Ruling

12259-22 Esslemont v The Daily Telegraph

    • Date complaint received

      6th July 2023

    • Outcome

      Breach - sanction: publication of correction

    • Code provisions

      1 Accuracy

Summary of Complaint

1. Maya Esslemont complained to the Independent Press Standards Organisation that The Daily Telegraph breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Modern slavery law is 'biggest loophole' for migrants”, and an article headlined “End the scourge of bogus modern slavery claims”, both of which were published on 17 August 2022.

2. The complainant was one of a number of individuals who raised concerns about the article; they were selected as IPSO’s lead complainant for the purposes of investigation.

3. The first article was published on the newspaper’s front page and formed part of the newspaper’s coverage of parliamentary concerns regarding the Modern Slavery Act 2015. The article summarised comments made by a former immigration minister, who was the author of the accompanying comment piece, which was the second article under complaint. This second article featured on page 14 of the newspaper. 

4. The first article reported that, according to the former minister, current legislation was being “exploited by human rights lawyers to keep illegal migrants and foreign murderers and rapists in the UK” with “absurdly low levels” of proof of slavery and “no supporting evidence” required for successful applications. The article stated that this “mean[t] the numbers allowed to stay have risen from just 3,000 in 2015 to 16,000 this year”, of which 90 per cent were approved because of ‘lax’ rules according to the former minister. It reported that the then-Home Secretary had “signalled a crackdown”, with a “Home Office source” saying that a review of the Act would “rip up the low thresholds on proof, limit the number of claims and make sure the system was about the recovery of victims rather than an open immigration route’”.

5. The second article was an opinion piece, which expressed the former minister’s view on the Act and detailed his recollection of the modern slavery claims made during his time in office. He said that he “saw […] thousands of cases” of “illegal immigrants seeking to avoid return to their home country”. He argued that reform of the Act was required, and that the UK should “raise the proof threshold at which modern slavery claims are accepted, to require more than just a vaguely plausible sounding story with no supporting evidence”. He then stated that “[c]rucially, once someone’s modern slavery claim has been accepted, they cannot be removed from the UK – even if they are a dangerous foreign criminal" and that this “often followed years of repeated asylum and human rights claims”. He then stated that immigration lawyers had “cottoned onto this loophole some time ago”, and “as a consequence the number of modern slavery claims has ballooned – increasing from around 3,000 mostly UK citizens in 2015 to being on track for 16,000 cases this year, with the majority coming from non-UK citizens”.

6. Both articles appeared online in substantively the same form; these were published on 16 August 2022.

7. The complainant said that the articles were inaccurate in breach of Clause 1, as both articles referred to the rise in trafficking referrals statistics to demonstrate an immigration-related threat – but that neither article mentioned that UK citizens who were victims of trafficking also appeared in the statistics cited.

8. The complainant also said that the first article was inaccurate as it reported that: “The numbers allowed to stay had risen from 3,000 in 2015 to 16,000 this year”. The complainant said that these figures related to the total number of trafficking cases raised in each respective year: 3,266 in 2015 and 15,896 in 2022 (the second of which they conjectured was based on the data published for the first six months of 2022, multiplied by two). The complainant also said that, if this was the basis of the article’s figures, omission of this calculation – making clear that the figures were in fact based only on data from the first half of 2022 – gave the misleading impression that 16,000 people had claimed to be trafficked in 2022 at the time of publication, which was not true. The complainant said that the omission of the fact that UK nationals – who were not in danger of deportation – were included in the figures the article described as people “allowed to stay” was misleading.

9. The complainant also said that both articles were misleading as they referred to modern slavery law as a “loophole” for immigration. They considered this to be the case where the referral mechanism under the Modern Slavery Act does not contain immigration provisions. They said that, whilst survivors of slavery recognised under the National Referral Mechanism, the framework for identifying and referring potential victims of modern slavery under the Act, can apply for support such as safe housing, the decision whether to grant an individual the right to remain in the UK would be considered separately. They also said that the first article, which included a quote from a Home Office source stating that the then-Home Secretary’s review of the Act would end “low thresholds on proof, limit the number of claims and make sure the system was ‘about the recovery of victims rather than an open immigration route’” was misleading for the same reason.

10. The complainant said the second article was inaccurate as it could not be confirmed that “thousands” of “illegal immigrants” were the reason why cases of alleged trafficking had risen. They also said that this article was misleading as, during the time the former minister was at the Home Office – between February 2020 and September 2021 – no data in relation to the number of vexatious claims had been released. Therefore, there existed no publicly accessible records to support the politician’s claim. The complainant supplied an email from the Anti-Slavery Commissioner which stated that they were not able to confirm the numbers of arrivals by small boats who claimed to have been trafficked.

11.The second article reported that, “once someone’s modern slavery claim has been accepted, they cannot be removed from the UK – even if they are a dangerous foreign criminal”. The complainant said that this was inaccurate as trafficking victims were not automatically granted leave to remain in the UK, and trafficking status does not protect individuals from deportation. In support of her position the complainant provided a letter from the then-Safeguarding Minister dated February 2021. This letter said that immigration decisions for victims of modern slavery were made on a case-by-case basis, and that the government did not agree that victims should automatically be granted leave to remain for 12 months. 

