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Watchdogs warn Nationality and Borders Bill will reduce protection for victims of human trafficking and modern slavery


Concerns raised by Parliament's Joint Committee on Human Rights and the Independent Anti-Slavery Commissioner

Date of Publication:
30 December 2021

Watchdogs warn Nationality and Borders Bill will reduce protection for victims of human trafficking and modern slavery

30 December 2021

In a report published last week, Parliament's Joint Committee on Human Rights outlined its concerns over the impact of the Nationality and Borders Bill on victims of human trafficking and modern slavery.

The Joint Committee's 55-page legislative scrutiny report, which examines Part 5 of the Bill, can be downloaded here.

slavery | Photo by Hussain Badshah on UnsplashPart 5 of the Bill will make changes to the law on modern slavery. The Committee is concerned that some of the Bill's clauses will reduce protections for victims of slavery or trafficking, often to the minimum required to still be compatible with the European Convention on Human Rights and the European Convention Against Trafficking in Human Beings.

The report highlights the following three significant concerns:

"Firstly, victims of slavery or human trafficking who have suffered trauma—and particularly child victims and victims of sexual exploitation—may take time to be able to disclose what happened to them. Clause 58 would set a deadline for potential victims to disclose the full details of their exploitation, or face a new statutory obligation that late provision of evidence must damage their credibility."

"Secondly, the exclusion of a potentially very significant number of victims of slavery or human trafficking from protection under the guise of 'public order' risks having negative effects on the UK's ability to take action against criminal gangs responsible for slavery and trafficking. It will also harm the ability of the relevant authorities to protect victims of those gangs, given the consequent impacts of this provision on investigations and prosecutions."

"Thirdly, there is uncertainty about the definition of 'victim of human trafficking' and 'victim of slavery' (see clause 59(7) and 68)."

The Joint Committee finds clause 58's deadline would be unfair and could lead to the UK failing to meet its obligations to combat slavery and human trafficking. The report calls for the clause to be amended, including so that it does not apply to child victims and victims of sexual exploitation.

On the Bill's provisions that would deny protections where a person is considered a "threat to public order" or has claimed to be a victim of slavery or trafficking "in bad faith", the Committee warns that there is a lack of clarity that could see victims prosecuted while criminal gangs evade punishment.

The report notes, for example: "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."

The Joint Committee says more must be done to ensure that victims are not prosecuted due to conduct they were compelled to undertake as part of their exploitation.

The report also highlights a general lack of adequate consideration of child victims of slavery or human trafficking throughout Part 5 of the Bill.

On the positive side, the Committee is pleased by clauses 65 and 66 of the Bill, which allow people already in receipt of legal aid to be able to receive legal aid advice in relation to referral into the National Referral Mechanism (NRM). The report warns, however, that this will not help victims of slavery or human trafficking who are not already in receipt of legal aid.

Meanwhile, the Independent Anti-Slavery Commissioner and the children's charity ECPAT UK last week published a report on child trafficking in the UK. The 50-page report is available here.

The report provides a snapshot of child trafficking in the UK between October 2020 and October 2021, including the latest data, policy developments, examples of promising practice and challenges faced by practitioners.

In the report (see page 29), the Independent Anti-Slavery Commissioner and ECPAT UK warn: "The Nationality and Borders Bill includes a series of measures which will severely impact all child victims of trafficking. The Bill contains significant reforms to asylum, immigration and nationality law in the UK that will affect thousands of children each year and undermines existing domestic and international law to protect children."

The report says that the Bill will be particularly detrimental to children in migration, who are at significant risk of exploitation.

In an interview with The Independent newspaper yesterday, Dame Sara Thornton, the Independent Anti-Slavery Commissioner, outlined further concerns with the Bill.

Thornton said the Bill will create more people who are vulnerable to exploitation and it will undermine Britain's ability to prosecute traffickers.

When asked whether immigration enforcement risked being prioritised over the fight against modern slavery, Thornton told The Independent: "It's hard to argue there isn't an overlap, but I worry we're looking at the issue through an immigration lens, which is the entire opposite approach to the Modern Slavery Act – which is about victims, their protection, and prosecuting offenders. With [the government's] very strong focus on immigration and borders, my argument is we risk unintended consequences for our fight against modern slavery in both pursuing the traffickers and protecting the victims."

In an op-ed for the Daily Telegraph on Tuesday, Thornton and Dame Vera Baird, the Victims' Commissioner for England and Wales, said they were alarmed by the Bill's degrading of existing protections for victims of slavery.

The commissioners said the Bill fails to grasp the realities of being a victim: "The Bill puts victims under a strict time limit to disclose their abuse, whilst disregarding the impact of a victim's trauma. It uses a tick box approach to convictions which fails to appreciate the realities of how criminals control their victims. This Bill risks us failing to identify victims of modern slavery and providing them with the protection they need. Ultimately, this will only hinder us in stopping these criminals and preventing the victimisation of others."