Raza Halim, of the Garden Court Chambers Public Law Team, represented AS and BXR, alongside Chris Buttler KC and Katy Sheridan of Matrix Chambers, instructed by Duncan Lewis.
The Secretary of State for the Home Department has agreed to withdraw, reconsider and revise those 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 of being trafficked, despite the Home Secretary accepting that they had given credible accounts of being trafficked which fell within the definition of modern slavery. This was the consequence of the new, and now withdrawn, provisions within the Guidance.
The Secretary of State has now agreed to withdraw the relevant parts of the Guidance requiring 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. She has:
- Stated it is her intention to devise and publish new Guidance by 10 July 2023.
- 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.