Nationality and Borders Bill

Written evidence submitted by the Modern Slavery Policy Unit of Justice and Care and the Centre for Social Justice (NBB19)

Nationality and Borders Bill

Submission to the Public Bill Committee

1. About us

1.1. The Modern Slavery Policy Unit is a joint initiative co-led by Justice and Care and the Centre for Social Justice (CSJ). Justice and Care is a non-governmental organisation that brings together specialists to release and care for victims, dismantle the criminal networks and organised crime groups responsible for this crime and spark systemic change - both national and international. The CSJ is an independent think-tank that aims to place social justice at the heart of British politics by seeking to influence the policies and laws that the Government creates in ways that address the root causes of poverty. The Modern Slavery Policy Unit’s mission is to keep modern slavery at the top of the British political agenda and ensure that the UK fights this crime. It does so by advocating for policy and legislation that centres around victims and their recovery needs; bridging the gap between those working on the frontline and decision-makers in Westminster; and bringing together and equipping a strong cross-party caucus of parliamentarians to lead the fight against slavery.

1.2. This submission focusses on the impact of the Bill on modern slavery: primarily the provisions in Part 4 with some reference to aspects of Part 2 which may impact modern slavery victims.

2. Executive Summary

2.1. We welcome the Government’s continued commitment to tackling modern slavery, in particular the inclusion of identification and support for victims of modern slavery in primary legislation. However, we believe that certain aspects of the Bill instead of facilitating victims’ early identification and access to support present significant barriers leading to their vital intelligence being lost, allowing organised criminal networks to continue operating with impunity. There is much still to do to dismantle the organised crime networks behind modern slavery who are costing the country billions. [1] There are an estimated 6,000-8,000 modern slavery offenders in the UK. [2] But in England and Wales there were only 91 prosecutions and 13 convictions for specific modern slavery offences as a principle offence in 2020 and 267 prosecutions for all related crimes. [3] Victim testimony is key to successful prosecutions and effective support enables victims to engage.

2.2. Our concerns and recommendations are:

Presuming late disclosure of modern slavery damages credibility will create barriers to effective identification and engagement with victims. Greater weight needs to be given to the genuine reasons victims may make late disclosures including trauma and fear.

A higher reasonable grounds threshold with a requirement for ‘objective factors’ risks excluding or delaying genuine victims’ access to support and their engagement with the police. Careful analysis should be undertaken of the potential impact before it is introduced.

We welcome the inclusion in domestic law of international obligations for a recovery period during which potential victims receive support. We are concerned by the limitations on support in the Bill.

A public order disqualification for all foreign victims with prior convictions of 12 months or more is too wide. It will exclude from support genuine victims who pose no risk to the public and who could give evidence against slavery networks. The exclusion should focus on victims who are serious, sexual, violent or repeat offenders and who pose a serious risk to the public or national security.

The lack of support for confirmed victims after a positive conclusive grounds decision is a missed opportunity. Care for the exploited and abused is not a luxury extra - it unlocks progress against organised crime by enabling victims to act as witnesses. All confirmed victims with a positive conclusive grounds decision should be provided with at least 12 months support, with leave to remain for those with irregular immigration status.

Making asylum claims inadmissible or treating asylum seekers differently if they have travelled through ‘safe third countries’ is likely to negatively impact identification and recovery of modern slavery victims who come to the UK under the control of traffickers.

3. Identification and credibility

3.1. Effective identification is vital to supporting modern slavery victims and dismantling criminal networks. We are concerned that aspects of the Bill will create barriers to identification and engagement with victims.

Late disclosure (clauses 20 and 47)

3.2. Under the Bill late disclosure of modern slavery will be counted against the credibility of a claim. As a result the individual will probably not be considered a victim and therefore excluded from the support and protection of the National Referral Mechanism (NRM).

3.3. The Government says this provision is necessary to address a significant problem of the NRM being misused by people making false ‘late claims’ of modern slavery from immigration detention and at the point of removal from the UK to bypass immigration processes. [4] Whilst significant numbers of false claims would be a concern, it is not clear that these increased referrals from immigration detention are spurious since the majority were still awaiting a final NRM decision when the data was published. [5] The Independent Anti-Slavery Commissioner (IASC) has highlighted that a range of factors could influence the increase including greater awareness of modern slavery among detention workers and improved ability to recognise vulnerability. [6]

3.4. Presuming late disclosure is a sign of ‘bad faith’ "fails to take into account the severe trauma suffered by some victims" and its impact on their testimony. [7] The Modern Slavery Act (MSA) statutory guidance says the following about assessing credibility:

