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SSHD withdraws new evidential test for ‘Reasonable Grounds’ decisions in Modern Slavery Statutory Guidance (28 June 2023)

Date: 28/06/2023
Duncan Lewis, Main Solicitors, SSHD withdraws new evidential test for ‘Reasonable Grounds’ decisions in Modern Slavery Statutory Guidance

Further to a judicial review challenge for two claimants of Duncan Lewis, the Secretary of State for the Home Department has agreed to withdraw, reconsider and revise parts of the Modern Slavery Statutory Guidance which required a potential victim of trafficking to produce ‘objective’ evidence corroborating a credible account of human trafficking in order to receive a positive reasonable grounds decision.

In January 2023, the Secretary of State for the Home Department published new Statutory Guidance under section 49 of the Modern Slavery Act 2015 (“the Guidance”). The Guidance introduced a new test which required potential victims to produce objective evidence of their trafficking at the pre-reasonable grounds decision stage. In particular, it provided that

“The decision maker must agree with the statement that there are ‘reasonable grounds to believe, based on objective factors but falling short of conclusive proof, that a person is a victim of modern slavery (human trafficking or slavery, servitude, or forced or compulsory labour)’.
A decision maker must base their decision on objective factors to have real suspicion and therefore meet the RG threshold. An ‘objective’ factor is a piece of information or evidence that is based in fact. Ordinarily, a victim’s own account, by itself, would not be sufficient absent objective factors to have real suspicion.”

Home Office statistics show that there has been a significant drop in positive reasonable grounds decisions since the new Guidance came into force. In 2022, 88% were positive. In the first quarter of 2023 (in which there were 4746 referrals), this dropped to 58%.

The Claimants, AS and BXR, were two potential victims of trafficking who received negative reasonable grounds decisions notwithstanding giving credible accounts, and the Home Office accepting these accounts as credible, of being trafficked.

The Secretary of State has now agreed to withdraw the Guidance. She has:

  • Stated it is her intention to devise and publish new Guidance by 10 July.

  • Stated that in the interim period until publication, no negative reasonable grounds decisions will be made.

The concession follows AS and BXR issuing claims for judicial review on the basis that the relevant parts of the Guidance were unlawful because they:
  • Induced breaches of Article 4 of the European Convention on Human Rights;

  • Were irrational at common law (the fact of someone not having objective evidence of their trafficking circumstances at the point of referral into the NRM being not rationally connected to whether that person is a genuine victim of trafficking) and undercut the statutory purpose of the Modern Slavery Act 2015; and

  • Were procedurally unfair.

This is an incredible win for our clients and many other survivors of trafficking who would have otherwise received negative RG decisions as a result of the policy. It should have been evident from the outset that the requirement for trafficking survivors to provide objective evidence was always going to be impossible and cause survivors of trafficking to fall at the first hurdle. The impact that a negative decision would have on a survivor of trafficking is huge. A negative decision results in a survivor of trafficking being left without any support including accommodation, casework support and financial support and would place them at significant risk of further exploitation.

AS and BXR were represented by Shalini Patel, Hannah Baynes, Thomas Munns and Hannah Jandu. Chris Buttler KC and Katy Sheridan of Matrix Chambers and Raza Halim of Garden Court Chambers were instructed.

Duncan Lewis Solicitors’ specialist immigration lawyers are experts in all aspects of human rights, asylum and deportation. The team has achieved significant success on behalf of its clients. It holds a distinguished position in leading bold public interest litigation and in challenging litigation and political conditions that frequently invoke common law, constitutional and human rights arguments.

The team has a broad practice representing clients in matters involving immigration, asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant judicial review matters. For advice on all immigration and public law matters, call us today on 033 3772 0409 or email us at contact@duncanlewis.com

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