Trafficking/Modern Slavery impacting applications for children in care

Being taken into care is a terrifying experience for any child. The fear and confusion involved is likely to be even higher when you are taken into the care of a Local Authority, in a country where you hold no legal status enabling you to imagine your future there, with at least one in 10 children in care being non-British as of 2022 . Due to this many local authorities and the dedicated social workers within them have taken the pro-active step of seeking legal advice and support in applying to Register many of these children as British Citizens, due to the fact their futures can only be envisaged within the United Kingdom. However, there is a sinister additional risk posed to the safety of all children in care, but particularly those with added vulnerabilities such as a precarious immigration status, and that is the risk of being exploited and even trafficked as a child within the UK. Although it may not be clear to all on the face of it, but the registration of a child as a British Citizen and any potential experience of trafficking/modern slavery overlap significantly.

Registration Application Process

The Law relating to the Registration of children as British citizens is contained in The British Nationality Act 1981 . Most commonly, unless there are additional elements at play, children in care are registered under the discretionary element of the act, Section 3(1) :

3 Acquisition by registration: minors.

If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.

This is expanded on by the Home Office’s guidance Registration as a British citizen: children (24 July 2024 – current version) .

Discretionary applications under section 3(1)

There are certain scenarios where you would normally be expected to register a child as a British citizen. In all other cases you must apply the criteria for all other children. The law in relation to section 3(1) This is a discretionary provision for the registration of a child.

The Home Secretary may exercise their discretion to register people as British citizens under section 3(1) of the British Nationality Act 1981 if:

• the applicant is under 18 at the date of the application

• if aged 10 years or over on the date of application the applicant is of good character see good character requirements

• they think fit to register them These are the only statutory requirements.

Commonly when a child is in full time care (usually under a section 30 1989 Children Act care order) the Local Authority will see it as a logical presumption the child’s life is fully in the UK now, with no other parental figure taking responsibility for the child in the UK let alone outside of the country. The process for applying to register a child as a British citizen in the UK involves the completion of an online application form (Form T or Form MN depending on length of time the child has resided in the UK), and the preparation of supporting evidence.

There is no exhaustive or mandatory list of evidence for solely discretionary applications to register children as British citizens. The focus of the application will be on their future only being envisaged and arguably possible within the UK. All evidence supporting this argument should be provided. In addition to this, evidence relating to any additional vulnerabilities noted by the Local Authority or those supporting the child’s care would also be appropriate.

However it is within this process that the Local Authority, who are not always provided with the essential training on the intersectional elements of trafficking/modern slavery and immigration matters, will not be aware of the need to disclose any potential ongoing or concluded trafficking matters as part of the registration application. This can leave a child particularly vulnerable to their application being considered in a poor light, without all material and mitigating factors being provided.

Trafficking and Modern Slavery

I have worked on numerous registration applications for children under local authority care orders. In many of these cases these young people have been subjected to trafficking or modern slavery within the UK, most commonly for forced criminal activity. In such situations due to the complexity of the context in which these children were exploited, either the fact they have been trafficked is not always identified or there is a delay in identification. At times even if there is a recognition that the child has been a victim of trafficking it is not clear to the Local Authority that this could impact the child’s immigration matters.

Definition of trafficking

Trafficking is included in the UK under the banner of Modern slavery, which references:

• human trafficking

• slavery, servitude and forced or compulsory labour

• The definition of a victim of human trafficking, slavery, servitude and forced or compulsory labour is set out in the Slavery and Human Trafficking (Definition of Victim) Regulations 2022

The essence of human trafficking is that the victim is coerced or deceived into a situation where they are exploited. Article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) defines ‘human trafficking’ as:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, 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.”

The above definition is elaborated on by domestic Regulations - Slavery and Human Trafficking (Definition of Victim) Regulations 2022 :

Victim of slavery

2.—(1) For the purposes of Part 5 of the 2022 Act, “victim of slavery” means a person who has been subjected to slavery, servitude or forced or compulsory labour.

(2) In determining whether a person has been subjected to slavery, servitude or forced or compulsory labour, regard may be had to all the circumstances including—

(a)any of the person’s personal circumstances (such as the person’s age, the person’s family relationships, and any physical or mental disability or illness) that significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced or compulsory labour;

(b)any work or services provided by the person.

