Introduction essentially contested and “inevitably involve endless disputes about

Introduction
 

  It is estimated
that there may currently be as many as 13,000 victims of modern slavery in the
UK1.  In 2016, the UK’s
Anti-Slavery Commissioner warned that these victims of modern slavery are
being failed by “chronic weakness”2
in the UK’s responses to their plight.  Although there has been progression from no
single act of parliament addressing the issue, to a Modern Slavery Act (MSA) coming
into force in 20153,
this implementation along with the rest of the system should not be highly
praised as it doesn’t comprehensively address the scourge of modern slavery,
leaving significant gaps in victim protection.  This essay will explore the idea of
justice within the UK system, focusing on fairness within the national referral
mechanism (NRM)4
and UK immigration policies, giving weight to the argument that considerable development
and reform is required within the UK system which centres on prosecution rather
than protection of victims.

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An Unfair
System

  In A Theory of Justice (1971)5,
philosopher John Rawls presented “principles of justice I shall call justice as
fairness”, meaning that everyone is to have an equal right to the most extensive basic
liberty compatible with a similar liberty for others.  He believed that social and economic
inequalities should be arranged so that they are both, to the greatest
benefit of the least advantaged and attached to positions and offices open to
all.  The nature of these concepts are essentially
contested and “inevitably
involve endless disputes about their proper uses on the part of their
users”6. This essay will argue
that justice and fairness are principles that are embodied within the UK system
implemented to address the scourge of modern slavery but do not mean the UK has
a comprehensive and victim-centred system. 
The extent to which these principles are utilised by the UK should not
be highly-praised as they need to be applied further to ensure that the system
is fair for all victims and provides them with a route to Justice. 

 

The Modern Slavery Act

 
 The MSA which has been hailed as a
“landmark”7 and
“historic”8 piece
of legislation, reformed
and consolidated relevant legal provisions already scattered across a number of
legislations, putting in place a
unified legislative regime to address the issue of modern slavery. 
Importantly, it established the new offences of
human trafficking, slavery, servitude, and forced or compulsory labour through
s.19 and s.210 and
increased the maximum sentence for these offences from 14 years to life
imprisonment (s.511 and s.612). It is
made easier by s.713 and s.814 for competent national authorities to seize the assets of exploiters
and to force them to pay reparation to victims by amending the Proceeds of Crime
Act (2002)15 and
empowering the Crown Court with the ability to make ‘slavery and trafficking
reparation orders’.  Despite the codification of all these principles and positive
developments in terms of addressing the scourge of modern slavery the MSA still
leaves gaps in terms of victim protection. 
Caroline Haughey agreed in her review
that there is “a need to maximise the MSA’s impact”16. For example in s.1 and s.2 there is no mention of their being any need for the victim to have been deceived or forced
into being trafficked. Section 317, which
gives detailed meaning of different types of exploitation is also
non-exhaustive and doesn’t include other instances which could still come under
the MSA. These holes hinder protection of victims from offences of modern
slavery. Victims who have been forced into slavery or who do not come under
s.3’s definition could be at risk of being prosecuted for crimes they commit
while being trafficked or falling through the system and being re-trafficked.

 

 
Effective provisions are put in place by s.1418
and s.1519 for ‘slavery and trafficking prevention orders’, civil orders designed
to prevent anyone who has been convicted of slavery or trafficking offences
from convicting similar offences in the future. 
The MSA also adopted the non-punishment principles embodied in the
European Convention on action against Trafficking (ECAAT)20
in s.4521, creating
a new statutory defence for victims who have been compelled to commit criminal
offences whilst being trafficked.  Provisions
for independent child trafficking advocates were laid out in s.48, such advocates would
represent and support child victims of human trafficking, having regard to
their wellbeing and best interests and the office of an Independent Anti-Slavery Commissioner was also established.
Section 4022
details the role as someone who acts to
encourage good practice in respect of prevention, detection, investigation and
prosecution of slavery and human trafficking offences and makes reports,
recommendations, supports research, education and training around these issues.

 

  Collectively,
these provisions attempt to achieve the objectives of effectively preventing
modern slavery, protecting victims and prosecuting perpetrators.  While these provisions are progressive, they
are unworkable in practice and don’t
cover a wide enough remit of possible victims. 
Weaknesses of the MSA
are that s.48 only includes an ‘enabling mechanism’ rather than a substantive
right for child victims to receive support from an independent child
trafficking advocate, resulting in an unfair system of victims being left
without support.  Although s.45 does provide a defence for victims who have committed unlawful offences
as a consequence of having been subjected to slavery, this defence sets a high bar for
the victim to prove their innocence, especially for older individuals, who are
judged harsher than children and young adults. 
These issues go to the core of the principles of justice and fairness as
victims are judged and treated differently not just depending on their age but
also on their nationality, mental or physical state and immigration
status.  All victims of modern slavery
should have fair opportunity to achieve justice under an easy to follow
framework that considers these factors but does not use them against the
victim, potentially criminalising them and leaving them open to destitution and
re-trafficking.