" Victims’ early accounts may be affected by the impact of trauma. This can result in delayed disclosure, difficulty recalling facts, or symptoms of posttraumatic stress disorder. Victims may also be reluctant to self identify for a number of other reasons that can make understanding their experiences challenging" and " It is important for the SCA to assess all information critically and objectively when the SCA considers the credibility of a case, but it is also vital for decision makers to have an understanding of the mitigating reasons why a potential victim of modern slavery is incoherent, inconsistent or delays giving details of material facts. Throughout this process it is important to remember that victims of modern slavery have been through trauma, and that this may impact on the information they provide. Due to the trauma of modern slavery, there may be valid reasons why a potential victim’s account is inconsistent or lacks sufficient detail ". [8]

3.5. Instead of preventing false claims these new measures will be a barrier to identifying and engaging genuine victims. They will create mistrust and suspicion aiding exploiters who instil fear of the authorities in their victims as a means of control. Opportunities will be lost to gather intelligence from victims that could help dismantle the organised criminals behind modern slavery.

3.6. Leading modern slavery prosecutor Caroline Haughey OBE QC told us " The proposed changes to how alleged victims of slavery should report ignores the reality of how exploitation manifests itself and leads to victims of slavery becoming a sub-class of victim - their rights less important than those of, for example historic sexual abuse who are not chastised by law but rather protected by it because of their delay in coming forward. The inevitable fall out is that victims will be more reluctant to come forward and engage, prosecutions more challenging and criminals and their gangs inevitably more successful."

Reasonable Grounds threshold (clause 48)

3.7. The Bill stipulates the test for the conclusive grounds threshold should be ‘on a balance of probabilities’, but does not set out the test for the reasonable grounds decision. The New Plan for Immigration proposes changing the test to require ‘objective factors’ in addition to the changes to the reasonable grounds threshold in clause 48. [9] This is likely to make identification of victims more difficult meaning fewer victims will be able to leave exploitation, receive support or support police investigations into modern slavery gangs.

3.8. Genuine victims who are unable to provide objective evidence of their exploitation are likely to be delayed or prevented from accessing the support they need since support is not available until after a reasonable grounds decision unless a person is destitute.

3.9. It is unclear why the MSA 2015 definitions of ‘victim of slavery’ and ‘victim of human trafficking’ should need to be changed, nor why they should be changed through regulations (clause 48(7)). The definition must meet international definitions and a person’s immigration status should not be relevant. There is a risk that defining a victim through regulations attached to an immigration bill will be a barrier to the effective identification and support of the growing number of British nationals who are the single largest cohort of referrals to the NRM. [10]

3.10. Recommendations

Guidance can provide greater detail and nuance on determining credibility than legislation. Paragraphs 13 and 14 of the MSA statutory guidance should be used to determine any impact on credibility of late compliance with disclosure requirements.

Clauses 20 and 47 should clarify the circumstances that will constitute ‘good reasons’ for making a late disclosure of modern slavery including the impact of trauma and the reasons victims can be unwilling to self-identify as a victim set out in paragraph 13.11 of the MSA statutory guidance.

Careful consideration should be given to the potential impact of the proposed reasonable grounds test on genuine victims’ access to support and their engagement with police. Case analysis should assess whether genuine victims that have been through the NRM would have been missed under the new test.

Quality assurance mechanisms and mandatory training should be introduced to equip First Responders and Single Competent Authority (SCA) staff to identify victims of modern slavery effectively, take a trauma-informed approach to evidence gathering and decision-making, and increase the quality and quantity of information provided in NRM forms. The modern slavery training standards framework of Skills for Care et al is an example of good practice. [11]

4. Support and protection during the National Referral Mechanism

4.1. We welcome the inclusion in domestic law of a recovery period with support for victims which we recommended in our 2020 report ‘It Still Happens Here’. [12] The limitations placed on support in the Bill are concerning.

Restrictions on support during recovery period (clauses 49 and 52)

4.2. We are concerned by the reduction in the minimum recovery period during which victims in England and Wales will receive support from the current 45 days to 30 days. Since 2009 the UK has offered a reflection period of 45 days, longer than the 30 day period in the European Convention on Action against Trafficking in Human Beings.

