Introduction essentially contested and “inevitably involve endless disputes about

Introduction   It is estimatedthat there may currently be as many as 13,000 victims of modern slavery in theUK1.

 In 2016, the UK’sAnti-Slavery Commissioner warned that these victims of modern slavery arebeing failed by “chronic weakness”2in the UK’s responses to their plight.  Although there has been progression from nosingle act of parliament addressing the issue, to a Modern Slavery Act (MSA) cominginto force in 20153,this implementation along with the rest of the system should not be highlypraised as it doesn’t comprehensively address the scourge of modern slavery,leaving significant gaps in victim protection.  This essay will explore the idea ofjustice within the UK system, focusing on fairness within the national referralmechanism (NRM)4and UK immigration policies, giving weight to the argument that considerable developmentand reform is required within the UK system which centres on prosecution ratherthan protection of victims.  An UnfairSystem  In A Theory of Justice (1971)5,philosopher John Rawls presented “principles of justice I shall call justice asfairness”, meaning that everyone is to have an equal right to the most extensive basicliberty compatible with a similar liberty for others.  He believed that social and economicinequalities should be arranged so that they are both, to the greatestbenefit of the least advantaged and attached to positions and offices open toall.  The nature of these concepts are essentiallycontested and “inevitablyinvolve endless disputes about their proper uses on the part of theirusers”6. This essay will arguethat justice and fairness are principles that are embodied within the UK systemimplemented to address the scourge of modern slavery but do not mean the UK hasa comprehensive and victim-centred system. The extent to which these principles are utilised by the UK should notbe highly-praised as they need to be applied further to ensure that the systemis fair for all victims and provides them with a route to Justice.

Best services for writing your paper according to Trustpilot

Premium Partner
From $18.00 per page
4,8 / 5
4,80
Writers Experience
4,80
Delivery
4,90
Support
4,70
Price
Recommended Service
From $13.90 per page
4,6 / 5
4,70
Writers Experience
4,70
Delivery
4,60
Support
4,60
Price
From $20.00 per page
4,5 / 5
4,80
Writers Experience
4,50
Delivery
4,40
Support
4,10
Price
* All Partners were chosen among 50+ writing services by our Customer Satisfaction Team

   The Modern Slavery Act   The MSA which has been hailed as a”landmark”7 and”historic”8 pieceof legislation, reformedand consolidated relevant legal provisions already scattered across a number oflegislations, putting in place aunified legislative regime to address the issue of modern slavery. Importantly, it established the new offences ofhuman trafficking, slavery, servitude, and forced or compulsory labour throughs.19 and s.210 andincreased the maximum sentence for these offences from 14 years to lifeimprisonment (s.511 and s.612). It ismade easier by s.713 and s.

814 for competent national authorities to seize the assets of exploitersand to force them to pay reparation to victims by amending the Proceeds of CrimeAct (2002)15 andempowering the Crown Court with the ability to make ‘slavery and traffickingreparation orders’.  Despite the codification of all these principles and positivedevelopments in terms of addressing the scourge of modern slavery the MSA stillleaves gaps in terms of victim protection. Caroline Haughey agreed in her reviewthat there is “a need to maximise the MSA’s impact”16.

For example in s.1 and s.2 there is no mention of their being any need for the victim to have been deceived or forcedinto being trafficked. Section 317, whichgives detailed meaning of different types of exploitation is alsonon-exhaustive and doesn’t include other instances which could still come underthe MSA. These holes hinder protection of victims from offences of modernslavery. Victims who have been forced into slavery or who do not come unders.3’s definition could be at risk of being prosecuted for crimes they commitwhile being trafficked or falling through the system and being re-trafficked.

  Effective provisions are put in place by s.1418and s.1519 for ‘slavery and trafficking prevention orders’, civil orders designedto prevent anyone who has been convicted of slavery or trafficking offencesfrom convicting similar offences in the future. The MSA also adopted the non-punishment principles embodied in theEuropean Convention on action against Trafficking (ECAAT)20in s.4521, creatinga new statutory defence for victims who have been compelled to commit criminaloffences whilst being trafficked.  Provisionsfor independent child trafficking advocates were laid out in s.48, such advocates wouldrepresent and support child victims of human trafficking, having regard totheir wellbeing and best interests and the office of an Independent Anti-Slavery Commissioner was also established.Section 4022details the role as someone who acts toencourage good practice in respect of prevention, detection, investigation andprosecution of slavery and human trafficking offences and makes reports,recommendations, supports research, education and training around these issues.

    Collectively,these provisions attempt to achieve the objectives of effectively preventingmodern slavery, protecting victims and prosecuting perpetrators.  While these provisions are progressive, theyare unworkable in practice and don’tcover a wide enough remit of possible victims. Weaknesses of the MSAare that s.48 only includes an ‘enabling mechanism’ rather than a substantiveright for child victims to receive support from an independent childtrafficking advocate, resulting in an unfair system of victims being leftwithout support.  Although s.45 does provide a defence for victims who have committed unlawful offencesas a consequence of having been subjected to slavery, this defence sets a high bar forthe victim to prove their innocence, especially for older individuals, who arejudged harsher than children and young adults.

