Guidance

Decision making guidance for pilot sites in England and Wales

Updated 5 December 2023

1.1. Please note this Annex applies for all Pilot Sites across England and Wales. Separate guidance applies in Scotland.

1.2. 1. This Annex provides detailed guidance for decision makers in the Devolving Decision-Making Pilot. In the main, this guidance replaces Annex E of the ‘Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015).However, Pilot sites should refer to and follow Chapter 7 and Annex E (Making a Reasonable Grounds decision; Making a Conclusive Grounds decision) in the Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015).

1.3. Definitions of different forms of modern slavery (human trafficking, slavery, servitude, and forced and/or compulsory labour) continue to be set out in Annex B of the Modern Slavery Act 2015 Statutory Guidance and The Slavery and Human Trafficking (Definition of Victim) Regulations 2022 and remain unchanged for the purposes of the Pilot.

Defined terms

1.4. In this guidance the following defined terms are used in addition to the defined terms set out in the Modern Slavery Act 2015 Statutory Guidance:

• Devolving Child Decision-Making Pilot (the ‘Pilot’) refers to the twenty pilot sites taking decisions regarding potential child victims of modern slavery as defined in this document.

• Pilot Sites refers to the local authorities participating in the Pilot and their safeguarding partners.

Assessing credibility and other evidence during the decision-making process

1.5. Pilot Sites need to assess whether a potential victim’s account of modern slavery is credible when making a Reasonable Grounds and Conclusive Grounds decision.

1.6. Good practice in working with victims who have experienced trauma should be observed. See Annex D on Working with vulnerable people for more information. However, the need to take into account the impact trauma is likely to have on the individual’s ability to recall events does not remove the need to assess all information critically and objectively when considering the credibility of a case.

Assessing credibility

1.7. Pilot Sites are entitled to consider credibility as part of their decision-making process at both the Reasonable Grounds and Conclusive Grounds stages. When Pilot Sites are assessing the credibility of an account, they must consider both the external and internal credibility of the material facts.

1.8. If they fit the definition of human trafficking or slavery, servitude, and forced or compulsory labour, there is reliable supporting evidence and the account is credible to the required standard of proof, the Pilot Site should recognise the person as being a victim of modern slavery.

1.9. It is important for the Pilot Site to assess all information critically and objectively when the Pilot Site considers the credibility of a case. As part of that consideration it is vital for decision makers to have an understanding of the mitigating reasons why a potential victim of modern slavery is incoherent, inconsistent or delays giving details of material facts.

1.10. Throughout this process it is important to remember that victims of modern slavery have been through trauma, and that this may impact on the information they provide. Due to the trauma of modern slavery, there may be valid reasons why a potential victim’s account is inconsistent or lacks sufficient detail. Pilot Sites must take account of any relevant factors set out in Annex D: Working with vulnerable people section when making a decision as this section outlines some of the challenges victims may face in providing a clear and consistent account of their experiences. The Pilot Site should take these reasons into account when considering the credibility of a claim.

1.11. The Pilot Site must consider the child’s:

• added vulnerability
• developmental stage
• possible grooming by the traffickers and exploiters

Materiality

1.12. In assessing credibility the Pilot Site should assess the material facts of past and present events (material facts being those which are serious and significant in nature) which may indicate that a person is a victim of modern slavery. It is generally unnecessary, and sometimes counter-productive, to focus on minor or peripheral facts that are not material to the claim.

1.13. The Pilot Site should assess the material facts based on the following:

• are they coherent and consistent with any past written or verbal statements?
• how well does the evidence submitted fit together and does it contradict itself?
• are they consistent with claims made by witnesses and with any documentary evidence submitted in support of the claim or gathered during the course of your investigations?

1.14. Where there is insufficient evidence to support a claim that the individual is a victim of modern slavery (for example where the case is lacking key details, such as who exploited them or where the exploitation took place) staff at the Pilot Site are entitled to question whether the Reasonable Grounds or Conclusive Grounds threshold is met. However, if the Reasonable Grounds threshold is met Pilot Sites must also consider whether they are able to make a positive Conclusive Grounds decision on the evidence they have available, or if they need more information before making a Conclusive Grounds decision.

