Nationality and Borders Bill

Written Evidence submitted by Focus on Labour Exploitation (FLEX) (NBB43)

The Nationality and Borders Bill. Public Bill Committee.

1. Introduction

1.1 Focus on Labour Exploitation (FLEX) is a research and policy organisation working towards an end to labour exploitation. FLEX seeks to achieve this vision through the prevention of labour abuses, protection of the rights of those affected or at risk of exploitation and by promoting best practice responses to labour exploitation through research and evidence-based advocacy.

1.2 FLEX ’s work builds on the understanding that labour exploitation is situated at the extreme end of a spectrum ranging from labour compliance through to labour law violations, culminating at extreme exploitation in the form of offences such as forced labour and human trafficking for labour exploitation. These are at once serious crimes, human rights breaches and violations of labour law .

1.3 In the UK, FLEX has conducted research on a range of issues relevant to the Nationality and Borders Bill. These include improving identification and support of victims of trafficking in the European Union (EU) [1] and the impact of migration status, labour market structures, and immigration control measures on vulnerability to exploitation. [2]

1.4 In 2015, FLEX established the Labour Exploitation Advisory Group (LEAG) - a coalition of organisations working directly with people who have experienced or are at risk of labour exploitation in the UK. LEAG promotes discussion, information-sharing and collaboration as well as learning from best practice and linking practice to policy. [3]

1.5 FLEX believes partnership with, and participation of, those affected by labour abuse and exploitation is crucial to effective research and to inform policy making. Their knowledge can help identify and shape better policy solutions. Despite their expertise by experience and despite being the ones most affected by such policy decisions, workers at risk are rarely involved by policy-makers in developing solutions to labour exploitation. For this reason, FLEX has developed and pioneered participatory approaches to research on human trafficking for labour exploitation. In 2018, we developed a ‘community researcher methodology’, working with London construction workers to enable them to research the experiences of their own communities and raise their voices for change. FLEX has also been piloting a participatory research approach called Feminist Participatory Action Research (FPAR). FLEX believes that working together with workers to generate knowledge and advocate for change will lead to better evidence-based policies and on-the-ground change, and participatory research approaches are a means to achieve this by working ‘with’, rather than ‘for’ or ‘on’, at-risk workers. [4]

1.6 This evidence uses both terms ‘victim’ and ‘survivor’. While FLEX recognises that the term ‘survivor’ is often preferred, the Bill and other relevant legislation refers to ‘victim’.

2. Executive summary

2.1 This evidence focuses on Part 4 of the Bill. The fact we have not explicitly set out concerns on all areas of the Bill is due to a lack of space and capacity and does not mean that we are not concerned by those areas.

2.2 FLEX recommends that Part 4 is removed from the Bill in its entirety. Its inclusion in the Nationality and Borders Bill conflates immigration matters with modern slavery and in doing so undermines the UK’s efforts to tackle modern slavery. While immigration policy can leave people vulnerable to exploitation including modern slavery, the issue of modern slavery is a matter of criminal exploitation of a diverse range of people including many British nationals. Keeping part 4 in the Bill will create confusion with and potential incompatibility with the Modern Slavery Act. Nor is it clear why Part 4 is being introduced into this Bill in advance of, rather than having been informed by the promised review of the UK’s Modern Slavery Strategy. [5]

2.3 FLEX shares the serious concerns already set out by many others from the anti- slavery and anti- trafficking sector as well as the migrant rights and asylum sectors regarding the other parts of the Nationality and Borders Bill. These concerns have been clearly set out by others, including The JCWI, CSJ, Freedom from Torture, Asylum Welcome, Refugee Council and the Human Trafficking Foundation in evidence to the Public Bill Committee as well as the UNHCR in their legal observations on the Bill. [6] Many of our concerns are set out in our Consultation response to the New Plan for Immigration which this Bill follows. [7]