 These issues go to the core of the principles of justice and fairness asvictims are judged and treated differently not just depending on their age butalso on their nationality, mental or physical state and immigrationstatus.  All victims of modern slaveryshould have fair opportunity to achieve justice under an easy to followframework that considers these factors but does not use them against thevictim, potentially criminalising them and leaving them open to destitution andre-trafficking.  The NRM  The effectiveness and fairness of the UK’slaw and policy response to modern slavery can be questioned in relation to theNRM, the UK-wide system used to formally identify victims and provide them withaccess to specialist support.  In 2016 the  Anti-Slavery Commissionerbroadcast a scorching criticism of the NRM, a system he regarded as unfit forpurpose and in need of radical change. His particular criticisms were of thetwo-stage process needed for validating claims made by victims, difficulties inaccessing the NRM and failure to provide adequate support for victims.  As the MSA came into force, the governmentcommitted to reviewing the system, a by the Home Office in 201423  followed the progress of the NRM’s pilot andimplementation of subsequent reforms to the system.    Treatment of victims claiming asylum withinthe NRM had been repeatedly criticised for confusing immigration status withthe status of a potential slavery victim.

 The review recommended an overhaul of processesof the NRM by professionalising the current ‘first responders’ role, replacingit with ‘slavery safeguarding leads’ meaning a more diverse range of bodiescould refer a possible victim to the NRM.  Pilot schemes to test the new structure andevaluate their effectiveness were established in West Yorkshire and South WestEngland police forces.  The separation ofmodern slavery elements and asylum and immigration policies within theassessment process needed to be ensured, so that possible victims were notdiscouraged from reporting their experience for fear of being deported andpossibly re-trafficked.  Despite thesepositive steps at present the UKVI remains a key decision maker through itsroles as a competent authority, a clear indication that the UK recognises itsfailing but continues in delivering an unfair system.    Concerns around decision making wereexpressed by the review, especially that competent authorities like UK Visasand Immigration (UKVI) and the UK Human Trafficking Centre (UKHTC) had significant power in respectof both reasonable and conclusive grounds decisions.   Academic research highlightedthe conflict of interest within the UKVI in that an asylum application and an NRM application were being processed bythe same UKVI workers and dismissed for the same reasons. Elliot, believed this displayed a “real lack of appreciation of the different statusesof refugee or trafficked victim and a lack of awareness and understanding ofthe fact that these are, and should always be treated as, different decisions,which depend upon different evidence and information”24.

   Additionally,GRETA25in a report found there was disparities between the proportion of positiveconclusive grounds decisions in respect of UK/EEA nationals (issued by UKHTC)and non-EEA nationals (issued by UKVI).  FromJanuary to March 2013 the rate of positive conclusive grounds decisions for UKand EEA nationals was 79% of a total 122 referrals made and just 14% of a total269 referrals made for non-EEA nationals.  Suggesting that non-EEA nationals, those witha more insecure immigration or residence status are less likely to obtain apositive NRM decision, and thus obtain the status of a victim of trafficking,than UK/EEA nationals.  This links to the broader idea of Social Justice and the principle of fairnessin that an individual’s Nationality obviously has an impact on the way in whichthe system is treating them.     Another key flaw in the system is that there is no formal route ofappeal where a negative NRM decision is reached, leaving those cases which aredisputed with few options available to them save judicial review (JR) .  It cannot be fair that victims can have adecision made against them and then be left with no other form of redress butJR, a costly and time consuming process, exposing the victim to the risk ofbeing re-trafficked.

Additionally, no datais collected on victims once they leave the NRM and that the recording of datathat is collected is generally substandard.  The Work and Pensions Committee stated thatthis was “unacceptable”26and that monitor of the re-trafficking of victims was required, urging thatreform to the NRM must include the recording of instances where victims havebeen processed through the framework more than once.  The NRM continues to be ananother administrative loophole that victims have to jump through, rather thana framework through which victims human rights are protected and promoted in afair manner.

  Leaving victims to bediscriminated against through receiving unfair negative decisions with no wayin which to challenge them properly.  Thereality seems to be that the UK system recognises it’s failings but can’t seemto identify an alternative that conforms to the principle of fairness and thewider ideas of justice, to their fullest extent. Immigration Policies  A crucial question about the UK system is how well it sitsalongside other key objectives such as Immigration law and policy? The aim tomake the UK a hostile environment for illegal migrants has guided implementationof UK immigration policy since 2012, embodied in provisions of the ImmigrationAct (2016)27 whichtransposes aspects of immigration control into everyday life. There is afundamental failure within the UK system to consider the potentialincompatibility of these two policy objectives of protecting vulnerable victimsof slavery on one hand, and treating irregular migrant in a hostile manor, onthe other hand.   A right of residence, in turn, can be a keyfactor in strengthening entitlement to certain benefits within society,especially for non-EEA nationals that are in an insecure situation with regardsto residence entitlement.