4.3. Whilst current slow decision-making means many victims will continue to receive support for longer, [13] it should not be assumed that this will remain the case. Many victims already decline to enter the NRM, reducing the recovery period may dissuade more from engaging with the authorities. [14]

4.4. Clause 52 restricts the availability of support to needs arising from the victim’s exploitation. Our ongoing research has highlighted that victims of modern slavery have overlapping and intersecting needs. [15] We share the IASC’s view that "in reality it can be extremely difficult, if not impossible, to separate an individual’s current needs and vulnerabilities from those that existed prior to their exploitation." [16] Wider needs, for example a learning or physical disability, may have made a victim a target for exploitation, may be exacerbated by exploitation and may make recovery from exploitation more difficult. Yet, since these needs are not caused by the exploitation, they are unlikely to fall within the criteria. Left unaddressed, these needs will put victims at risk of future harm and re-exploitation.

Public order grounds for exclusion from support and protection (clause 51)

4.5. Defining the grounds on which protection from removal and support may be withheld will bring welcome transparency but the definition is disproportionately wide.

4.6. The Government has said these changes are necessary to prevent serious criminals using the NRM to bypass deportation. [17] We agree that the public should be protected from serious criminals, but referrals of offenders in immigration detention are low and no data has been published on how many fit the profile of child rapists and terrorists highlighted by the Government. [18]  

4.7. We share the IASC’s concern that the proposed exclusion from the NRM of all non-British potential victims with a prior conviction of 12 months or more (the definition in the UK Borders Act 2007 s32 relied on in clause 51(3)(f)) is "far too broad". [19] It is likely to catch genuine victims who pose no risk to the public including where those convictions made them targets for slavery, resulted from exploitation, or were received for minor offences in jurisdictions with longer sentences than the UK. For example, many of the victims in the landmark Operation Fort case were vulnerable to exploitation due to their previous convictions. [20] Comparative analysis of sentencing in Europe demonstrates that some key ‘source countries’ for modern slavery victims impose average sentences of over 12 months for offences that attract lower average penalties in the UK. [21]

4.8. We are also concerned that the exclusion of victims of all nationalities with convictions for offences listed in Schedule 4 of the Modern Slavery Act may also be too wide(including offences such as arson and assisting unlawful immigration) considering that exclusion from support is different to the protection from criminal conviction under section 45 of the Modern Slavery Act for which the list in Schedule 4 was compiled.

4.9. As the IASC has noted this clause may also harm our ability to prosecute offenders. [22] Victims excluded from support and removed from the UK on public order grounds are unlikely to engage with prosecutions leaving the criminal gangs to continue operating with impunity.

4.10. Recommendations

Legislation should maintain the current 45 day minimum support period.

Instead of the wide definition of foreign national offenders, the exclusion should focus on victims who are serious, sexual, violent or repeat offenders and who pose a serious risk to the public or national security.

We welcome the possibility for discretion in applying the disqualification. Guidance and training will be needed to ensure every disqualification is assessed on a case-by-case basis.

5. Leave to remain and support for confirmed victims (clause 53)

5.1. Most potential victims (74% in 2020) referred to the NRM report exploitation in the UK and so have vital evidence that could support UK prosecutions if they were helped to engage. [23] Enduring support with leave to remain for confirmed victims with irregular immigration status is key to enabling victims to participate as witnesses.

5.2. The Government recognises that "certainty over their immigration status" is for many victims a "crucial enabler to their recovery and to assisting the police in prosecuting their exploiters". [24] Trauma charity the Helen Bamber Foundation have told us "Our work with survivors of trafficking has shown that continued uncertainty has a significant negative impact on their mental health. It is only once granted leave to remain in the UK, with the sense of safety and security that this brings, that survivors are truly able to benefit from therapeutic care and begin to recover from the trauma they have experienced."

5.3. Clause 53 does not provide that certainty. Instead, it introduces narrower criteria than the current discretionary leave policy, restricting leave to victims with recovery needs arising specifically from their exploitation rather than ‘to provide protection and assistance to that victim, owing to their personal situation’ as in the current policy. [25] As noted above such needs cannot easily be separated from wider vulnerabilities.

5.4. Even if a person has such a need, they will be ineligible under clause 53 if that need is considered capable of being met in a third country. It is unclear how this will be determined and could result in a blanket inadmissibility for EU national victims (as with asylum). Victims returned to the countries they were trafficked from remain vulnerable. Victims returned to Romania from the UK have told Justice and Care they are afraid their traffickers will find them and worry that slow police response times where they live put them at risk. Nor does the clause require evidence or action to ensure support will actually be provided in the other country. Justice and Care has seen how without support victims overseas disappear or disengage from criminal investigations.

