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Referral into the NRM
Legal representatives are not First Responders into the National Referral Mechanism. There is also no automatic legal aid for assisting a victim of modern slavery with an application for leave to enter or remain before they get a positive reasonable or conclusive grounds decision. However, you will need to know your way round the referral form even if you only deal with the case later down the line.
Referral forms (with the list of indicators of modern slavery) are here:
gov.uk/government/publications/human-trafficking-victims-referral-and-assessment-forms
A list of indicators can also be found in this document by the UN Office on Drugs and Crime: unodc.org/pdf/HT_indicators_E_LOWRES.pdf
Note that:
- Referral is voluntary.
- It may not always be in the client’s best interests to be referred so the implications must be properly considered, in particular the availability of legal advice.
- The client must sign the form before referral: but note that many clients will consent to signing a form if told to do so by those they consider to be in positions of authority, which may in many cases include support workers. It is important to ensure that consent is informed.
- When a victim of modern slavery has an aspect of a protection claim that can benefit from legal aid, their trafficking status may be relevant to the successful outcome on the other part of that case, so we would argue legally aided advice can be justifiable for pre NRM work. This argument has been accepted by the Legal Aid Agency in relation to asylum claims where there is “significant overlap” between the trafficking and asylum matters.
- There are second tier advice services, for example, ATLEU, where support workers can get free telephone advice about whether a case may be suitable for referral into the NRM.
- Housing lawyers with trafficking expertise may be able to get legal aid to cover advice on trafficking status (pre NRM referral) if it is relevant to obtaining support and accommodation. If a refusal is considered likely, it may also be that public lawyers will be able to get legal aid to assist with the preparation of a referral.
Preparation of a NRM form needs to be undertaken carefully, with particular consideration to:
- Giving sufficient information to enable the decision maker to reach a positive decision.
- Not creating hostages to fortune by giving too much information: credibility is often key to the success of a later immigration or compensation claim. It is therefore important to have this in mind when preparing the NRM form, which is often the first statement of a narrative by the client. Caseworkers making a referral must make difficult judgments about how much information to give in the form, in light in particular of circumstances such as the availability of an interpreter, the circumstances of the client giving the account (e.g. has she only recently escaped her abusive situation? Is she visibly shaken, disoriented).
- If support workers have taken a file note of the particular circumstances of the client – e.g. if she is visibly shaken or traumatised – this can invaluably assist a claim if later inconsistencies arise.
Contact details for casework (and referrals)
Single Competent Authority:
Tel: 020 7035 5689 (10am-4pm, Monday-Friday)
Email: nrm@modernslavery.gov.
The Salvation Army (a large First Responder):
Tel: 0800 808 3733 (24/7 Referral Line)
Email: mst@salvationarmy.org.
https://www.salvationarmy.org.
Unseen Modern Slavery Helpline –providing information and support to the public (including victims) on a 24/7 basis:
Tel: 08000 121 700
https://www.
Reasonable grounds decision
Within five working days, a reasonable grounds decision should be made. This is a decision that there are ‘reasonable grounds to believe’ that the person may be a victim of trafficking.
This is considered to be a low threshold: ‘I suspect but cannot prove’. Think of it as being ‘might this person be a victim of trafficking?’ – not ‘is this person a victim of trafficking?’.
The reasonable grounds decision gives the victim substantial rights. It is the ‘gateway decision’ for:
- ‘Reflection period’ of 45 days or more
- Legal aid in immigration (non asylum) claims (Although please see our legal aid section for a change of interpretation by the Legal Aid Agency on this provision)
- Support and accommodation through the Salvation Army
- Counselling and interpreting
- Limited protection from removal from the UK (the decision raises a barrier to removal)
- Legal arguments as to the engagement of various rights under the EU Directive and the Council of Europe Convention, and arguably in some cases for the engagement of Article 4.
Interviews
The Competent Authority sometimes asks to interview a victim of modern slavery, but this does not always happen.
The structure of the interview and the manner of recording is virtually identical to an interview in a protection claim.
