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]