Modern slavery experts have blamed the government’s controversial new borders law for a sharp drop in the number of potential victims being offered protection.

Just 58% of initial decisions by the Home Office’s modern slavery protection system, the National Referral Mechanism (NRM), were successful in the first quarter of 2023 according to figures released this month. A year ago, the figure was 89%.

Similarly, the number of positive final decisions, made later on in the process, has dropped from 92% in early 2022 to 75% in early 2023. These are the highest rejection rates from the NRM since at least 2014, the furthest back the available data goes.

That's despite the fact referrals are increasing. The Home Office received 4,746 referrals for potential victims of modern slavery between January and March – the highest quarterly total since the NRM was established in 2009 – while the Modern Slavery Helpline, operated by the charity Unseen, saw 26% more calls in the first quarter of 2023 than in 2022.

“All the numbers are going in one direction,” said Andrew Wallis, the CEO of Unseen. “[Calls to the helpline] are just another part of the evidence basis that says there is a problem.”

The Nationality and Borders Act came into force at the end of January and raised the bar that referrals must clear to succeed – with some saying it placed unreasonable demands on people who had fled modern slavery.

“Rather than providing a source of hope for victims, the Nationality and Borders Act is making it harder for people to access support,” Lucy Symington, a parliamentary officer at Anti-Slavery International, told openDemocracy.

Raising the bar for evidence

To align with the Nationality and Borders Act, the statutory guidance used by case officers to assess modern slavery referrals was also updated.

One of the key concerns raised about the new guidance was the amount of extra detail and evidence that a first responder must now provide when making a referral. A person cannot self-refer into the NRM – only designated first responders like the police may apply on their behalf. Where the threshold for a positive reasonable grounds decision used to be “suspects but cannot prove”, under the new guidance a positive decision is now “based on objective factors but falling short of conclusive proof”.

“The statutory guidance states that an ‘objective’ factor is a piece of information or evidence that is based in fact; such as information provided by first responders based on observable fact, medical or expert reports, and police reports,” Robyn Phillips, of the Human Trafficking Foundation, told openDemocracy. “A victim’s own testimony alone is no longer sufficient for a positive reasonable grounds decision.”

This change increases the burden on the first responder system, while also requiring a level of physical evidence that often isn’t immediately available. The result has been that first responders are now less able to submit a referral that could result in a positive reasonable grounds decision.

“What we’ve seen is many more knock backs of requests for reasonable grounds decisions,” Andrew Wallis of Unseen, told openDemocracy. “We submit requests, and they just get knocked back. The evidence threshold around objective evidence has kicked up and proven problematic, as warned would happen when it was just a bill.”

Alex Millbrook from the migrant support NGO Kalayaan says the group is experiencing a similar response. “The Home Office have responded to NRM referrals with a list of questions, the answers to which are often already in the original referral,” she said. “This delays the decision and the start of support for clients, some of whom are homeless or in critical need of medical treatment. Delay also exacerbates anxiety for our clients who are already worried about their status and how they are going to be able to continue to support their families.”

Without a positive reasonable grounds decision, potential victims are locked out of trauma-informed recovery time and other vital forms of support.

And attaching strings to that evidence

In 2022, 87% of conclusive grounds decisions were positive, which means that the large majority of people who were ‘suspected but not proven’ to be victims of modern slavery ended up having that status confirmed after they went through the NRM.

However, Wallis said that the services Unseen offers victims during that interim period – like help with gathering evidence – have seen less use since the Nationality and Borders Act came into force, in large part due to less people getting positive reasonable grounds decisions. This implies that some people, who under the old guidance would have eventually found their way to a positive conclusive grounds decision, are no longer being allowed past the first post.

The higher hurdles don’t stop once a person gets a at a positive initial decision. When gathering evidence for a conclusive grounds decision, the new changes in guidance also ask a victim or their legal representative for information to be provided within two weeks, a timeframe that didn’t exist previously. This further increases the pressure on solicitors, who are already few and far between, and leaves them potentially unable to gather enough evidence in such a short timeframe. It also disregards the possibility that trauma victims may struggle to disclose accurate information immediately.

Another new section of the guidance lays out a ‘bad faith disqualification’. It excludes a potential victim from a recovery period and support if the case officer suspects statements by the victim or a third party were made in bad faith. Individuals can also be disqualified as a result of a public order violation. “This,” Symington said, “becomes of greater concern when considering that in the recent NRM statistics, criminal exploitation was the main form of exploitation.”

More challenges ahead

The Nationality and Borders Act is already impacting potential victims of modern slavery just months after being enforced. It is making it more difficult for potential victims to receive the time and support they need to gather evidence and prove what a first responder suspects happened to them. And, likely as a result, there is also increasing evidence that less people are willing to engage with the NRM.

If someone does not consent to the NRM, first responders complete a duty to notify form instead. During the first quarter of 2023, 1,420 potential victims chose not to enter the NRM but were recorded by the system through duty to notify forms. One year ago the figure was 987.

“We are going to continue to see less people entering the NRM,” Wallis said. “More and more victims are not going to want to engage with the system, especially if the Illegal Migration Bill exists in its current form. We are denying access to support and services that they need, and that will have a knock-on effect on our ability to prosecute [traffickers].”

The Nationality and Borders Act was only the beginning. With the Illegal Migration Bill making its way through Parliament, things are only going to get increasingly difficult for potential victims of modern slavery.

“Before the full extent of the impact of the Nationality and Borders Act is known, the Illegal Migration Bill is making its way through Parliament which seeks to further restrict access to support for survivors of modern slavery,” Phillips said. “If passed, people who entered the country by irregular means since 7 March 2023 will not be entitled support under the NRM and instead can be detained and subject to removal.”

More than 60 charities, MPs and trade unions signed a letter warning the government that victims and survivors of modern slavery will see protection removed under the Illegal Migration Bill.

In reply to their concerns, Home Office minister Robert Jenrick MP said that moves to withdraw protection for victims are “compliant with international law” and that appropriate support and protection from removal may be withheld on grounds of “public support”. He ended his letter with, “We must stop the boats.”

“We are appalled by the government’s glib dismissal of so many experts raising the impact of the bill on survivors of modern slavery,” Maya Esslemont of After Exploitation, told openDemocracy. “Rather than address the very real scale of trafficking and exploitation in the UK, the government has decided to scapegoat and restrict the rights of victims. This move to criminalise and deport survivors of trafficking will not only cause immense suffering. It will also fail to get to the root causes of trafficking in the UK.”