Nationality and Borders Bill

Written evidence submitted by ECPAT UK (Every Child Protected Against Trafficking) (NBB30)

Nationality and Borders Bill

Submission to the Public Bill Committee

1. Executive Summary

1.1. ECPAT UK is deeply concerned about the impact this Bill will have on children. The evidence in this submission focuses on the provisions about the modern slavery set out in Part 4. Official statistics from the National Referral Mechanism show a nearly 10% increase in children being identified as potential victims of trafficking from 2019 in 2020, with 4,946 referrals made. The range of measures in the Bill, which taken together, will affect all child victims of trafficking including British national children and which will be particularly detrimental to unaccompanied children who are at significant risk of exploitation. Child victims of trafficking have rights to protection under the United Nations Convention on the Rights of the Child ("UNCRC") and Council of Europe Convention on Action against Trafficking in Human Beings ("ECAT") to ensure they can recover from exploitation and transition to adulthood in safety and stability. We urge the Committee to ensure the Bill respects the rights of children and ensure child victims of trafficking are safeguarded and supported to achieve a stable future.

1.2. ECPAT UK’s recommendations are:

§ Identifying, protecting, and supporting child victims of trafficking is not an immigration matter but a child protection matter.

§ All decisions about children, including that of immigration leave must be made in their best interests as the primary consideration. Members should seek to amend Clause 53 to incorporate leave for children.

§ Children who apply for international protection must not face additional barriers in their identification as victims of modern slavery. Members should seek to exclude those exploited as children from clauses 46 – 47.

§ Those who are exploited as children must not be disqualified from protection due to offences committed as a result of their exploitation or recruitment by non-state armed groups. Members should seek to exclude those exploited as children from clause 51.

§ All responses to children should be child centred, rights based and trauma informed, recognising the impact of abuse, the inherent nature of child exploitation and understanding of child development. 

2. About ECPAT UK

2.1. ECPAT UK ( E very C hild P rotected A gainst T rafficking ) is a UK-based children’s rights organisation advocating for the right of children to be protected from exploitation . ECPAT UK was established in 1994 to campaign against the sexual exploitation of children. Its efforts help prompt the passage, in 1997, of new legislation for the prosecution of British nationals who sexually abuse children abroad. It became the UK national representative of ECPAT International in 1997 and became a registered charity in July 2004. ECPAT International is a global network of children’s rights organisations coordinating research, advocacy and action to end the commercial sexual exploitation of children. There are 122 ECPAT members in 104 countries.

2.2. ECPAT UK is grateful for the opportunity to raise the following concerns in connection with some of the questions identified in the Committee’s call for evidence. We make this submission, having regard to the specific issues in respect of which the Committee has invited responses, with a particular focus on matters concerning child victims of modern slavery.

3. Slavery and Trafficking Information Notice

3.1. Clauses 46-47 create a new slavery or trafficking information notice to be issued only to potential victims claiming asylum or human rights protection following referral by the Home Secretary seeking further information to make a reasonable grounds and/or conclusive grounds determination under the NRM. Failure to provide information within the designated time may lead to the credibility of children being damaged.  

3.2. It is well understood, even in the Government’s own statutory guidance [1] that trauma amongst other factors, significantly impacts the ability to disclose exploitation. Child trafficking is a form of child abuse, and survivors of this form of abuse may be unable to provide effective disclosure even in adulthood. [2] Additionally, the ability to engage with processes may be hampered by symptoms of depression, anxiety and post-traumatic stress disorder common for child trafficking survivors. [3] Victims need time and a sense of safety before they can begin to disclose their experiences. [4] In light of the impact this proposal will have we ask for the withdrawal of modern slavery consideration amongst the ‘one stop process’.

3.3. The Council of Europe Convention on Action against Trafficking in Human Beings ("ECAT") came into force on 1 April 2009 in the United Kingdom. This prompted the creation of the National Referral Mechanism ("NRM"), a victim identification and support process which is intended to help the UK meet its obligations under ECAT. The NRM was introduced by way of non-statutory guidance, rather than through legislation. The system is now set out in the Secretary of State’s 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. [5]

3.4. In 2009 there were two designated Competent Authorities: the Home Office division responsible for visas and immigration (to which non-EU/EEA nationals were referred), and the UK Human Trafficking Centre ("UKHTC") within the National Crime Agency (to which British/EU/EEA nationals were referred).

