Chapter 2: Impact of immigration legislation
29.Part 5 of the Act introduced protections for victims. It includes requirements under section 49 for the Secretary of State to issue guidance about how to identify and support victims of modern slavery and under section 52 for specified public authorities to notify the Secretary of State about suspected victims of modern slavery. Box 1 sets out these areas in more detail.
Box 1: Victim Identification and Support
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First Responder Organisations (FROs) are designated bodies which refer individuals into the National Referral Mechanism (NRM) if there is evidence that they may be victims of modern slavery. FROs include charities, law enforcement agencies, local authorities, and the Home Office. Home Office competent authorities next determine whether “on the balance of probabilities” there are sufficient grounds to decide that the individual is a victim of modern slavery (“reasonable grounds decision”). The individual then receives a recovery period and a decision is taken on whether there are conclusive grounds, and, if so, they are fully recognised as a victim. Adult victims may receive the following support after being referred into the NRM:
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Source: Home Office, 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 (May 2024): https://assets.publishing.service.gov.uk/media/6659a22316cf36f4d63ebcc3/Modern+Slavery+Statutory+Guidance+_EW_+and+Non-Statutory+Guidance+_SNI_+v3.10.pdf [accessed 11 June 2024]
Box 2: First Responder Organisations
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The following are First Responder Organisations (FROs). Government bodies:
Non-governmental organisations:
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Source: Home Office, ‘National referral mechanism guidance: adult (England and Wales)’ (14 May 2024): https://www.gov.uk/government/publications/human-trafficking-victims-referral-and-assessment-forms/guidance-on-the-national-referral-mechanism-for-potential-adult-victims-of-modern-slavery-england-and-wales#first-responder-organisations [accessed 3 September 2024]
30.Recent immigration legislation has limited the access which victims have to this support, particularly through the Nationality and Borders Act 2022 (‘NABA’), the Illegal Migration Act 2023 (‘IMA’) and the Safety of Rwanda (Asylum and Immigration) Act 2024 (‘the Rwanda Act’). A policy paper accompanying the then Illegal Migration Bill said that the Government was “taking action to tackle the abuse of our modern slavery system by people seeking to thwart their removal once their asylum claim has been denied. Those subject to the duty to make arrangements for removal will not be able to access the modern slavery system in the UK.”25 This means that immigration officers subject to duties in the IMA will not be able to refer people into the NRM.
Interaction between immigration and modern slavery
31.The Government has given case studies and data in support of its position that the modern slavery system is being abused by illegal migrants. In 2019, 6% of those detained for return were referred to the NRM, which increased to 73% in 2021. In May 2023, 9% of people arriving on small boats were referred to the NRM on arrival, and 65% were referred once detained.26
32.Further Government perspective was provided by Laura Farris MP, Minister for Victims and Safeguarding, who highlighted problems with admitting children into the NRM without having scientific age assessment and gave an example of a rape and attempted murder case committed by someone with a reasonable grounds decision in the NRM. When asked whether she had evidence of adults abusing the system she said:
“No, we do not … The Home Office will make some decisions in the affirmative and some in the negative, but the Home Office cannot be totally sure that those decisions are always good ones. That is because people, particularly the small-boat arrivals, arrive without any documents.”27
33.Some witnesses highlighted the difficulty of evaluating whether there is abuse of the system. Julian Bild of the Anti-Trafficking and Labour Exploitation Unit said that the public order disqualification (see paragraph 40) meant that potential victims with convictions are being removed from the system before it is possible to determine their status.28 Professor Alex Balch, Director of Research at the Modern Slavery and Human Rights Policy and Evidence Centre, said that “pushing people into “genuine” or “non-genuine” is a somewhat simplified binary when most cases are very complicated and involve criminality.”29
34.Other witnesses did not support the government’s claim. Dr Marija Jovanovich, Lecturer at the University of Essex, pointed to the absence in 2023 of any bad faith disqualifications whereby potential victims can be disqualified from protection when they have claimed victim status that is not true.30 Professor Louise Waite, Director of Leeds Social Sciences Institute at the University of Leeds, said that increased referrals could suggest better awareness among first responders and that the proportion of small boat arrivals confirmed as victims is broadly in line with all referrals.31 Olivia Hesketh, Director Policy Impact at the Modern Slavery and Human Rights Policy and Evidence Centre said her organisation had found that:
