Making a Conclusive Grounds decision
Last updated 18/05/2017
When a Competent Authority makes a positive reasonable grounds decision, at the end of the recovery and reflection period they then have to conclusively decide whether the individual is a victim of human trafficking (Scotland and Northern Ireland) or modern slavery (England and Wales).
The Competent Authority is responsible for making a conclusive decision on whether, ‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or modern slavery. We refer to this as the Conclusive Grounds decision.
Scotland and Northern Ireland
The Competent Authority’s consideration of the case in Scotland and Northern Ireland considers whether there are sufficient grounds to decide that the individual is a victim of trafficking.
There are therefore 2 potential outcomes for each case:
- the individual is recognised as a victim of human trafficking; or
- there is insufficient evidence to recognise the individual as a victim of human trafficking
England and Wales
The Competent Authority’s consideration of the case in England and Wales is in 2 parts:
1. Are there sufficient grounds to decide that the individual is a victim of trafficking?
2. If not, are sufficient grounds to decide that the individual is a victim of slavery servitude, or forced or compulsory labour?
There are therefore 3 potential outcomes for each case:
- the individual is recognised as a victim of modern slavery (human trafficking)
- the individual is recognised as a victim of modern slavery (slavery, servitude or forced and compulsory labour)
- there is insufficient evidence to rrecognise the individual as a victim of modern slavery, including trafficking
Timescale for Conclusive Grounds decision
The expectation is that a Conclusive Grounds decision will be made as soon as possible following day 45 of the recovery and reflection period. There is no target to make a conclusive grounds decision within 45 days. The timescale for making a conclusive grounds decision will be based on all the circumstances of the case.
Standard of proof for Conclusive Grounds decision
At the conclusive grounds decision stage, the Competent Authority must consider whether, ‘on the balance of probabilities’, there is sufficient information to decide if the individual is a victim of human trafficking or modern slavery.
The balance of probabilities
The ‘balance of probabilities’ essentially means that, based on the evidence available, human trafficking or modern slavery is more likely than not to have happened. This standard of proof does not require the Competent Authority to be certain that the event occurred.
In reaching their decision the Competent Authority must weigh the balance of probabilities by considering the whole human trafficking or modern slavery process and the different and interrelated actions that need to have taken place. To make their decision, they must weigh the strength of the indicators or evidence presented, including the credibility of the claim, and use common sense and logic based on the particular circumstances of each case. See Assessment of modern slavery by the Competent Authority.
Competent Authority staff may need to gather more information to make a conclusive grounds decision.
The Competent Authority must make every effort to secure all available information that could prove useful in establishing if there are conclusive grounds.
If they cannot make a conclusive grounds decision based on the evidence available, they must gather evidence or make further enquiries during the 45 day recovery and reflection period.
The Competent Authority must gather this information, where appropriate, from:
- the first responder
- support provider
- Local Authority (in the case of children)
Some of the indicators on the referral form may not be apparent on the initial encounter but will become clear during subsequent interviews with an interpreter and/or at a safe location (for example in a police station). The Competent Authority must be mindful of any ongoing process which may be able to provide additional information.
Police and intelligence reports relating to the alleged crime can provide objective evidence to strengthen a claim. The Competent Authority must also give due weight to the reports and views of:
- Local Authority children’s services (for child victims)
- the organisation supporting the individual
The Competent Authority must also take into account any medical reports submitted, particularly those from qualified health practitioners. See View of experts during the NRM process.
When is the adult potential victim of modern slavery interviewed?
Interviews are more likely to be relevant to a conclusive grounds decision rather than a reasonable grounds decision.
Trafficking or modern slavery interviews do not have to be carried out with potential victims in all NRM cases. When the Competent Authority is considering the evidence it may be the case that the information submitted on the individual’s situation is so compelling that an interview is not necessary or it may be possible to clarify the modern slavery issues as part of the asylum process by asking relevant questions during an asylum interview. (See Asylum/modern slavery interviews.)
If the information provided is slim or contradictory, an interview may help to clarify things – for example by allowing the potential victims to comment on any inconsistencies. A victim might also be asked to account for inconsistencies by other methods such as in writing.
