Hostile Environment Enables Modern Slavery PDF

Hostility for Survivors, Impunity for Traffickers: How the Hostile Environment...

Hostility for Survivors, Impunity for Traffickers: How the Hostile Environment enables Modern Slavery Hope for Justice Briefing Paper January 2024 25 Reports — Human Trafficking Foundation 26 PowerPoint-præsentation (iom.int) 27 4 in 5 modern slavery victims denied justice as new law 'gives traffickers impunity' - Mirror Online 28 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 (accessible version) - GOV.UK (www.gov.uk) 29 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 (accessible version) - GOV.UK (www.gov.uk) 1  Drawing from Hope for Justice’s frontline experience, this paper Recommendations will explore the impact of recent legislative and policy changes Hope for Justice recommend the following steps be taken to mitigate on survivors of modern slavery pursuant to the UK Government’s the risk of further harm and reduce vulnerability to modern slavery: policy of creating a hostile environment for migrants. It will Deconflate modern slavery and immigration policies: equip parliamentarians and policy-makers with insights as to Remove modern slavery from the portfolio of the impact of hostile legislation and policies upon survivors of the Minister for Illegal Migration modern slavery, and offer an alternative approach which will Develop a multi-departmental response to tackling modern slavery; better protect survivors and prevent further exploitation. ensuring that responsibility for survivor support sits within an appropriate governance structure focused on safeguarding and care ‘we are seen as immigrants first, a problematic Create a comprehensive, evidence-based and overarching strategy on immigrant and then a human last’ 1 immigration which is aligned with efforts to tackle modern slavery D irectly incorporate the European Convention on Action Introduction against Trafficking (ECAT) into domestic law Strengthen the rights of those vulnerable to exploitation, Progress is rarely linear, particularly when addressing an issue including asylum seekers and migrant workers as complex as modern slavery. Nevertheless, it is striking that Enable secure reporting: survivors must feel safe to report lessons from 2013 remain pertinent over a decade later: exploitation and abuse, regardless of their immigration status ‘Of fundamental importance is the understanding that modern Provide the right to work: allowing those seeking refuge in slavery is not primarily an issue of immigration’ 2 the UK and survivors of modern slavery to access legitimate employment would significantly reduce vulnerability As the department responsible for developing and implementing the Create safe and legal routes for those seeking refuge in Government’s modern slavery strategy, the Home Office must strike a balance the UK and safer routes for economic migrants between efforts to tackle exploitation and support survivors, and often competing objectives of immigration deterrence, control and enforcement. Pilot a Trafficking Visa: provide survivors with regularised status Whilst significant effort was made to draw a distinction between modern and a pathway to permanent residence in the UK based on slavery and immigration control following the passage of the Modern their holistic individual circumstances and best interests Slavery Act 2015, in recent years the response to slavery has not so much End the hostile environment: reaffirm the UK’s commitment to been conflated with immigration, it has become consumed by it. adhering to its obligations under international law to safeguard the rights of vulnerable individuals and communities ‘We are deeply concerned that the Government is prioritising irregular migration issues at the expense of tackling human trafficking. The Government’s deprioritisation of human trafficking is not reflective of the How the hostile environment policy scale of the threat it poses or the gravity of the crimes involved’ 3 has impacted modern slavery Treating modern slavery as an issue of immigration control and enforcement The policy of creating a hostile environment for immigrants has a long is problematic. Neither domestic nor international law requires an individual history and has impacted the response to modern slavery for many years. to have crossed a border to be recognised as a victim of human trafficking This paper will focus on how recent legislative and policy changes have or modern slavery. Indeed, British nationals represent one of the largest impacted survivors of modern slavery in the UK. However, it is important cohorts of survivors identified in the UK. An immigration enforcement to note that the escalation in hostility to migrants since the 2021 New mindset also hinders the effectiveness of the response to slavery: it fails Plan for Immigration builds upon well-established