Level of detail

1.15. The level of detail with which a potential victim presents their claim is a factor when the Pilot Site assesses credibility. It is reasonable to assume that a victim giving an account of their modern slavery experience will be more expressive and more likely to include sensory details (for example what they saw, heard, felt or thought about an event) than someone who has not had this experience. However, some traumatised individuals can struggle to verbally express distressing experiences, may appear numb or disconnected from their words or display other trauma-related responses.

1.16. Where there is insufficient evidence to support a claim that the individual is a victim of modern slavery the Pilot Site is entitled to question whether the Reasonable Grounds or Conclusive Grounds threshold is met.

Consistency

1.17. It is also reasonable to assume that a potential victim who has experienced an event will be able to recount the central elements in a broadly consistent manner. A potential victim’s inability to remain consistent throughout their written and oral accounts of past and current events may lead the Pilot Site to disbelieve their claim. However, before the Pilot Site comes to a negative conclusion, they must first refer back to the First Responder, support provider, other expert witnesses, or the potential victim themselves to clarify any inconsistencies in the claim.

1.18. Due to the trauma of modern slavery, there may be valid reasons why a potential victim’s account is inconsistent or lacks sufficient detail. The Pilot Site should take account of any evidence of mitigating circumstances that could explain the inconsistency.

Considering gender and culture

1.19. Pilot Sites need to know how to consider gender and cultural issues in considering credibility.

1.20. It is important to understand that distress presents differently in different cultures and that cultural understanding of many situations is variable.

1.21. When making Reasonable Grounds and Conclusive Grounds decisions the Pilot Site must take into account the individual position and personal circumstances of the person and consider cultural or gender issues.

1.22. Individuals from the same country of origin may have different experiences due to their cultural, ethnic, gender and sexual identity. For example, women may be unable to disclose relevant details due to cultural and social norms.

Relevance of potential prosecution of exploiters

1.23. Pilot Sites need to know about how prosecution of their exploiters could impact a victim of modern slavery’s Reasonable Grounds and Conclusive Grounds decisions.

1.24. When the Pilot Site is deciding whether there are Reasonable or Conclusive Grounds that a person is a victim of modern slavery, their decision may be influenced by whether the alleged exploiter is being prosecuted. However, the Pilot Site’s decision must not be dependent on:

• there being a criminal investigation
• whether the victim cooperates in any criminal proceedings

1.25. The victim identification process is independent of any criminal proceedings against those responsible for the modern slavery. The criminal standard of proof, that is ‘beyond all reasonable doubt’, is higher than that of the Reasonable or Conclusive Grounds test.

1.26. Pilot Sites must be aware that any information recorded as part of a Reasonable or Conclusive Grounds decision could be disclosed during a prosecution or a Subject Access Request.

View of other experts during Pilot Site decision making

1.27. A Reasonable Grounds or Conclusive Grounds decision may be influenced by the views of experts. Pilot Sites should ensure experts involved in decision making share relevant information as appropriate and consider the views of other experts not directly involved in decision making where available. These experts could include qualified medical experts, ICTGs or ICTG Regional Practice Coordinators, the Northern Ireland Independent Guardian Service, Independent Child Trafficking Guardian Service in Scotland, the police, social workers and other local authority experts, and support providers.

1.28. Pilot Sites must give due weight and regard to the reports and views of the ICTG Direct Workers or ICTG Regional Practice Coordinator (where appointed) ^{[footnote 1]}. Due to their independence these agencies cannot be directly involved in decision making but must be invited and provided with the opportunity to take part in all meetings and discussions which relate to and impact upon the child.

1.29. These organisations may have spent the most time with the potential victim and established a degree of trust. Victims may not trust or be afraid of the police or immigration officials. They may therefore not be willing to provide statements to law enforcement. In such circumstances non-governmental organisations may be able to provide more information on the individual’s situation and the decision makers must consider any such supporting evidence. The Pilot Sites must also take into account any expert reports submitted, particularly those from qualified health practitioners.

Weight to give to expert reports

1.30. Potential victims of modern slavery may rely on documentary evidence to support their claim in the NRM.

1.31. The experience and qualifications of the individual providing the supporting evidence and the sources used will be relevant in considering what weight to attach to an expert report and every case must be considered on its merits.

