Border Security, Asylum and Immigration Bill

10. Similarly, we recommend that the Bill repeals the Nationality and Borders Act 2022 (NABA), which laid the basis for the introduction of the IMA and is already having a detrimental impact on vulnerable individuals, including survivors of modern slavery.

Section 29 IMA

11. Section 29 IMA further expands the power to disqualify individuals from the NRM identification and support system as introduced by section 63 of NABA . This provision makes the disqualification on public order grounds mandatory unless "compelling circumstances" apply rather than discretionary as firstly introduced by section 63 NABA. It also extends the scope of the disqualification to any survivor convicted of an offence of any length of sentence.

12. Many survivors of modern slavery have already been disqualified under section 63 NABA. The NRM official statistics report that between Q1 2023 and Q3 2024, Competent Authorities confirmed 502 disqualification requests. Of these, 494 were disqualifications made on public order grounds and 8 were disqualifications made on bad faith grounds. [2]

These individuals have therefore been barred from accessing support and full identification, de facto denying them access to a conclusive determination of victim’s status. [3]

13. If section 29 were to be brought into force, it would further increase the number of individuals affected by this provision, thus exposing them to further risk of harm, abuse and re-trafficking. In our opinion, the blanket approach to disqualification introduced through section 29 IMA and section 63 NABA runs contrary to article 13(3) ECAT, which provides for the disqualification of individuals on public order grounds only in very exceptional circumstances.

14. This interpretation has been further substantiated and clarified by the Group of Experts on Action Against Trafficking in Human Beings (GRETA), who are responsible for the monitoring of the implementation of ECAT by the State parties. GRETA states that:

" The grounds of public order are intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period. Therefore, the public order exception in Article 13 should be applied restrictively with due regard to the circumstances of the individual case." [4]

15. Section 29 IMA and section 63 NABA are therefore also incompatible with a number of ECAT provisions, such as article 10 (Identification of the victims), article 12 (Assistance to victims), article 13 (Recovery and reflection period) and article 26 (non-punishment provision).

16. The systematic criminalisation of individuals forced to commit crimes as part of their exploitation continues to fail vulnerable individuals, decreasing trust in authorities and therefore preventing people from coming forward, trapping them in an endless circle of exploitation. This approach empowers exploiters and traffickers’ narrative used to keep people under their control. [5]

17. Legislation introduced over the past decade has fostered hostile narratives and policies which have only resulted in the dismantling of essential rights and protection for the most vulnerable in our society. Time and time again, evidence shows that policies based on immigration enforcement and securitisation have failed to achieve their stated aims of tackling trafficking and modern slavery.

18. We therefore recommend not only the IMA to be repealed in full, but also NABA, which constitutes the basis on which the IMA was then developed. NABA is already having an extremely detrimental impact on access to support and identification mechanisms for survivors of modern slavery as shown by findings outlined in this report. [6]

Section 59 IMA

19. Section 59 IMA makes certain asylum and human rights claims inadmissible for nationals of countries considered "safe". The current list includes countries such as Albania, India and Bangladesh, which are countries of origin for many survivors of trafficking and modern slavery.

20. Albanian nationals consistently rank amongst the top 3 nationalities of those referred into the NRM as shown by the latest available statistics (quarter 3 2024), where Albanian was the second most referred nationality. [7]

21. Over the past few years, there has been a widespread hostile rhetoric against specific nationalities, such as Albanian, which resulted in the introduction of targeted operations such as Operation Bridora in December 2022, which focused Home Office resources to expedite processing asylum claims from Albanians. [8] Organisation raised concerns that this could be potentially linked with the increase in negative CG decisions for Albanian cases in the last quarter of 2022. [9]

Furthermore, on the 22nd of February 2024, Competent Authorities amended the guidance to prioritise CG cases for a number of groups, including Albanian nationals. [10]

22. This discriminatory approach to the definition of "safe countries" stands in clear contrast with article 3 ECAT (non-discrimination principle) and fails to implement additional safeguards to account for people’s vulnerabilities, which risks excluding people from being identified as survivors of modern slavery and accessing essential support.

Section 12 IMA

23. Section 12 IMA expands the period for which a person may be detained, giving wide discretion to the Secretary of State to decide the appropriate length of detention. This can also apply to children who are age disputed.

24. This provision constitutes a clear breach of article 12(1)(a) ECAT, which states that accommodation provided to victims must be appropriate and secure. The ECATER states that the use of appropriate and secure should be understood in relation to what is necessary to ‘assist victims in their physical, psychological and social recovery’.

