SEFTON LSCB Safeguarding Policies and Procedures Online Manual

    Assessment of modern slavery by the Competent Authority

    Last updated 18/05/2017

    This section provides you with definitions of modern slavery, including human trafficking, slavery, servitude and forced or compulsory labour.

    It addresses some of the myths about modern slavery and clarifies that human smuggling is not the same as human trafficking.

    Myths about modern slavery

    Competent Authority staff must be able to separate myth from reality relating to modern slavery and its victims.

    Myth Reality
    The person did not take opportunities to escape so is not being coerced. Remaining in an exploitative situation could indicate a willingness to remain there and/or an absence of coercion. But there are many reasons why someone may choose not to escape an exploitative situation, for example:
    • fear of reprisal for the person or for family members at home
    • vulnerability
    • Stockholm syndrome (psychological dependency on the person exploiting them)
    • lack of knowledge of their environment
    • grooming
    • belief that the trafficker or modern slavery facilitator will fulfil their promise
    • fear of witchcraft
    • violence or threats of violence not knowing how and where to seek help
    UK nationals cannot be victims of modern slavery. UK nationals can and have been victims of modern slavery.
    Crossing a border is required in order to be trafficked. Trafficking does not have to occur across borders; it can occur within a country.
    Modern slavery is a necessary evil in some cultures and so must be accepted. Abusive people may use ‘culture’ as a justification for modern slavery or trafficking other human beings. Modern slavery is a crime in the UK and child modern slavery is child abuse, not a 'cultural' issue.exploitation.
    It cannot be modern slavery when organiser and victim are related, married, living together or lovers. Close relationships are often used to exploit and control others. This is especially relevant in child modern slavery. There have been numerous incidents where ‘boyfriends’ have groomed women and children into sexual exploitation or family members have colluded (intentionally or unintentionally) in the
    A person is not a victim of modern slavery when they say they have a better life than previously. Some people are willing to tolerate their situation because they may perceive it as a ‘stepping stone’ to a better future and may compare it favourably to experiences at home. This doesn’t mean they are not a victim of modern slavery.
    A person is not a victim of modern slavery when they reject an offer of help. It is not uncommon for victims to reject offers of help at first. This is not unique to victims of modern slavery.


    What is modern slavery?

    Modern slavery encompasses:

    • human trafficking
    • slavery, servitude and forced or compulsory labour

    In all UK referrals, the Competent Authority must consider whether the person is a victim of human trafficking. In England and Wales, if someone is found not to be a victim of trafficking, the Competent Authority must go on to consider whether they are the victim of another form of modern slavery, which includes slavery, servitude and forced or compulsory labour. 

    Human trafficking (to be considered in all cases identified in the UK)

    The essence of human trafficking is that the victim is coerced or deceived into a situation where they are exploited. Article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) defines ‘human trafficking’ as:
    ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’

    Human trafficking consists of 3 basic components:

    • action
    • means
    • exploitation

    As noted in the Office of the United Nations High Commissioner for Refugees (UNHCR) guidelines on international protection:

    ‘An important aspect of this definition is an understanding of trafficking as a process comprising a number of interrelated actions rather than a single act at a given point in time. Once initial control is secured, victims are generally moved to a place where there is a market for their services, often where they lack language skills and other basic knowledge that would enable them to seek help. While these actions can all take place within one country’s borders, they can also take place across borders with the recruitment taking place in one country and the act of receiving the victim and the exploitation taking place in another. Whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process.’

    Components of adult trafficking What it means
    Action recruitment, transportation, transfer, harbouring or receipt, which includes an element of movement whether national or cross-border;
    which is achieved by a…
    Means
    threat or use of force, coercion,
    Means threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability;
    for the purpose of…
    Exploitation eg sexual exploitation, forced labour or domestic servitude, slavery, financial exploitation, illegal adoption, removal of organs)

    All 3 components must be present in an adult trafficking case. However, in a child trafficking case the ‘means’ component is not required as they are not able to give informed consent.

    Child human trafficking will therefore consist of 2 basic components: ‘action’ and ‘exploitation’.