1.32. Expert evidence is not determinative of whether the Reasonable or Conclusive Ground test is met but should be taken into account when reaching a conclusion on whether there are reasons why the Reasonable or Conclusive Grounds test is or is not met. There is no requirement to accept an assessment of an expert that a person is or is not a victim. Any expert assessment must be considered in the round with all other evidence.

1.33. The individual writing the report may not have access to the full range of information available to the Pilot Site and all relevant evidence, including any documentary evidence, must be considered when making a Reasonable or Conclusive Grounds decision.

1.34. Where an expert report is considered when assessing a claim under the NRM, and other information is available, all the information and relevant reports should be considered. If there are several expert reports all must be taken into account. A decision should not rely on an expert report alone without considering all relevant information.

1.35. A decision should not rely on an expert report alone where there is other relevant information available. The Pilot Site should consider all available evidence, and an expert report should be considered and weighted appropriately alongside other evidence.

1.36. Where a potential victim of modern slavery relies on medical evidence it should be from a medical professional who is qualified in the appropriate field including information such as the relevant physical or mental condition, when that condition has been diagnosed and why that condition or any treatment relating to it is relevant to modern slavery.

1.37. The Pilot Site will not make a determination on a potential victim’s nationality. The purpose of the NRM is to identify and support victims of modern slavery. However, the Pilot Site will consider evidence from a range of sources and assess the credibility of a potential victim’s case which may include consideration of the potential victim’s claimed nationality for the purposes of their case and the claims they are a victim.

1.38. Any evidence supplied must be capable of being verified by the Pilot Site where appropriate.

Insufficient evidence

1.39. Where there is insufficient evidence to support a claim that the individual is a victim of modern slavery, Pilot Sites are entitled to question whether the Reasonable Grounds or Conclusive Grounds threshold is met.

1.40. Decision makers at Pilot Sites should consider what information they hold that may be relevant to a decision and ensure that is shared with other decision-makers at a multi-agency meeting to ensure all relevant information is considered

Assessing victims who were exploited overseas or historic claims

1.41. While a victim must be physically in the UK in order to enter the NRM, the fact that a victim has been exploited outside of the UK does not preclude the Pilot Site from making a determination.

1.42. A child who says they have been a victim of modern slavery overseas should be assessed on the same basis as a child who states they have been a victim of modern slavery in the UK.

1.43. Although they may be far removed from their situation of modern slavery, they may still have been subjected to exploitation and may therefore be considered a victim of modern slavery. They may also still be traumatised by their experience even in historic cases.

1.44. Similarly, a child may have been exploited some time ago and the situation of exploitation is now over. These scenarios are often referred to as historic claims as they might be referred to the NRM long after the exploitation has ended. The Pilot Site should still make a determination on whether the child is a victim of modern slavery if the case is referred in to the NRM and in scope of the pilot, as the NRM decisions are not an assessment of future harm but a finding of fact as to whether the individual is a victim of modern slavery.

1.45. The Pilot Site must offer potential victims of historic claims the support and protection extended to victims of modern slavery while their modern slavery case is considered within the NRM.

How a referral is made

1.46. When a First Responder believes a child is a potential victim of modern slavery, they will submit a referral to the Single Competent Authority (SCA), who will log the referral. This referral will be shared with the Pilot Site as appropriate.