“The available published evidence does not indicate widespread abuse of the National Referral Mechanism system by migrants or any other group. The Office for Statistics Regulation, the former Independent Anti-Slavery Commissioner and others have also found that the available evidence does not indicate widespread abuse of the system.”32
35.The language concerning immigration and modern slavery has changed in recent years, which some have seen as problematic. Professor Alex Balch said that although the two areas have always been intricately tied up, there has been a change in tone. Dr Marija Jovanovich told us that the conflation of the two issues was surprising given that the UN has different protocols to address them: smuggling of migrants and trafficking in persons.33 Eleanor Lyons, the Independent Anti-Slavery Commissioner, commented:
“First and foremost, we need to make sure that we are very clear about what modern slavery is and are not conflating it with illegal migration … As I heard from a survivor a couple of weeks ago, rhetoric matters. The things that government and policymakers say have an impact.”34
36.We believe a link may be drawn between immigration policy and the development of a hostile environment towards victims of modern slavery. Professor Louise Waite said that “hostile exclusionary and racialised violence in the UK is creating vulnerabilities for migrants.” Julian Bild suggested this is driven by the Government rather than the public.35 Euan Fraser, Senior Policy and Research Advisor at Hope for Justice, told us that a survivor had commented that currently “it’s like everywhere you go for help there will be barriers, and it feels like the system is designed for you not to share without any repercussions, so you are silenced and dismissed.”36
37.There is concern, we were told, over the Home Office ownership of both immigration and modern slavery policy. Wilson Solicitors noted that “Home Office decision makers continue to be responsible for both identifying victims as well as deciding on their eligibility for immigration status.”37 Hope for Justice wrote:
“There has long been a tension between the Home Office’s ownership of the response to modern slavery, which includes safeguarding survivors, and its responsibilities in relation to law enforcement and immigration policy. The safeguarding needs of survivors have consistently come second when deemed to be in conflict with immigration control.”38
38.We have not received evidence of widespread abuse of the modern slavery system. Case studies may be emotive, and we do not underestimate or de-value their power, but they are not a panacea for data covering a whole population. It is important that comprehensive data is used when making changes as significant as those to recent immigration legislation, since otherwise the actions of a minority may have a disproportionate effect on all victims.
39.We have received evidence from authoritative sources, including well-regarded academics and the Independent Anti-Slavery Commissioner, expressing concern about changes in rhetoric from the previous Government about the relationship between immigration and modern slavery. Although the two areas can interact, they are different strands of a complex picture, and neglecting this fact can have negative impacts on victims in vulnerable situations. The current Government’s announcement that it will not continue the Rwanda scheme may offer an opportunity to take a new direction by clearly separating immigration and modern slavery.
40.The Government should develop a sound evidence base to inform policy in this complex area. Data should be sought as to whether and, if so, in what respects and by whom the modern slavery system is being abused. That data should be kept up to date, and it should be published. Allegations of significant abuse of the system should never be made unless they can be backed up with hard data.
41.It should be recognised that there is a very real difference between migrants who come here willingly, and those who come because they are being trafficked as victims of modern slavery. This should lie at the heart of Government policy and of any future legislation about illegal migration. The adverse impact that immigration legislation may have on the identification and protection of victims needs to be carefully assessed and monitored.
Nationality and Borders Act 2022
42.NABA introduced a wide range of measures relating to modern slavery. These include the decreased recovery period under section 61, the narrowing of temporary leave to remain under section 65, and the changes in definitions under The Slavery and Human Trafficking (Definition of Victim) Regulations 2022. All of these may have an adverse effect on victims.
