Eleventh Report - Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

The Secretary of State should clarify whether there will be guidance on setting a “specified date” by which information under a slavery or trafficking information notice must be provided, whether it will allow for sufficient time for victims (who are known to take time to feel comfortable talking about slavery and trafficking experiences) to provide the required information, and whether extensions may be granted in certain cases.

It is not clear whether ‘slavery or trafficking information notices’ will be served on all asylum applicants or only some. There is the potential for the effects of slavery or trafficking information notices to be discriminatory if they are only served on certain categories of person. This will especially be so if those categories of people are negatively impacted by their difficulty in meeting the deadlines imposed by the Home Office. There is the potential, therefore, for Article 14 ECHR (principle of non-discrimination), as read with Article 4 ECHR (prohibition on slavery), to be engaged by the application of clauses 57 and 58 in practice. We are concerned about the potential for discrimination in the application of this clause unless clear criteria are set as to how it will be applied and to whom.

The Secretary of State should produce guidance on how and when to submit a statement of reasons and what are likely to be considered “good reasons”. The Secretary of State should clarify how vulnerable or traumatised people who provide information late due to their vulnerability or trauma will be treated under this provision.

We consider that clause 58 should be amended so that it does not inadvertently remove protection from victims of slavery or human trafficking, contrary to the UK’s obligations to combat slavery and human trafficking. This would also bring it closer in line with the established caselaw of the Courts in relation to how the words in this provision should be read. Clause 58 should be amended to replace “must take account, as damaging the person’s credibility, of the late provision of the relevant status information” with “may take account, as potentially damaging the person’s credibility, of the late provision of the relevant status information”.

We consider that clause 58 should be further amended to specify that it does not apply to child victims and victims of sexual exploitation, given the well-documented impact of trauma in delaying disclosure, especially on those two categories of victim. (Paragraph 25) Defining “victim of slavery” and “victim of human trafficking”

The definitions of “victim of slavery” and “victim of human trafficking” are central to the treatment of victims of slavery and human trafficking, and how the Bill will operate in protecting those victims. At a minimum, the definitions used in legislation should comply with those contained in the relevant international treaties, such as the definition of “human trafficking” in the UN Palermo Protocol. (Paragraph 33) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 43

At a minimum, the definitions used in legislation should comply with those contained in the relevant international treaties, such as the definition of “human trafficking” in the UN Palermo Protocol. The Government should consider amending the Bill to include definitions of “victim of slavery” and “victim of human trafficking”. (Paragraph 33) The process for determining whether a person is a victim of slavery or human trafficking

The Secretary of State should explain how she envisages clause 61 working. She should explain how she justifies including a discretion in clause 61, as to whether a potential victim will be protected from removal, where a conclusive grounds decision is pending. We consider that the test for providing further protection under clause 61 should be amended to ensure that victims of slavery and human trafficking are given the protection they need.

The Secretary of State should explain how the test of appropriateness in clause 63 (new section 50A(4)) will be applied and if it will ensure that assistance and support will be provided in all cases where this is necessary. (Paragraph 45) Victims that won’t receive protection: the public order and bad faith exceptions

The Secretary of State should clarify the drafting intention as between clause 62(2)(b) and clauses 64(6) and (7).

Excluding certain victims from protection increases the likelihood that their cases will not be adequately investigated or prosecuted and, therefore, that action will not be taken against organised gangs exploiting these victims of slavery or human trafficking. Such an approach therefore runs counter to the UK’s obligations under ECAT and Article 4 ECHR, as well as leaving gaps in enforcing action against traffickers. We are concerned that such an approach will leave a loophole for those responsible for exploiting people in slavery and human trafficking to evade investigation and prosecution, by targeting those with a criminal past.

More must be done to ensure that victims of slavery or human trafficking are not prosecuted due to conduct they were compelled to undertake as part of their exploitation. Prosecuting trafficking victims is wrong because it wrongly punishes them for doing something they may have been compelled to do as victims. Moreover, this is of concern in light of clause 62, since, if convicted, a victim may then also lose their protection and support (which itself can have ramifications for the investigation and prosecution of the perpetrators). It is not compatible with ECAT or Article 4 ECHR to remove protection from victims of slavery or human trafficking, other than for those posing a current threat, and for the most serious offending. Protection should not be removed from victims for activities caused by being a victim of slavery or human trafficking.

The Secretary of State should explain whether there will be any further clarification given as to what “bad faith” means for the purposes of section 62(1) NBB. (Paragraph 62) 44 Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

The wide definition of “public order” contained with the Bill risks catching levels of behaviour that fall below what we consider to be the appropriate threshold to deprive a person of protection as a victim of slavery or human trafficking. For example, clause 62(3) catches historic offending, minor offending, offending where a person was compelled to do so by their captors in a slavery or human trafficking situation, cases where there has been no conviction, and cases relying on unsafe convictions from overseas. Moreover, it is important to recall that Article 13 ECAT only permits these exceptions where “grounds of public order prevent it”—therefore, even for those individuals who may fall within one of the limbs in clause 62(3), a person should not be excluded unless it is additionally shown that they, as an individual, present such an ongoing risk to public order as to enable the UK to avail itself of the exception in Article 13 ECAT.

