At the end of January 2023, new rules on staying in the UK as a victim of trafficking or modern slavery came into force. This gives the opportunity for recognised victims to be granted permission to remain in the UK in certain circumstances.

Being recognised as a victim of trafficking or modern slavery

To be considered for permission to remain in the UK under these new rules, an individual must first be recognised by the UK authorities as a victim of trafficking or modern slavery.

The National Referral Mechanism (NRM) is the UK’s system of identifying and recognising victims of trafficking. Only specific bodies can refer an individual to the NRM, such as certain government agencies, local councils, or the police.

The NRM decision making is a two-stage process:

1. First, the NRM authorities will decide whether there are reasonable grounds for believing a person may be a victim of trafficking. This is called the ‘reasonable grounds’ decision.
2. Second, if the authorities think there are reasonable grounds for believing someone may be a victim, they will investigate further. The authorities will then decide whether there are conclusive grounds to confirm that someone is a victim of trafficking – this is called the ‘conclusive grounds’ decision. This is the point where someone is a recognised victim of trafficking by the UK authorities.

An individual must have a positive conclusive grounds decision in order to be considered under the rules to stay in the UK as a victim of trafficking.

If a person receives a negative reasonable grounds or conclusive grounds decision, it may be possible to challenge this decision by way of judicial review.

Permission to stay in the UK as a victim of trafficking or modern slavery

Requirements for a grant of leave/temporary permission to stay

It is not enough simply to have a conclusive grounds decision to be granted permission to remain in the UK under these new rules.

An individual must show that permission to stay is necessary for the purpose of one of the following:

• Assisting in their recovery from any physical or psychological harm arising from the relevant exploitation
• Enabling the person to seek compensation in respect of the relevant exploitation
• Enabling the person to cooperate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation

The definitions of these terms are set out in more detail under the rules. There are also a number of other requirements an individual must meet under the rules in relation to making a valid application and being of suitable character.

Application process

Individuals who receive a positive conclusive grounds decision will be automatically considered for permission to remain in the UK under these rules. There is therefore no need to make a separate application.

If an individual is looking to extend their existing permission to stay in the UK as a victim of trafficking/modern slavery, they must make an application. The process for doing this is set out under the rules.

Permission to stay  

If granted, the length of stay granted will be:

• No more than 30 months for those staying in order to assist with their recovery or cooperate with an investigation/criminal proceedings
• No more than 12 months for those staying in order to seek compensation

If granted permission to stay, the individual will be able to work and claim public funds such as state welfare benefits.

With some types of leave, there is a specific path towards settlement in the UK (i.e. permanent residence). This is not the case with the rules for victims of trafficking. Instead, an individual will have to rely on other rules on obtaining permanent residence in order to qualify.

Challenging a refusal

Under the rules, there is no specific appeal process for individuals who are refused permission to stay as a victim of trafficking.

Instead, an individual can request a ‘reconsideration’ of the decision. However, the process for this is not yet clear: the rules simply state that the person will be notified of the process.

It is therefore not currently clear on how a person can challenge a refusal either in the first instance or following reconsideration.

Generally speaking, claims to remain in the UK which raise human rights grounds do attract a right of appeal. However, if human rights grounds are not raised in a person’s trafficking claim or no right of appeal is given, it would appear refusals in these cases would need to be challenged by way of judicial review.

The path for challenging a refusal will be something that needs to be considered on the circumstances of a particular case. The process will hopefully also become clearer as more cases work their way through the new system.

Conclusion

Cases to remain in the UK as a victim of trafficking or modern slavery are legally and factually complex. It is likely that the strength of a victim’s claim to remain in the UK will be dependent on the facts of their individual case and the supporting evidence, but also the legal arguments raised. It is also not yet clear what process victims will need to use to challenge refusals, given the failure to create a specific appeal right within these new rules.

It is therefore very important that victims of trafficking obtain legal advice on being recognised as a victim of trafficking and on remaining in the UK.

Our expert team of solicitors can advise victims of trafficking on all aspects of their claim to be recognised as a victim of trafficking and their claim to remain in the UK. This includes challenging refusals to recognise someone as a victim or potential victim of trafficking, challenges around support for victims of trafficking and advising on rights to remain in the UK including cases where victims of trafficking are also claiming asylum.

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This article is provided for information purposes only. The contents are valid on the date of publication and may be subject to change. Please see our legal notice here.