Steve Norton, lawyer from Redmans Solicitors, talks about the new rules for victims of trafficking and modern slavery and ways they can be granted permission to stay in the UK.
At the end of January 2023, it was announced that recognised victims of trafficking or modern slavery may be granted permission to stay in the UK provided they meet the criteria set out in the rules.
How Will Victims Show That They are Recognised Victims of Trafficking or Modern Slavery Under the New Rules?
The current system for identifying and recognising whether someone is a victim of trafficking is through the National Referral Mechanism (NRM). Only certain organisations are able to refer an individual to the NRM. These include certain kinds of government agencies, police, local authorities or charitable organisations. Some examples are:
- The Home Office (including UK Border Force, UK Visas and Immigration, and Immigration Enforcement
- Health and Social Care Trusts
- The National Crime Agency (NCA)
- UK Police Forces
- Migrant Help
- Gangmasters and Labour Abuse Authority (GLAA)
- Refugee Council
- Salvation Army
The NRM uses a two-stage process:
- The NRM authorities will first decide if there are reasonable grounds for believing a person may be a victim of trafficking. This is referred to as the ‘reasonable grounds’ decision.
- If there are reasonable grounds that a person may be a victim, then the process moves to the second stage and further investigation. This involves the NRM authorities looking at whether there are conclusive grounds to confirm whether someone is a victim of trafficking. This is called the ‘conclusive grounds’ decision. At this stage, the individual becomes a recognised victim of trafficking by the UK authorities.
It is important to point out that a person must have achieved a positive conclusive grounds decision for them to be able to show that under the rules, they should be allowed to stay in the UK as a victim of trafficking.
An individual may be able to challenge a decision where he/she receives a negative reasonable grounds or conclusive grounds decision through the use of judicial review.
Are There Any Other Requirements Once an Individual Has Established They are a Victim of Trafficking or Modern Slavery?
There are further requirements to be met under the new rules, in addition to the need to show conclusive grounds for permission to remain in the UK. An individual must also show that permission to stay is necessary in order to help with one of the following:
- To assist in their recovery from any physical or psychological harm that may arise from relevant exploitation.
- To enable them to seek compensation in relation to that exploitation.
- To enable them to cooperate with a public authority that is in connection with any criminal proceedings or other investigations linked to the relevant exploitation.
The individual must also, amongst other things, satisfy other requirements under the rules such as making a valid application and being of a suitable character.
Where an individual achieves a positive conclusive ground for a decision, they will automatically be considered for permission to remain in the UK under the new rules, with no need for any separate application. If an individual wishes to try to extend their permission to stay in the UK as a victim of trafficking or modern slavery, they must make an application, the procedure for which is outlined in the rules.
What is the Length of Stay Once Permission is Granted?
If an individual is granted permission to stay, this will amount to:
- No longer than 30 months for anyone staying to get help with their ability to recover or cooperate with an investigation and/or any criminal proceedings
- No longer than 12 months for anyone staying for the purpose of seeking compensation.
Where permission to stay is granted, this enables a person to work and claim state welfare benefits.
It is important to note that with the rules for victims of trafficking, there is no pathway to permanent residence in the UK. Other rules will need to be relied on for obtaining that type of residence.
How can an Individual Challenge a Decision under the Rules Where They are Refused Permission to Stay as a Victim of Trafficking?
There does not appear to be any appeals process for an individual who has been refused permission to stay as a victim of trafficking. The rules instead allow an individual to request a ‘reconsideration’ of the decision. Strangely, there is a lack of detail under the rules on how this process will work, and an individual would need to challenge via judicial review a refusal of permission to stay under the rules.
In general terms, a claim to remain in the UK can be subject to a right of appeal, when argued on human rights grounds. Time will tell how challenges to refusals to stay pan out following future case decisions.
To Sum Up
The law around trafficking and modern slavery is a complex area and likely to be subject to change and review as this is an area the Government will want to be regularly monitoring and reviewing.
In terms of the law, the facts of individual cases will determine how the law is applied and develops over time. The lack of a specific appeals process for individuals/victims to challenge any refusals under the new rules is a cause of concern under natural justice and due process.