43.Section 63 of NABA provides that the protections from removal from the United Kingdom otherwise enjoyed by potential victims of modern slavery do not apply if they are a “threat to public order” or have claimed victim status in “bad faith.” In 2023, there were 331 confirmed disqualifications, all of which were on grounds of public order.39
44.Evidence strongly suggests that legal aid is an issue for recipients of a public order disqualification. Rabiya Ravat, Director of Modern Slavery Victim Care Services at Migrant Help, said that lack of legal assistance leaves people “at the mercy of this decision with potentially no ability to challenge it.”40 Hestia, a charity providing modern slavery support in London and the south east of England, said that lack of legal advice resulted in victims pleading guilty to offences when they were entitled under section 45 of the Act to plead a defence that they were compelled to commit the crime.41 This may have applied to a substantial number of people given that, according to the International Organisation for Migration, 71% of recipients of a public order disqualification were potential victims of criminal exploitation.42
45.The statutory guidance has had a significant impact on implementation. The Home Office updated it in January 2024 following a legal challenge to require assessment of “immediate risk of re-trafficking” before a public order disqualification was made. The Modern Slavery and Human Rights Policy and Evidence Centre wrote that despite the change the “statutory guidance on public order disqualification goes beyond what section 63 NABA … expressly permits.”43 Alison Logier, Director of Modern Slavery Response at Hestia, told us that since the change they have welcomed “the Government’s approach to reach out to us, the support providers, to ask us for information towards that immediate risk of re-trafficking assessment.”44 Hestia also said in written evidence that:
“Risk assessments … should be extended beyond “immediate risk” to “any risk” of re-trafficking, and support workers’ expertise should be included in the risk assessment (which must include sufficient and appropriate time to submit such evidence).”45
46.Beyond the public order disqualification, in January 2023 the Home Office updated its statutory guidance to require reasonable grounds decisions to be supported by “objective factors.” Following a legal challenge, in July 2023 it amended the guidance to stipulate consideration of “whether it is reasonable in all the circumstances” to expect supporting evidence or corroborating information.46 The proportion of positive reasonable grounds decisions dropped from 88% in 2022 to 55% in 2023, thus restricting the provision of support for individuals within the NRM.47
47.Concerns were raised over the effect on the decision-making process. Euan Fraser highlighted the increase in time taken from referral to reasonable grounds decisions, which increased from 6 days in 2022 to 23 days in 2023, saying that “during this time, people entitled to National Referral Mechanism Support are effectively in limbo and there is a real risk of re-trafficking.” Rabiya Ravat said there had been a significant increase in reconsideration requests and added:
“I do not know whether it is indicative of a failure in the quality or efficiency of decision-making at the outset, or whether, given the extra time for first responders to go back and gather sufficient evidence and resubmit, there is a likelihood of getting a better decision.”48
48.Evidence suggests that outcomes vary significantly depending on people’s circumstances. 76% of cases referred by charity first responders get a positive reasonable grounds decision, whereas the rate is 35% when UK Visas and Immigration makes the referral.49 Tatiana Gren-Jardan, Head of the Modern Slavery Policy Unit at Justice and Care and the Centre for Social Justice, commented that her organisation’s case load had a positive reasonable grounds decision rate of 87% due to the work of victim navigators assisting with the process.50 Dr Ella Cockbain wrote that “people identified as potential victims in the UK but exploited abroad may find it particularly challenging to provide such ‘objective evidence’ of their abuse.”51
49.Section 58 of NABA requires individuals to provide evidence within a given period for the purpose of making decisions on whether they are victims of modern slavery. Major Kathy Betteridge, Director for Anti-Trafficking and Modern Slavery at the Salvation Army, said this was a real concern because people without representation will not be able to provide evidence. She added:
“For them … to provide evidence to show that they have been victimised and have been involved in a situation of slavery is traumatic. The whole framework around that is really worrying and it will certainly exclude many who should be coming in to receive the support that the contract offers at the moment.”52
Dr Marija Jovanovich told us that the impact of trauma is already acknowledged in the statutory guidance but was not reflected in the official narrative.53
50.The public order disqualification has sometimes resulted in difficulties for victims such as in giving evidence from overseas without legal support. The update to the statutory guidance in January 2024 improved this by ensuring better engagement with frontline organisations. However, it does not go far enough in addressing the modern slavery risk faced by victims. The requirement for objective evidence to make a reasonable grounds decision has deprived many of support they would previously have been entitled to and has further increased delays in the system even when decisions are positive. The requirement for individuals to provide evidence “before a specified date” is likely to exclude many from the support they need. It does not adequately consider the impact of trauma on modern slavery victims and the time it takes to recover from this.