The Competent Authority must note the case file and/or CID (in Home Office cases) as to whether there was sufficient information to make a conclusive decision or whether an interview is needed.
Before they proceed, the Competent Authority must balance the benefits of an interview against the potential risks in terms of potentially re-traumatising the victim.
They must always attempt to gather all available information before deciding to interview.
The Competent Authority should carefully consider the timing of any interview including whether an interview during the 45 day recovery and reflection period is not appropriate based on the facts of the individual case, balanced with the need not to unduly delay decision-making.
Some victims may be highly vulnerable and there may be circumstances in which it would be right to delay the interview. If a victim is unable to attend an interview due to their psychological instability or other compassionate circumstance, then their legal representative should write to the Competent Authority to explain the reasons for this and provide a realistic timescale as to when they can be interviewed and documentary evidence should be provided from a qualified practitioner in all cases. It is the Competent Authority’s discretion as to whether the interview is delayed or not.
Where the Competent Authority have questions that need to be put to a potential victim but there are concerns that the individual may be re-traumatised, the Competent Authority must consider submitting questions in writing via the support provider, police or Local Authority (in the case of children).
The Competent Authority in seeking to arrange an interview will determine who is best placed to carry out an interview of the potential victim, and whether it would beneficial for the support provider to be present during the interview. The Competent Authority will expect the person designated to carry out the interview to look at whether any other arrangements need to be considered for example in respect of whether the potential victim has a preference regarding the gender of the interviewer and interpreter.
Under normal circumstances the person designated to carry out the interview should meet a prior request for a gender specific case owner and interpreter for the interview. Where a request for a gender specific interviewer is made by the applicant on the day of the interview, the request must be met as far as is operationally possible. If the potential victim’s preference cannot be accommodated for operational reasons, the person designated to carry out the interview must try to accommodate any other requests, for example, a gender preference for the interpreter. But again this will be subject to what is operationally possible.
The presence of children in interviews
The presence of children in an interview situation can hamper the ability and willingness of women to disclose information about their experiences, especially when these have been of a violent or sexual nature. The person designated to carry out the interview must make arrangements to allow for the interview to take place in private.
The interviewer must keep a verbatim (word for word) record of the interview and keep a copy on file or follow any updated guidance on recording of interviews as appropriate.
If the interview is conducted by a Home Office officer they must be trained in interviewing in accordance with existing policy.
Where the Competent Authority is criminal casework, interview arrangements may differ.
Interviews and criminal trials
Where a witness in an ongoing prosecution needs to be interviewed for the purposes of the NRM, the interview should be carried out by an officer who is achieving best evidence (ABE) trained (the national protocol for interviewing children and vulnerable adults who are part of a criminal investigation). Alternatively, the Competent Authority may wish to commission the police to ask any outstanding questions on their behalf.
In criminal trials, evidence from witnesses must be given independently and therefore the Competent Authority must take care not to offer, or appear to offer, potential inducements (incentives) to the victim. Any form of inducement might undermine the credibility of evidence obtained and adversely affect the prosecution’s ability to bring cases to court.
Interviewing children suspected or known to be trafficked must be kept to a minimum. Where you need to establish victim status under the Council of Europe Convention on Action Against Trafficking in Human Beings, where possible, the child should only be interviewed by either:
- trained specialist child protection police
- social work professionals
As the Competent Authority, you must avoid interviewing a child specifically for the purpose of reaching a decision under the NRM if either:
- there are specialists in other agencies capable of doing so
- the modern slavery issues have already been clarified as part of the asylum process
If you need more information to make an NRM decision, the Competent Authority must request this information from the first responder. If more information is still required, you must consider asking the Local Authority or police to interview the child on your behalf.
If you have to interview potential child victims of modern slavery yourself, you must do so in a sensitive manner which takes into account their age and maturity.
For more information on interviewing children, see guidance on Asylum interviews.
Only officers who have received appropriate training (currently level 3 minors training) can deal with child cases.
For assessing credibility during the NRM process please see How to assess credibility when making a reasonable grounds or conclusive grounds decision.