3.5. In April 2014 the Home Secretary commissioned a review of the NRM, led by Jeremy Oppenheim, a senior civil servant. The final report known as the ‘Oppenheim Review’ published in November 2014. [6] It recorded: ‘concerns over the conflation of human trafficking decisions with asylum decision … and thresholds for decision-making.’

3.6. Following recommendations from the Government’s own Pilot Evaluation, [7] it was announced on October 2017 [8] that a single , expert unit to be created which would be separate from the immigration system. This new Single Competent Authority (" SCA ") sits within the Home Office Serious and Organised Crime Directorate and outside of UK Visas & Immigration (" UKVI "). This reform was undertaken in recognition of the demonstrated discriminatory decision-making which results in the conflation of trafficking decisions within the wider immigration decision framework.

3.7. The modern slavery clauses included in this bill will undermine these advances and the separation between decision-making for victims and immigration matters creating once again a two-tier system for potential victims and a return to the discrimination faced by foreign national victims in the previous system including children.

4. Reasonable Grounds Threshold

4.1. Clause 48 amends the Modern Slavery Act 2015 from the current reasonable grounds threshold to believe that a person may be a victim to reasonable grounds to believe that a person is a victim. The reasonable grounds stage determines a potential victim’s entitlement to support and assistance.

4.2. The clause also sets out the threshold for conclusive grounds decision in statute for the first time as that of ‘balance of probabilities,’ unlike the threshold for the reasonable grounds decision which is not stated clearly.  The clause also gives the Secretary of State the power to change the threshold for decision making without full parliamentary scrutiny

4.3. There is currently no available information in the bill nor in the explanatory notes which set out what the new legal threshold for a reasonable grounds decision will be.

4.4. Research shows that children, find it difficult to disclose their experiences of abuse. [9] In consequence, disclosure is rarely a single event, but happens over time and occurs only when the child has a trusted and secure relationship with a practitioner. In addition, children who are exploited may, on first contact with a public authority, repeat stories which their traffickers have coached them to provide. Once included by the First Responder in the referral form, this information can be (and, in our experience, is) used to make adverse credibility findings if the child subsequently seeks to provide a true account. [10]

4.5. Most children will not have legal representation to support them when entering the NRM. In our experience, it is also very rare for expert medical or country evidence to be available at the Reasonable Grounds stage.  The absence of expert evidence contributes to negative Reasonable Grounds decisions because, in our experience, this evidence is often critical in reaching an informed conclusion on a child’s case. For example, it can help explain relevant social, cultural or economic factors, or the effect of a potential victim’s mental health issues on their recollections.

4.6. Data obtained following a Freedom of Information request, shows that between 01 January of 2016 to 30 September 2020 there were 30,683 reasonable grounds decisions made of which 13,233 relate to those potentially exploited as children, including British national children who will also be significantly impacted by this clause.   

5. Disqualification from protection

5.1. Clause 51 in the Bill seeks to preclude victims, including children, who have served custodial sentences of over a year, as well as those prosecuted for particular offences, from being identified as victims in contravention of international law.  The Government has stated their intention is to prevent abuse of the NRM, [11] but no evidence has been provided to demonstrate this abuse by ‘child rapists and terrorists’. [12]

5.2. ECAT sets out a clear proportionality clause in article 13 which states : ‘the Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.’ Rightly, this provides member states a mandate to consider and interpret the possible reasons for public order grounds, but the clause aim s to define ‘serious criminality’ as ‘specifically, where there is a prison sentence of 12 months or more’ without any view to ascertaining the proportionality of such a wide definition which will exclude children on an arbitrary basis solely on the length of custodial sentences. There are many offences which result in sentences of more than 12 months commonly committed by victims of trafficking, particularly children, who in the absence of identification [13] may not benefit from the protections of the non-punishment provision nor the statutory defences in primary legislation in Northern Ireland, England and Wales.