51.The Government should consider amending the guidance in section 14.276 of its modern slavery guidance so that it improves the protection that is given to victims from removal. It should be extended to whether there is “any risk” that the individual will be re-trafficked in or from the UK, rather than whether there is “a real and immediate risk” of this happening.”
52.The Government should remove the requirement for objective evidence for a reasonable grounds decision within the National Referral Mechanism.
53.The Government should remove the requirement for evidence to be provided “before a specified date,” as per section 58(2) of the Nationality and Borders Act. The Government’s statutory guidance acknowledges that victims often need time before they feel comfortable speaking to the authorities.
Illegal Migration Act 2023
54.Section 29 of the IMA amends section 63 NABA by extending the grounds on which a person is treated as a threat to public order by excluding from protection anyone who is not British and has been sentenced to a term of imprisonment or is liable to deportation, meaning that it will affect anyone who arrives through an illegal mode of entry.54 Section 22 removes modern slavery protections relating to the recovery period and the obligation to grant leave to remain in certain circumstances. Section 22(3) contains an exception to this for people co-operating with law enforcement authorities when there are “compelling circumstances” which require them to be in the UK for that purpose. The provisions have not yet been commenced and there is uncertainty about when or if they will be.55
55.The sector anticipates adverse effects on victims if section 29 is brought into force. Dr Amit Anand, Assistant Professor of Law at REVA University, and Dr Preethi Nagaveni wrote that “immigration detention, and even the threat of detention and deportation, has detrimental effects on mental health.”56 Several people stated that victims may disengage with the authorities, either through refusing to enter the NRM or leaving their current support arrangements to “go underground,” which risks revictimisation.57 Tatiana Gren-Jardan said “if we are driving victims underground and helping traffickers, that will not help the Modern Slavery Act at all.”58
56.There may be implications for securing prosecutions. Rabiya Ravat highlighted the current low prosecution numbers for modern slavery offences and questioned whether using the threat of deportation to encourage people to come forward would improve this. Major Kathy Betteridge said that when victims “are asked to work and co-operate with the police, it takes a long time for them to develop that trust.”59 Dr Kari Johnstone, Organisation for Security and Co-operation in Europe Special Representative and Co-ordinator for Combating Human Trafficking, told us that from an international perspective effective prosecution occurs in “the countries that put victims first and that take a truly victim-centred, survivor-informed approach” (see Chapter 4).60
57.There were suggestions to mitigate the impact of the measures within the scope of existing legislation. The Modern Slavery and Human Rights Policy and Evidence Centre suggested that following commencement there should be monitoring of whether to suspend of sections 22–25 of IMA as permitted by section 26.61 This was also addressed by Justice and Care and the Centre for Social Justice, which added that “in the meantime the negative impact should be mitigated through statutory guidance to exempt potential victims of slavery who were exploited in the UK.”62
58.There were arguments that the provisions of the IMA affecting modern slavery protections should not be brought into force. The Migrant and Refugee Children’s Legal Unit told us that otherwise they “will undermine existing modern slavery legislation to such an extent as to render it completely meaningless.”63 A precedent for disapplication of measures comes from the recent judgement of the Northern Ireland High Court that parts of IMA should not apply in Northern Ireland because of breaches of the Windsor Framework. Professor Dame Sara Thornton, Rights Lab Professor of Practice in Modern Slavery Policy at the University of Nottingham, gave three cases for non-commencement. Firstly, she said that the provisions are “an extreme step” which contravene international legal commitments. Secondly, she echoed Theresa May’s question of “can’t we wait until we understand the impact of the Nationality and Borders Act?”. Thirdly, she said the measures reduce “even more the likelihood of successful prosecutions.”64
59.The modern slavery sections of the Illegal Migration Act are likely to have a damaging effect on the wellbeing of victims. Victims may become unwilling to engage with the authorities. This could remove the support they receive from frontline organisations, increase the likelihood that they are re-trafficked, and limit the evidence they can provide for prosecutions.