If a client is called for interview it is a good idea to follow the same practice that you would for an asylum interview, ie request recording on tape/disc (as there is no funding to attend with adults), request an appropriate language interpreter and specify the gender of interviewer and interpreter that your client would like present, request permission for a support worker to attend if available.
Police referral
The NRM referral form will be shared with police after it is complete to help detect and prevent offences, and record the incident. This is stated in the consent part of the referral form but it is worth checking that clients understand that this has happened. The form also states that the police may not pursue a case unless the individual engages with them directly.
The Modern Slavery Act 2015 has two main modern slavery offences:
- Slavery, servitude and forced or compulsory labour
- Human trafficking
The guidance for Competent Authorities puts a mandatory obligation on them to ensure that a police referral is done for all allegations. This referral is either to the police force where the alleged exploitation took place, to the National Human Trafficking Unit (in Scotland) or the Home Office criminal and financial investigations team (which includes seconded police officers).
The police should contact the client after an NRM referral has been made. They do not always contact solicitors so it is worth checking with the client or with the Competent Authority if a police referral has been made, if the client wishes to consider an investigation into possible offences committed against them.
The referral will be made to the police force in the area where the victim is living or where they were encountered if it is not clear where the exploitation took place, or if the exploitation took place overseas.
If a positive reasonable grounds decision is made the matter must be recorded as a crime. If a negative reasonable grounds decision is made it is up to the police as to whether they decide there are any recordable offences.
Information will be shared with the Competent Authority by the police on the nature of any investigation and the outcome so it is important to check on what has been shared and if the client is aware of what has been happening.
However victims should not be punished for non cooperation. Note the Directive 2011/36/EU at Article 11(3):
‘Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC or similar national rules.’
The explanatory report to the Convention on Action against Human Trafficking also makes clear that cooperation with the police should not affect the length of a recovery period or support that is offered (para 168 and 175) rm.coe.int/16800d3812.
The guidance for Competent Authorities also says at p.108:
‘When considering the case you must not penalise a potential victim who is unwilling to cooperate with the police.’
gov.uk/government/uploads/system/uploads/attachment_data/file/521763/Victims_of_modern_slavery_-_Competent_Authority_guidance_v3_0.pdf
If the client is unhappy with the outcome of an investigation they can make a police complaint within 12 months of the action they are complaining about.
Conclusive grounds decision
This decision is due to come 45 days after the reasonable grounds decision, although unfortunately it is common for it to take six months or longer.
The decision to be made is whether, on the balance of probabilities, the victim of trafficking is a victim of trafficking.
The burden of proof is more stringent than the reasonable grounds decision, and more also than that applied to other human rights decisions including in relation to an asylum claim. This means that more evidence may often be required before a decision can be made. However, this is not and should not be a default position. If a lot of information was given at the reasonable grounds stage and it is a clear case, it may well be that no further information is required at this stage.
Evidence to consider preparing during the reflection period includes:
- Witness statement from client (please see precedent section for a statement with some suggested questions to put to a client to draft a statement)
- Report from the support worker as to why the client is, in their view, a victim of modern slavery. They can include details of why they consider this to be the case particular with reference to experiences with other clients they have worked with, and direct observations of the behaviour and presentation of a client that the legal representative may be unaware of. For example, they will be able to give a description of how the client presented they first met her (tearful, fearful, sad, traumatized), which can have a lot of force. You will be able to consider and analyse potential weaknesses in the case: e.g. client was not actually locked into the house, just prohibited from leaving, client doesn’t take passport despite knowing where it is; client doesn’t take opportunities to leave despite them presenting themselves. It s useful to ask support workers to include reference to their personal length o experience in working with this client group/professional qualifications as well as that of the organization.
- Letter from a medical practitioner or therapeutic treatment service confirming the client has a need for psychological treatment / is in receipt of or waiting for such treatment. (Please see expert section for how ideally this evidence should also link the condition to the trafficking experience and be from someone appropriately qualified to give the opinion sought).
At the same time as the decision that a client is a victim of modern slavery, a decision should be made as to whether she is eligible for discretionary leave as a victim of modern slavery.