Positive identification as a victim through the NRMdoesn’t result in the granting of an automatic right to reside in UK and inabsence of such a right being available by virtue of another ‘status’ (e.g.refugee) victims are at risk of being labelled ‘illegal’. The UK follows Art.14 of the Council of Europe Convention28in that residence permits may be issued to identified victims in twocircumstances. Article 7 of Palermo Protocol29also encourages states toprovide victims with at least temporary residence permits.  In practice, discretionary leave to remain is grantedfairly rarely as in 2015, only 123 (12%) of those who received positiveconclusive grounds decision under NRM were granted it. Research demonstratesthat protection of those who have been trafficked will often best be served bysecuring a right to remain in the receiving country, and accordingly gainingaccess to rights associated with lawful residence, including access to formalisedsupport structures30.

    The case of Taiwo v Olagibe (2016)31provided Judicial recognition of the shortcomings in victim protection underthe MSA and the NRM and showed the supreme court acknowledging the role aninsecure immigration status can play in rendering victims vulnerable. The case involved the mistreatment of migrant domestic workers by their employersand the issue of whether it amounted to direct or indirect race discrimination.  The applicants were unsuccessful as the court foundthey hadn’t been treated so badly as to have been able to be exploited on thegrounds of their race or nationality but because they had an insecure residentstatus. Here the idea of Justice is bound up inthe idea of Human Rights, who has rights and how do those rights correspond totheir situation? These migrants were treated unfairly because of theirimmigration status, blocking them form receiving justice for their treatment.

Lady Hale giving the leadingjudgment recognised that if the employers had employed non-British nationals who had the right to live and work in theUnited Kingdom, they would not have treated them so badly.    K. Sharapov believes that individualisation ofresponsibility for human trafficking at the level of ‘criminal-victim’dichotomy remains a persistent feature of the dominant anti-traffickingdiscourses, reducing trafficking to the level of a transaction between twoconstituents criminals and their victims32.This highlights the issue of double standards within the UK system whichfocuses on criminals and their victims and doesn’t give account to how otherfactors play into the policy problems, for example, restrictive immigrationpolicies.  Concerns have been raised, repeatedly, aboutthe government’s focus on law enforcement, with too little attention paid tothe victims of modern slavery crime.

   ConclusionIt is evident that the system implementedby the UK to address the scourge of modern slavery is neither comprehensive orvictim-centred and has certainly not been highly praised. Even with the MSAimplementing key provisions for the improved protection of victims of modernslavery it left significant gaps that filter through to the NRM system and UKimmigration police in relation to modern slavery. 1 Home Office Science Research Report 73(2013) Understanding organised crime: estimating the scale and social andeconomic costs. accessed 24 December 2017.

2accessed 3 January 2018.3Modern Slavery Act, 2015, , c.30.4

nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics>accessed 24 December 20175 Rawls. J (2005) A Theory of Justice, Cambridge, Mass: BelknapPress. 6 WB Gallie, ‘EssentiallyContested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167, 169.7 Landmark Modern Slavery BillPasses’ (CARE UK, 25 March 2015)

care.org.uk/news/latest-news/landmark-modern-slavery-bill-passes>accessed 2 December 2018.

8 ‘Historical Law to End Modern Slavery’ (Home Office, 26March 2015) accessed 2 December 2018..9 N3 s.

1.10 N3 s.2.11 N3 s.

5.12 N3 s.6.13 N3 s.7.

14 N3 s.8.15 Proceeds of Crime Act, 2002,c.29.

16 Caroline Haughey,’Modern Slavery Act 2015 Review: One Year On’ (Home Office 2018)accessed 7 January 2018.17 N3 s.

3.18 N3 s.14.19 N3 s.15.

20 Council of Europe, Councilof Europe Convention on Action Against Trafficking in Human Beings, 16 May2005, CETS 197. 21 N3 s.45.22N3 s.40.23Review of the National Referral Mechanism for Victims of Human Trafficking’, UKHome Office, 2014.

24Jessica Elliott, 2016, JIANL30(1)  25Council ofEurope: Group of Experts on Action against Trafficking in Human Beings, Report concerning the implementation of the Council of EuropeConvention on Action against Trafficking in Human Beings by the United Kingdom,2016, GRETA(2016)21. 26 ‘Victims of Modern Slavery’,House of Commons Works and Pensions Committee, 2017.27Immigration Act 2016, UnitedKingdom, Parliament, House of Commons Library, 12 May 2016.28 Council of Europe, European Convention for the Protection of Human Rights and FundamentalFreedoms 1950, ETS 5, Article14.29 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children, Supplementing the United Nations Conventionagainst Transnational Organized Crime, 15 November 2000, Article 7.30 E Yoo and EH Boyle, ‘National HumanTrafficking Initiatives: Dimensions of Policy Diffusion’ (2015) 40(3) Law & Social Inquiry 631-663 at635).31Taiwov Olaigbe and another: Onu v Akwiwu and another 2016 UKSC 31,2016 All ER (D) 134 (Jun)32K.Sharapov, ”Traffickers and Their Victims’:Anti-Trafficking Policy in the United Kingdom’ (2017) 43 Critical Sociology 91-111.