The National Referral Mechanism (NRM) is the primary instrument established by the government of the United Kingdom for identifying and assisting victims of human trafficking. It has been in operation for over a decade now, and a great deal of energy has been expended trying to improve its design and operation. Despite these ongoing efforts various problems continue to be documented, including repeated failures to refer potential victims and a lack of effective support for victims who have been identified.
One of the main indicators used by the NRM to identify victims of trafficking is exploitation, which is coded by type, for example, ‘sexual exploitation’. In this piece I am chiefly interested in cases where the type of exploitation is coded as ‘unknown’, or as ‘unknown exploitation’. These cases comprised 10% of the 35,077 referrals to the NRM between 1 January 2012 and 31 December 2019, which makes this the third most common recorded type of exploitation found in official statistics after ‘sexual exploitation’ and ‘labour exploitation’. During the first nine months of 2020 around 13% of all NRM referrals were recorded as ‘not recorded or unknown’.
There has been little acknowledgement of the scale of these referrals or attempts to explain them.
The Palermo Protocol’s definition of trafficking does not actually require exploitation to occur at all.
Why are so many people referred to the NRM when the type of exploitation they have experienced is ‘unknown’? On what grounds were they referred given their ‘unknown’ circumstances? Furthermore, what kinds of outcomes have the people involved in these ‘unknown’ cases experienced via the NRM? How have people subject to ‘unknown exploitation’ been treated, for example, in comparison to potential victims of ‘sexual exploitation’ or ‘labour exploitation’?
Human trafficking does not always require exploitation
According to the Palermo Protocol definition of ‘trafficking in persons’, both the ‘act’ and the ‘means’ must be done for the purpose of exploitation. There has been much discussion about the absence of a precise definition of exploitation within the Palermo Protocol. A minimum list of acts and situations is provided instead, including “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.
However, significantly less attention is given to the fact that the Palermo Protocol’s definition of trafficking does not actually require exploitation to occur at all. The legislative guide to the protocol observes that “no exploitation actually has to occur” for a situation to meet the definition of trafficking in persons. This reflects the fact that the trafficking protocol supplements the UN convention on organised crime, and under criminal law criminal schemes are still criminal even when not fully executed.
The NRM also traces much of its DNA back to the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings. This provides further legal advice regarding the identification of human trafficking in the absence of exploitation. The explanatory report to the convention observes that “it is not necessary that someone has been exploited for there to be trafficking.” If the other requirements established under the Palermo Protocol are met then human trafficking can be “present before the victim’s actual exploitation.”
Cases referred prior to exploitation occurring are much less likely to result in formal recognition as a potential victim of trafficking under the NRM.
The publications of the NRM statistics do not typically provide any explanation for why NRM referrals are recorded as ‘unknown exploitation’, nor a definition of what this means. However, the 2015 NRM Quarter 1 report made a rare exception. It notes that “the exploitation type is shown as unknown, where individuals have been encountered prior to the exploitation beginning, but where there were indicators that there was an intention to exploit.” Under this scenario exploitation had not yet occurred, but may have been planned, creating a situation where a person can still be recognised as a potential ‘victim’ of trafficking and referred to the NRM despite not having experienced exploitation.
The statutory guidance on the 2015 Modern Slavery Act provides more detail on this point. This guidance references the Council of Europe Convention on Action Against Trafficking in a section entitled “trafficked for the ‘purpose of exploitation’ – what if someone hasn’t yet been exploited?”. It explains that “a person is a ‘victim’ even if they have not been exploited yet, for example, because a police raid takes place before the exploitation happens. This is because, under the definition of trafficking, trafficking occurs once certain acts are carried out for the purpose of exploitation.” Given this, it is the “purpose which is key, rather than whether or not exploitation has actually occurred.” Crucially, this guidance also explicitly acknowledges that people who have not experienced exploitation “may still be in need of support”.
‘Unknown exploitation’ in practice
This explains the providence of cases which are classified as ‘unknown exploitation’. The NRM establishes only a small number of broad exploitation types: ‘sexual exploitation’, ‘labour exploitation’, ‘domestic servitude’, ‘organ harvesting’ and ‘criminal exploitation.’ The ‘unknown exploitation’ designation therefore appears to primarily function as a de facto ‘other’ box in circumstances where exploitation has not yet occurred.
Now, although this may seem impressively progressive, there remains cause for concern. Available data on NRM decision-making suggests that cases referred prior to exploitation occurring are much less likely to result in formal recognition as a potential victim of trafficking under the NRM. To put that differently, the available information suggests that significant differences exist in the proportion of positive reasonable grounds (RG) decisions between ‘unknown exploitation’ and other categories.
These differences matter because a positive decision gives potential victims access to government-funded specialist support and assistance. The RG decision should be made within five working days of a referral, and it only requires that the decision maker “suspects but cannot prove this person is a potential victim of human trafficking”. The statutory guidance on the Modern Slavery Act notes that this is a “relatively low threshold, lower than the criminal standard of proof”. It is only the conclusive grounds (CG) decision which is made on the “balance of probabilities”.
This low threshold for an RG is illustrated in the 2015 quarterly reports. Here, only 18% of RG decisions for men referred as ‘labour exploitation’ and 6% of RG decisions for women referred as ‘sexual exploitation’ were negative. However, the decision making looks very different for referrals recorded as unknown exploitation. Fully 47% of RG decisions for men and 26% for women whose exploitation type was unknown were negative. The 2015 quarterly reports also show 36% of RG decisions for children referred to the NRM for unknown exploitation were negative. This compares with only 6% of RG negative decisions for boys referred as labour exploitation and 3% of girls referred as sexual exploitation.
‘Unknown exploitation’ in the context of popular representations of human trafficking
The identification of people as victims of trafficking when they have not experienced any exploitation has, it seems, not yet overcome the dominant narrative of ‘victims’ and ‘villains.’ Claudia Aradau, a professor of international politics at King’s College London, has described how popular representations of human trafficking establish a “baptism of brutality” whereby the suffering of those who have been trafficked is emphasised in a way that enables them to be viewed sympathetically and in need of support and assistance. Those who have not experienced exploitation may be regarded as unable to demonstrate their suffering and therefore unable to establish that they have been the victim of a crime.
Those who have not experienced exploitation should not be disadvantaged as a consequence. Assessors must understand that exploitation is not the only source of harm in cases of trafficking. Physical or psychological harm may result through the ‘act’ and ‘means’, such as the use or threat of violence as a means of coercion, or from a person having trusted someone who lied and deceived with the sole intention of exploiting them. Furthermore, regardless of when and how harm might be caused to a victim of trafficking, it is not the proof of harm, or an agreed threshold of harm which should determine their recognition as a victim of the crime of human trafficking.
Not being able to account for the type of exploitation which a person has experienced appears to have a significant impact on their recognition as a victim of trafficking, and thus on the rights and protections that they are able to access from the state. Based on this, does the Home Office not need to rethink its approach to ‘unknown exploitation’ and ensure that this potentially inclusive category lives up to its protective promise?