Letter to UK government highlights "serious flaws" in the Bill with regard to trafficking and modern slavery
United Nations Special Rapporteurs express concerns over impact of Nationality and Borders Bill on the human rights of victims of trafficking
15 November 2021
In new correspondence published last week, four United Nations (UN) Special Rapporteurs became the latest to express their concerns over the UK government's Nationality and Borders Bill.
The Special Rapporteurs sent a 14-page letter to the UK government which addresses their concerns over the impact of the Bill on the human rights of victims of trafficking.
Felipe González Morales, the UN Special Rapporteur on the human rights of migrants, said on Twitter that the letter highlights "serious flaws" in the Bill.
The four Special Rapporteurs say the Bill, as it stands now, does not distinguish between adult and child victims of trafficking, and it would not fulfil the UK's obligation to identify victims of trafficking and modern slavery.
Concerns are also raised over the Bill's proposals to criminalise some asylum seekers, with the Special Rapporteurs noting this could lead to migrants being punished for being trafficked to the UK.
The letter details the UN Special Rapporteurs' specific concerns over clause 57 (Provision of information relating to being a victim of slavery or human trafficking) and clause 58 (Late compliance with slavery or trafficking information notice: damage to credibility) of the Bill.
"Immigration and modern slavery decision-making processes would be conflated which potentially puts the effectiveness of ongoing antislavery efforts in the United Kingdom at risk. Furthermore, the provisions would apply only to those who have made a protection claim or human rights claim and would be therefore discriminatory between victims," the Special Rapporteurs wrote.
The Special Rapporteurs continued: "We are concerned that the requirement stated in Clause 58(2), to view the late provision of status information as, 'damaging to credibility', would fail to acknowledge the positive obligation on the State to identify victims of trafficking and contemporary forms of slavery, and would fail to recognize the impact of trauma on the provision of information relating to the status of being a victim, including for child victims. It is widely recognized that victims may not disclose their status as victims for a range of reasons, including because they may not recognize their situation of exploitation, or because they fear reprisals for themselves or their families. A lack of trust or familiarity with public bodies, law enforcement or Government officials, may also hinder the disclosure of information and the establishment of a relationship of trust."
The Special Rapporteurs note that an overreliance on victims' statements is recognised as one of the reasons that leads to failures to identify victims and to effectively investigate and prosecute crimes of trafficking and contemporary forms of slavery.
A number of concerns are raised over clause 62 of the Bill. The four Special Rapporteurs fear the clause would breach the UK's international legal obligations to identify, assist and protect all victims of trafficking or contemporary forms of slavery, without discrimination and without exception.
Meanwhile, Garden Court Chambers noted last week that a new High Court judgment provides useful reminders that relying solely on the personal credibility of a trafficking victim may lead to a public law error, and that lies or inconsistency does not necessarily mean that a person has not been trafficked.
In the judgment of TVN, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 3019 (Admin), the High Court found the Home Office had unlawfully rejected a trafficking victim's claim.
Mr David Lock QC found in the judgment that the Single Competent Authority (SCA) erred in law in primarily asking whether it believed the Claimant's account of events.
"That was not the right question. The SCA ought to have asked himself whether, irrespective as to whether he considered that the Claimant was being truthful, the evidence as a whole showed that the Claimant was a victim of trafficking," the judgment states.
Lock did not accept that the SCA was entitled to reach the decision that the Claimant was lying without explaining why that decision had been reached as opposed to any of the other explanations of the inconsistencies.
"The SCA is the decision maker and is entitled to weigh the evidence and reach a conclusion. But the need for a 'high standard of reasoning' means that the SCA has to explain why he reached the conclusion that inconsistencies were evidence of lies as opposed to being the product of a disordered mind which was responding to having been exposed to sustained trauma," Mr David Lock QC said.
The judgment notes: "Inconsistencies may, of course, be evidence to suggest that a person is lying but in this context it is important decision makers recognise that there are many other potential explanations for inconsistencies."