5.5. The low number of confirmed victims who receive discretionary leave under the current policy gives victims no certainty. Just 11% of confirmed victims with a positive conclusive grounds decision between 1 January 2016 and 31 March 2020 received discretionary leave. [26] Whilst more victims have received asylum or humanitarian protection, by no means do all non-UK national victims receive a grant of leave and reforms to asylum policy may reduce this number further. Moreover, case studies indicate inconsistency in decision-making. [27]

5.6. Opportunities to gather important evidence after people are confirmed as victims are being lost. The specific leave for victims supporting criminal proceedings requires victims to engage with police before leave is granted. It is not a realistic option for many victims who are fearful of the police and worried about their immediate future. They need certainty about their immigration status before engaging.

5.7. Too many modern slavery prosecutions are being dropped due to lack of victim testimony. [28] Enduring support is central to securing victim engagement in prosecution and preventing re-exploitation, but the Bill provides no support after someone is confirmed as a victim. In recent years a number of reports, including the Work and Pensions Committee have concluded that a lack of long-term support puts victims of modern slavery at risk of homelessness, destitution and re-trafficking after they exit the NRM. [29] Our ‘It Still Happens Here’ report found that this remains a significant gap. [30]

5.8. One of the Home Office Local Authority pilot projects for support after the NRM reported that all 62 adult survivors helped by the project between April 2018 and September 2019 supported a criminal investigation. [31] Justice and Care’s ‘Victim Navigator’ programme has found that 89% of victims receiving tailored support from a Navigator have chosen to engage with police investigations compared to the national average of 33%. [32] The IASC has said that "effective support and the opportunity to build rapport with law enforcement can be crucial in maintaining the engagement of victims and survivors as witnesses through what can often be lengthy investigations." [33] This is also recognised by the CPS. [34]

5.9. For victims who choose to return to their home country, Justice and Care’s Victim Navigator programme has seen how having the right support in place from the UK and in their home country victims can remain engaged with criminal proceedings.

5.10. Ongoing support helps disrupt organised crime: a lead officer in the landmark Operation Fort case told us "‘The support for those 92 victims was able to help me dismantle that OCG [organised crime group], in turn that not only brought justice for these victims and past victims known and unknown, but gives protection for many potential future victims." [35]

5.11. Recommendations

All confirmed victims with a positive conclusive grounds decision should receive an additional 12 months of support after the NRM including leave to remain for those with irregular immigration status. This was recommended by the Work and Pensions Committee in 2017 and incorporated in the Modern Slavery (Victim Support) Bills introduced by Lord McColl of Dulwich with Sir Iain Duncan Smith MP in previous sessions. [36]

We welcome the Government’s proposal in the New Plan for Immigration to consider developing additional support to enable victims’ engagement with the police. Independent evaluation has found Justice and Care’s innovative Victim Navigator model to be an effective example. [37]

6. Part 2: Wider asylum reforms potentially impacting modern slavery victims

6.1. The proposed inadmissibility of asylum claims from people who transit through ‘safe third countries’ (Clause 14) is likely to negatively impact identification and long term recovery of modern slavery victims who come to the UK under the control of traffickers, deceived into debt bondage or other exploitation and therefore unable to seek asylum elsewhere. Similarly victims brought to the UK for exploitation may be unable to claim asylum immediately on arrival so should be exempt from classification as ‘ group 2 refugees’ and receiving less favourable treatment under clause 10.

6.2. Removing victims of modern slavery outside the UK for their asylum claims to be processed which will be enabled by clause 26 could be re-traumatising for victims and make it more difficult for them to access specialist support or engage with police investigations.

6.3. Recommendations

Asylum claims from victims of modern slavery should be treated on their merits and not subject to presumptions of inadmissibility or different treatment.

The impact of processing asylum claims overseas on modern slavery victims’ recovery and engagement in police investigations should be assessed before any plans are developed.

September 2021


[1] ‘The Economic and Social Costs of Modern Slavery’ Research Report 100 Sasha Reed, Stephen Roe, James Grimshaw and Rhys Oliver July 2018 Home Office estimated a cost of £328,720 per victim. This equates to £3.3 billion - £4.3 billion for the total estimated number of victims according to a Government 2014 estimate of 10,000-13,000 victims, or £32.9 billion on the basis of our estimate of 100,000 victims calculated from police data in 2020 in ‘It Still Happens Here: Fighting UK Slavery in the 2020s’ Centre for Social Justice and Justice and Care July 2020

[2] ‘National Strategic Assessment of Serious and Organised Crime 2021’ National Crime Agency

[3] Independent Anti-Slavery Commissioner Annual Report 2020-21

[4] Nationality and Borders Bill Explanatory Notes paragraphs 528-529

[5] Issues raised by people facing return in immigration detention, Home Office 16 March 2021 updated 19 July 2021 Table 6f , Over 85% of the 2019 NRM referrals for people detained for immigration offences and 57% of Foreign National Offenders (FNOs) in immigration detention were still waiting for a final decision.