    Components of child trafficking What it means
    Action recruitment, transportation, transfer, harbouring or receipt, of child which includes an element of movement whether national or cross-border
    Exploitation eg sexual exploitation, forced labour or domestic servitude, slavery, financial exploitation, illegal adoption, removal of organs of child

    The definition of trafficking is not met unless all the constituent components are there, even if one or more is present.

    Guidance on the components of human trafficking (cases identified in the UK)

    As explained above, human trafficking consists of 3 basic components:

    • action
    • means
    • exploitation

    Action

    To be a victim of human trafficking, the person needs to be subjected to the act of either:

    • recruitment
    • transportation
    • transfer
    • harbouring
    • receipt

    As noted in the Office of the United Nations High Commissioner for Refugees (UNHCR) guidelines on international protection: 

    ‘An important aspect of this definition is an understanding of trafficking as a process comprising a number of interrelated actions rather than a single act at a given point in time. Once initial control is secured, victims are generally moved to a place where there is a market for their services, often where they lack language skills and other basic knowledge that would enable them to seek help. While these actions can all take place within one country’s borders, they can also take place across borders with the recruitment taking place in one country and the act of receiving the victim and the exploitation taking place in another. Whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process.’

    Means

    An adult victim of human trafficking must have been subject to a ‘means’ – the threat or use of force or other form of coercion to achieve the consent of a person having control over another person.

    The apparent consent of a victim to be controlled and exploited is irrelevant when one or more of the following has been used to get that consent:

    • the threat or use of force
    • abduction
    • fraud
    • deception
    • the abuse of power or of a position of vulnerability
    • the giving or receiving of payments or benefits

    It is not necessary for there to have been ‘means’ for a child to be a victim, because children cannot give informed consent. Any child who is recruited, transported, or transferred for the purposes of human trafficking is considered to be a potential victim, whether or not they have been forced or deceived. See Child victims for further guidance on handling a child’s case.

    A potential victim of trafficking who may have been a victim as a child, but only identified and referred into the NRM after reaching adulthood is treated under child criteria in assessing whether they were trafficked. The practical effect of this is that they do not have to meet the means test.

    Different types of means that may be present in human trafficking cases are explained below.

    Trafficking: means – deception

    An example of deception may be that the recruiter or employer has provided the worker with maliciously false, inaccurate, or misleading information. For example, a person who ends up being exploited through prostitution may originally have been under the impression there were legitimate education or employment opportunities (for example in the service industry, as a dancer, or for childcare).

    There are also less straightforward cases, for example where people have been aware they would be working consensually in the sex industry in the UK but they were misled as to the conditions of the environment, particularly the degree of control (over freedom and earnings) before they arrived. Where the situation such individuals find themselves in amounts to exploitation, this could be a modern slavery case.

    Trafficking: means – physical coercion

    Physical coercion refers to the threat of the use of force or the actual use of force against the victim of trafficking or their family members. Physical coercion could also be more subtle measures of control, for example withholding travel or immigration documents. 

    Trafficking: means – psychological coercion

    Psychological coercion refers to the threat or the perceived threat to the victim’s relationships with other people. Examples of psychological coercion include:

    • blackmail
    • ritual oaths – there is evidence to suggest witchcraft or ritual oaths can also be used to make children fearful and compliant
    • forcing someone to pay an excessive amount of money for substandard accommodation
    • making significant deductions from an individual’s ‘salary’
    • threats of rejection from, or disapproval by, a peer group, family

    There does not necessarily have to be a direct personal relationship in psychological coercion. It could refer to wider issues, for example social stigma. This is particularly relevant in cases involving sexual exploitation or other forms of sexual violence.

    Other examples include:

    • grooming - where vulnerable individuals are enticed over time to take part in activity in which they may not be entirely willing participants (for example, a trafficker may present themselves as a ‘boyfriend’ in a sexual exploitation case)
    • ‘Stockholm syndrome’ – where due to unequal power, victims create a false emotional or psychological attachment to their controller

    In both of these examples the individuals can often first appear to be ‘willing participants’. Due to their age and dependent status, children are especially vulnerable to physical and psychological coercion.

    Trafficking: means – complex cases

    There are also more complex cases where victims have been trafficked and subjected to exploitation in their own countries, and after escaping their situation travel to the UK to continue working in similar industries without such obvious control over movement or freedom.
    An example of this may be where a child has been sexually exploited in their home country and then travels to the UK as an adult to work in prostitution. At first it may appear the individual is a willing participant, but you must consider any progression of control and coercion when you make your decision.

