SEFTON LSCB Safeguarding Policies and Procedures Online Manual

    The 2 stage National Referral Mechanism consideration process

    Last updated 18/05/2017

    This section explains the 2 stage National Referral Mechanism (NRM) process for identifying victims of trafficking, stipulated by the Council of Europe Convention on Action against Trafficking in Human Beings.

    Part 1
    The first part is the Reasonable Grounds test, which acts as an initial filter to identify potential victims.

    Part 2
    The second is a substantive Conclusive Grounds decision as to whether the person is in fact a victim. This 2 stage test covers all human trafficking cases in any part of the UK (and slavery, servitude, or forced or compulsory labour in England or Wales).

    Making a Reasonable Grounds decision

    Timescales

    The expectation is that the Competent Authority will make a reasonable grounds decision within 5 working days of the NRM referral being received at the UK Human Trafficking Centre (UKHTC) where possible.

    Reasonable grounds decisions for cases in immigration detention will be considered as soon as possible.

    If the potential victim is the subject of criminal proceedings, it is important that the reasonable grounds decision is made before the court hearing to prevent confusion with remand processes. Staff in the Competent Authority must find out the date of any court hearing.

    In some cases dealt with by criminal casework, a person may already have been convicted and sentenced when criminal casework receives the referral.

    Standard of proof for Reasonable Grounds decision

    The Reasonable Grounds test

    This is designed to determine whether someone is a potential victim. When the Competent Authority receives a referral, they must decide whether on the information available it is reasonable to believe that a person is a victim of the crime of human trafficking (in Scotland and Northern Ireland) or modern slavery (in England and Wales).

    The test the Competent Authority must apply is: whether the statement ‘I suspect but cannot prove’ (the person is a victim of human trafficking in Scotland and Northern Ireland, or the person is a victim of modern slavery which includes human trafficking or slavery, servitude, or forced or compulsory labour in England or Wales):

    • is true
    • whether a reasonable person having regard to the information in the mind of the decision maker, would think there are reasonable grounds to believe the individual had been a victim of human trafficking or modern slavery

    For England and Wales cases: indicators of all forms of modern slavery are likely to be similar – it may not be initially clear to the Competent Authority whether a potential victim has been subject to human trafficking or slavery, servitude, or forced or compulsory labour. So to reach a positive reasonable grounds decision the Competent Authority just needs to determine that, on the information available, it is reasonable to believe that a person is a victim of the crime of modern slavery; the Competent Authority does not need to distinguish at the reasonable grounds stage which form of modern slavery they have experienced.

    Reasonable suspicion would not normally be met on the basis of an unsubstantiated claim alone, without reliable, credible, precise and up to date:

    • intelligence or information
    • evidence of some specific behaviour by the person concerned

    Where reliable, credible, precise and up to date intelligence, information or evidence is present, it must be considered in reaching a reasonable grounds decision.

    Evidence gathering

    The reasonable grounds decision has consequences for the potential victim in terms of protection and support (and potential further stay in the UK if they are subject to immigration control). The Competent Authority decision may be subject to external scrutiny and judicial review so it must be of the highest possible standard, taking into account the expert views of those surrounding the individual.

    If staff in the Competent Authority are unsure about their decision, they must seek guidance and assistance from their Competent Authority lead and request more information from the first responder or support provider.

    When the Competent Authority doesn’t need further evidence

    In some cases the Competent Authority may have enough evidence to make a positive reasonable grounds decision.

    A first responder or support provider may be in a position to provide information that meets or goes beyond the required standard of proof for the reasonable grounds test. In these circumstances the Competent Authority must advise the first responder that:

    • the case meets the Reasonable Grounds test
    • any further information will be taken into account for the conclusive grounds decision

    The Competent Authority must make a positive decision as soon as they have sufficient information to decide there are reasonable grounds to believe the person is a victim of modern slavery, even if it is likely further information will be available at a later stage.

    When the Competent Authority may need to make further enquiries

    Where it appears that the reasonable grounds test may be negative, the Competent Authority must contact the first responder and/or support providers, police and Local Authority as appropriate to discuss their decision and give them the opportunity to provide any further information/evidence that may be available. This includes any known evidence highlighted by the first responder and/or support providers which has not yet been sent to the Competent Authority.