 

The NRM

  The effectiveness and fairness of the UK’s
law and policy response to modern slavery can be questioned in relation to the
NRM, the UK-wide system used to formally identify victims and provide them with
access to specialist support.  In 2016 the  Anti-Slavery Commissioner
broadcast a scorching criticism of the NRM, a system he regarded as unfit for
purpose and in need of radical change. His particular criticisms were of the
two-stage process needed for validating claims made by victims, difficulties in
accessing the NRM and failure to provide adequate support for victims.  As the MSA came into force, the government
committed to reviewing the system, a by the Home Office in 201423  followed the progress of the NRM’s pilot and
implementation of subsequent reforms to the system.

 

  Treatment of victims claiming asylum within
the NRM had been repeatedly criticised for confusing immigration status with
the status of a potential slavery victim.  The review recommended an overhaul of processes
of the NRM by professionalising the current ‘first responders’ role, replacing
it with ‘slavery safeguarding leads’ meaning a more diverse range of bodies
could refer a possible victim to the NRM.  Pilot schemes to test the new structure and
evaluate their effectiveness were established in West Yorkshire and South West
England police forces.  The separation of
modern slavery elements and asylum and immigration policies within the
assessment process needed to be ensured, so that possible victims were not
discouraged from reporting their experience for fear of being deported and
possibly re-trafficked.  Despite these
positive steps at present the UKVI remains a key decision maker through its
roles as a competent authority, a clear indication that the UK recognises its
failing but continues in delivering an unfair system.

 

  Concerns around decision making were
expressed by the review, especially that competent authorities like UK Visas
and Immigration (UKVI) and the UK Human Trafficking Centre (UKHTC) had significant power in respect
of both reasonable and conclusive grounds decisions.   Academic research highlighted
the conflict of interest within the UKVI in that an asylum application and an NRM application were being processed by
the same UKVI workers and dismissed for the same reasons. Elliot, believed this displayed a “real lack of appreciation of the different statuses
of refugee or trafficked victim and a lack of awareness and understanding of
the fact that these are, and should always be treated as, different decisions,
which depend upon different evidence and information”24.   Additionally,
GRETA25
in a report found there was disparities between the proportion of positive
conclusive grounds decisions in respect of UK/EEA nationals (issued by UKHTC)
and non-EEA nationals (issued by UKVI).  From
January to March 2013 the rate of positive conclusive grounds decisions for UK
and EEA nationals was 79% of a total 122 referrals made and just 14% of a total
269 referrals made for non-EEA nationals.  Suggesting that non-EEA nationals, those with
a more insecure immigration or residence status are less likely to obtain a
positive NRM decision, and thus obtain the status of a victim of trafficking,
than UK/EEA nationals.  This links to the broader idea of Social Justice and the principle of fairness
in that an individual’s Nationality obviously has an impact on the way in which
the system is treating them.

 

   Another key flaw in the system is that there is no formal route of
appeal where a negative NRM decision is reached, leaving those cases which are
disputed with few options available to them save judicial review (JR) .  It cannot be fair that victims can have a
decision made against them and then be left with no other form of redress but
JR, a costly and time consuming process, exposing the victim to the risk of
being re-trafficked. Additionally, no data
is collected on victims once they leave the NRM and that the recording of data
that is collected is generally substandard.  The Work and Pensions Committee stated that
this was “unacceptable”26
and that monitor of the re-trafficking of victims was required, urging that
reform to the NRM must include the recording of instances where victims have
been processed through the framework more than once.  The NRM continues to be an
another administrative loophole that victims have to jump through, rather than
a framework through which victims human rights are protected and promoted in a
fair manner.  Leaving victims to be
discriminated against through receiving unfair negative decisions with no way
in which to challenge them properly.  The
reality seems to be that the UK system recognises it’s failings but can’t seem
to identify an alternative that conforms to the principle of fairness and the
wider ideas of justice, to their fullest extent.

 

Immigration Policies

  A crucial question about the UK system is how well it sits
alongside other key objectives such as Immigration law and policy? The aim to
make the UK a hostile environment for illegal migrants has guided implementation
of UK immigration policy since 2012, embodied in provisions of the Immigration
Act (2016)27 which
transposes aspects of immigration control into everyday life. There is a
fundamental failure within the UK system to consider the potential
incompatibility of these two policy objectives of protecting vulnerable victims
of slavery on one hand, and treating irregular migrant in a hostile manor, on
the other hand.

