Ongoing challenge to SSHD’s policy regarding the…

In this article, Georgina Fenton outlines the legal framework making provision for support for victims of trafficking, and summarises a forthcoming challenge to the UK government’s policy on reconsidering decisions that exclude victims of trafficking from that support.

Introduction

Two barristers from Landmark Chambers are currently instructed in a judicial review challenge to one of the Secretary of State for the Home Department’s (“SSHD”) policies regarding the identification of a victim of trafficking (“VOT”), namely sections 14.216 - 14.228 of the Modern Slavery Act Statutory Guidance v.3.12 (“the Guidance”). The challenge is brought on the basis that these sections of the Guidance - which deal with requests for reconsideration of negative reasonable or conclusive grounds decisions (“the Reconsideration Policy”) - are incompatible with Article 4 European Convention on Human Rights (“ECHR”) and Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”).

The Policy

To understand the significance and role of the Reconsideration Policy, it is necessary to understand how it fits into the UK’s framework for identifying and supporting VOTs. If an individual is suspected to be a VOT, then a First Responder Organisation (such as a local authority, police force, Border Force or the Salvation Army) should refer the person into the UK’s National Referral Mechanism (“NRM”). Once a referral is made, the relevant competent authority will make an initial “reasonable grounds” decision (“RG decision”), namely, they will determine if there are reasonable grounds to believe the person is a VOT. If a person receives a positive RG decision, this entitles them to a 30-day Recovery Period during which they cannot be removed from the UK and can be entered into the Modern Slavery Victim Care Contract (“MSVCC”) where they will receive needs-based support.

The competent authority should then go on to make a “conclusive grounds” decision (“CG decision”) once sufficient information has been shared with it by relevant parties. This could in theory be made immediately after the 30-day recovery period, and should be made as soon as possible, but in reality, often takes much longer. The test for a CG decision is whether, “on the balance of probabilities” and based on the evidence received, there are sufficient grounds to determine that the individual is a VOT.

The Reconsideration Policy comes into play where an individual receives a negative RG or CG decision and asks for that decision to be reconsidered. A reconsideration request must be made within 30 calendar days of the negative RG or CG decision on the following grounds:

Where additional evidence can be provided which, taken with all the available evidence already considered, could demonstrate that the individual is a victim of modern slavery.
There are specific concerns that a decision made is not in line with this guidance.

There is a requirement for evidence to be provided (also within one month) to support the reconsideration request. The Guidance provides examples of such evidence as including police reports, criminal proceedings, medical reports and judgments from the Immigration Tribunal, and so on.

The part of the Reconsideration Policy under challenge is that which deals with reconsideration requests made after the 30-day period:

“Extensions to this timeframe will only be granted in exceptional circumstances and it will be at the discretion of the decision maker to determine if exceptional circumstances apply. Circumstances are only likely to be deemed exceptional if an individual is likely to unable to obtain or provide information to the Competent Authority for reasons beyond their control, if safeguarding concerns are present, if an individual has recently left an exploitative situation or for reasons to which the individual could not have reasonably foreseen” (emphasis added) (§14.228 of the Guidance)

Accordingly, if an individual needs more than 30 days to gather the requisite evidence to request reconsideration of a negative RG or CG decision, they must show that “exceptional circumstances” exist.

The Impact

The Reconsideration Policy was introduced on 12 February 2024 and had retrospective effect, meaning if a VOT had a historic negative RG or CG decision, they immediately fell within the policy.

This was the case with the client (“EO”) in the present case, who is a VOT by way of forced labour in Nigeria during her childhood and sexual exploitation in the UK as an adult. As is the case with many VOTs, she is exceptionally vulnerable, suffering from a range of serious mental and physical health conditions, including HIV, epilepsy, severe PTSD and Major Depressive Disorder, and has experienced periods of homelessness (including street homelessness). Following receipt of her negative RG decision, EO made detailed representations as part of a reconsideration request supported by evidence but outside of the 30-day period. The SSHD refused the request on the basis “no exceptional reasoning had been provided”.

The impact of this high threshold for reconsideration, meaning more often than not such requests are refused, is significant for VOTs. If a VOT receives a negative RG or CG decision, they can be removed from the UK and will be removed from the MSVCC. Given many of these individuals will be receiving crucial support under the MSVCC to recover from the trauma of their experience in the UK, the sudden removal of such support and the threat of removal from the UK can have severe consequences on their mental and physical well-being.

Furthermore, for many VOTs, it is incredibly challenging to gather the necessary evidence to support a reconsideration request and demonstrate “exceptional circumstances” within one month, particularly given they are likely to still be recovering from their experiences and may not have access to legal support. Indeed, as the Guidance itself recognises, a VOT’s disclosure of historic events will often not take place “until they have achieved a minimum level of psychological stability” such that disclosure is “often delayed”, “piecemeal”, and “sometimes over years” (§13.18). Further, many of the types of evidence listed in the Guidance as examples of evidence which could be used to support a reconsideration request are highly unlikely to be obtainable within one month, given the timeframes for police investigations, immigration appeals, criminal prosecutions, and obtaining medical evidence.

The Challenge

The challenge to the Reconsideration Policy is simple, namely that the requirement of “exceptional circumstances” is substantially higher than the low thresholds for a victim to be identified and protected under Article 4 ECHR, namely “credible suspicion”, and Article 10 ECAT, namely “reasonable grounds”, and is therefore unlawful.

The ECtHR has recognised a number of positive obligations under Article 4, which the UK in part discharges through its system under the NRM. One of those positive obligations is for a state to take operational measures to protect VOTs. This positive obligation is triggered where the state is (or ought to be) aware of “circumstances that give rise to a credible suspicion that the individual in question had been, or was at real and immediate risk of being, trafficked.” (Rantsev v Cyprus and Russia (2010) 51 EHRR 1, §286). When that positive obligation is triggered, the UK must take protective steps which include the VOT being issued with a RG decision, enabling them to receive needs-based support via the MSVCC.

The credible suspicion threshold has been reiterated by the ECtHR, both in relation to operational/ protective measures (see VCL v UK (2021) 73 EHRR 9, §159) and in relation to investigative measures (CN v UK (2013) 56 EHRR 869, §§71-72). It has also been considered by the Court of Appeal, where it was held that “credible suspicion” corresponds to “reasonable grounds” which “represents a relatively low threshold” (TDT v SSHD [2018] 1 WLR 4922 §38). This is consistent with Article 10(2) of ECAT which erects a modest threshold for the identification and support of victims, namely that of “reasonable grounds”.

The challenge therefore is on the basis that the “relatively low threshold” set out in Article 4 and ECAT of “credible suspicion” or “reasonable grounds” is not equivalent to the threshold of “exceptional circumstances” set out in the Reconsideration Policy, which instead sets an unlawfully elevated threshold.

The Case

A hearing of this challenge was initially held on 25^th February 2025. A few days prior to the hearing, the SSHD agreed to withdraw the decision to refuse EO’s reconsideration request and re-make its decision within two months (though still in accordance with the Reconsideration Policy). On the day of the hearing, counsel for the SSHD informed the court that the Reconsideration Policy was itself currently under review. In light of this, and upon suggestion from the court, the parties agreed to an adjournment of the issues in the case to allow time for this review to take place and for EO’s reconsideration decision to be remade. The matter is currently listed for another hearing in July, the outcome of which will be dependent on the actions of the SSHD prior to that date.

Miranda Butler and Georgina Fenton of Landmark Chambers act for EO in this matter, led by Nicola Braganza KC of Garden Court Chambers. They are instructed by Molly Nicolson of Asylum Aid.

This article is written by Georgina Fenton.