[6] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[7] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[8] Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland Version 2.3, Home Office, June 2021 paragraphs 13.1, 14.5-14.6

[9] The reasonable grounds test is not included in the Bill but the change is set out in the New Plan for Immigration .

[10] A third of all referrals in 2020, and more than half of children referred that year were UK nationals Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, End of Year Summary 2020

[11] Modern Slavery Training Standards, Skills for Care, St. Mary’s University and The Snowdrop Project, September 2020

[12] It Still Happens Here: Fighting UK Slavery in the 2020s, Justice and Care, the CSJ, July 2020

[13] NRM statistics show average decision-making periods since 2018 of over 300 days (median average, mean average is over 400 days) Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, End of Year Summary 2020 Data Table 30

[14] Over 2,000 possible victims were reported under the Duty to Notify process instead of being referred to the NRM in 2020.

[15] Research into the recovery journey of adults which we expect to publish in November 2021.

[16] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[17] Home Secretary's remarks at Second Reading on the Bill Hansard 19 July column 716

[18] 288 FNOs were released from detention having been referred to the NRM whilst in detention in 2020 according to Update on modern slavery referrals from detention and prisons Home Office 19 July 2021 ; Answer to Written Parliamentary Question HL108 25 May 2021

[19] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[20] Operation Fort What businesses should learn from the UK’slargest anti-slavery prosecution Independent Anti-Slavery Commissioner June 2020 ; http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[21] Research Briefing Comparative Prison Sentences in the EU, House of Commons Library, June 2015 shows the modal average sentence length (most common) for the crime of theft was one year or longer in six out of 22 countries with a further four with an average of six months to one year imprisonment. Notably those six countries include Albania and Poland, countries which often see referrals to the NRM. The data tables show that 54.7% of prison sentences for the crime of theft in Poland in 2010 were of one to two years shows 54.7% of prison sentences for theft in Poland in 2010 were of one to two years in length compared with 4.2% in England and Wales (83.9% here receiving less than six months).

[22] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[23] 74% of NRM referrals in 2020 reported exploitation in the UK in full or in part Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, End of Year Summary 2020

[24] New Plan for Immigration Command Paper 412,HM Government, March 2021 page 33

[25] Discretionary Leave Considerations for Victims of Modern Slavery Version 4.0 December 2020 Home Office

[26] Data tables released pursuant to a Freedom of Information request made by ECP AT UK ; It is not possible to state exactly how many confirmed victims received neither discretionary leave nor asylum/humanitarian protection as where a victim received both

[26] discretionary leave and asylum they appear twice in the published data table.

[27] For example, in 2018 MPs were told about two victims from the same country exploited in the same location who received different decisions: one initially granted leave, the other not: Home Affairs Committee Oral evidence: Modern Slavery, HC 1460 Tuesday 6 November 2018 Q115

[28] See for example https://justiceandcare.org/justice-just-takes-too-long/

[29] Life Beyond the Safe House, Human Trafficking Foundation 2015; Fresh Start, University of Liverpool 2017; Victims of Modern Slavery, House of Commons Work and Pensions Committee 2017; Hope for the Future Ashiana, Hestia, Red Cross 2019

[30] ‘It Still Happens Here: Fighting UK Slavery in the 2020s’ Centre for Social Justice and Justice and Care July 2020

[31] ‘It Still Happens Here: Fighting UK Slavery in the 2020s’ Centre for Social Justice and Justice and Care July 2020

[32] Victim Navigator Interim Evaluation July 2021 Justice and Care (Data to June 2021) In her letter to the Home Secretary the IASC quoted earlier data from April 2021 in which 87% had supported investigations.

[33] http://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf

[34] Home Affairs Committee Oral evidence: Modern Slavery, HC 1460 Tuesday 15 January 2019 Q145

[35] Interview with DCI Nick Dale January 2021

[36] Victims of Modern Slavery, House of Commons Work and Pensions Committee, 2017 ; https://bills.parliament.uk/bills/2543

[37] Victim Navigator Interim Evaluation July 2021 Justice and Care

 

Prepared 19th October 2021