60.The Government should remove the provision excluding from protection anyone who “is not a British citizen,” as per section 29(4)(a) of the Illegal Migration Act, or “is liable to deportation,” as per section 29(4)(b)(b) of the Illegal Migration Act.
61.The modern slavery sections of the Illegal Migration Act should not be commenced because they could cause a reduction in the number of modern slavery prosecutions and because insufficient evidence has been received concerning the operation of the measures in the Nationality and Borders Act on which the Illegal Migration Act relies.
Safety of Rwanda (Asylum and Immigration) Act 2024
62.The Rwanda Act received Royal Assent on 25 April 2024 before the change in government. The new Government has said that it will scrap the scheme. The following relates to the legislation as enacted and represents our view when we completed evidence gathering while the previous Government was in post. The Act allows the UK to deport illegal migrants to Rwanda to have asylum claims determined there and deems Rwanda to be a safe country for this purpose. There has been significant parliamentary debate about it, in particular the impact of the Supreme Court’s 2023 judgment that Rwanda was not in the evidence before it a safe country, whether the Act complies with the UK’s international obligations, and why the Government has granted asylum to individuals from Rwanda if it considers it to be a safe country. Section 6 requires the Secretary of State to publish an annual report about the operation of the Act concerning modern slavery.
63.Concerns have been raised about the impact on victims. Traffickers may take advantage of people before deportation, with Julian Bild suggesting they will say “if you escape from us, they’re going to send you to Rwanda,”65 or after, with the Anti-Trafficking Monitoring Group emphasising the vulnerability of people “arriving in a country where they do not speak the language” and “have no support network or income opportunities.”66 Justice and Care and the Centre for Social Justice wrote that “if a person is referred to the NRM but removed before a reasonable grounds decision is made then they would not be treated by Rwanda as a victim of modern slavery, placing them at increased risk.”67
64.We have heard arguments that if the Rwanda Act is brought into force it may afford traffickers greater control over victims, both before and after deportation to Rwanda. Individuals awaiting a reasonable grounds decision may be particularly vulnerable since they will not be treated as victims.
65.If the Rwanda Act comes into force, the Government should address in its report under section 6 a section devoted specifically to the Act’s impact on victims, including the psychological effect on those fearing deportation and the risk of re-trafficking, particularly for individuals transferred while awaiting a reasonable grounds decision.
Survivor support
66.Frontline organisations have felt that survivor voices are not always being heard. Major Kathy Betteridge called for a survivor-focused and survivor-informed approach, while Euan Fraser emphasised the need to put the safeguarding and welfare of survivors first over immigration law enforcement.68 Kalayaan suggested ensuring that “those with lived experience are properly and meaningfully consulted on their views as to the impact of recent legislative and policy measures.”69
67.Some voices who contributed to our inquiry said that there was a lack of communication from Government to those affected. Survivors told us that they received no updates from the Home Office, often despite energetic attempts to prompt them, between receiving a reasonable grounds decision, which in 2023 took an average of 23 days, and a conclusive grounds decision, which took an average of 503 further days.70 During this period they were uncertain of their status and had limited support. The Justice and Home Affairs Committee recently identified a similar issue in lack of Home Office communication about family visas which it said “adds to the uncertain, stressful, and precarious situation of families.”71
68.We heard that survivors are not always given the rights they need to recover and/or may not have chosen to come to the UK. Euan Fraser suggested learning from the T visa in the US, which provides survivors with security of immigration status, a pathway to citizenship, right to work, and recourse to public funds.72 Adis Sehic said in connection with the care sector (see further Chapter 3):
“[Survivors] are not incentivised to enter the NRM, primarily for two reasons: there is no guarantee of being provided with the right to work once you are in the NRM, and there is no guarantee that you will be granted leave even if you are confirmed as a victim of modern slavery.”73
69.There is a risk that immigration law enforcement will be prioritised at the expense of ensuring the welfare of survivors and listening to their perspective on policy development. The aim should be to give them the support they need to recover from their experiences, and to avoid disincentivising them from entering the National Referral Mechanism.