foundations. to recognise the factors which drive vulnerability to exploitation or the needs of survivors. This is further exacerbated by the hostile environment ‘We are seen as a burden on society if we are not originally policy, more recently known as the Compliant Environment Policy. British, so then it is important for us to work to be independent but it currently traps survivors in the system’ 5 In 2013, a van drove round London carrying the message: In the UK illegally? Go home of face arrest. The Immigration Acts of 2014 and 2016 created new offences of illegal working and renting; requiring a wide range of stakeholders to conduct immigration checks and share data with the Home Office, including employers, bank employees, marriage registrars, the DVLA and landlords. In addition, the Government introduced a number of measures, such as restricting 1 Survivor of modern slavery 2 CSJ_Slavery_Full_Report_WEB5.pdf (centreforsocialjustice.org.uk) 4 National Referral Mechanism statistics - GOV.UK (www.gov.uk) 2 3 Human trafficking (parliament.uk) 5 Survivor of modern slavery 3  access to public funds, Legal Aid, and imposing an NHS surcharge. 7 Such policies Migrants arriving in the UK are often spoken of in derogatory or even not only created an environment in which survivors of modern slavery would threatening language: a ‘hurricane’ of migrants threating to ‘overwhelm’ be more fearful of trusting state authorities and disclosing their exploitation; the UK.16 Political leaders have also established a narrative of criminal these policies heightened vulnerability to modern slavery, by limiting legitimate gangs gaming the system of support for survivors of modern slavery. 17 opportunities, and increasing the risk of destitution and homelessness. ‘to truly understand what it feels to be overwhelmed is having ‘The fear that is installed by traffickers can take years to undo, it’s like unlearning your rights stripped away by traffickers and then not being everything you learned, so the fear of reporting it to someone who doesn’t given them again when you fight for your freedom.’ 18 want you here in the first place is just as worse, it’s like everywhere you go for help there will be barriers and feels like the system is designed for you to not The United Nations and experts at international and domestic share without any repercussions - so again you’re silenced and dismissed.’ 8 level have criticised the Government for the lack of evidence for these claims and for the hostile language adopted. The Government introduced various changes to the immigration rules following the UK’s exit from the EU. Again, these changes have sought to limit rights and ‘We are alarmed by the rise in unsubstantiated claims by public officials opportunities for those seeking to come to the UK. The UK supported a Universal and Government departments regarding persons seeking protection Periodic Review recommendation made by the US to ‘Take steps to ensure migrant under the Modern Slavery Act and the National Referral Mechanism… workers are not left vulnerable to abuse and exploitation from employers and the UK ‘This has a chilling effect on those willing to come forward as visa system’.9 NGOs have warned about the implications of the new Seasonal Worker victims and those willing to provide legal representation to victims, visa: ‘The restrictive nature of the visa, with no recourse to public funds, means it is impeding efforts to identify and protect victims and persons at unclear what, if any, options are open in practice to workers if they are exploited’. 10 risk of trafficking and hold perpetrators accountable’ 19 Civil society organisations have consistently recommended that confirmed The Office for Statistics Regulation stated: survivors of modern slavery be granted leave to remain in the UK to assist their recovery: secure immigration status can provide much-needed stability ‘We consider that the NRM statistics do not support the claims that people to address trauma and access appropriate services as well as enabling them are “gaming” the modern slavery system, and the source of the claim is to make choices such as whether to support a police investigation. A cost- unclear to us. We have asked the Home Office to ensure that claims in public benefit analysis demonstrated that allowing survivors to continue to access statements are clear on whether they are sourced from published statistics support for 12 months, with temporary leave to remain, would be a net benefit or from other reliable evidence, to avoid the risk of misleading people.’ 20 of up to £25m to the public purse. 