Recommendation 12

HM Government Rejected

As noted above, the Government is committed to ensuring an effective immigration and asylum system and has retained certain measures of the IMA 2023 where they have been assessed as beneficial to that aim. The Bill repeals the vast majority of modern slavery provisions in the IMA 2023, including those linked to the ‘duty to remove’. The sole modern slavery measure being retained (section 29) would, if commenced, bring all foreign national offenders into scope for mandatory consideration of disqualification from modern slavery protections on public order grounds. This process for disqualification, the Public Order Disqualification (POD), exists already under section 63 of the Nationality and Borders Act 2022 (NABA 2022), as noted by the Committee’s report. Section 63 enables victims or potential victims of modern slavery to be disqualified from the protections against removal, modern slavery specific assistance and support, and any requirement to grant limited leave to remain under section 65 of NABA 2022 if they are a threat to public order or have claimed in bad faith. The changes to section 63 that would be made by section 29 of the Illegal Migration Act 2023 would create a duty on competent authorities to apply the POD to foreign national offenders, unless the competent authority considers there are compelling circumstances that mean the POD should not apply to the person. Foreign national offenders with prison sentences of any length would be considered a threat to public order, and would be eligible for disqualification from the protections and support of the National Referral Mechanism (NRM). Cases would continue to be determined on a case-by-case basis. While section 29 has not yet been commenced, it is appropriate to retain it at this stage, so that it can be considered alongside the Government’s wider plans for modern slavery reform. The Council of Europe Convention against Trafficking of Human Beings (Article 13) allows for withholding of support on the grounds that an individual poses a risk to public order or where it is found that victim status is being claimed improperly. The POD is therefore compliant. The changes that section 29 of the IMA 2023 would, if commenced, make to section 63 of the NABA 2022 are also entirely consistent with Article 4 of the ECHR (Prohibition of slavery and forced labour). This is on the basis that there remains a discretion not to apply the disqualification, even where someone is assessed as a threat to public order, and this in will be operated in a way that is compliant with the ECHR, taking in to account the individual’s circumstances, along with existing safeguards. Applying the POD is, and would continue to be if section 29 were commenced, decided on a case by case basis, taking into account the particular circumstances. This includes any convictions for offences and the individual’s possible exploitation to commit those offences. Where there are compelling reasons not to disqualify the individual from support, it is not possible for competent authorities to disqualify an individual. The report rightly notes the availability of a defence against prosecution under section 45 of the Modern Slavery Act (MSA) 2015. This defence is available where an adult was compelled to commit an offence as part of their exploitation or where a child commits an offence as a direct consequence of being or having been a victim of slavery or exploitation. Certain serious offences, specified in Schedule 4 of the MSA 2015, are excluded from the defence. The section 45 defence is an important mechanism to account for crimes committed as a result of slavery or exploitation, within the criminal justice system. While the defence does not apply to every crime, Parliament has considered in its approval of the MSA 2015 the crimes that are excluded, usually serious or violent crimes. In addition, wider prosecutorial discretion is in place, including consideration of whether it is in the public interest to prosecute. The section 45 defence means that the POD should not affect those who have committed crimes as part of their exploitation, save where Parliament has previously agreed that the defence should not apply, and the CPS has exercised their discretion in favour of prosecution. We recognise the concerns raised in the report in relation to the importance of awareness of the defence amongst professionals and the criminal justice system and agree that awareness of it is essential to ensure effective application of the defence. To that end, Guidance is available to prosecutors on this defence to ensure it is applied in appropriate cases.