70.The Government should prioritise the safeguarding of victims over their immigration status and communicate changes in good time to victims and frontline organisations, including when there are delays in the National Referral Mechanism.
71.The Government should provide rights to modern slavery victims including temporary immigration status, recourse to public funds, and access to work, providing a route to permanent settlement in the UK.
International law
72.The UK has obligations under international law on modern slavery under the UN’s Palermo Protocol, the Council of Europe’s ECAT, and the European Convention on Human Rights (“ECHR”). Questions were raised about compliance with it. Julian Bild stated that the Government regularly departs from ECAT, having granted leave to remain up until 31 January 2023 and then stopped doing so.74 Dr Marija Jovanovich said of recent immigration legislation:
“It excludes from protection victims with irregular immigration status or those who have been involved in criminal offences … Not only is there no legal basis for that in international law, but those international obligations provide specific additional protections for victims.”75
73.Modern slavery policy must align with the UK’s commitments under international law. The compliance of the previous government’s immigration legislation with international law, including agreements on modern slavery and human trafficking to which the UK is a signatory, has been contested.
74.The new Government should review its policy and procedures to ensure that primary legislation and statutory guidance are positively compliant with its international obligations under the Palermo Protocol and the European Convention on Action against Trafficking in Human Beings.
25 Home Office, ‘Illegal Migration Bill: overarching factsheet’ (20 July 2023): https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/illegal-migration-bill-overarching-factsheet [accessed 11 June 2024]
39 Home Office, ‘Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, end of year summary 2023’ (7 March 2024): https://www.gov.uk/government/statistics/modern-slavery-nrm-and-dtn-statistics-end-of-year-summary-2023/modern-slavery-national-referral-mechanism-and-duty-to-notify-statistics-uk-end-of-year-summary-2023 [accessed 11 June 2024]
46 Home Office, 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 (May 2024): https://assets.publishing.service.gov.uk/media/6659a22316cf36f4d63ebcc3/Modern+Slavery+Statutory+Guidance+_EW_+and+Non-Statutory+Guidance+_SNI_+v3.10.pdf [accessed 11 June 2024]
47 Home Office, ‘Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, end of year summary 2023’ (7 March 2024): https://www.gov.uk/government/statistics/modern-slavery-nrm-and-dtn-statistics-end-of-year-summary-2023/modern-slavery-national-referral-mechanism-and-duty-to-notify-statistics-uk-end-of-year-summary-2023 [accessed 11 June 2024]
57 Written evidence from Policy Unit, Justice and Care and the Centre for Social Justice (MSA0037), the Anti-Trafficking Monitoring Group (MSA0039), Hestia (MSA0042) and Walk Free (MSA0067)
70 Home Office, ‘Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, end of year summary 2023’ (7 March 2024): https://www.gov.uk/government/statistics/modern-slavery-nrm-and-dtn-statistics-end-of-year-summary-2023/modern-slavery-national-referral-mechanism-and-duty-to-notify-statistics-uk-end-of-year-summary-2023 [accessed 11 June 2024]
71 Justice and Home Affairs Committee, All families matter: An inquiry into family migration (1st Report, Session 2022–23, HL Paper 144)