5.3. It is accepted that criminal exploitation is the most commonly reported form of abuse for potential child victims. [14] The Modern Slavery Statutory Guidance [15] sets out : In cases involving children, criminal activity may appear not to have been forced but decision-makers should bear in mind that children cannot give informed consent to engage in criminal or other exploitative activity, and they cannot give consent to be abused or trafficked. A significant number of cases are for drug related offences, including so called ‘county lines’ which may carry custodial sentences of over 12 months. As an example, the Sentencing Guidelines Council’s Guidance for Drugs Offences [16] classification of cannabis cultivation as an either way offence which means it may carry a maximum sentence of six months imprisonment in the Magistrates’ Court to a 16 years’ custody in the Crown Court, on trial on indictment.

5.4. Professionals report that many children come to attention of statutory agencies when exploitation is already present in their lives and criminal groups are controlling them to deliver drugs, and that law enforcement takes precedence over safeguarding responses. [17] Data on arrests of children aged 10 to 17 for drug related offences shows that more children are arrested for ‘possession with intent to supply Class A drugs’ with an increase of 13% from 2015/16 to 2017/18. [18] Given the significant overrepresentation of children amongst those exploited for criminality, this proposal will detrimentally and disproportionality impact the ability of children from accessing the victim identification procedure under the NRM .

5.5. The Independent Anti-Slavery Commissioner has expressed ‘ grave concerns about this clause because it casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM.’ [19]

5.6. Additionally, the ‘terrorism’ sub sections of this clause will also exclude child victims exploited by non-state armed groups from accessing protection. The Bill does not account for the international legal framework on the use of children in armed conflict, a worst form of child labour as set out in International Labour Organisation (ILO) Convention No.182. [20] The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [21] prohibits all recruitment – voluntary or compulsory – of children under 18 by armed groups.

5.7. Currently, the Modern Slavery Statutory Guidance does not set out how children exploited by armed groups fit within the criteria for consideration by decision makers under the National Referral Mechanism. Children have received negative reasonable grounds determinations as this was not considered by SCA decision makers to constitute exploitation within the parameters of Modern Slavery framework, already precluding children from being identified. Further exclusion on public order grounds will significantly hinder the ability of child victims to access support and protection.

6. Leave to remain

6.1. Clause 53 creates a statutory discretionary leave provision for victims of trafficking and modern slavery for the Secretary of State to grant temporary immigration leave circumstances if a person receives a positive conclusive grounds decision. Eligibility is contingent on long-term recovery needs and assisting prosecutions. This standard is unlawful for child victims and does not fulfil the Government’s obligations under ECAT.  

6.2. Child victims of trafficking have rights to protection under the UNCRC and ECAT to ensure they can recover from exploitation and transition to adulthood in safety and stability. Article 14 of ECAT sets out how member states should issue renewable residence permits to victims when required such as owing to their personal situation, to pursue compensation and ongoing cooperation with law enforcement.

6.3. The standard for children is clarified at Article 14 (2) which states that ‘the residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.’ The explanatory report to ECAT goes on to state at paragraph 186: ‘In the case of children, the child’s best interests take precedence over the above two requirements. The words "when legally necessary" have been introduced in order to take into account the fact that certain States do not require for children a residence permit.’

6.4. The government currently has a policy to consider a grant of leave for victims of modern slavery and trafficking outside of the immigration rules following a positive conclusive grounds NRM decision in order to meet its obligations under ECAT by discretion. The policy states that the Home Office should automatically consider a grant of discretionary leave and that [22] in cases involving children decision makers must consider: ‘the best interests of the child is regarded as a primary consideration (although not necessarily the only consideration) and one that can affect the duration of leave granted. See section 55 of the Borders, Citizenship and Immigration Act 2009 for further guidance, and article 14(2) of the Council of Europe Convention on Action against Trafficking in Human Beings.’ Where the child or their parent meets the criteria for a grant of DL based on modern slavery, consideration should be given to factors such as the length of residence in the UK, where the child was born, and the strength of the evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than indefinite leave to remain (ILR). This does not alter the expectation that in most cases a standard period of up to 30 months DL will be appropriate.’

