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NRM decisions and challenges

Reasonable grounds (RG) decision

This is the first decision in the NRM process, it is not the final decision. The government will decide if they think there are reasonable grounds that the person referred to them is a victim of modern slavery or human trafficking. This legal test was recently changed in January 2023, when section 60 of the Nationality and Borders Act 2022 came into force. This means that sections 49-50 of the Modern Slavery Act 2015 were amended. The decision maker used to have to decide if there are reasonable grounds that a person “may be” a victim of modern slavery; they now have to decide if they think there are reasonable grounds that the person referred to them “is” a victim of modern slavery or human trafficking.

How long does it take?

Once a NRM referral form is completed and submitted, the Competent Authority aims to make a reasonable grounds decision within 5 working days, however there can be delays.

What is the standard of proof?

‘Standard of proof’ means the level of certainty and the degree of evidence needed for making a decision or judgment in a legal case. For the RG decision, the standard of proof is that there are ‘reasonable grounds to believe’ that the person is a victim of trafficking.

The guidance published following the entry into force of section 60 of NABA required objective evidence for a positive reasonable grounds decision to be made, however this is not now required. The change was made following a judicial review challenge that led to the Home Secretary agreeing to withdraw, reconsider and revise parts of the guidance.

The guidance published on 24 July 2023, and updated on 9 October 2023, provides:

Standard of proof and core principles for Reasonable Grounds decisions
14.50. The Reasonable Grounds threshold is met when there are reasonable grounds to believe that an individual is a victim of slavery or human trafficking.
14.51. The Reasonable Grounds threshold is lower than the Conclusive Grounds threshold, which is decided on the balance of probabilities. Therefore, at the Reasonable Grounds stage a decision maker need not be satisfied, on the balance of probabilities, that a potential victim is a victim of modern slavery in coming to a positive Reasonable Grounds decision.
14.52. The Reasonable Grounds threshold is an objective one. The decision maker must agree with the statement that there are “reasonable grounds to believe that a person is a victim of modern slavery (human trafficking or slavery, servitude, or forced or compulsory labour)”.
14.53. A decision maker should consider whether the Reasonable Grounds threshold is satisfied, taking into account all of the information available, including the victim’s account and any other relevant information that supports or undermines it, including but not limited to: eyewitness testimony, medical or expert reports, travel records, police investigations, general evidence such as Country Reports, or supporting evidence of the person’s exploitation the First Responder provides, such as observed modern slavery indicators”.

We recommend that you check the government’s statutory guidance section on Reasonable Grounds decisions as there is a lot of detail provided on what kind of evidence the competent authority will consider at this stage, how it will be considered and how the decision makers evaluate claims where there are inconsistencies or lack of detail. It is important to remember that the competent authority can grant a positive RG decision even where it is not possible to obtain any other evidence except the NRM form, depending on the circumstances of the case.

Should a survivor have a lawyer before an RG decision is made?

Ideally a survivor would receive advice and representation from an experienced lawyer before an RG decision is made (see our section on legal advice). This is because it is a first decision in a complex legal process. Unfortunately ATLEU is aware of many cases of genuine survivors who receive negative NRM decisions that are later overturned. There is no automatic right of appeal to challenge a negative RG decision, they can only be challenged by a reconsideration request or a judicial review (see our section on legal challenges of NRM decisions), which is why it’s important to make sure the process and the evidence submitted is the best it can be in the first instance.

What should I do if there is no lawyer available?

It is very important to understand that the NRM process is a legal process. A support professional can potentially damage someone’s legal case by giving too many details too soon, before someone has had the opportunity to comment on all information that has been written about them and/or been in a position to fully disclose their account and/or had legal advice. If you are supporting a survivor at this stage in the NRM process and they have been unable to instruct an experienced lawyer, there are still some useful actions you can do:

  1. Keep trying to help them to find an experienced legal aid lawyer to take their case, record your efforts doing this as it can help later if they have problems because of not having legal representation.
  2. Request relevant documentation about their case on their behalf (with their signed consent to do so). There is a risk that they could be given a negative RG decision based on information held about them that they were not aware of and have not had the possibility to comment on. It may be helpful to communicate with the Competent Authority and explain which disclosure records are not yet available and that the survivor should not be prejudiced for information written about them that they have not had the opportunity to comment on with a legal representative.
  3. If there were problems in the NRM referral process (for example, issues with interpreters, no informed consent) these could also be flagged as broad concerns, but take care not go into too much detail about this before someone has been able to instruct a legal representative and before they have got the relevant documentation held about them.
  4. If there are concerns about any vulnerabilities, safeguarding or support needs, these could also be flagged as broad concerns, but take care not go into too much detail about this before someone has been able to instruct a legal representative and before they have got the relevant documentation held about them. At this stage, if you are not a lawyer and/or you do not have all the relevant documentation, do not try to summarise a survivor’s account of modern slavery except for indisputable facts (e.g. their nationality, their disability, where they were encountered by the authorities)

Positive Reasonable Grounds decision

This is when a person is considered to be a potential victim of modern slavery and will be supported under the NRM.

