Illegal Migration Bill and what it means for those in court

In particular, the proposals to prevent those entering the UK illegally from – in the words of the Home Secretary – ‘using modern slavery rules to prevent removal’.

Under the current ‘national referral mechanism’ (NRM) process, someone is referred to a department of the Home Office to decide – in the first instance – whether there are 'reasonable grounds' to think that a person is a potential victim of modern slavery.

If it’s deemed that there are, they must then wait for the ‘competent authority’ to make a ‘conclusive grounds’ decision on their case. While they’re waiting for this decision they cannot be removed from the UK.

Wait times are huge. The latest figures, published at the start of this month, show that on average people waited 642 days from their referral until receiving a conclusive grounds decision.

(According to Home Office statistics, only seven per cent of the 83,236 people who arrived in the UK in ‘small boats’ – essentially illegal Channel crossings – between January 2018 and December last year were referred to the NRM as potential trafficking victims.

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85 per cent of conclusive grounds decisions were positive; i.e. the competent authority believed they were more likely than not the victim of modern slavery or trafficking).

The delays in the system were referred to by Ms Braverman in her speech to the House of Commons.

“When our Modern Slavery Act passed, the impact assessment envisaged 3,500 referrals a year. Last year, 17,000 referrals took on average 543 days to consider,” she said.

The courts see for themselves those delays day in, day out.

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The Modern Slavery Act created a legal defence to certain crimes, such as drug dealing, meaning that if you were forced as a ‘modern slave’ to commit those crimes you might be found not guilty – if the jury agrees with your account.

A positive ‘conclusive grounds’ decision itself is not admissible as expert evidence during any trial – meaning the jury won’t be shown it.

However, the evidence that underlies that decision – medical records, police missing reports, etcetera – is.

And, usually, the defence will instruct an expert academic to tell the court about how modern slavery works.

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However, because it takes so long to get a conclusive grounds decision, by the time they reach their trial, a defendant in custody – which most illegal migrants picked up in, for example, a cannabis factory are – may well have served on the remand wing the prison sentence they’d receive if convicted.

Take cannabis factories as an example.

Last December, two Albanian men were found locked inside an industrial unit in Thame that was also home to thousands of pounds worth of cannabis plants.

They’d reached the UK via Belgium and France, driven in the back of a lorry, and found themselves in hock to the gangsters who’d trafficked them there.

At the magistrates’ court, a lawyer for the same man mooted the possibility of a modern slavery defence.

More than 300 academic experts in migration have signed a joint letter to the Government to object to the UK’s Illegal Immigration Bill, arguing the policy is not ‘evidence based, workable, or legal under human rights law’ (Victoria Jones/PA)

Had he maintained that position, he would probably have been waiting up to six months for his trial; by which time he’d have already served the equivalent of the 12 month sentence he ultimately received.

The defence does succeed – sometimes.

It may trigger a review of the case by the Crown Prosecution Service, as in this case of a County Lines drug dealer.

I’ve only ever seen it run once in front of a jury.

The prosecutor dropped the case half-way through the cross-examination, when the teenage drug dealer took off his shirt to show the court a stab wound.