    Exploitation

    To be a victim, someone must have been trafficked for the purpose of ‘exploitation’ which may take the form of either:

    • sexual exploitation
    • forced labour or services
    • slavery or practices similar to slavery
    • servitude
    • forced criminality
    • removal of organs (also known as organ harvesting) 

    Trafficked for the ‘purpose of exploitation’ – what if someone hasn’t yet been exploited?

    Under the Convention, a person is a ‘victim’ even if they haven’t been exploited yet, for example because a police raid takes place before the exploitation happens.

    This is because, under the definition of trafficking, trafficking occurs once certain acts are carried out for the purpose of exploitation. So, it is the purpose which is key, rather than whether or not exploitation has actually occurred. Even if the UK authorities intervene and prevent exploitation taking place in the UK, victims may have experienced serious trauma in their home country or on the way to the UK and may still be in need of support.

    Trafficking: exploitation – sexual exploitation

    In the most cases involving human trafficking for the purpose of sexual exploitation, the victim is female; however, it is important to be aware that there are also male victims.

    Female victims of sexual exploitation

    The majority of female victims of trafficking identified in the UK are exploited through prostitution. Many are beaten, raped and abused. They may go abroad based on false promises of good jobs and economic opportunities, often out of ambition to earn money and make a better life for their children or family.

    The forcible or deceptive recruitment of women and girls for forced prostitution or sexual exploitation is a form of gender-related violence. For more information on gender related violence, see:

    There is no typical experience of people who have been trafficked for sexual exploitation. Some are held captive, assaulted and violated. Others are less abused physically, but are psychologically tormented, and live in fear of harm to themselves and their family members. The way in which different people describe their experiences means you must not rely on victims to self-identify in explicit or obvious ways.

    Male victims of sexual exploitation

    Male victims of sexual exploitation may have additional barriers to disclosure. There is a currently a limited research base to assess the exact extent of adult male sexual exploitation.

    Child victims of sexual exploitation

    Please refer to the detailed guidance regarding children who are being sexually exploited. See Safeguarding children from sexual exploitation

    Trafficking: exploitation – forced labour

    Forced labour is not restricted to a particular sector of the labour market but cases have been identified in these sectors:

    • manufacturing
    • food processing
    • agriculture
    • hospitality

    For forced labour within the home, see the domestic servitude section.

    As with other forms of trafficking related exploitation, a high level of harm and control or coercion is needed to trigger the UK’s obligation under the Council of Europe Convention on Action against Trafficking in Human Beings.

    Forced labour represents a severe violation of human rights and is a restriction of human freedom.

    The International Labour Organisation (ILO) defines forced work as:

    ‘All work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily’.

    This definition is a useful indication of the scope of forced labour for the purposes of human trafficking. Siliadan v France 2005 (Application no. 73316/01) European Court of Human Rights took this as the starting point for considering forced labour threshold and held that for forced labour, there must be work:

    • exacted under the menace of any penalty which is performed against the will of the person concerned, that is, for which the person has not offered themselves voluntarily

    Forced labour cannot be equated (considered) simply with either:

    • working for low wages and/or in poor working conditions
    • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives 

    For more information on the indicators of trafficking, see the Human Trafficking – guidance for frontline staff.

    Trafficking: exploitation – forced criminality

    Forced criminality is understood as the exploitation of a person to commit:

    • pick-pocketing
    • shop-lifting
    • drug cultivation
    • other similar activities which are subject to penalties and imply financial gain

    As noted in European Directive 011/36/EU, these must be understood as a form of forced labour or services as defined in the 1930 ILO Convention (No. 29) concerning Forced or Compulsory Labour.

    Therefore, the exploitation of a person for criminal activity only falls within the scope of the definition of trafficking in human beings when all the elements of forced labour or services occur.

    Trafficking: exploitation – removal of organs (organ harvesting)

    This type of trafficking involves exploiting people by their internal organs, which are used for transplant. Traffickers can force or deceive their victims into giving up an organ. Organs commonly traded are kidneys and liver, but any organ that cannot regenerate and can be removed and re-used could be the subject of this illegal trade.