25. The accommodation should, therefore, be allocated on the basis of the multiple needs of individual survivors. ECATER also states that victims of trafficking should be accommodated where staff would be able to provide specialist and around-the clock assistance. The purpose is to provide victims with surroundings in which they feel secure and to provide them with help and stability. [11]

26. There is a wealth of evidence, which shows that detention settings are not conducive to supporting survivors’ disclosure and recovery. On the contrary, research shows significant gaps in the identification of survivors in immigration detention as well as wrap-around support with NRM cases. [12]

27. Furthermore, changes brought to the Adult at Risk policy, has made it even more difficult for survivors to meet the threshold to be released into the community, creating the condition for long-term detention. Organisations such as the Helen Bamber Foundation have documented the detrimental impact detention has on individual mental health, which compounds the effect of trauma generated by the experience of exploitation. [13]

28. Section 12 IMA also applies to children who may have had their age disputed. Considering the multiple safeguarding failures in the age assessment process [14] and the barriers to accessing legal representation in detention, many children may find themselves in detention for extended periods of time. ECATER states that the placement of a child in a detention institution should never be regarded as appropriate accommodation. [15]

Offences relating to articles or information for use in immigration crime (clauses 13-17) and endangering another during sea crossing to United Kingdom (clause 18)

29. The Border Security, Asylum and Immigration Bill expands the scope of immigration offences which may result in the criminalisation of vulnerable individuals, including survivors of trafficking and modern slavery.

30. These provisions build upon previous immigration offences introduced by the IMA and NABA, creating a two-tier identification and support system between victims based on the way they arrive in the UK. This discriminatory approach contravenes principles set in ECAT and the European Convention on Human Rights (ECHR).

31. There is a potential compounded effect created by the retention of article 12 and 29 of the IMA and the introduction of these new offences, which may result in a wide scale criminalisation of individuals, who will be unable to access modern slavery protections.

Detention and exercise of functions pending deportation (clause 41)

32. Clause 41 of the Bill further expands detention powers, providing that an individual may be detained while the Secretary of State considers whether to make a detention order or before making a deportation order.

33. Once in detention, people will face additional barriers to accessing legal representation and advice in relation to their situation, making it more difficult to provide further representations or to disclose potential vulnerabilities, such as a history of exploitation. As stated earlier in this submission, detention settings can have long-lasting effects on individuals’ mental health and do not offer specialist support, which survivors of modern slavery are entitled to receive.

34. Additionally, in subsection (2)(a), the Bill states that an individual can only be detained when the Secretary of State has notified the individual in writing of their consideration to make a deportation order or that they have made the decision to deport them.

35. The risk of preventative detention may push people underground for fear of being deported, leaving individuals vulnerable to trafficking and exploitation. Individuals will be reluctant to approach authorities because of their precarious immigration status and the lack of secure reporting mechanisms.

36. This is an impossible situation for vulnerable individuals, who need to choose between detention and deportation or being exploited. This system only benefits traffickers and exploiters, leaving the most vulnerable without statutory protection.

The Border Security Commander (Clauses 1-12)

37. The Border Security, Asylum and Immigration Bill introduces the role of the Border Security Commander with the objectives of:

● maximising the effectiveness of the activities of partner authorities relating to threats to border security, for the purpose of minimising such threats; and

● maximising the coordination of those activities for that purpose. [16]

38. It is unclear what specific tasks the Commander is going to undertake to achieve the stated objectives, however, we note that a list of threats to Border Security in clause 3(7) are defined as to "include the passage or conveyance of any person or thing towards, into or out of the United Kingdom, or the organisation of or preparation for such passage or conveyance, in circumstances mentioned in subsection (8)". [17]

39. These objectives in conjunction with clause 3(8) and the new offences which may be introduced through Part 1, chapter 2 of the Bill, could result in the criminalisation of vulnerable people at borders.

40. It is crucial that the tasks to be carried out by the Border Security commander are explicitly referenced in the Bill to allow for a transparent scrutiny of its functions and to ensure safeguarding measures can be put in place to ensure vulnerable individuals are not wrongly criminalised, but instead swiftly safeguarded during "border security operations".

41. Additionally, we raise grave concerns in relation to the use of counter-terrorist tactics, which may be used against cohorts of vulnerable individuals, further feeding into the already toxic narrative against migrant communities.

For more information, please contact:

Eleonora Fais at e.fais@antislavery.org

Kate Elsayed-Ali at kate@atleu.org.uk

26 February 2025