If you need more time to prepare or submit supporting evidence you should update the Competent Authority and get an extension of time so a decision will not be taken before your evidence is given. Usually the Competent Authority is amenable to extension requests.
It is important to refer to the guidance for Competent Authorities when making representations, to see what points a decision maker will refer to.
Remedies for negative reasonable and conclusive grounds decisions
Note that the only remedies are:
- Request for reconsideration (with further information if appropriate)
- Judicial Review
Home Office policy
Home Office policy says:
‘Appeals against a reasonable grounds or Conclusive Grounds decision
Where an individual considers the Competent Authority has made a decision incorrectly, an individual can challenge that decision by way of Judicial Review. However, it may be appropriate for the Competent Authority to reconsider a decision.
Reconsideration of a reasonable or conclusive grounds decision
If a first responder or support provider wishes to submit additional evidence, or they raise specific concerns that the decision is not in line with published guidance, the Competent Authority must look at whether they wish to reconsider the decision. This is not a formal right of appeal and the decision should only be reconsidered where there are grounds to do so. This informal arrangement does not extend to other parties such as legal advisors and non governmental organisations outside the NRM. However those third parties could ask a support provider or first responder involved in the case to request a reconsideration.
A support provider or first responder is not obliged to consider that request or provide reasons for not making a reconsideration request. If a legal representative or non governmental organisation outside the NRM requests a reconsideration from the Competent Authority they should be notified that:
‘Our policy in the published competent authority guidance clearly set outs that reconsideration requests of NRM decisions may only be made by first responders or support providers involved in the case. You are not the first responder or support provider involved in this NRM case so under the published guidance we cannot reconsider the NRM decision based on your request.
There is no breach of our policy as you are not entitled to make a reconsideration request in our guidance. It is open to you to request a reconsideration via a first responder or a support provider involved in the case. If a support provider or first responder submits a reconsideration request in this case it may be considered in line with the published guidance.’
How to ask for reconsideration
Reconsideration requests can simply be made by letter or email with attachments.
This can be an effective remedy, particularly where you are out of time for judicial review, or there was not enough supporting evidence for the client’s case to address difficult areas at the time when the original decision was made.
However, the Home Office will not accept a request for reconsideration from a legal representative. Lawyers may be able to support a request for reconsideration with representations but in the Home Office view, they cannot be the main channel for this.
The Home Office also wants requests to come from support organisations within the NRM system. This can present a problem when the original first responder does not exist any more or is unwilling to help.
If you do not have a support worker within the NRM system, any support worker at all, or an original First Responder who will assist the client with a reconsideration request, we would recommend approaching the Salvation Army and outlining the problem. They usually only consider such requests if it is for someone that they originally referred into the NRM. However, it is worth trying, and can be used as evidence as to why you may need to request reconsideration directly if you have exhausted all other options.
The Home Office has even told us they will not reconsider a case when one of their own casework teams wanted to refer the client back into the NRM, as the Home Office was not the original First Responder, despite being a First Responder themselves (although they later conceded they would reconsider the matter after a pre action letter).
The Home Office guidance does not reflect the views of the immigration tribunal. In the case of TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC). The Upper Tribunal has said that a legal representative can bring relevant matters to the attention of the Competent Authority. The judgment spoke about the engagement of the government’s obligations even outwith their policy:
133. Mr Whitwell accepts that where such information is made available to the Respondent, a review should, and will, take place. The second appellant has written to request such a review (on the 8 th May 2015) and when the respondent looks again at her case the new material, including the findings of Judge Saffer and the report of Dr Agnew-Davies, will be taken into account. Mr Whitwell submits that this does not mean that the original decisions to refuse can be said to be ‘not in accordance with the law’ for failure to meet any of the relevant obligations under international anti-trafficking agreements, since none of that material was available to the respondent at the date of that decision.