 

 A right of residence, in turn, can be a key
factor in strengthening entitlement to certain benefits within society,
especially for non-EEA nationals that are in an insecure situation with regards
to residence entitlement. Positive identification as a victim through the NRM
doesn’t result in the granting of an automatic right to reside in UK and in
absence of such a right being available by virtue of another ‘status’ (e.g.
refugee) victims are at risk of being labelled ‘illegal’. The UK follows Art.
14 of the Council of Europe Convention28
in that residence permits may be issued to identified victims in two
circumstances. Article 7 of Palermo Protocol29
also encourages states to
provide victims with at least temporary residence permits.  In practice, discretionary leave to remain is granted
fairly rarely as in 2015, only 123 (12%) of those who received positive
conclusive grounds decision under NRM were granted it. Research demonstrates
that protection of those who have been trafficked will often best be served by
securing a right to remain in the receiving country, and accordingly gaining
access to rights associated with lawful residence, including access to formalised
support structures30.

 

   The case of Taiwo v Olagibe (2016)31
provided Judicial recognition of the shortcomings in victim protection under
the MSA and the NRM and showed the supreme court acknowledging the role an
insecure immigration status can play in rendering victims vulnerable. The case involved the mistreatment of migrant domestic workers by their employers
and the issue of whether it amounted to direct or indirect race discrimination.  The applicants were unsuccessful as the court found
they hadn’t been treated so badly as to have been able to be exploited on the
grounds of their race or nationality but because they had an insecure resident
status. Here the idea of Justice is bound up in
the idea of Human Rights, who has rights and how do those rights correspond to
their situation? These migrants were treated unfairly because of their
immigration status, blocking them form receiving justice for their treatment.

Lady Hale giving the leading
judgment recognised that if the employers had employed non-British nationals who had the right to live and work in the
United Kingdom, they would not have treated them so badly.

 

  K. Sharapov believes that individualisation of
responsibility for human trafficking at the level of ‘criminal-victim’
dichotomy remains a persistent feature of the dominant anti-trafficking
discourses, reducing trafficking to the level of a transaction between two
constituents criminals and their victims32.
This highlights the issue of double standards within the UK system which
focuses on criminals and their victims and doesn’t give account to how other
factors play into the policy problems, for example, restrictive immigration
policies.  Concerns have been raised, repeatedly, about
the government’s focus on law enforcement, with too little attention paid to
the victims of modern slavery crime.

   

Conclusion

It is evident that the system implemented
by the UK to address the scourge of modern slavery is neither comprehensive or
victim-centred and has certainly not been highly praised. Even with the MSA
implementing key provisions for the improved protection of victims of modern
slavery it left significant gaps that filter through to the NRM system and UK
immigration police in relation to modern slavery.

1 Home Office Science Research Report 73
(2013) Understanding organised crime: estimating the scale and social and
economic costs. accessed 24 December 2017.

2

accessed 3 January 2018.

3Modern Slavery Act, 2015, , c.30.

4
accessed 24 December 2017

5 Rawls. J (2005) A Theory of Justice, Cambridge, Mass: Belknap
Press.

6 WB Gallie, ‘Essentially
Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167, 169.

7 Landmark Modern Slavery Bill
Passes’ (CARE UK, 25 March 2015)

accessed 2 December 2018.

8 ‘Historical Law to End Modern Slavery’ (Home Office, 26
March 2015)
accessed 2 December 2018..

9 N3 s.1.

10 N3 s.2.

11 N3 s.5.

12 N3 s.6.

13 N3 s.7.

14 N3 s.8.

15 Proceeds of Crime Act, 2002,
c.29.

16 Caroline Haughey,
‘Modern Slavery Act 2015 Review: One Year On’ (Home Office 2018)

accessed 7 January 2018.

17 N3 s.3.

18 N3 s.14.

19 N3 s.15.

20 Council of Europe, Council
of Europe Convention on Action Against Trafficking in Human Beings, 16 May
2005, CETS 197.

21 N3 s.45.

22N3 s.40.

23
Review of the National Referral Mechanism for Victims of Human Trafficking’, UK
Home Office, 2014.

24
Jessica Elliott, 2016, JIANL
30(1) 

25
Council of
Europe: Group of Experts on Action against Trafficking in Human Beings, Report concerning the implementation of the Council of Europe
Convention on Action against Trafficking in Human Beings by the United Kingdom,
2016, GRETA(2016)21.

 

26 ‘Victims of Modern Slavery’,
House of Commons Works and Pensions Committee, 2017.

27
Immigration Act 2016, United
Kingdom, Parliament, House of Commons Library, 12 May 2016.

28 Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950, ETS 5, Article
14.

29 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the United Nations Convention
against Transnational Organized Crime, 15 November 2000, Article 7.

30 E Yoo and EH Boyle, ‘National Human
Trafficking Initiatives: Dimensions of Policy Diffusion’ (2015) 40(3) Law & Social Inquiry 631-663 at
635).

31
Taiwo
v Olaigbe and another: Onu v Akwiwu and another 2016 UKSC 31,
2016 All ER (D) 134 (Jun)

32
K.
Sharapov, ”Traffickers and Their Victims’:
Anti-Trafficking Policy in the United Kingdom’ (2017) 43 Critical Sociology 91-111.