    The World Health Organization (WHO)’s Guiding Principles on Human Organ Transplantation (1991) states the commercialisation of human organs is 'a violation of human rights and human dignity'.

    Section 3 of the Human Tissue Act 2004 requires ‘appropriate consent’ for organ donation. Section 33 of this act outlines the restriction on transplants involving a live donor. Section 3 of the Human Tissue (Scotland) Act 2006 provides that a part of a deceased person’s body can be removed after that person’s death and used for all or any of the purposes of transplantation, research, education, training or audit.

    The EU Organ Directive (2010/53/EU) requires organ donation to be voluntary and unpaid. However, compensation may be granted to make good the expenses and loss of income related to the donation, but avoids any financial incentive.

    The Council of Europe Convention against trafficking in human organs, once it has been adopted by the committee of ministers, will be the first legally binding international instrument devoted solely to organ trafficking. 

    Trafficking: exploitation – domestic servitude

    Domestic servitude often involves people working in a household where they are:

    • ill treated
    • humiliated
    • subjected to exhausting working hours
    • forced to live and work under unbearable conditions
    • forced to work for little or no pay

    The problems of domestic workers held in servitude are made worse by the fact it is often very difficult for them to leave their employers and seek help. Abusive employers create physical and psychological obstacles by, for example, instilling fear in the domestic slave by threatening them, or their relatives, with further abuse or deportation, or by withholding their passport.

    Children living in domestic servitude may not see it as exploitation because they may have been used for domestic servitude in their home countries and it may appear like an extension of the same arrangement. Some children may have been groomed and see the domestic servitude as normal work they have to do in return for food and lodgings. There is evidence to suggest if children are kept in domestic servitude by powerful members of their community or family members they are unable to report the abuse due to the psychological control. For more information on psychological coercion see Trafficking: means – psychological coercion.

    For more information on domestic servitude, see the United Nations Office on Drugs and Crime - Domestic ‘service’ or domestic slavery?

    Human smuggling is not human trafficking

    The Competent Authority must not confuse human trafficking with human smuggling Human smuggling is also called people smuggling.

    Human smuggling occurs when an individual seeks the help of a facilitator to enter the UK illegally, and the relationship between both parties ends once the transaction ends. Many of those who enter the UK illegally do so by this route. Human smuggling is not a form of modern slavery.

    The purpose of human smuggling is to move a person across a border illegally, and it is regarded as a violation of state sovereignty. The purpose of modern slavery is to exploit the victim for gain or other benefit and is regarded as a violation of that person’s freedom and integrity.

    There are several factors which help distinguish smuggling and modern slavery (trafficking):

    • with trafficking, a victim’s entry into a state can be legal or illegal but smuggling is characterised by illegal entry
    • trafficking can take place both within and across national borders but international travel is required for smuggling
    • in the case of adults, trafficking is carried out with the use of force and/or deception – smuggling is not, which indicates it is a voluntary act on the part of those being smuggled
    • trafficking involves the intended exploitation of people on arrival while the services of smugglers usually end when people reach their destination and the transaction ends

    Unclear cases

    Trafficking victims may indeed start out believing that they are being smuggled, will have control over how their debt is repaid and will be free to go about their business once the agreed fee has been settled. Some may well end up in a potentially exploitative situation, where they are debt bonded and forced to work to pay off their ‘debts’, which in many cases are increased by their trafficker over time to retain control over them.

    As noted in ‘Smuggled or Trafficked?’ by Jacqueline Bhabha and Monette Zard
    staff in the Competent Authority must appreciate that in some cases the distinction of smuggling and trafficking can be blurred. There are certainly ‘pure’ cases of trafficking and smuggling. For example, there may be trafficking cases where children are kidnapped without their parents’ consent, or in which migrant workers are defrauded and forced from the outset.

    At the other end of the spectrum, there are completely transparent cross-border transportation agreements where a fee is mutually agreed and the relationship between transporter and transported ends upon arrival. However at the point of departure and at multiple stages of the journey, it may well be unclear which category – trafficking or smuggling – is at issue.

    In less clear cases, the Competent Authority must consider the information in this section of the guidance and use their judgment in order to reach a decision.