6.5. ECPAT UK requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response of which was published in our Child Trafficking in the UK 2020: a snapshot. We requested a review of the data provided following irregularities and claims from the Government that the information was ‘misleading’ [23] , albeit it was their own data. The final data provided following this review shows that of the 5,054 decisions made in relation to confirmed modern slavery victims between January 2016 - March 2020, 1645-2230 [24] decisions related to those exploited as children out of which between 67 to 133 were grants of discretionary leave. This means that only about 5% of child-related considerations resulted in a positive decision. This data indicates that discretionary leave is not being granted to children as victims of trafficking and that in the small number of cases where it is, the average length of grant is short suggesting that decisions are not being taken with their best interests as a primary consideration and providing minimal stability.

6.6. It is unknown how many child victims of trafficking were subsequently granted Indefinite Leave to Remain ("ILR") under this policy, but based on these figures we can estimate they are few. This is despite the current policy stating the need to consider the length of leave, including a grant of ILR, in line with the child’s best interest. This requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children.

6.7. The Government’s own response to the consultation on the New Plan for Immigration stated: ‘There was also general support for proposals around providing temporary leave to remain for potential victims of modern slavery, but there were some concerns raised about what this measure would mean in practice for victims, particularly children. The Government will provide further detail on the application of the measure through the Nationality and Borders Bill and corresponding Immigration Rules.’ [25] .This concern is shared by the Independent Anti-Slavery Commissioner as stated in her letter to the Home Secretary. [26]

6.8. In line with the Government’s international and domestic obligations towards children, reform must put children’s rights and protection first and provide them with immigration outcomes consistent with their best interests. Legislation must ensure the rights of child victims are met, they still require meaningful policy solutions to the actual barriers they are facing such as providing meaningful durable solutions, [27] [28] [29] appropriate accommodation [30] [31] and the ability to rebuild their lives. [32] [33] [34] [35] [36] [37] The clauses , as set out, will only increase the risks child victims face in current systems including their vulnerability to re-trafficking and going missing. [38]

Children’s Rights

6.9. We are not aware of any engagement with children and young survivors in the development of this legislation contrary to Government guidance setting out the principles out of good consultation. [39] No consideration has taken place taking into account the specific vulnerabilities of children and young people, particularly trauma, those who don’t or have limited English, are without access to digital devices, have learning difficulties or other disabilities which impede their access to the on-line portal.

6.10. This concern is shared by the Independent Anti-Slavery Commissioner who in her letter to the Home Secretary stated ‘Finally, I would highlight the lack of detail on provisions for children. Reforms must put children’s rights and protections first and decisions taken with their best interests as a priority.’ [40]

6.11. On September 16, 2021, the Government published an Equality and Impact Assessment [41] which accepts there ‘is a risk that our policies could indirectly disadvantage protected groups’ including children.

6.12. The Government has so far not undertaken a Child Rights Impact Assessment ("CRIA") to understand the effects on children and the enjoyment of their rights under the UNCRC. The UN Committee on the Rights of the Child recommends that States introduce a statutory obligation to conduct systematic CRIA.

October 2021

[1] Home Office. (2021). 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 2.4. Available at:

[2] J.J. Pearce, P. Hynes and S. Bovarnick. (2009). Breaking the wall of silence: practitioners’ responses to trafficked children and young people. Available at:

[3] See, for example, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, Immigration Appellate Authority (UK): Asylum Gender Guidelines, 1 November 2000, available at:

[4] See, for example, D. Bögner, J.Herlighy and C. Brewin, "Impact of sexual violence on disclosure during Home Office interviews". British Journal of Psychiatry (2007) 191, pp.75-81.

[5] Home Office. (2021). 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. Available at:

[6] Home Office. (2014). Review of the National Referral Mechanism for victims of human trafficking

[7] Home Office. (2017). An evaluation of the National Referral Mechanism pilot, Research Report 94

[8] Home Office. (2017). Modern Slavery Taskforce agrees new measures to support victims. Available at:


[9] llnock, D. and Miller, P. (2013). No one noticed, no one heard: a study of disclosures of childhood abuse. Available at

[10] Another common credibility issue for children arises where they have been trafficked with the use of fraudulent travel documents and passports. This may also trigger age disputes, which further compound the young person’s ability to recover from their experiences.