(3) The consent of a person (whether an adult or a child) to any of the conduct alleged to show that the person has been subjected to slavery, servitude or forced or compulsory labour is not relevant to a determination as to whether the person is a victim of slavery.

Victim of human trafficking

3.—(1) For the purposes of Part 5 of the 2022 Act, “victim of human trafficking” means a person (“V”) whose travel is arranged or facilitated by another person (“P”)—

(a)using any of the methods mentioned in paragraph (5), and

(b)with a view to V being exploited.

(2) P may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.

(3) The consent of V (whether V is an adult or a child) to the travel is not relevant to a determination as to whether V is a victim of human trafficking.

(4) It is irrelevant for the purpose of paragraph (1)(a) whether the person using the method is P or another person.

(5) The methods are—

o (a)in a case where V is an adult at the time the method is used—

(i)the threat or use of force or other coercive behaviour;

(ii)abduction, kidnap or false imprisonment;

(iii)fraud or other deception;

(iv)abuse of power or a position of vulnerability;

(v)the giving of payments or other benefits to achieve the consent of a person who has control over V;

(b)in a case where V is a child at the time the method is used, any method.

(6) For the purposes of paragraph (1)(b), a person is being exploited if the person is—

(a)prostituted by another person or otherwise subject to sexual exploitation;

(b)subjected to slavery or servitude or forced or compulsory labour;

(c)encouraged, required or expected to—

(i)do anything which involves the commission, by that person or another person, of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors)(1);

(ii)do anything which involves the commission, by that person or another person, of an offence under section 17 or 20 of the Human Tissue (Scotland) Act 2006 (prohibition of commercial dealings in organs and restrictions on use of live donors)(2), or

(iii)do anything outside the United Kingdom that, if it were done in any part of the United Kingdom, would involve the commission of an offence mentioned in paragraph (i) or (ii), or

(d)subjected to force, threats or deception designed to induce that person—

(i)to provide services of any kind;

(ii)to provide another person with benefits of any kind, or

(iii)to enable another person to acquire benefits of any kind.

Identification process

Once a child has been identified to have potentially experienced trafficking or modern slavery, they will be referred into what is known as the National Referral Mechanism (NRM). By being referred into the NRM their case is then assessed by the Single Competent Authority to see if they are legally found to have been a victim of trafficking/modern slavery. Only an individual/organisation classified as a First Responder may refer someone into the NRM, a Social Worker is commonly the one who does so when a child is in care.

Following the referral the Single Competent Authority should issue within 5 days a Reasonable Grounds decision. This is an initial decision on whether it is deemed likely the young person was a victim of trafficking. If this decision is positive the young person is entitled to a 30 day period of reflection where they are entitled to additional support. During this period it is also expected any supporting evidence relating to the victims experience of exploitation be provided for consideration. Following the reflection period the Single Competent Authority would then move towards making the Conclusive Grounds decision, which is the final decision confirming if the victim has been accepted as a victim of trafficking/modern slavery. There is no set time frame for how long the Authority can take to make this final decision.

Due to the complex nature of many experiences of trafficking and modern slavery, it is unsurprising that it is not always clear how such matters can impact Registration applications for child victims.

Children are already a particularly vulnerable group. Those in care hold an additional layer of vulnerability, while those without leave and confirmed citizenship potentially from another country are particularly vulnerable to exploitation in the UK. Such exploitation can commonly go undetected for extended periods of time, being perceived as a child simply acting out or getting involved with the ‘wrong crowd’.

Impact on Registration Applications

I would strongly urge local authorities or carers of children applying in any capacity to be registered as British Citizens, who are aware of any indicators of trafficking/modern slavery or of children who have been referred to the NRM to raise this prior to an any immigration application being submitted. It will likely be a material aspect of the child’s case. If this is not done it is possible the actions of the child that took place due to trafficking, for example being forced to commit criminal acts, could be considered against the young person, without awareness of the mitigating factors behind it. Young people have had their registration applications refused, and the Local Authority have had to pay double the expected cost of an application to resolve matters when the link between trafficking/modern slavery experiences and Immigration applications have not been addressed.

Becky Cutler-Methven (Associate Solicitor – Immigration Department)

Wilson Solicitors LLP  

b.cutler-methven@wilsonllp.co.uk

02088857983

If you are affected by any of the matters in this article, and you would like some advice and assistance with preparing an application, please contact Wilson Solicitors by calling our main switchboard on 0208 808 7535, or by completing our online contact form here.

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