2..4 Everyone who experiences exploitation in the UK, regardless of employment or immigration status, should be able to report abuse and access vital protections. [8] Such an approach is necessary, not only to protect individuals and promote redress, but also to deter labour abuse and prevent exploitation from taking place in the first place. Including modern slavery legislation in the Nationality and Borders Bill risks undermining access to rights and protections which do much to prevent slavery for anyone with uncertain or insecure immigration status. We are concerned that part 4 of the Bill contains clauses which would significantly undermine the UK’s NRM modern slavery and trafficking identification and support processes. This in turn would reduce options for people in exploitation to challenge or leave their situation. As the UK works to build trust in its authorities so that everyone in exploitation can come forward and report crime it is vital that there is a clear separation of powers between law enforcement and immigration enforcement in order that victims are able to report crimes securely. [9]

2.5 The barriers to identifying victims of trafficking go beyond the identification clauses in part 4 and include measure in earlier parts of the Bill which limit individual’s options according to how they arrive in the UK. This is even though, by definition, trafficked people often do not have control over their own movement. [10] The Bill, unamended, will criminalise people for factors which may well be part of their exploitation such as how they arrived in the UK and previous criminality. This will play into the hands of exploiters by giving legitimacy to their threats and increasing their power and control over victims who do not see how their complex and messy history of exploitation will meet the burden of proof required by an identification system for which the starting proof is disbelief. Leading criminal barrister Caroline Haughey OBE QC, Author of the Home Office’s Modern Slavery Review & joint legal adviser on the Second Modern Slavery Act, described the Nationality and Borders Bill as ‘catastrophic' because if an individual ‘does not show up as a victim immediately, they are deemed not a victim’. 

2.6 FLEX finds a disconnect between the stated objectives of the Nationality and Borders Bill and the reality of exploitation and modern slavery in the UK. The real challenge is to persuade people in exploitation which includes ongoing control to trust enough to disclose their slavery and consent to enter the NRM. FLEX works with front line partners who support trafficked people and struggle to persuade them that the identification system, or National Referral Mechanism (NRM) can work for them. While the true figures of people in modern slavery in the UK is unknown, the indication is that we are only identifying a tiny proportion of the estimated number of victims of trafficking, with just 3,084 people conclusively identified and in receipt of a positive second stage decision through the NRM in 2020. [11] This contrasts with the Centre for Social Justice calculating that the true number of people in modern slavery in the UK might be in excess of 100,000 [12] and Walk Free’s Global Slavery Index estimating this figure to be over 136,000 in 2018. [13]  

2.7 This disconnect, which is reflected in the content of the Bill, is an indication of the lack of consultation to inform the Bill. The Bill is based on the ‘New Plan for Immigration’, [14] which was published without apparent stakeholder engagement. The absence of learning from people with lived experience of exploitation, who have had to negotiate the systems for their very survival, is particularly glaring.

2.8 Survivors have described the NRM process as compounding their trauma, forcing them to relive their trafficking experience and keeping them waiting in limbo for a trafficking decision. It is not unusual for victims to be kept waiting for years while unable to work. [15] Rather than seeking to introduce barriers to identification and support systems we need to be working with people with lived experience of those systems to understand what would have helped them to escape earlier and better support their recovery.

2.9 Even a positive Conclusive Grounds trafficking decision does not necessarily lead to any grant of leave, compensation, or a pathway to rebuild their lives. The Independent Anti Slavery Commissioner has expressed her concern at the low figures while underlining how important leave can be for survivors to gain independence:

"The latest guidance says that discretionary leave is automatically considered for all non-EEA survivors. But the overall number of survivors granted discretionary leave remains very low. In 2015, 123 survivors with positive conclusive grounds were granted discretionary leave, in 2019 it was 70 and in the first three months of this year it was only 8. From 1 January some EEA nationals will be similarly unsure about their future." [16]

3. Identification and credibility

3.1 Clause 46: Provision of information related to being a victim of slavery or human trafficking, clause 47: Late compliance with slavery or trafficking information notice: damage to credibility & clause 48: Identification of potential victims of slavery or human trafficking.