12. The complainant also said that the second article was misleading to report that the immigration system was “now” the most frequent referral route for modern slavery claims. They said that it was always the case that central Government departments which hold data sharing agreements with, or undertake work for, immigration enforcement purposes were the most frequent referral routes for such claims.

13. The publication did not accept that either article breached the Code. It said that the first article was a news story which distilled the matters raised in the second article: a comment piece written by a former immigration minister about his first-hand account of modern slavery laws and deportation in the UK. It also noted that it was a newspaper – not a specialist or academic journal – and as such did not consider that it was required to provide detailed analysis of the many facets of the UK immigration system.

14.The publication said that the figures quoted in the articles were accurate. It provided sources to demonstrate that, in 2015, the total potential number of slavery victims referred to the National Referral Mechanism was 3,266, and that the released data for 2022 at the time of publication showed 3,777 referrals between January – March 2022 and 4,171 between April – June of the same year. It said that, as the figures totalled nearly 8,000 over the two quarters, it was accurate to predict this would be 16,000 for the year in total, given the clear upward trend in referral numbers. The publication also said it was not inaccurate to conflate the number of referrals with the number of those “allowed to stay”, as the increase in referrals was not from an increase in UK citizens, but non-UK citizens. It provided statistics to show that, for the first time since 2017, the number of Albanian nationals who had been referred as potential victims of slavery had surpassed the number of UK citizens, with UK citizens making up 26% of the 2022 referrals.

15. The publication said that it was not inaccurate to describe the Modern Slavery Act as a “loophole” for immigration. It said that this was clearly the former immigration minister’s personal opinion of the Act’s application, based on his experience. The publication also stated that the article did not conflate trafficking provisions with protection. It also said it was not inaccurate for the article to include quotes from the Home Office which referred to the outcome of the-then Home Secretary’s review of the Act, as this was their opinion about what the review of the Act would achieve and was clearly attributed to them. In addition, the publication said that the article did not report that the National Referral Mechanism contained immigration provisions. It said, in any case, it could be considered under the broad umbrella of “the immigration system” where the authorities which were authorised to refer potential victims of modern slavery included UK Visas and Immigration; Border Force; Migrant Help and the Refugee Council.

16. The publication said that it was not inaccurate to report the former immigration minister’s view that he had seen “thousands of cases” of “illegal immigrants” using the Act in order not to be deported. It said “thousands” was a colloquialism that would be understood by readers, and it was not necessary or proportionate to demonstrate the exact figures to support this view.

17. The publication said that it was not inaccurate to report that individuals cannot be deported once their modern slavery claim had been accepted. It noted the October 2021 court case of KTT, R (on the application of) v Secretary of State for the Home Department. In this decision the High Court found that discretionary leave to remain, via a renewable residence permit based on the relevant “personal situation”, must be granted to victims of modern slavery. It also noted that an appeal against this case had been dismissed.

18. The publication said it was accurate for the second article to report that the most frequent referral route for modern slavery claims was “now through the immigration system”. It said the “immigration system” would be understood by the ordinary reader as a broad umbrella term for the system, rather than a specific department. It also said that this was clearly distinguished as the opinion of the former immigration minister, based on his experiences.

19. The complainant did not accept the publication’s response. They said that the court case cited only referred to victims of modern trafficking who were also claimants for asylum and who were already unable to be deported – and could not be applied to all survivors of modern slavery.

Relevant Clause Provisions

Clause 1 (Accuracy)  

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator. 

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee 

20. The first article reported that the “numbers allowed to stay had risen from 3,000 in 2015 to 16,000 this year”, while the second article reported that “the number of modern slavery claims has ballooned – increasing from around 3,000 mostly UK citizens in 2015 to being on track for 16,000 cases this year”. The publication had provided the figures this was based on: there had been 3,266 referrals in 2015 and 7,948 between January and June 2022.

21. The Committee considered that the second article had clearly set out the figures, and made clear they related to the number of modern slavery claims in total – including both UK nationals and non-UK nationals. The second article also made clear that the figures were “on track” to amount to 16,000 cases in total in 2022, rather than this figure having already been reached at the time of publication. There was no breach of the Editors’ Code in relation to the second article. 

22. By contrast, the first article had not provided the full context for these figures – nor had it accurately described what the figures represented. First, it was misleading in several respects to state that the figures referred to the “numbers allowed to stay”. In fact, they included all potential slavery victims, including a significant proportion of UK nationals (26% in the first half of 2022), who were not at risk of deportation. Second, the figures were for referrals, not for those who had been found to be victims. The article was internally inconsistent on this point – it gave the numbers which referred to the “potential” number of victims – and then said that 90% of these were approved, so the number of people found to be victims was lower than those cited. Second, it had said that the figures had risen “to 16,000 this year”, without making clear that this figure was a prediction based on the latest data. The publication had access to the correct numbers prior to publication – and had presented them in a way which was not misleading in the second article. It was aware of the correct position prior to publication, but had not taken care to ensure that this was accurately reported in the first article. In such circumstances, there was a failure to take care under Clause 1(i).