Reflection and Recovery Period

This is the period between the positive RG decision and the CG decision. The victim can access support to help them recover from their experiences and the government has more time to make their decision about whether the person is definitely a victim or not. In the UK this is currently at least 30 days, but delays in decision making often mean that a survivor is waiting much longer than 30 days. A person will not have a CG decision made within the first 30 days.

No entitlement to additional recovery period
Under section 62 of NABA there is no entitlement to an additional recovery period where a CA has made a positive RG decision and a further positive RG decision is made which arises from “things done wholly before the first RG decision was made”. The CA may determine that a further recovery period will be given. This is unlikely to apply to many people as most people will have already addressed what had happened to them before the first RG decision when they went into the NRM the first time. However if this does apply to a survivor, the government’s statutory guidance has a section on this called Making an additional Recovery Period Decision.

What rights does the victim have now?

The RG decision gives the victim substantial rights. It is the ‘gateway decision’ for the victim to access:

  • A ‘recovery and reflection period’ of at least 30 calendar days, following the entry into force of section 61 of NABA on 30 January 2023 (in keeping with Article 13 ECAT). This is to enable the victim to access services and support they need to start recovery.
  • Support, financial subsistence and accommodation. Under S64 NABA 2022 the SSHD must secure any necessary assistance and support to a potential victim in their recovery. The government provides this support through the Victim Care Contract via its contractor, The Salvation Army. The Salvation Army sub-contracts to other charities who provide safe houses and outreach support for survivors with a positive RG/CG decision.
  • Protection from removal from the UK (the decision raises a barrier to removal and a presumption against detention unless the public order disqualification applies)
  • A detailed needs based assessment and full risk assessment
  • Emotional and practical help by way of a support worker in a safe house if the victim is given accommodation or via an outreach support worker if they are not given or do not want accommodation.
  • Free healthcare including secondary care. Please note that a positive RG decision will also wipe any NHS debts prior to the RG decision, because it is considered that there will always have been reasonable grounds that the person is trafficked, even though the RG decision was made later. However if the person later receives a negative CG decision, secondary healthcare will no longer be available, unless via another way – such as being an asylum seeker.
  • Free legal advice. Please note that an RG decision is an opportunity for potential victims to access immigration legal aid on any issue (not just asylum or human rights claims), which is an advantage as immigration cases have generally been out of scope for legal aid since April 2013. A RG decision gives the right to legal aid for immigration advice for any type of immigration leave application under paras 32 and 32A Schedule 1 Part 1 Legal Aid, Sentencing and Punishment of Offenders Act 2012. Other types of legal advice can be accessed for free via legal aid even if a positive reasonable grounds decision is not made (eg housing, public law, compensation advice. The victim should be signposted for any free advice they may need.) Legal aid is complicated, please see our section on legal aid.

All potential victims with a positive RG should have access to the trafficking recovery entitlements that we have listed above, unless a public order or bad faith disqualification is applied to their case under section 63 of the Nationality and Borders Act 2022 (NABA). See the sections on public order and bad faith disqualifications in the government’s Statutory Guidance and also in S64(5) NABA. If a potential victim is in a prison or a detention centre, it is those institutions who are responsible for assessing the needs for support and providing the trafficking recovery support. There is guidance that detention centres and prisons should follow, please see our section on prisons and detention centres in our housing and support section.

Negative Reasonable Grounds decision

The competent authority can make a negative Reasonable Grounds decision if the decision maker decides that there are not reasonable grounds that the person referred to them is a victim of modern slavery or human trafficking. The statutory guidance has a detailed section on the actions the decision maker must take when a decision is made. Importantly the adult concerned must have the decision issued to them or through their appointed representative. Also, case law tells us that the decision not only needs to be provided or “served” on the person it concerns, but the principle of fairness generally requires a person to have access to legal advice and to be able to communicate confidentially with a legal advisor as part of the fundamental right of access to justice and the courts. ATLEU is aware of cases where negative decisions were made but the survivor was not provided a copy of that decision, this is something that can be legally challenged.

