In recent years, officials from the UK Home Office have repeatedly accused the Modern Slavery Act (MSA) of being too lenient. The former home secretary Priti Patel was a particularly vocal critic. Before resigning in September, Patel was working on measures that would, she said, clamp down on people allegedly filing illegitimate trafficking and modern slavery claims. The new home secretary, Suella Braverman, intends to carry on with this plan.

Speaking to the Sun on Saturday, Braverman indicated she intends to reform the act, to “crack down” on criminals allegedly abusing the system by pretending to be victims of trafficking: “We want to deport them because they are considered to be foreign national offenders. What do they do? They claim modern slavery.”

Criticism of the MSA is something of a departure from previous Conservative celebration of the act. First passed into UK law in 2015, it was the jewel in the crown of then home secretary and later prime minister Theresa May. It has now become a target.

Emblematic of this shift are recent allegations made by Chris Philp, formerly a minister in the Home Office, and now a senior minister in the Treasury. Writing in the Telegraph, Philp says that thousands of people are submitting “bogus” claims in order to obtain an immigration status or avoid deportation. This in itself is questionable, as people cannot themselves file a claim, they must be referred into the system.

Philp argues that lax thresholds of proof make it possible for “claims” to succeed, and cites as evidence the statistic that over 90% of referrals lead to someone being designated a likely victim of trafficking. Serious criminals including “sadistic rapists and brutal murderers”, he concludes, are abusing the “loophole” of Britain’s modern slavery laws to avoid being deported.

Philp also suggests, repeatedly, that UK immigration lawyers are facilitating this. “Immigration lawyers cottoned onto this loophole some time ago,” he says, “in some cases lawyers even submit copy-and-paste claims for different clients without bothering to change the details. It is making a mockery of Britain’s goodwill.” Elsewhere he observes that referrals are often made only after a migrant has met with an immigration lawyer, and that some people claim they’ve been trafficked after previously denying or not mentioning it. This, he says, explains an increase in referrals in recent years.

Philp finally links the issue to channel crossings. He says that during his time in the Home Office he saw multiple examples of people crossing the channel in small boats and, when faced with removal back to Europe, claiming to have been trafficked in order to avoid deportation.

Objection, your honour

“It’s outrageous,” said Ahmed Aydeed, a director at Duncan Lewis Solicitors. “It is extremely insulting and horrific to state that being a survivor of trafficking is somehow a loophole.”

Aydeed wasn’t the only lawyer incensed by both Philp’s article and the general tone coming out of the Home Office. All three practicing immigration lawyers interviewed for this article took umbrage at the suggestion they would knowingly, or lazily, submit evidence that was untrue or inaccurate. This is a serious charge that could get them struck off.

They were further bemused by the idea that they or their clients could game the system, even if they wanted to.

“The most important thing to remember is that the Home Office is the decisionmaker about who goes into the NRM,” said Carita Thomas, an immigration lawyer who has worked with survivors of trafficking for over a decade. “It’s not lawyers and it’s not survivors who make that choice. If people are being admitted into the NRM, it’s because the Home Office agrees they merit consideration.”

The NRM – the National Referral Mechanism – is the legal framework through which victims of trafficking are identified and offered support. ‘First responders’, including some government authorities, NGOs and charities, flag signs of trafficking and submit a referral to the authorities. People cannot apply directly into the NRM – they must be referred by a first responder. Once a referral comes in, the Home Office reviews the case and issues a preliminary decision stating whether there are ‘reasonable grounds’ to believe the person may have been trafficked. If yes, the person enters the NRM. Their case then receives further scrutiny, a process which can take years, and then a second, ‘conclusive grounds’ decision is issued stating whether the Home Office formally recognises them as a victim of trafficking or not. In 2021, 91% of conclusive grounds decisions were positive.

“So I don’t understand (Philp’s) statement at all,” Aydeed said. “Where is the evidence behind these shameful statements?”

If the Home Office does have data on criminals passing through the NRM, or of system abuse, it has so far refused to release it. The Home Office separately denied both the charity ECPAT and Professor David Gadd of the University of Manchester data on the amount of child rapists, national security threats, serious criminals and failed asylum seekers referred into the system since 2017 – a problem Priti Patel had described as “rampant.”

The anti-slavery group After Exploitation requested information from the Home Office on the amount of vexatious claimants in the system – an indicator of people who might be “abusing” it. The Home Office denied the request, saying they did not keep that data. And a submission by the Modern Slavery Policy & Evidence Centre to the UK Joint Committee on Human Rights found that, “The data published by the Home Office to date does not contain sufficient information to make an informed judgement about the scale of misuse.”