    Unclear cases: illegal adoption

    Not every illegal adoption would be considered exploitation. A child might, for example, be sold or adopted illegally but not exploited. The purposes of baby-selling and human trafficking/modern slavery are not necessarily the same.

    Some people assume that baby-selling for adoption is a form of human trafficking because it results in a profit by selling another person. However, illegally selling a child for adoption would not constitute trafficking where the child itself is not to be exploited. Baby-selling generally results in a situation that is non-exploitative with respect to the child. Where the ‘parents’ are looking to adopt the child and give it a loving home it should be considered as an illegal adoption case but not a case of trafficking or modern slavery.

    Trafficking/modern slavery, on the other hand, implies exploitation of the victims. If an adopted child is subjected to coerced labour or sexual exploitation, then this can meet the exploitation element of human trafficking/modern slavery. Where the child is given to ‘parents’ via illegal adoption who intend to exploit the child then this may fall under an exploitation purpose that would be considered as an element of trafficking or modern slavery.

    In some cases where the baby is forcibly removed from the mother, or the mother is forced or exploited to give birth, the mother may be a victim of trafficking or modern slavery.

    Slavery, servitude and forced or compulsory labour (cases identified in England or Wales)

    Modern slavery includes trafficking, but also encompasses cases of slavery, servitude and compulsory labour. Some people may not be victims of human trafficking, but are still victims of modern slavery. In England and Wales, Competent Authority decision makers must decide whether, if someone is not a victim of trafficking, they are nonetheless a victim of another form of modern slavery. This section gives guidance on those cases.

    In addition to victims of trafficking, modern slavery includes:

    • victims of slavery
    • victims of servitude
    • victims of forced or compulsory labour

    Slavery, servitude and forced or compulsory labour may also be present in trafficking cases. However, not every person who is exploited through forced labour has been trafficked. For example in some cases, a person may have been seriously exploited, but there was no action (element of movement), which means they do not meet the definition of a trafficking victim. In such cases protection and support is still available through the NRM where the person is a victim of slavery, servitude, or forced or compulsory labour in England and Wales, and discretionary leave may be available across the UK.

    Slavery, servitude and forced or compulsory labour are prohibited by Article 4 of the European Convention on Human Rights and illegal across the UK, but each jurisdiction has its own legislative framework of prohibitions. For the purposes of the NRM the UK recognises that slavery, servitude and forced or compulsory labour have the same meaning as they do under Article 4 of the European Convention on Human Rights. This ensures a consistent approach for victims across the UK.

    Modern slavery: forced or compulsory labour (victim not trafficked)

    UN Convention No. 29 concerning forced or compulsory labour defines ‘forced or compulsory labour’ as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.

    Labour is the provision of any service, not just manual labour. ‘Penalty’ may go as far as physical violence or restraint, but it can also take subtler forms of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. Consent is a factor in forced and compulsory labour, but a victim may have given consent in a situation where they felt they had no viable alternative, in which case they could still be subject to forced or compulsory labour.

    For a person to be a victim of forced or compulsory labour there must have been 2 basic components:

    • means
    • service
    Means  Threat of penalty – eg threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability.
    Service  As a result of the means an individual provides a service for benefit, eg begging, sexual services, manual labour, and domestic service.

    However, there does not need to be a means used for children as they are not able to give informed consent.

    Child forced or compulsory labour (victim not trafficked as there has been no element of movement) will therefore consist of one basic component: service.

    Service A child provides a service for benefit, eg begging, sexual services, manual labour, and domestic service.

    Where a case meets the test for forced and/or compulsory labour, they would receive a positive conclusive grounds decision. The concepts of servitude and slavery are explained below for completeness.

    For more information, see the Convention and explanatory report.

    Modern slavery: servitude

    ‘Servitude’ means an obligation to provide a service that is imposed by the use of coercion.

    Servitude is an ‘aggravated’ form of forced or compulsory labour. The fundamental distinguishing feature between servitude and forced or compulsory labour is in the victim feeling that their condition is permanent and that the situation is unlikely to change.

    Modern slavery: slavery

    The 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.

    This concept of ownership is what makes slavery distinct – for example a situation where an individual was being controlled by another would not meet this threshold, unless there was clear evidence the person was being used as a commodity. It is a form of servitude with the additional concept of ownership.