If a person has been receiving emergency NRM support prior to a RG decision and the RG decision is negative, they will exit MSVCC support following nine working days of move on support.

Challenges to NRM decisions

NRM decisions (Reasonable Grounds/Conclusive Grounds) can be challenged in two ways:

1) Reconsideration
2) Judicial review

1) Reconsideration request

A survivor or someone supporting the survivor can ask the Competent Authority to look at the decision again if they think the decision is not in line with the guidance or if there is new evidence.

What is the deadline?

The guidance states that there is a three month deadline for bringing a ‘not in line with the guidance’ challenge and that it can only be done once, however under the Anti-Trafficking Convention (ECAT) Article 10 and the ECHR Article 4, the UK is always under a duty to identify, investigate, protect and support victims of modern slavery and trafficking, therefore there should not be a deadline of three months to reconsider a case if the identification process was inadequate because the guidance was not followed.

However, in many cases there is new evidence available, even if this is more detail on evidence that was previously submitted. For this reason the three month deadline is rarely an issue in practice.

Who can submit a reconsideration request?

An immigration legal representative can prepare and submit a reconsideration request under an existing immigration legal help file, if there is one, or a public law legal help file if not (public law representatives can also work on public law files). Check our pages on legal advice for more information.

It is possible for individuals who are not lawyers to submit a reconsideration request because the guidance states that ‘an individual, or someone acting on their behalf can submit a reconsideration request‘. However, if you are not a lawyer and you wish to support someone by assisting them to submit a reconsideration request, you should only do so if you have had training on how to do so without damaging the person’s legal case. ATLEU does run training on this subject for support professionals and lawyers.

How is a reconsideration request submitted?

You send the request by email to the decision maker. We recommend copying it to:

Technical Specialists NRM TechnicalSpecialistsNRM@homeoffice.gov.uk
Single Competent Authority nrm@modernslavery.gov.uk

Emergency support pending a decision on reconsideration

If the survivor is destitute it is worth asking the competent authority and copying in the Salvation Army if they can provide emergency accommodation and support while the reconsideration request is prepared and/or submitted. There is no guidance which specifically covers this situation, however the government is under a legal duty to protect (including support) potential victims when there is a credible suspicion that the individual is a victim of trafficking under Article 4 ECHR. Please see our section on housing and support in the NRM.

Support after reconsideration is agreed

As soon as the competent authority agrees to reconsider a case, the potential victim is entitled to reinstatement of NRM support if they want and need it. If it is a reconsideration of a negative RG decision, they would be entitled to the emergency support that individuals receive prior to an RG decision. If a reconsideration of a CG decision is accepted, the client has effective Reasonable Grounds (RG) status again. This is achieved by the CA reopening the original RG decision rather than creating a new RG.

The statutory guidance says this:

Once the relevant competent authority has decided to reconsider a negative Conclusive Grounds decision, the individual in question will again be considered a potential victim in the NRM and they will be able to access support accordingly. Where the potential victim has already left support, they will be able to re-enter support when the relevant competent authority agrees to reconsider their negative decision.

A survivor’s support needs should be made clear in a reconsideration request.

It is our experience that support is often not set up after reconsideration is agreed by the competent authority. The competent authority and/or the Salvation Army can be contacted by email to ensure that support is put in place.

2) Judicial review

This is a process where the survivor asks a judge in the High Court to review a decision by the Competent Authority that they think is unlawful, unfair or irrational. A lawyer can advise on this under legal aid. Look for an immigration or public law lawyer, see our legal aid section.

It is important to act quickly and any court action must be taken no later than 3 months after the date of the decision under challenge.

Please note, judicial reviews require strong procedural and/or evidential arguments and an experienced legal representative in order to have a good chance of success. Losing a judicial review can have serious consequences such as negative credibility findings from a judge and/or a litigation debt because ordinarily the losing party pays the costs of the successful party (unless the Claimant is protected from this because they are represented via legal aid). Both these consequences may prevent someone from being able to regularise their immigration status and increase safeguarding risks. Legal representatives should ensure that they are properly qualified and experienced, and have legal aid funding, to undertake a judicial review in this complex area of law.

It can be advisable, depending on the urgency of the case, to submit a reconsideration request with stronger evidence first, rather than attempting a judicial review when the evidence before the decision maker may not have been as strong or comprehensive as possible. If the survivor then receives a further negative decision, that second negative decision can be challenged within three months by way of judicial review, however the prospects of success should be stronger. There is legal aid available to give someone advice and assistance with judicial review.