11 However, the Home Office has resisted an The then Independent Anti-Slavery Commissioner stated: automatic provision of leave to remain of a minimum of 12 months to survivors arguing that doing so would create a pull factor and false claims of exploitation. ‘I do not think the evidence, as I understand it, supports the A 2017 report by the Work and Pensions Committee found that this claim by rhetoric, and the concern is that the rhetoric is severely the Home Office ‘makes little sense and is unsubstantiated by evidence’.12 undermining the Modern Slavery Act protections.’ 21 The publication of the New Plan for Immigration in 2021 was a critical development A survivor of modern slavery cannot access support by simply submitting a claim in the re-conflation of modern slavery and immigration policy: it spoke of the that they have suffered exploitation. In order to receive assistance and protection, ‘rising abuse’ of the National Referral Mechanism by ‘illegal migrants, including a government-appointed First Responder must suspect that the individual has Foreign National Offenders’.13 Since then the UK Government has taken a series been exploited and refer their case to the Home Office’s Competent Authority for of regressive steps in its response to modern slavery, most notably through the a two-stage decision making process, known as the National Referral Mechanism Nationality and Borders Act 2022, the Illegal Migration Act 2023 and amendments (NRM). If the Competent Authority believes there are ‘reasonable grounds’ to to statutory guidance relating to the identification and support of survivors. believe that the individual has been exploited, they are able to access government- funded assistance whilst a ‘conclusive grounds’ decision is made. If the individual The Government’s legislative agenda is premised upon abuse of the is positively identified as a victim at this stage, a Recovery Needs Assessment is system of support for victims of modern slavery.14 In 2022, the Prime carried out to ascertain what assistance the individual requires moving forward.22 Minister pledged to ‘remove the gold plating in our modern slavery system’, raising the threshold for an individual to be identified and reducing the support available to survivors: ‘one of the reasons we struggle to remove people is because they unfairly exploit our modern slavery system’.15 6 Immigration Act 2016 (legislation.gov.uk), for example see sections 35 and 39 7 For more context on the hostile environment: The UK’s hostile environment: Deputising immigration control (sagepub.com) 8 Survivor of modern slavery 16  uella Braverman says ‘hurricane’ of migrants coming to the UK (ft.com); Rishi Sunak S 9 Universal Periodic Review - United Kingdom of Great Britain and Northern Ireland | OHCHR says migrants threaten to ‘overwhelm’ UK | The Independent 10 Government must act to prevent exploitation on the UK’s Seasonal Workers’ Scheme – FLEX (labourexploitation.org) 17 Braverman’s claims slavery victims are ‘gaming’ system questioned by stats | The Independent 11 News - The benefits of longer-term support for survivors of modern slavery outweigh 18 Survivor of modern slavery the initial costs, finds a new report - University of Nottingham 19 UK: UN experts condemn attacks on credibility of slavery and trafficking victims | OHCHR 12 Victims of modern slavery (parliament.uk) 20 Ed Humpherson to Maya Esslemont and Anna Powell-Smith: Modern slavery data 13 New Plan for Immigration: policy statement (accessible) - GOV.UK (www.gov.uk) – Office for Statistics Regulation (statisticsauthority.gov.uk) 14 Alarming rise of abuse within modern slavery system - GOV.UK (www.gov.uk); Illegal 21 ‘No evidence’ of Suella Braverman’s claims migrants are ‘gaming’ slavery laws, watchdog says | The Independent Migration Bill: overarching factsheet - GOV.UK (www.gov.uk) 22 Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and non- 4 15 PM statement on illegal migration: 13 December 2022 - GOV.UK (www.gov.uk) statutory guidance for Scotland and Northern Ireland (accessible version) - GOV.UK (www.gov.uk) 5  There is, therefore, a system in place to ensure that those who make false claims ‘The changes create an environment of disbelief of victims’ narratives. It of exploitation cannot access support, and that assistance is provided to those discourages them from even coming forward…The expectations and additional who most need it. It is already within the Home Office’s gift to issue negative responsibilities put on victims and those supporting survivors are unjust. Do decisions and thereby deny access to support where they conclude that the victims of other serious crimes have to prove that they have been a victim at the individual has not been exploited. Despite claims of widespread abuse of the time they report the crime before they can be safeguarded and supported?’ 