The Home Office is failing to prevent potential trafficking victims from being treated as illegal immigrants in breach of the law, the High Court has ruled.
A damning judgement on Thursday concluded that people waiting for their modern slavery claims to be concluded were being stripped of immigration status due to an “unlawful lacuna” in existing policy.
Campaigners accused the Home Office of allowing the controversial hostile environment policies to “trump its promises on tackling modern slavery” by depriving vulnerable individuals of access to basic services.
The case drew attention to the fact that individuals who have been referred to the National Referral Mechanism (NRM) – the UK’s framework for identifying modern slavery victims – have lost their immigration status while waiting for a decision on their case, leaving them unable to access employment and liable to be detained.
Delays in the NRM process have been growing in recent years, with the average waiting time for a decision on the second stage of the identification process – which takes place once it is decided there are “reasonable grounds” to believe the person was exploited – now 462 days.
The claimant who brought the case, a woman who cannot be named for legal reasons, has been waiting for more than two years since being referred to the NRM and has not had immigration status since September 2019, meaning she is unable to work or access basic services.
The New Zealand national arrived in Britain in 2017 on a tier 5 youth mobility scheme visa, which was valid until September 2019, but seven months after arriving she fell under the domination of a man who abused her sexually and forced her into prostitution.
She escaped in September 2018 and was referred to the NRM, at which point she still had a year to run on her visa. But there had been no decision by the time her visa expired, meaning she had to stop working for the trafficking support organisation she was employed by and was forced to become reliant on payments from the state.
The woman received a positive decision on her trafficking claim in December 2019, but she is still waiting on a decision as to whether she will be granted leave to remain – meaning she still has no formal immigration status.
In a judgement handed down on Thursday, Mr Justice Mostyn said the claimant became an “overstayer, [was] branded a criminal (although no one has seriously suggested she would actually be prosecuted), deprived of access to basic services, unemployed, dehumanised and penalised”.
He concluded that the Home Office was unlawfully failing to protect people from removal from the UK after they have been identified as potential victims of trafficking because it had no policy of granting leave to remain for people whose leave expires while they are waiting, or who don’t have right to remain when they enter the NRM.
Mr Justice Mostyn said ministers should formulate a policy that grants people who have been identified as potential victims of trafficking interim leave to remain while they are waiting for their cases to be concluded, given the “extreme” delays in the system.
A spokesperson for Duncan Lewis solicitors, who represented the claimant, said the case highlighted the impact of the “hostile environment” on vulnerable individuals, and how people who enter the UK legitimately can be “deprived of basic civil liberties through failures in policy-making and delayed decision-making”.
“The UK, through anti-slavery legislation and ratification of international conventions, has committed itself to the protection of victims as well as the prevention of trafficking and modern slavery but Home Office policy, as currently implemented, fails to deliver this,” they added.
Paul Blomfield, MP for Sheffield Central, said the case exposed how the government’s commitment to maintaining the hostile environment had “trumped its promises on tackling modern slavery”.
He added: “It should be beyond question that a victim of trafficking should retain their right to remain in the UK until their case has been fully considered. It’s shocking that the Home Office has been pursuing an unlawful policy and they must act to put it right without delay.”
Kate Roberts, UK and Europe manager at Anti-Slavery International, said it was important to enable modern slavery survivors to access decent work, without which many are left “in limbo” and at risk of re-exploitation.
“The UK’s commitment to protect victims of slavery must mean prioritising the needs and recovery of victims from the point of identification,” she added.
The Home Office has been approached for comment.