Further information and support on NRM challenges

ATLEU regularly runs training courses for support professionals and lawyers on challenging negative NRM decisions, including by way of judicial review. ATLEU can also be contacted by third party professionals who support survivors in relation to specific questions about reconsideration requests, or indeed any issues affecting survivors by contacting our advice line: advice@atleu.org.uk

Public Order and Bad Faith Disqualifications

Section 63 (disqualification from protection) of NABA, which came into force on 30 January 2023, provides a discretion for the competent authority to disqualify a potential victim (who has received a positive RG decision) from protection where they are deemed to:

  • be a “threat to public order” (Public Order Disqualification or “POD” under s63(3), including where the person is a foreign criminal within the meaning given by section 32(1) of the UK Borders Act 2007 (automatic deportation for foreign criminals);
  • have claimed to be a victim in “bad faith” (Bad Faith Disqualification)

Under NABA they lose these benefits of the NRM:

  • Prohibition on removal (under ss 60-61; see s63(2)(a) NABA)
  • Consideration for leave to remain (under s65 NABA; see s63(2)(b) and VTS 2.1 of the Immigration Rules)
  • the right to assistance and support (see s64 NABA inserting s50A(5) Modern Slavery Act 2015)
  • where a CG decision has not yet been made, a CG decision will not be made (Guidance (para 14.232 for POD and para 14.285 for Bad Faith Disqualification). The Guidance goes beyond NABA which does not remove the right to get a CG decision.

The Explanatory Notes to NABA say: section 63(2) “is in keeping with the UK’s ECAT obligations”. Article 13 of ECAT provides for a recovery and reflection period of 30 days for potential victims. The ECAT Explanatory Report reads: “Paragraph 3 of Article 13 allows Parties not to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly. This provision aims to guarantee that victims’ status will not be illegitimately used. 

Under the Guidance (para 14.231(c) for POD and para 14.283 for Bad Faith Disqualification), potential or actual victims can be denied a recovery period or modern slavery specific assistance and support.

Following a recent legal challenge, the guidance does now require caseworkers to consider whether there is a risk of re-trafficking in the UK. Also the guidance does state that if someone was forced to commit the criminal offence, this could be considered as low risk to the public, when caseworkers weigh up whether to apply the POD, although the guidance goes on to stated that “this indicator alone is not sufficient to categorise as low”. Since the POD was introduced, high numbers of cases referred for consideration have resulted in the POD being applied, which means that many survivors are likely being denied protection from their traffickers e.g. a place in a safehouse, even if the potential victim was forced to commit the criminal offence by their traffickers. 

There is no right of appeal against a decision to disqualify a survivor from protection. The reconsiderations policy in the guidance does not apply. The decision must be challenged by judicial review. It is important to challenge POD decisions where possible. For example, it may be possible to argue a breach of Article 4 positive obligations, irrationality (e.g. where a person is disqualified for criminality that arose from their trafficking) etc.  

A second pair of eyes review must take place and decision-makers must keep a detailed consideration minute

Public Order Disqualifications (POD) Process

PODs can apply to “those whose NRM Referral was made before 30 January 2023”. The POD will only apply to individuals who received a CG decision before 30 January 2023 “if new information comes to light or concerns are raised at a later date for example an offence is committed after the 30 January 2023 that would meet the disqualification threshold”.

The guidance sets out a guide for decision-makers and relevant documents needed to make a POD decision: ‘Public Order Decision Making Framework’. 

Discretion should be exercised to balance whether the threat to public order is outweighed by the need for modern slavery specific support. There is a high bar. 

Decision-makers should make a reasonable assessment as to whether, in respect of receiving modern slavery specific protections only:

  • the individual is a high, or low threat to public order.
  • the individual has a high or low need for modern slavery specific protections.

There is no expectation for decision makers to undertake extensive investigation to support their decision”.

If the individual is a child, decision-makers must consider the best interests of the child as a primary consideration under s55 of the Borders, Citizenship and Immigration Act 2009, and Art 3(1) of the United Nations Convention on the Rights of the Child 1989 before making a POD decision. 

For British nationals and non-detained individuals there is a window of 10 working days to respond to a disqualification request 

The 10-day window does not apply to Foreign National Offenders and can be made without notice. 

Bad Faith Disqualifications

Children who were under 18 at the time of the relevant RG decision are exempt from disqualification on grounds of bad faith.

Individuals will be given the opportunity to provide explanatory evidence once the decision-maker has communicated their intention to apply the disqualification within 10 working days

Decision-makers should consider whether there are any credible explanations for gaps in evidence or a lack of credibility when deciding whether to apply the bad faith disqualification; they should consider Annex D – Working with Vulnerable People.

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