Immigration Regulations Undermine NRM Despite Reforms

By Jane Kilpatrick

In October 2017 the Home Office announced reforms to the National Referral Mechanism (NRM), a framework for identifying victims of human trafficking or modern slavery and ensuring they receive the appropriate support, but conflicting interests under certain legal and political frameworks (such as immigration regulations) still undermine measures to recognise and protect victims. This is particularly relevant to those affected by the refugee crisis, for example because:

• While there is no “typical victim” of Modern Slavery, minority and socially excluded groups are particularly at risk.

• The trauma of the journeys made by many asylum seekers to and through Europe is likely to make people vulnerable to trafficking and further exploitation once they reach the UK. Furthermore, 34% of victims are estimated to be re-trafficked.

• A victim of trafficking is four times less likely to be identified as such in the UK if they are non-European.

The majority of changes under reforms to the NRM announced by the Home Office last October were improvements to support for potential victims once they have entered the NRM, but did not offer improvement in support to make a referral.

While the NRM decision and immigration decisions are separate, Home Office representatives have acknowledged a “fiendishly complicated” relationship. In the past, victims have not had access to legal aid before a Reasonable Grounds Decision, and therefore had to consent to an NRM referral before receiving any legal advice. In 2017, people were notified of their positive Conclusive Grounds decisions at the same time as being informed that they had no leave to remain in the UK.

The Modern Slavery Act’s status as “guidance”, with deference to immigration regulations, still undermines protection for victims of Modern Slavery. This raises important questions following allegations of incompetence and “seriously flawed” decision making in the Home Office over asylum claims.

An overlap between criminal detention and immigration detention has led to individuals being detained (in some cases for over a year) as though awaiting deportation despite ongoing NRM referrals and judicial reviews of negative decisions. The reason some report being given is that they are at risk of continuing criminal activity. This reflects a Home Office perspective of assuming, despite visible factors such as vulnerabilities or age, that people are undocumented migrants, before evaluating whether someone is likely to have been trafficked or be a victim of modern slavery. That the Home Office is responsible both for identifying and protecting victims of trafficking and for identifying and deporting undocumented migrants is a conflict of interest. The rhetoric of the current government makes it clear which of those interests is dominant.

The Home Office’s Guidance on Adults at Risk in Immigration Detention acknowledges that victims of trafficking are “particularly vulnerable to harm” and seeks to reduce the number of vulnerable people detained. However, this is not, apparently, translating into clear steps to prevent detention of victims of modern slavery where they are apprehended by Home Office officials before a social worker. People are released from detention on receipt of a positive reasonable grounds decision, not upon referral to the NRM. Immigration practice makes it more difficult for people to be identified as victims of trafficking and modern slavery, and therefore less likely that they will be protected by the revised NRM.

Release being denied because of likelihood of absconding is problematic because “absconding” may in fact be re-trafficking, if the person is not supported in accessing legal recognition and protection. Increasingly restrictive migration policies in the UK are likely not only to increase the number of people no longer able to enter the UK by legal means, but to increase concerns regarding any scrutiny of immigration status. Both situations will increase vulnerability to coercion by traffickers. Sections 34-42 of the Immigration Act cover not only the offence of illegal working, but also the prevention of people unlawfully present from renting a house legally in the UK; both are likely to increase victims’ dependency on their exploiter for housing and because they have no visible legal recourse without risking deportation.

In September 2018 René Cassin submitted evidence to the Home Affairs Committee inquiry, looking at what progress has been made in the three years since the Modern Slavery Act (MSA) came into force and what more remains to be done. In the submission, René Cassin examined the ‘guidance’ status of the MSA, which is less influential than the Immigration Act when it comes to the treatment of victims who do not have leave to remain in the UK. For victims of modern slavery and human trafficking, the detrimental impact of their immigration status is most notable when this results in their detention in an Immigration Removal Centre. You can read the submission here.

The Inquiry is still ongoing.

Jane Kilpatrick has an LLM in International Human Rights Law from the University of Essex. She is a member of the René Cassin Modern Slavery Campaign Group, and has been involved in the René Cassin Asylum and Detention Campaign Group. Jane is involved with grass roots projects working with migrants and asylum seekers, primarily in Athens, Greece, and specialises in research into accountability of international organisations, and into the connections between human rights law and human psychology.