posing them directly to the referred individual.
If the conclusive grounds decision is negative, it means that the SCA has determined that the referred is not a victim under the Modern Slavery Act. Negative conclusive grounds decisions must be reviewed by another caseworker as well as a multi-agency assurance panel composed of law enforcement, the local authority, and non-governmental organisations (NGOs) with an interest in modern slavery issues. The panel may agree with the SCA’s decision or may suggest further investigation. The SCA must give consideration to the panel’s response. If, after such consideration, the SCA maintains that the conclusive grounds decision is negative, the SCA must feedback its reasoning to the multi-agency assurance panel.
Victim service providers may prepare the individual prior to them obtaining the outcome of the conclusive grounds decision. For negative conclusive grounds decisions, the individual (or their appointed representative) will receive a decision letter alongside a full, written explanation of the reasons underlying the outcome. After the individual has been informed of the decision, no further period of recovery and reflection will be offered. If the individual is not from the UK, they may be supported to voluntarily return to their country of origin.
A positive conclusive grounds decision means the SCA agrees that the referred is a victim under the Modern Slavery Act. Such a decision may entitle the individual to an extended period of recovery. If the victim is not from the UK, they may be granted discretionary leave to temporarily remain in the UK (however, this is not automatic and does not apply to all positive decisions) or they may be supported to voluntarily return to their country of origin.
Once a conclusive grounds decision has been made, the first responder organisation, the police, the local authority, and the ICTA coordinator (as appropriate) will be informed of the outcome. In addition, the Home Office’s Casework Information Database (CID) will be updated with the decision. If the victim was subject to criminal proceedings, the police will inform prosecutors.
- Re-considerations and Appeals
Both reasonable grounds decisions and conclusive grounds decisions can be reconsidered if there are grounds to do so. This may be the case if new evidence is made available or if it is felt that the decision does not follow guidelines. Re-considerations can only be requested by first respondents or support providers and, if requested, must be considered by the SCA. Reconsideration requests are not part of the formal appeals process.
Individuals can challenge both reasonable grounds decisions and conclusive grounds decisions through a judicial review.
References
[1] Human Trafficking and Exploitation (Scotland) Act 2015
[2] Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015
[3] Information obtained from the Home Office report, A Typology of Modern Slavery Offences in the UK, Research Report 93, Oct 2017
[4] Information obtained from the Home Office report, Victims of Modern Slavery – Competent Authority Guidance, Version 7.0 and from citizensadvice.org.uk