28 system, in 2022 the Home Office issued positive conclusive grounds decisions (that on the balance of probabilities a person is a victim) in 89% of cases.23 Section 45 of the Modern Slavery Act 2015 provides a defence from prosecution on the basis that the offence committed was part of the exploitation. A The pressure can be removed of the government if it worked on ‘ narrative has been established nationally that this defence is being abused by decreasing the times for these decisions to be made - survivors criminals to avoid prosecution and this is trickling down to law enforcement are waiting years for this - so why not invest in this area?’ 24 bodies, further entrenching a culture of disbelief. Presumptions are reportedly made about survivors of particular nationalities: that all Albanians are criminals, or all Vietnamese willingly took part in cannabis cultivation. How the hostile environment is impacting In one recent case of an Albanian male facing prosecution for cannabis survivors: Insights from Hope for Justice’s teams cultivation, Hope for Justice’s IMSA reported concerns that the majority of the prosecution’s language in the courtroom focused on his nationality Not only have legislative and policy developments restricted survivors’ rights and illegal migration. Rather than considering his exploitation, and in the and made it harder for individuals to access crucial services, there has also absence of evidence, the prosecution emphasised that he was an ‘economic been a shift in attitudes and a growing culture of disbelief. The hostile and migrant’ and was subsequently convicted. 29 At sentencing, in recognition often dehumanising narrative regarding those seeking refuge in the UK has of the fact that his case was one of modern slavery, the judge veered from had a trickle-down effect: attitudes have hardened and suspicion grown guidelines (a minimum custodial sentence) and issued a community order. making it harder for survivors to realise even these more limited rights. Hope for Justice’s teams have reported that survivors are increasingly reluctant to disclose exploitation or trust state authorities for fear of deportation. Case study: Lena The attitude of hostility to foreign national survivors is evident in the current Lena* was just 16 when she was trafficked from the Czech Republic discourse and attitudes towards survivors, and there is a growing tendency to London and forced into prostitution. She was groomed to to disregard survivors’ experiences and a presumption of disbelief. become part of the sex industry. Her traffickers forced her to commit a number of crimes, including managing a brothel. ‘When I try and make friends, when I tell them I’m Albanian they ask me if I sell drugs. Why does no one like me in this country?’ 25 Prior to her sentencing, Lena was appointed a duty criminal advisor who told her she was not a victim of modern slavery and incorrectly Increasingly there is a presumption that foreign national survivors do not advised her to plead guilty. She received a two-year prison sentence in have recourse to public funds or the right to access housing. Survivors 2017. On leaving prison, the Home Office issued her with a deportation are met with hostility: ‘why doesn’t he just go back to Poland?’ 26 Survivors order in relation to her convictions and she was moved to a detention may even be offered repatriation without consideration of the risks centre where she was unlawfully held for three months. or alternative options which might be in their best interests. While in prison, Lena had disclosed her exploitation, resulting in her referral ‘As a survivor I grew up with racism and I dread saying where I come into the NRM. Despite receiving positive reasonable and conclusive grounds from or what ethnicity my traffickers are because of these assumptions, decisions, and despite official guidance stating that potential victims should I am denied my truth because of these ideas fuelled by the media not usually be imprisoned, the department maintained her detention. everyday. If I was a British survivor and looked British - I wonder if the government still wanted me to go somewhere else?’ 27 In December 2022, Lena’s deportation order was quashed by the Upper Tribunal and awarded compensation for being illegal held in a detention centre. Without support from an independent advocate, survivors risk being turned away from services to which they are entitled. Frequently Hope for Justice’s The Independent Modern Slavery Advocate supporting Lena said: teams see individuals turned away from support providers, only to then be granted assistance when they are accompanied by an independent advocate. “Sadly, because of the uncertainty around her immigration status and the anxiety this has caused her, Lena has been unable to receive Even where there is a desire to ensure that survivors receive assistance, such as counselling. Her therapist acknowledged that the ongoing distress she safe accommodation, service providers are often reluctant to do so as they are was facing meant they could not even begin to process the trauma anxious about the repercussions. First Responders are increasingly hesitant to from her trafficking. The Home Office’s unjust treatment of this survivor, work with survivors, making it harder to complete and submit an NRM form. resulting in her being without stability, as well as the mental and emotional turmoil it has created, has significantly delayed Lena’s ability to recover. Despite everything she has been through, Lena remains hopeful.” 