Modern Slavery is a criminal offence. It includes slavery, servitude, and forced or compulsory labour and human trafficking.
A person is trafficked if they are brought to (or moved around) a country by others who threaten, frighten, hurt and force them to do work or other things they don’t want to do.
Work by the Home Office Chief Scientific Adviser has estimated that there are between 10,000 and 13,000 potential victims of modern slavery cases in the UK in a year.
Due to its length, I’ve divided this article into two parts. This is part 2. Here is the link to part 1.
How to Prove that Leave is necessary owing to personal circumstances
The application will be granted if it is proven that the UK is under an obligation to meet its objective under the Trafficking Convention. In other words when they are legally bound to provide protection and assistance to that victim, owing to their personal situation. It will always depend on the circumstances of each particular case.
However, there are strong chances of succeeding if victims can prove that:
- they may be eligible for a more advantageous form of leave, such as asylum or humanitarian protection
- leave is necessary because there is a significant and real risk in light of objective evidence that the person may be re-trafficked or become a victim of modern slavery again. In these cases, the decision-makers should always consider whether the risk is greater in the UK or in the person’s home country
- if returned home, the person would face harm or ill-treatment from those who first brought them to the UK, or exploited them in their home country
- the receiving state has no willingness and/or ability to provide through its legal system a reasonable level of protection to the person if returned to their care. It is very rare for an individual to be able to rely on there being an absence of sufficient protection for victims of modern slavery in an EU member state.
- the person is entitled to seek compensation through the Courts or is assisting the police with a criminal investigation or prosecution
- a healthcare professional confirmed that they need medical treatment and that this treatment has to be provided in the UK. Leaves granted to allow for medical treatment normally are granted for the duration of the course of treatment or up to 30 months, whichever is shorter.
How to Prove that Leave is Necessary to Pursue Compensation
A grant of leave to pursue compensation from their perpetrator(s) is normally only necessary where it would be unreasonable for the victim to pursue that claim from outside the UK.
A victim of modern slavery who has not been trafficked but is a victim of slavery, servitude and forced or compulsory labour will usually be granted discretionary leave for the duration of the court trials.
For this reason, when making a DL application, the following information must be included:
- the type of compensation being sought
- the grounds of the claim
- the likelihood of the claim succeeding – in reference to the claims accepted or rejected by the Competent Authority
- the likely length of the claim
- whether it is necessary for the person to be physically in the UK for the duration of their claim or can be returned for the hearing.
Victims who are helping police with their enquiries
Where a victim of modern slavery has agreed to assist with police enquiries in the UK, the victim, or the police, may apply for leave to be granted, or extended, on this basis.
In these circumstances, DL applicants, in addition to fully stating their case, will need to consider contact details of the investigating police force.
Application process and fees
There is no fee for the initial DL application. A victim of modern slavery will need to provide evidence of a positive conclusive grounds decision from the National Referral Mechanism.
No application form is needed either.
However, a person WILL need to fill in an application form for consideration of discretionary leave on the basis of modern slavery where another Competent Authority such as MSHTU (not the Home Office) took the positive conclusive grounds decision in their case and they are relying on criteria relating to personal circumstances, or pursuing compensation.
Generally, the form they should complete is the form FLR(HRO) for non-asylum cases or the FLR(DL) for failed asylum claimants.
Where a person has agreed to assist with police enquiries, either the victim may apply, or the police may make a request for them, to be granted leave on this basis.
The forms are the same: for victims applying on this basis of being a victim of modern slavery should complete FLR(HRO) form for non-asylum cases or the form FLR(DL) for failed asylum seekers.
Recourse to public funds, work or study
Successful applicants who were granted Discretionary Leave as victims of modern slavery will be allowed to claim benefits, work and study.
However, those on limited leave are not eligible for higher education student finance under existing Department for Education regulations.
In addition, a study condition applies to all adult temporary migrants granted DL which prohibits studies in particular subjects without first obtaining an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office (FCO).
Further grants of discretionary leave
Discretionary leave will be granted for a limited period of time. If a person wishes to extend it, or the police wishes it to be extended, for a further period they must make an application to the Home Office using form FLR(DL) or form FLR(HRO)). The application will be granted if a person continues meeting the same requirements. The applicants will be expected to pay a fee this time unless, on the application, the persons European Convention on Human Rights (ECHR) rights would be breached by a refusal to grant a fee waiver.
An individual should apply for further Discretionary Leave on the appropriate application form no more than 28 days before their existing leave expires if they wish to remain in the UK.
How Long Will Discretionary Leave to Remain be Granted for?
Discretionary Leave granted in these circumstances normally does not exceed 30 months. Although it will always depend on the circumstances of each particular case.
For a longer-term to be appropriate the applicants will need to prove that their case is exceptional and therefore will justify the deviation from a standard grant of discretionary leave. However, this is very rare.
Who to Contact
For help and support, contact:
England and Wales: The Salvation Army Human Trafficking Helpline on 0300 303 8151
The Modern Slavery Helpline call on 08000 121 700
Throughout the UK:
Police: 999 (Emergency number) and 101 (Non-emergency number)