23. In the context of an article reporting on the effect of the Modern Slavery Act on deportation numbers, reporting that 16,000 people had been “allowed to stay” rather than making clear that this was a prediction, which included all potential claimants including UK citizens and individuals who had made claims but had not received the status – was a significant inaccuracy requiring correction. The publication had not offered any corrective action on this point and there was a breach of Clause 1(ii). 

24. The complainant had raised concerns that the second article breached Clause 1 as it omitted to reference the fact that UK citizens were eligible to be referred under the Modern Slavery Act. The Committee noted that the second article had made clear that, in 2015, the referrals had come from “mostly UK citizens” whereas in the year of publication “the majority [had come from] from non-UK citizens”. It was therefore made clear in the article that UK citizens were eligible for referral. There was no breach of Clause 1 on this point.

25. Both articles referred to the Modern Slavery Act, and its referral mechanism, as a “loophole” in immigration law. This term was used in quotation marks in the headline of the first article, and was described as something lawyers had “cottoned onto” in the second article, which was a comment piece. The Committee considered that what the article was characterising as this “loophole” was set out within both articles, and that it was clearly attributed to the former immigration minister. The publication had demonstrated that, whilst the Modern Slavery Act may not directly grant protection from deportation, these protections had been taken into account in deportation decisions. Where the term “loophole” was presented within the article as a characterisation within the articles, the basis for this characterisation made clear, and attributed as comment; there was no breach of Clause 1 on this point.

26. The complainant also raised concerns about the inclusion of a quote from a Home Office source within the first article. This quote set out the then-Home Secretary’s views of what a review of the Act would achieve, and the publication was entitled to publish the Home Office’s conjectural views on the potential outcomes of a review, where the view was clearly attributed to the Home Secretary. There was no breach of Clause 1 on this point.

27. The second article reported that the writer, a former immigration minister, had seen “thousands of cases” where modern slavery claims had been made to block the deportation of “illegal immigrants”. The complainant said that this figure could not be confirmed. The Committee noted that the complainant was unable to provide the exact figures, or provide the correct position. In addition, the quote regarding “thousands of cases” had been prefaced by the writer stating “I saw” – clearly indicating that this was his personal experience, and his opinion of the nature of the claims, rather than an official outcome. For these reasons, there was no breach of Clause 1 on this point. 

28. The second article contained the former immigration minister’s statement that “once someone’s modern slavery claim has been accepted, they cannot be removed from the UK – even if they are a dangerous foreign criminal”. The publication cited a court case which had found that discretionary leave to remain, via a renewable residence permit based on the relevant “personal situation”, must be granted to victims of modern slavery. The complainant said that this only applied to those seeking asylum, rather than all people who had made an accepted modern slavery claim. The Committee again noted that the article was an opinion piece based on the former immigration minister’s personal experiences in the role. In addition, the claim was contextualised within the article - the former minister had referred to people using referrals under the Modern Slavery Act after repeated asylum claims. Where the article focused on the former minister’s professional comment on the effect of the current legal regime in relation to asylum and modern slavery claims, and where it was not in dispute that a court case had found that leave to remain must be granted to victims of modern slavery seeking asylum, in an opinion piece in a newspaper article, rather than an in-depth legal analysis, this was not a significantly misleading claim, and there was no breach of Clause 1.

29. The second article had stated that the immigration system was “now” the most frequent referral route for modern slavery claims as this had not always been the case. However, where it was accepted that this is currently the most frequent way that people are referred, this was not a significantly inaccurate or misleading statement. There was no breach of Clause 1 on this point.

Conclusion(s)

30. The complaint was partly upheld under Clause 1.

Remedial action required

31. Having upheld the complaint, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication; the nature, extent and placement of which is determined by IPSO.

32. The Committee considered that reporting that “the numbers [of people] allowed to stay have risen from just 3,000 in 2015 to 16,000 this year” was inaccurate, where these figures referred to the potential number of victims referred to the National Referral Mechanism, a significant proportion of whom were UK citizens. However, the inaccuracy arose from a single sentence in one of the articles under complaint, and the central thrust of the argument – that the numbers of non-UK nationals being referred using the mechanism had increased – was accurate. Therefore, on balance, the Committee considered that a correction was the appropriate remedy. The correction should acknowledge that it was inaccurate to state that these numbers related to people “allowed to stay” and put the correct position on record – that it related to the number of potential victims, and that a significant proportion of these were UK nationals.

33. The Committee then considered the placement of this correction. The original inaccuracy had featured on the front page, however, given its nature, as outlined above, the Committee considered that publication in the Corrections and Clarifications column represented a duly prominent location. If the publication intends to continue to publish the online article without amendment, the correction on the article should be published beneath the headline. If the article is amended, the correction should be published as a footnote.

34. The wording should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation. 

Date complaint received: 11/11/2022

Date complaint concluded by IPSO: 25/05/2023