[13] Villacampa, C., and Torres, N. (2017). Human Trafficking for Criminal Exploitation: The Failure to Identify Victims. Available at:

[14] Changes introduced to recording procedure of exploitation types in the NRM, from 1 October 2019

[15] Ibid

[16] Sentencing Council. (2021). Production of a controlled drug/ Cultivation of cannabis plant. Available at:

[17] The Children’s Society. (2019) Counting Lives. Available at:

[18] Ibid

[19] Independent Anti-Slavery Commissioner’s letter to the Home Secretary. Available at:

[20] Article 3 (a) of the Worst Forms of Child Labour Convention, 1999 (No. 182)

[21] Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict

[22] Home Office. (2020). Discretionary leave considerations for victims of modern slavery, Version 3.0. Available at:


[24] Although the overall total is available in the data, where values are less than five, they were replaced with <5 in order to preserve anonymity. In relation to the child totals, in order to allow for some variation as a result of the use of <5 in the tables, totals were calculated twice, first replacing all instances of <5 with 1 in order to provide a minimum total and then again by replacing <5 with 4 to provide a maximum total. This leads to the ranges presented.

[25] Home Office. (2021). New Plan for Immigration – Government Response. Available at:

[26] Ibid.

[27] Internationally, there are three ‘durable solutions’ utilised by the United Nations High Commissioner for Refugees (UNHCR). These are third country resettlement, local integration within the country of asylum and voluntary repatriation. In the case of children and young people within the UK there is a protection gap when it comes to ensuring durable solutions for unaccompanied children largely because of the lack of specialist and robust child protection responses, combined with short term immigration resolutions made within lengthy asylum and immigration bureaucratic processes.

[28] UNICEF (2015). Achieving A Durable Solution for Trafficked Children, UNICEF.

[29] Sigona, N. and Hughes, V. (2012). No Way Out, No Way In: Irregular migrant children and families in the UK, ESRC Centre on Migration, Policy and Society, University of Oxford, Oxford.

[30] Shuker, L. (2013). Evaluation of Barnardo’s Safe Accommodation Project for Sexual Exploited and Trafficked Young People, University of Bedfordshire, Luton.

[31] ECPAT UK (2011). On the Safe Side: Principles for the safe accommodation of child victims of trafficking, ECPAT UK, London.

[32] Hynes, P. (2013). Trafficking of Children and Young People: 'Community' Knowledge and Understandings, in Melrose, M. and J. Pearce (Eds.), Critical Perspectives on Child Trafficking and Sexual Exploitation, MacMillan, London.

[33] Hynes, P. (2015). No ‘Magic Bullets’: Children, Young People, Trafficking and Child Protection in the UK, International Migration, Vol.53(4), p.62-76.

[34] Hynes, P. (2017). Trust and Mistrust in the Lives of Forcibly Displaced Women and Children, Families, Relationships & Societies, Vol.6(2), p.219-238.

[35] Sillen, J. and Beddoe, C. (2007). Rights here, rights now: Recommendations for protecting trafficked children. Available at:

[36] Beirens, H., Hughes, N., Hek, R. and Spicer, N. (2007). Preventing social exclusion of refugee and asylum seeking children: building new networks, Social Policy and Society, Vol.6(2), p.219-229.

[37] Sigona, N., Chase, E., Humphris, R. (2017). Protecting the ‘best interests’ of the child in transition to adulthood. Becoming Adult Research Brief no. 3, London: UCL

[38] Sigona, N., Chase, E., Humphris, R. (2017). Understanding causes and consequences of going ‘missing’. Available at:

[39] Cabinet Office. (2018). Consultation principles: guidance. Available at:

[40] Independent Anti-Slavery Commissioner. (2021). IASC letter to The Rt Hon Priti Patel MP, Home Secretary (September 2021). Available at:

[41] Home Office. (2021). New Plan for Immigration Overarching Equality Impact Assessment of polices being delivered through the Nationality and Borders Bill. Available at:



Prepared 19th October 2021