Aydeed said that, rather than criminals being protected by the NRM, recognised victims are instead often prosecuted for crimes they were forced to commit. He cites a client he represented, who was trafficked as a minor and forced into cannabis cultivation, for which he was later convicted. After Aydeed and his team intervened, the client was eventually awarded £85,000 in damages. He says this case is not unique.

As for individuals crossing the channel, Imogen Townley of Wilson Solicitors said it’s uncontroversial that many of them will have experienced exploitation, due to the criminal organisations which operate on the routes. “It's not actually that surprising that when people are asked by the Home Office ‘have you ever been exploited?’ lots of them have been, given the vulnerable circumstances they are in,” she said.

Victimisation as a back door into the UK?

One of the biggest concerns the lawyers shared regarding Philp’s comments was the conflation of the Modern Slavery Act and the immigration system.

“The NRM is absolutely not an open immigration pathway,” said Thomas. “Very few people are given leave to remain as victims of modern slavery.” According to Home Office data, 7% of confirmed trafficking victims were granted leave to remain between April 2016 and June 2021. Between 2019 and 2020, only 2% of children were granted leave.

Nor is life under the NRM an attractive prospect. Mimi was referred to the NRM by the charity Voice of Domestic Workers after she escaped an abusive employer who was holding her in captivity. What followed was years of poverty as she gathered evidence to prove what happened to her. During this time she was not allowed to work, relied on a stipend of £35 per week, and on one occasion was forced to sleep on the street.

“It's so hard to prove that we are abused and exploited,” Mimi said, “because there are no other witnesses behind closed doors, aside from the domestic worker and the employers.”

Even after recognising Mimi as a victim of trafficking, the Home Office declared her no longer vulnerable and denied her leave to remain. In 2021 she applied for leave under Article 8 of the European Convention on Human Rights (which the new Home Secretary wants to exit) and is still awaiting a decision.

Difficulty in disclosing and proving one’s exploitation is a major stumbling block for victims of trafficking. Many people are not capable of communicating their situation until well after they’ve entered the UK. Critics of the NRM see this as proof they are lying. This scepticism is reflected in the language of Part 5 of the Nationality and Borders Act 2022, which stipulates “the competent authority must take account, as damaging the person’s credibility, of the late provision of the relevant status information, unless there are good reasons why the information was provided late.”

Yet there are many reasons for why this might happen that do not call the credibility of the person into question. As Sarah Ludford, a peer for the Liberal Democrats, observed in parliamentary debate over the Nationality and Borders Act “Vulnerable or traumatised victims might take time opening up; they might well be unfamiliar with the legal process, or they might not realise that a particular detail was relevant until later.”

This accords with immigration lawyers’ experiences, who say that it is often a case of first responders failing to pick up on indicators. “Unfortunately, a lot of the time the question isn't asked,” said Townley. “Or if it is asked, it's not properly explained to the person. As a result, it doesn't trigger the referral that it should.”

A sign of success?

The Centre for Social Justice, a thinktank with links to the Conservative party, estimates there are at least 100,000 people living in slavery or exploitation in the UK. Referrals to the NRM, while indeed increasing, are well shy of that; 2021 saw under 13,000. This suggests that, rather than a system being abused, what we may be seeing is a flawed system slowly getting better at recognising victims.

“What has changed is our awareness and understanding of exploitation,” explained Thomas. “An increase in numbers is really to do with a greater understanding of what trafficking and slavery are. For example, more children being spotted as potential victims of county lines gangs.”

In August, a group of 30 NGOs led by After Exploitation, published an open letter urging the government not to further restrict the system. Kate Roberts, head of policy at Focus on Labour Exploitation, one of the groups that signed the letter, said that more work needs to be done to improve detection and support. "There isn't enough support for people to disclose trafficking, to access the system, and to move on with their lives."

Roberts said that instead of raising evidence thresholds, which would sacrifice the identification of genuine victims, first responder recruitment and training should be improved. This, she said, would have the dual effect of recognising more victims while also ensuring that people without strong indicators of trafficking are not referred into the system.

The Home Office, however, seems more interested in using reform of the Modern Slavery Act to create an even more hostile environment for migrants. "We're seeing trafficking, smuggling and immigration being muddled, to allow for increasingly draconian policies,” said Roberts. “[These] are actually going to drive vulnerable people underground and encourage their trafficking."