Clauses 46,47 & 48 should be withdrawn. If they remain the following mitigations should be applied:

- It should be recognised that disclosure of trafficking often takes years. There should be no penalties for, or effect on credibility of, so called ‘late disclosure’

- Pre NRM support and advice should be available to support informed consent to a referral [17]

- There must be a low threshold of proof for a Reasonable Grounds decision applied in practice

- Anyone referred into the NRM who receives a negative decision should be referred to appropriate support

- All NRM decisions should be made by a multi-agency panel. If not, all negative decisions should be scrutinised by multi agency panels which have the power to overturn decisions and make referrals to appropriate support

3.2 These clauses should be withdrawn. They ignore and undermine the duty of the state to identify victims of trafficking, [18] Nor do they make sense in terms of evidence around trafficking, self-identification, and disclosure. The Vita health network has explained how psychological trauma causes profound disturbances to normal brain function and memory, including memory loss and inconsistencies in stories or experiences. [19] Identification systems which do not actively recognise this, or which expect victims to disclosure quickly or before they feel safe and have received specialist support, risk dismissing victims as not credible, simply because their trauma is so significant that they cannot recall information about key events.

3.3 There is at present no pre NRM specialist support available in the UK. This is despite government recognising the need for pre NRM support to facilitate disclosure through having time in a safe space to receive information and advice in its 2017 announcement of ‘places of safety’. [20] Initial identification is key to victims leaving exploitation and accessing support towards recovery and avoiding re-exploitation. It is vital that the identification system is accessible, and the initial threshold (reasonable grounds decision) is low to ensure that victims who have built up the courage to seek help are identified as a potential victim and admitted into the NRM.

3.4 Clause 48 deals with the threshold which should be applied to a Reasonable Grounds, or initial stage, NRM decision. Given that the Reasonable Grounds (RG) decision is the gateway to government funded specialist support and that prior to this decision a potential victim may have had no support at all it is vital that this threshold is low. An incorrect negative RG decision risks shutting a victim out of support, destroying their trust in the authorities and leaving many people with the options of re-exploitation or destitution.

3.5 Referral into the UK’s NRM is only possible when made by a designated First Responder who has identified someone as a potential victim of trafficking and secured their informed consent to an NRM referral. This means that there should be a very high level of positive Reasonable Grounds decisions at the threshold of ‘suspect but cannot prove’ as the referral should not have been made if this threshold had not been reached. In 2020 92% of first- stage and 89% of second-stage trafficking decisions were positive. [21]  This suggests that people are being referred into the system with good reason.

3.6 A negative decision does not mean someone has not been trafficked but rather that, despite someone having been identified as potentially trafficked or a victim of modern slavery by a First Responder, the low threshold of evidence was not met. All negative decisions should be treated with concern and should in no way damage credibility. There should be multi-agency panel scrutiny of all negative Reasonable Grounds decisions, in addition to Conclusive Grounds decisions, and support including legal aid for reconsiderations at both thresholds. [22]

3.7 A 2020 FLEX report shows that workers are enduring long periods of abuse and exploitation for fear that if they seek help their personal information will be passed onto immigration authorities. [23]  With the UK’s current expansion of short term visa work schemes there is a risk that workers on these schemes will lack information about their rights or how to report exploitation or secure retribution. There is a risk that exploiters could use this to threaten workers that if they report abuse they risk jeopardising their immigration status and need to leave the UK without any chance to pay off pre existing debts or the costs of migrating. It is vital that neither the UK’s labour nor anti trafficking policies exacerbate exploitation by dissuading people with insecure status from reporting exploitation. In addition to secure reporting systems which mean that victims of crime know their details will not be shared with immigration enforcement, we need to make sure that any changes to the RG threshold do not deter people from reporting and identification due to trafficked people not reporting because of fear that their exploitation is not severe enough.

3.8 Clauses 46 and 47 introduce a false concept of ‘late’ disclosure which, if passed unamended, would undermine the credibility of people who disclosure trafficking ‘late’. This is despite the fact that many victims of trafficking do not disclose for years due to factors which include; unmet immediate needs which command their attention and keep them in survival mode, not having the security which would allow them to access therapy and reflect on what has happened to them, not being in receipt of specialist support or advice which would explain why disclosing their exploitation is relevant and important, and feelings of loyalty to their exploiter (‘Stockholm syndrome’) and/ or feelings of shame regarding their exploitation and abuse. Control over information and threats concerning disclosure and immigration status are a common element of exploitation and control. The NRM does not guarantee safety or security even for victims who receive a positive conclusive stage decision. It is not surprising that many victims are unable to disclose information about the exploiters who controlled them when they may be soon dependent upon them again.