Validating and acknowledging a referral

1.47. Staff at the SCA will validate a NRM referral. The process SCA staff will follow is:

• Check whether the referral is a duplicate or refers to an existing case.
• Check there is sufficient information contained in the referral. If not, the SCA staff will contact the First Responder Organisation for more information and any other agencies involved with details supplied as part of the referral.
• If the potential victim has any immigration history on the Home Office Case Information Database (CID), check that they have been identified as having a ‘Potential Victim of Trafficking’ special condition. If not, the SCA will add this to the record and raise a barrier to removal if this is not already in place.
• Check whether the referral is eligible to be part of the pilot programme; whether the safeguarding responsibility for the child falls to one of the local authorities involved in the pilot programme, whether the child is more than 100 days from their 18th birthday or where there is doubt as to whether the individual is a child.
• In addition to referring the case to the Pilot Site; the SCA will acknowledge it has received the referral form by sending an acknowledgement notification to:
  • the First Responder
  • the Social Worker. If there is no social worker listed on the referral form in a case involving a potential child victim the SCA will contact the relevant local authority Safeguarding Children Service in England and Wales, the equivalent local authority service in Scotland, or Children’s Safeguarding Teams within Health & Social Care Trusts in Northern Ireland.
  • The relevant police force (or Police Scotland’s National Human Trafficking Unit)
  • The Independent Child Trafficking Guardian in England and Wales, the Northern Ireland Independent Guardian Service or the Independent Child Trafficking Guardian Service in Scotland in cases involving children where this provision is available and the SCA has been notified of their involvement.
• The SCA will ensure all relevant updates on SCA databases are made.

Making a decision

1.48. This section sets out the process Pilot Sites will follow when making a Reasonable Grounds or Conclusive Grounds decision.

Timescale for decisions

1.49. The expectation is that the Pilot Sites will make a Reasonable Grounds decision within 45 calendar days of the NRM referral being received by the Pilot Site.

1.50. Where there is sufficient information, Pilot Sites may also make a positive Conclusive Grounds decision at the same multi-agency meeting where the Reasonable Grounds decision is taken.

1.51. Where the Reasonable Grounds decision is positive, but the Pilot Site does not believe it can take a positive Conclusive Grounds decision at the same time, for example, due to insufficient evidence, the Pilot Site will schedule a second meeting to take the conclusive grounds decision within 45 calendar days of the initial meeting, after the Home Office have provided quality assurance on the Reasonable Grounds decision, where appropriate.

1.52. If a second meeting is required, Pilot Site decision makers should consider what evidence will be necessary to enable them to take the Conclusive Grounds decision at the second meeting and ensure every effort is made to obtain that evidence. Where the Pilot Site is aware that further relevant information will be available at a later date e.g. a medical assessment or police report, the site should ensure that information is obtained for the second meeting.

1.53. As the SCA does with cases involving an adult, if the child is subject to criminal proceedings, the Pilot Site should consider the child’s case as a matter of urgency and inform the SCA as soon as the decision is made, who will inform all interested parties. However, a decision should still only be made where there is sufficient information available to do so.

1.54. The Pilot Site may receive a request to delay making a Conclusive Grounds decision; for example, until an interested party can submit further information they deem relevant to a case. The Pilot Site should consider the circumstances of the request, whether the additional information is required for the decision, and as such whether it is appropriate to wait rather than proceeding with a decision. The Pilot Site should discuss the request with the SCA who must inform the victim, or an appropriate representative, of the outcome of the request to delay and provide reasons if the request is refused.

Making reasonable and conclusive grounds decision

1.55. Pilot sites should refer to Chapter 7 and Annex E (Making a reasonable grounds decision; Making a conclusive grounds decision) in the Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and non-statutory guidance for Scotland and Northern Ireland for guidance on how to make a Reasonable and Conclusive Grounds decision.

1.56. If the Pilot Site has sufficient evidence to make a positive Conclusive Grounds decision at the same time it makes a positive Reasonable Grounds decision it should do so immediately. The child will continue to receive a minimum of a 30-calendar day Recovery Period from the date of the Reasonable Grounds decision. See the Modern Slavery Act 2015 Statutory Guidance for more information on the Recovery Period.

Recording a decision

1.57. As part of the decision-making process, Pilot Sites will complete the reporting template and return this with panel minutes and any evidence relied upon to reach the decision, to the SCA. This should be done for both Reasonable Grounds and Conclusive Grounds decisions. Where both decisions are taken in the same meeting, only one template is required. Where appropriate, the Pilot Site should specify where information is not disclosable within the template .

1.58. The SCA will record the outcome of the decision on appropriate Home Office databases and issue any required decision letters or other communications.