134. The UK government is obliged to comply with its international commitments. Where, as in the case of the second appellant, new material is subsequently brought to the respondent’s attention, we agree that a review should take place. This does not however mean that the existence of new material is capable of retrospectively rendering the original decision unlawful. In the present case it is accepted that the first appellant has not directly submitted any new material to the Secretary of State for her consideration. The second appellant has, in the course of the proceedings before us, done so. Mr Whitwell indicated that should her appeal be dismissed on asylum grounds, her case will be actively reviewed. We are satisfied that this approach complies with the UK’s obligations, and in the present circumstances, no benefit can be accrued to the appellants by any declaration or direction by the Tribunal.
135. We would add that we heard some argument about who is to bring new information and evidence to the Secretary of State’s attention. We were referred to various policy statements suggesting that such referrals can only be made by actors such as the ‘first responder’ or the ‘support provider’. There is a risk, where such policy documents exist, of the parties adhering to them so literally so as to lose sight of all common sense. If a referral is made by a ‘first responder’ or a ‘support provider’ that is all well and good. That does not prevent any other professional, be it a legal representative, social worker or doctor, bringing any pertinent matters to the respondent’s attention; where such a referral is received, outwith the framework in the respondent’s policy, the international obligations are engaged.” [our emphasis]
Unfortunately the High Court did not agree and has held that a solicitor could not succeed with a request for reconsideration in the case of OA (Nigeria) v Secretary of State for the Home Department [2018] EWHC 681 (Admin).
If you are seeking reconsideration for your client the best tactic is to approach the original First Responder and any other First Responder or support worker that you can to see if they will help. If they will not assist or will not reply, it is worth making the request to the Home Office for reconsideration yourself, attaching the evidence that no one else could help, and challenging any failure to reconsider if this is simply because the request came from you.
Address the question of whether there is any other option for your client to get a reconsideration in your representations (e.g. could this be dealt with by way of making further submissions if the client has a protection claim? – We would argue there is no guarantee the Home Office would take it upon themselves to reconsider the case in this situation).
The guidance for Competent Authorities also does not set out a standard for the reconsideration and explicitly states that reasons do not need to be given. If the Competent Authority continues to resist a well prepared request for reconsideration the only other remedy would be judicial review.
Judicial review
A negative decision about identification or a grant of discretionary leave as a victim should be challenged by way of judicial review.
A claim should be issued promptly, and not later than three months after the grounds for making the claim first arose.
When challenging a decision by the Home Office pre action correspondence should be sent to Litigation Operations (Allocation Hub) by post or email.
gov.uk/government/uploads/system/uploads/attachment_data/file/454770/JR_Guidance_England_and_Wales_3_0.pdf
Address: Litigation Operations Allocation Hub Status Park 2 4 Nobel Drive, Harlington, Hayes, Middlesex UB3 5EY
Email: UKVIPAP@homeoffice.gsi.gov.uk
If the challenge is to a negative reasonable or conclusive grounds decision alone, the claim will be issued in the Administrative Court and served on the Defendant via the Government Legal Department.
If the challenge is to a refusal of discretionary leave as a victim the claim would be issued in the Upper Tribunal and served on the Respondent via the Home Office Litigation Operations Allocation Hub.
Subject Access Requests
The Competent Authority will not disclose copies of NRM documentation to support workers or legal representatives (or applicants), even with a signed authority. These have to be requested via a Subject Access Request.
Documents that are often not provided to clients are: full copies of the NRM referral form, consideration minutes. In addition, computerized notes can be redacted when the material relates to the NRM, unless you have specifically asked for disclosure.
The policy on accessing documents is unhelpful, particularly when documents are needed on an urgent basis to advise the client.
Any request to the Subject Access Request Unit should:
- Ask for expedition (explaining why) if you are concerned that documents will not be disclosed prior to an NRM interview
- Be specific about your need for documents and entries on the Home Office computer system (‘GCID’) that relate to the NRM. If you do not get a complete set of papers you can refer back to your original letter and ask for this request to be prioritised.
It is also a good idea to update the Competent Authority if they have refused to provide you with missing documents and you cannot proceed while a subject access request is waiting – for example, if you need to defer an interview until they provide a document.
There is more about the process for applications here:
gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration
The Fast Track application process will not give a full copy of the Home Office file.