    Where a decision may be negative the Competent Authority should make reasonable enquiries in a collaborative manner with agencies involved in the case, bearing in mind the relatively low threshold of the reasonable grounds test as well as the limited 5 working days timescale in which they are expected to make a decision where possible.

    Where there is evidence the person may be a victim of crime at the Reasonable Grounds stage

    If a person is a victim of human trafficking (in Scotland and Northern Ireland) or modern slavery (in England and Wales) then they are a victim of a crime.

    The Competent Authority can explore information about the alleged offence in consultation with Intel (in Home Office cases) or the police, as part of the reasonable grounds assessment.

    Prior to the commencement of Part 1 of the Modern Slavery Act 2015 trafficking offences in the UK were contained in the following legislation:

    • Sections 59a of the Sexual Offences Act 2003 (as amended by the Protection of Freedoms Act) and Section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (as amended by the Protection of Freedoms Act)
    • Section 22 Criminal Justice (Scotland) Act 2003 (as amended by Section 46 of the Criminal Justice and Licensing (Scotland) Act 2010)
    • Section 47 Criminal Justice and Licensing (Scotland) Act 2010

    Part 1 of the Modern Slavery Act 2015 introduces the consolidated slavery and trafficking offences, tougher penalties and sentencing rules, ensures the main offences are subject to the toughest asset recovery regime under the Proceeds of Crime Act 2002, introduces bespoke slavery and trafficking reparation orders, and provides for the detention and then forfeiture of vehicles, ships and aircraft used for the purposes of trafficking.

    It is not necessary to prove that an offence has taken place, or for there to be an ongoing criminal investigation to find that an individual is a victim of human trafficking (in Scotland and Northern Ireland) / modern slavery (in England and Wales) in need of protection.

    If however, the Competent Authority has considered the facts and/or consulted with the police and there is no evidence of either a crime having been committed or that there are grounds to suggest the person needs time to decide whether to cooperate in a criminal investigation, the Competent Authority is entitled to consider such findings as part of their Reasonable Grounds assessment.

    Interviews at the Reasonable Grounds stage

    At the Reasonable Grounds stage, the decision may be more likely to be based on evidence gathered from the first responder rather than through an interview process given the limited 5 working days timescale in which the Competent Authority is expected to make a decision where possible which might not allow time for interviews. In some cases that might also be an inappropriate time to carry out a formal interview.

    For assessing credibility during the NRM process please see How to assess credibility when making a reasonable grounds or conclusive grounds decision.

    Negative decisions

    If after contacting the first responder, support provider, police or Local Authority (in the case of children) there is not enough information or evidence to conclude that the reasonable grounds or conclusive grounds test is met, the Competent Authority is entitled to make a negative decision.

    Recording the Reasonable Grounds decision

    As part of the Competent Authority decision making process, staff at the Competent Authority must keep a detailed consideration minute.

    When issuing a negative decision the Competent Authority must use this consideration minute as the basis for dealing with the key points in their decision.

    When issuing a positive decision, the Competent Authority must keep this minute on file.

    The consideration minute must include all of the following:

    • immigration history and case summary
    • objective information on country in question
    • findings of fact with detailed reasoning (clear credibility findings including reference to which events the Competent Authority accepts took place and which events the Competent Authority does not accept took place)
    • why the definition of human trafficking or modern slavery is or is not met in respect of a reasonable grounds test 
    • decision outcome
    • date of decision

    Where the assessment of credibility undermines an individual’s account to the point that the reasonable grounds standard of proof can no longer be met, the Competent Authority must conclude that the subject is not a victim of human trafficking or modern slavery.

    Quality assuring the reasonable or conclusive grounds decision (second pair of eyes)

    To make sure the decision taken is in line with policy, a second caseworker or manager who has appropriate experience in human trafficking or modern slavery work, must review a negative National Referral Mechanism (NRM) decision. Details of the officer responsible for the second pair of eyes review must be recorded on CID (Home Office only) and the file (Home Office and UKHTC).

    If it is a Home Office case the second caseworker or manager must not be directly involved in the case’s asylum decision.

    The Competent Authority may undertake a second pair of eyes review of positive NRM decisions if they wish, but they are not obliged to do so provided there are sufficient alternative local quality assurance measures in place.