Actions for the Single Competent Authority following a National Referral Mechanism decision (Reasonable and/or Conclusive Grounds)

1.59. During the Pilot Programme, the SCA will carry out any necessary quality assurance processes.

1.60. This section sets out the actions the SCA will need to take following a Reasonable Grounds and/or Conclusive Grounds decision. In all NRM cases, when a decision is made the SCA must take the following actions:

Action 1: Record the decision

1.61. The SCA must update the SCA records when any of the following occurs:

• Positive Reasonable Grounds decision made
• Negative Reasonable Grounds decision made
• Positive Reasonable and Conclusive Grounds decision made
• Positive Conclusive Grounds decision made
• Negative Conclusive Grounds decision made
• A reconsideration is requested
• A decision is suspended or withdrawn

1.62. In all cases the SCA will record the outcome of the Pilot Sites’ decisions and the evidence relied upon using the reporting template and panel minutes.

1.63. The SCA should complete the appropriate decision letter for the case outcome.

1.64. For a negative decision, the SCA must include a copy of the consideration minute providing full details of what they have considered and explaining the decision.

1.65. The letter should be issued to the relevant support worker in the local authority, and ICTG where available, Northern Ireland Independent Guardian Service, or the Independent Child Trafficking Guardian Service in Scotland.

1.66. The SCA must not serve a decision letter or other modern slavery papers on a child under any circumstances. All modern slavery papers must be served on the child’s appointed representative or the local authority and ICTG where available, Northern Ireland Independent Guardian Service, or the Independent Child Trafficking Guardian Service in Scotland.

Action 2: Notify other relevant agencies of the decision

1.67. The SCA must notify the following of their decision:

• the First Responder and/or First Responder Organisation (in all cases)
• the local authority in England, Scotland and Wales
• the ICTG (where appointed), Northern Ireland Independent Guardian Service, or the Independent Child Trafficking Guardian Service in Scotland.

1.68. The SCA should update Home Office databases as appropriate (e.g. NRM Referral case type, special condition, removal barrier), noting that the minimum 30-d ay Recovery Period must be observed.

1.69. The SCA should update police following a Reasonable Grounds decision or Conclusive Grounds decision. For more information see Annex B: Information sharing between the SCA and the police.

Action 3: Notify law enforcement (where criminal proceedings are involved)

1.70. If the individual is the subject of criminal proceedings the SCA must contact the police as soon as the NRM decision is made.

1.71. The SCA must ensure that the police (or the Police Scotland’s National Human Trafficking Unit) are notified of the NRM decision as soon as they make it. This is done by sending the police a copy of the notification letter or contacting them by email or telephone as appropriate.

1.72. Generally, the SCA must ask the police to notify any relevant prosecutors (the Crown Prosecution Service, the Crown Office and Procurator Fiscal Service in Scotland, or Prosecution Service in Northern Ireland) of the NRM decision as soon as the decision is ready to be served.

1.73. For more information see the section 45 defence (Annex H).

Actions for the Single Competent Authority when a National Referral Mechanism decision is suspended

1.74. Actions for the SCA in a suspended case will continue as set out in the original Annex E of the Modern Slavery Act 2015 Statutory Guidance.

1.75. The SCA and Pilot Site will agree an appropriate course of action on a case-by-case basis if they believe a case may need to be suspended. If any of the following occur, a Pilot Site must notify the SCA as soon as reasonably possible:

• the child dies, goes missing, or is arrested
• there is a change in the local authority responsible for the child
• the child is likely to turn 18 before a Conclusive Grounds decision can be made
• there is a criminal trial date set ahead of the expected decision date

1.76. Pilot Sites must notify the SCA if they become aware of any other reason why a decision may need to be suspended.

Actions for the Single Competent Authority in live immigration cases following a National Referral Mechanism decision

1.77. Actions for the SCA in relation to immigration cases will continue as set out in the original Annex E of the Modern Slavery Act 2015 Statutory Guidance.

Single Competent Authority case record

1.78. An SCA case record must be kept by SCA staff.

1.79. When modern slavery cases are concluded, all SCA case records must, at a minimum, contain:

• First Responder referral form
• Decision letter(s)
• Pilot Site Decision Record from Pilot Sites and accompanying evidence
• details of referrals to other relevant organisations, e.g. police / ICTG or ICTG Regional Practice Coordinators, the Northern Ireland Independent Guardian Service, the Independent Child Trafficking Guardian Service in Scotland.