We recommend that clause 62 be amended so that it complies with ECAT and is limited only to those posing a current and ongoing serious threat to public order. Such an amendment should additionally ensure that clause 62 does not to apply to minor offending or historic offending. Clause 62 should additionally be amended so that victims are not excluded from protection for any conduct they were compelled to undertake as a victim of slavery or human trafficking.

Clause 62 should be amended to ensure that it does not place the competent authority in a difficult position of having to make determinations in relation to terrorism or national security; such determinations should be made by the Secretary of State following clear decision-making processes.

The Secretary of State should clarify whether guidance will be issued to explain when and how the discretion in clause 62 will be exercised to ensure that it complies with the UK’s obligations to combat slavery and human trafficking and to protect the victims of such practices.

The Secretary of State should clarify what protections will be in place, such as instructions as to how to apply any discretion, to ensure that unsafe convictions overseas do not lead to a person’s victim status being removed under clause 62.

Clause 62, as currently drafted, does not adequately appreciate how trafficking and slavery can affect children, and does not comply with the rights of the child, under the UNCRC.

Clause 62 should be amended so that it does not apply to child victims of slavery or human trafficking, in order to comply with the UNCRC. Such an amendment would also go some way to addressing concerns about the application of clause 62 to children exploited by non-state armed groups. (Paragraph 79) Support for victims of slavery and human trafficking

We are concerned that clause 64(2)(a), as currently drafted, does not give full effect to the obligation in Article 14(1)(a) ECAT to give a victim of slavery or human trafficking leave to remain, as necessary, owing to their personal situation. (Paragraph 87) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 45

We recommend amending the language in clause 64(2)(a) so that it is clear that it covers the obligations in Article 14 ECAT.

In order to comply with the UK’s obligations under ECAT and the UNCRC toward child victims of slavery and human trafficking in the UK, clause 64 should be amended to include a requirement for residence permits for child victims of slavery or human trafficking to be granted in accordance with the best interests of the child, and renewed where appropriate.

The Secretary of State should clarify how this discretion will be exercised and how she will ensure that the Rules and the exercise of this discretion will respect the UK’s obligations under ECAT.

The Secretary of State should confirm whether “necessary assistance and support” will include all of the types of assistance listed in Article 12 ECAT and whether this will be made clear in the arrangements and Regulations made under section 49 and 50 MSA. (Paragraph 95) Legal aid

We welcome the changes to legal assistance being introduced by clauses 65 and 66. However, we are concerned about the impact of “legal aid deserts” and note that these provisions do not help victims of slavery or human trafficking who may need advice but are not already in receipt of legal aid. Advice on entering into the NRM process for victims of slavery or human trafficking should be free for all potential victims (including those in wholly domestic situations, such as those being used by criminal gangs in the UK).

The Bill should be amended to provide victims of slavery or human trafficking with an equivalent amount of civil legal services support as for those receiving a priority removal notice. (Paragraph 101) Disapplication of certain rights and obligations under the EU Trafficking Directive

As the Government has set out, from the current state of UK law in relation to the human trafficking directive, “it is not clear what from the Directive, if anything, applies” and the Government recognises that the current state of UK law in this respect “brings little legislative certainty, so it is difficult for victims to interpret the legislation and their entitlements”.

We are concerned that clause 67 NBB, as read with section 4 EUWA, lacks sufficient clarity and accessibility to be compatible with the rule of law and moreover does not allow the Committee to know the extent to which human rights, for example the rights of victims of slavery or human trafficking, might be negatively affected by this clause. We are further concerned that the Government itself is unable to explain what, of the Trafficking Directive, applies in UK law. We encourage the Government to ensure better transparency and clarity in legislating by ensuring the impact of provisions are clear and by providing Memoranda explaining the impacts of provisions where necessary. (Paragraph 109) 46 Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

It is not entirely clear to us why clause 67 is present in the Bill, given that section 5(1) of the EU (Withdrawal) Act would seem to already achieve the effect of the later NBB taking precedence over earlier retained EU law.

The Government should clarify its intentions with regard to the Trafficking People for Exploitation Regulations 2013, which implement the Trafficking Directive. (Paragraph 111) Other Matters Arising

The Government should provide a Memorandum setting out how it has given effect to each provision of ECAT and the UN Palermo Protocol in order to improve transparency and to assist the Committee in holding the Government to account for complying with international human rights standards in combatting slavery and human trafficking.

We are concerned that the creation of a separate body to the Single Competent Authority, may indicate a different level of treatment, or a different approach, for certain victims of slavery and human trafficking. This will be even more concerning if this approach leads to lower standards being applied to one group of victims of slavery or human trafficking. The Government should clarify why it considers it necessary and justified to create a separate Immigration Enforcement Competent Authority to determine the cases for certain victims or potential victims of slavery and human trafficking.

The Government should clarify why it considers it necessary and justified to create a separate Immigration Enforcement Competent Authority to determine the cases for certain victims or potential victims of slavery and human trafficking. Absent compelling reasons, we cannot see how a separate body can be justified, and the Government should reconsider its approach. (Paragraph 121) Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery 47