By Tom Nunn, ATLEU solicitor

Last year 1256 individuals who were given a positive reasonable grounds trafficking decision were detained in immigration removal centres according to the data-mapping project After Exploitation following FOI requests.

The government detained another 42 individuals who had received a positive conclusive grounds decision either before entering detention or during their period in detention. This exposes fundamental flaws in the Home Office’s decision making regarding the detention of victims of slavery, despite this being flagged up to the government in Shaw Review back in 2016.

It is important to explain why existing policies allow such a high number of recognised survivors of trafficking to be detained. People in the community with a positive reasonable grounds decision have a period of 45 days after this decision where no enforcement action can be taken against them – including detention. The same does not apply to those already detained.

Any adult who does not have status in the UK can be held in immigration detention ‘for a reasonable time period for the purpose of removal’. The amount of time that is deemed reasonable is determined by a number of factors, including whether the detainee is an Adult at Risk under the Home Office policy of the same name.

People with a positive reasonable grounds decision are considered Adults at Risk. However, their release is not automatic as this then needs to be balanced against certain immigration factors, such as how quickly they can be removed, whether they have absconded before and whether they have a history of offending. If the Home Office finds this balance not to be in their favour, they will remain detained. For example the Home Office have justified detention because removal will take place within six months, or because they have not been reporting to the Home Office during a time when they were being held in a situation of modern slavery.

When asked about the previous figures from 2018 in Parliament, the then immigration minister Caroline Noakes tried to justify them on the basis of 422 of them being subsequently released within seven days of the positive reasonable grounds being made. This misses the point as it shows fundamental flaws in the initial detention decision making.

However, this fails to address the failures at the point the decision to detain individuals is taken. The reasonable grounds test presents an extremely low threshold. It is likely that many of the people who were detained should have, at that point, been identified as potential victims of trafficking. Many of them will have been held following police enforcement action which can clearly be linked to their exploitation.This exposes a failure by the relevant authorities to identify potential victims of trafficking when they initially come into contact with them.

It is also important to understand that being conclusively identified as a victim of trafficking doesn’t carry the status you would expect; it doesn’t provide victims with protection from being detained.

Perversely, you have a higher protection from detention while awaiting a decision on whether you are definitely a victim of trafficking than once you have been recognised as such. Indeed, the Home Office’s Adult at Risk policy talks about those who have received a positive reasonable grounds decision but remains silent regarding those who have received a positive conclusive grounds decision.

In reality, the number of trafficking survivors detained is likely to be far, far higher than these statistics suggest. The Home Office is the only first responder in detention centres and victims are unlikely to disclose their experiences to the same authority that is responsible for their detention.

These statistics also do not account for the many who receive unlawful negative reasonable grounds decisions before being detained or during their time in detention, or the survivors with clear trafficking indicators who are not referred into the National Referral Mechanism during their time in detention.

There are currently no effective safeguards to ensure that survivors of trafficking and slavery are not detained.

For more information, see After Exploitation’s Supported or Deported report or the Labour Exploitation Advisory Group’s report Detaining Victims: Human Trafficking and the UK Immigration Detention System.