Disclosure of information to the victim and right of access requests

1.80. Pilot Sites will be data processors for the purpose of NRM data. As such, if a right of access request is raised with a Pilot Site, the SCA as data controller should be notified.

1.81. The outcome of Reasonable Grounds and Conclusive Grounds decisions will always be disclosed to victims (or an appropriate representative as most appropriate for the child) as a matter of course.

1.82. Victims can request access to the information held about them by the SCA, as data controller, in accordance with Article 15 of the GDPR. Requests for information should be submitted in writing. Templates to assist with requesting this information are available from the Information Commissioner’s Office here.

1.83. Section 15 of the Data Protection Act (DPA) 2015 allows for exemptions from right of access requests as set out in Schedule 2 of the DPA 2015. These exemptions include for 2(1)(a) the prevention of a crime, and 2(1)(b) the apprehension or prosecution of offenders. As such, where there is sensitive information in the referral form or decision minute, this should be redacted before the records are released. Examples of sensitive information that may not be released, include:

• Information about police or other law enforcement investigations
• Information regarding other victims

Tribunal Requests

1.84. Actions for the SCA in relation to Tribunal Requests cases will continue as set out in the original Annex E of the Modern Slavery Act 2015 Statutory Guidance.

Reconsideration of Reasonable Grounds or Conclusive Grounds decision

1.85. An individual, or someone acting on their behalf, may request reconsideration of a negative Reasonable Grounds or Conclusive Grounds decision if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.

1.86. If the Pilot Site receives a request for a reconsideration, the SCA should be informed as soon as reasonably possible. The SCA will inform the relevant Pilot Site if the SCA receives a request for a reconsideration relating to a decision a Pilot Site has made.

1.87. The SCA and Pilot Site will discuss the merits of the reconsideration request, but the SCA will have the final decision as to whether the case should be reconsidered.

1.88. If the SCA determines a case should be reconsidered, the SCA will determine whether the Pilot Site or the SCA is best placed to reconsider the decision.

1.89. Full details on reconsideration request are set out in the original Annex E.

Public Order Disqualification

1.90. Pilot sites should refer to Annex E- Public Order Disqualification (POD) in the Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland (publishing.service.gov.uk) for guidance on POD decisions.[JC1]

1.91. In cases of a possible POD, the pilot site will not make a POD decision, and the case will be transferred back to the SCA. In the instance of where a Public Order Disqualification was considered for a child, but it has been determined that the disqualification will not apply, the case may be transferred from the SCA to the appropriate pilot site.

Revocation of Conclusive Grounds decision

1.92. Where the SCA or a Pilot Site has made a positive Conclusive Grounds decision, but information later comes to light which suggests that the decision was flawed, the SCA should consider whether revocation is appropriate.

1.93. Where the decision has been made by a Pilot Site, the SCA will discuss their concerns with the Pilot Site who made the decision to determine whether a revocation is appropriate. It will be for the SCA to make the final determination, but this will not happen before concerns have been discussed with the Pilot Site.

1.94. If it is determined that it is appropriate to revoke the Conclusive Grounds decision, the SCA caseworker must write to the individual concerned, or an appropriate representative. If it is not possible to make contact directly with the individual concerned in an appropriate way, the SCA should contact their legal representative (where known) and/or their most recent support provider under the Victim Care Contract (where engaged), or equivalent support providers in Northern Ireland and Scotland, to seek to regain contact.

1.95. If the individual has been issued Temporary Permission to stay as a Victim of Human Trafficking or Slavery, the SCA must notify the appropriate immigration team for them to consider whether curtailment of this leave is appropriate.

Withdrawing from the National Referral Mechanism

1.96. Children may not withdraw themselves from the NRM. A child may not be withdrawn from the NRM unless it is in the best interests of the child as determined by the responsible local authority Child Safeguarding Services. If the SCA receives a request from a local authority or embassy, for example, seeking that a child be withdrawn from the NRM, the case should be referred to the Modern Slavery Unit for advice.

1. Information on the ICTG Early Adopter Sites can be located here. ↩