3.9 It is unrealistic and unreasonable to expect someone who may have only recently left exploitation and has not yet accessed specialist support to provide evidence to any standard higher than ‘suspect but cannot prove’. It is important to note that a negative RG decision does not systematically lead to a referral to appropriate services or care pathways, despite the identification as a possible victim and referral into the NRM by a designated First Responder. Nor will most people who receive a negative RG decision have access to support to challenge this. Despite this, a significant number of negative decisions are overturned. FOI data secured by After Exploitation found that 81% of reconsidered claims at initial ‘Reasonable Grounds’ stage are later positive, suggesting that the RG threshold being applied in practice in these cases may already be too high. [24] This means that potential survivors who should have been granted safe housing and support may have faced delays in getting help and suggests that others whose negative decisions may have been overturned will not have been supported to request a reconsideration.

3.9.1 It is crucial that government examines structural factors which hamper identification and prevent individuals challenging their exploitation. These can include victims being in the UK on short term visas which increase their dependency on their employer and reduce their options to seek assistance. In his 2015 Government commissioned review of the Overseas Domestic Worker (ODW) visa the UK government, James Ewins found that extending the period during which a worker can work as a domestic worker in a private household in the UK from 6 months to (up to) 2.5 years to be the minimum required to give effective protection to those overseas domestic workers who are being abused while in the UK. The review found that the freedom to change employment required a stay long enough to be able to find safe alternative employment. [25] FLEX’s research has showed risks of exploitation on the UK’s seasonal workers pilot visa scheme, [26] has examined risks of exploitation in Temporary Migration Programmes, [27] and has produced a statement outlining mitigations against such risks, which at minimum, should be included in any such visas. [28]

4. Advice and support

4.1 Recommendations

- The non-prosecution principle must be upheld to ensure that all victims of trafficking and modern slavery can access identification and support services, increasing prosecutions of exploiters

- The 45 day NRM recovery period should be maintained alongside active efforts to increase the efficiency and fairness of decision making

- Better use should be made of the NRM recovery period. Survivors who are ready should be supported with access to decent work during this time to support recovery and re-integration. [29]

4.2 Clause 49: Identified potential victims of slavery or human trafficking: recovery period

This clause, which would limit specialist support in the NRM to 30 days, should be struck out. This clause serves no practical purpose. Decision making in practice is many times longer than the target time of 45 days. [30] These delays are in no one’s interest- they keep individuals who are in the NRM in limbo for longer, while they wait to learn if they will be believed and confirmed as a victim. There should be a focus on efficient decision making but the (already short) recovery time to which victims are entitled should not be reduced. To do so would only increase the anxious period of time during which victims are waiting while knowing they could receive a negative decision at any point.

4.3 Clause 50: No entitlement to additional recovery period

This clause should be struck out. There is no evidence that the possibility of access to an additional NRM recovery period is being misused and there is not enough known about re-trafficking or outcomes from the NRM to limit this option for those who might need it. [31] Instead decision makers need to be able to assign access to a recovery period and support to best meet individual needs.

4.4 Clause 51: Identified victims of trafficking etc: disqualification from protection

This clause should be struck out. The definitions of ‘bad faith’ and ‘threat to public order’ are unclear and risk shutting victims of trafficking out from identification and support and risking re-trafficking.

This clause undermines work to address trafficking for criminal exploitation, including through the Modern Slavery Act 2015 (section 45). It would encourage exploiters to target people with criminal records, trapping people in exploitation once they are criminalised. It would allow exploiters to create a vulnerability and trap and threaten victims by compelling criminality.

4.5 The Independent Anti-Slavery Commissioner has explained that she has ‘grave concerns’ about this clause and its impact and is unclear as to whether this clause is compatible with our obligations under Article 13 of ECAT:

I have 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. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised crime groups. [32]

5. Rebuilding lives & preventing re-exploitation

5.1 Recommendations

- All confirmed victims of trafficking should receive a residence permit, or discretionary leave to remain lasting a minimum of twelve months to support their recovery

- Everyone in the NRM who is ready and wishes to work should be permitted to do so and should be supported to access decent work to enable them to begin to move on from exploitation

- Everyone in the NRM should have access to legal aid for all matters concerning Article 12 entitlements

5.2 Clause 53: Leave to remain for victims of slavery or human trafficking

This clause should be amended to allow for access to work while in the NRM to support re-integration and recovery and allow victims to begin to rebuild their lives and move on from their experience of exploitation. The amendment should also ensure that all victims who receive a positive Conclusive Grounds NRM decision receive leave to remain for at least 12 months.

5.3 The Coop Bright Future Project has shown how effective decent work can be in providing a pathway towards independence. [33] This would make better use of the NRM recovery period and casework support. Conversely, keeping victims in limbo, unable to move on while they wait for a trafficking decision can compound trauma and the impact of trafficking. [34]

5.4 It makes no sense that a person’s insecurity could increase when they are confirmed as trafficked or a victim of modern slavery yet at present there is no guarantee that a confirmed victim will receive any leave to remain in the UK beyond their trafficking decision. This can leave victims feeling betrayed and left to their traffickers. The knowledge that their security is not guaranteed beyond the CG decision can make it hard to disclose- undermining prosecutions.

5.5 Clauses 54 and 55: Civil legal aid services

These clauses should be amended to ensure that legal aid is accessible prior to an NRM referral to inform consent and to all victims in the NRM to ensure access to article 12 entitlements. An NRM referral should ‘passport’ access to legal aid, to avoid victims being left unable to work or collect subsistence payments (so hampering their recovery) to remain within income requirements. [35]

October 2021

[1] FLEX, Fairwork and ADPARE. 2016. Improving the identification and support of victims of trafficking for labour exploitation in the EU. Available at

[2] FLEX. 2017. Risky business: Tackling exploitation in the UK labour market. Available at

[3] LEAG members include: FLEX (founder and secretariat), Latin American Women’s Rights Service (chair), Unite the Union, East European Resource Centre, Ashiana Sheffield, British Red Cross, Kalayaan, Bail for Immigration Detainees, Kanlungan, Work Rights Centre, Glass Door


[5] New Plan for Immigration. Policy Statement. March 2021, page 34



[8] Opportunity Knocks: improving responses to labour exploitation with secure reporting. April 2020, LEAG & FLEX

[9] Opportunity Knocks: improving responses to labour exploitation with secure reporting. April 2020. LEAG & FLEX


[11] Modern Slavery: National Referral Mechanism and Duty to Notify Statistics UK, End of Year Summary, 2020. Home Office

[12] It still happens here. Fighting UK slavery in the 2020s. July 2020. Centre for Social Justice.






[17] Only adults consent to an NRM referral.

[18] Modern Slavery Act 2015, section 52

[19] Vita health network consultation response to the ‘New Plan for Immigration’ 2021

[20] Sarah Newton MP, 2017, Debate on the Modern Slavery Act

[21] Modern Slavery: National Referral Mechanism and Duty to Notify Statistics UK, End of Year Summary, 2020


[22] See ‘A review of the National Referral Mechanism multi-agency assurance panels. ATMG. 2021

[23] Opportunity Knocks: improving responses to labour exploitation with secure reporting. LEAG & FLEX, 2020


[25] Independent review of the Overseas Domestic Workers visa. James Ewins, 2015, para 11.

[26] Assessment of the risks of human trafficking for forced labour on the UK Seasonal Workers Pilot. FLEX, March 2021

[27] The Risks of Exploitation in Temporary Migration Programmes: A FLEX response to the 2018 Immigration White Paper, May 2019, FLEX

[28] Treating workers like commodities: Short term work visas and the risks of exploitation. FLEX statement, September 2021

[29] Access to work for survivors of slavery to enable independence and sustainable freedom. March 2021.


[31] The Independent Anti-Slavery Commissioner and Nottingham University Rights Lab are conducting research on re-trafficking at the time of writing

[32] The Independent Anti-Slavery Commissioner. Letter to Home Secretary Rt Hon Priti Patel MP, 7 September 2021


[34] Access to work for survivors of slavery to enable independence and sustainable freedom. March 2021.

[35] The National Referral Mechanism for identifying victims of trafficking (NRM) and recovery entitlements. Subsistence payments and legal aid for victims of trafficking. Accessing one entitlement to lose another. Briefing by ATLEU, Anti-Slavery International, Simpson Millar Solicitors and Human Trafficking Foundation



Prepared 29th October 2021