30 *Name changed to protect identity 23 Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, end of year summary 2022 - GOV.UK (www.gov.uk) 24 Survivor of modern slavery 28 The environment of disbelief – the impact of the Nationality and Borders Act 2022 (hopeforjustice.org) 25 Hope for Justice IMSA’s account of client’s experience 29 For more information on Albanian survivors of modern slavery see New Underground 26 Hope for Justice IMSA’s account of client’s experience Lives report published on Albanian survivors of modern slavery | Hestia 6 27 Survivor of modern slavery 30 Survivor wins four-year legal battle against Home Office (hopeforjustice.org) 7  Survivors face greater challenges in accessing NRM support thanks to the barriers Imposing such a time limit on disclosure of exploitation demonstrates a profound created by recent legislation. Even in cases where the definition of trafficking misunderstanding of trauma and its impact on an individual’s ability or willingness to has been met, individuals have received a negative decision due to the lack disclose what has happened to them. Crucially, this provision does not apply to all of objective evidence. Decision-making has been delayed apparently due to victims: UK nationals, for example, would not have to comply with such a time limit. changes to the guidance issued to the Competent Authority. Our teams have been Therefore, not only is this provision not trauma informed, it is also discriminatory. involved in cases in which reasonable grounds decisions have taken months. 2. Change in Reasonable Grounds Threshold The legislative and policy changes which have raised the threshold for identification and created time limits on disclosure create a pressure for It is no longer sufficient that there are reasonable grounds to those working with potential victims of modern slavery. There is a tension suspect that a person may be a victim of modern slavery for them between working with a survivor in a trauma-informed manner and what is to access to support. The threshold has been raised so that there required by the system: there is now greater urgency to disclose details of must now be reasonable grounds that the person is a victim. exploitation and therefore pressure on both the survivor and support worker. In January 2023, the Home Office published statutory guidance which ‘Since those Acts came into force, we are seeing more negative conclusive grounds further increased the threshold for reasonable grounds decisions; requiring decisions. I’m working with young people who have had negative CGs and negative objective evidence from the survivor of their exploitation. This places asylum decisions, even with quite a lot of evidence, which is quite worrying survivors of modern slavery in a uniquely challenging position of having to because when they’re young they are more at risk…we try to uplift the survivor prove that they have been subjected to a crime before being safeguarded. as much as possible and keep that positivity. Because a young person sometimes ‘If there was focus on the substantiated claims and more support given to tries to rationalise that decision and unfortunately their thought process can be identify and tackle true survivors and create a pathway then this could be very much like ‘this country hates me, what have I done wrong?’ It’s really hard to better this creates a fear that survivors will not be believed and is not a have those conversations with 18 year olds about why people are looking at them trauma informed approach. When you are being trafficked, you don’t know differently or why they feel that the government doesn’t want to help them.’ 31 it sometimes, your main focus is survival not collecting evidence.’ 32 Impact of the Reasonable Grounds Threshold Summary of recent legislative and policy changes There has been a significant drop in the number of reasonable grounds Despite the Home Office commencing a review of its Modern Slavery Strategy in decisions: from 1st January – 31st March 2023 the number of positive 2021 it is yet to publish a revised strategy from its 2014 publication. Home Office decisions fell to 58%, compared with 85% in the previous quarter. officials have confirmed that a revised strategy is not a priority for the Minister. The Human Trafficking Foundation report that the increase in negative Nevertheless, the Government has made significant changes to the system of decisions was largely due to a ‘lack of objective factors’.33 identification and support for survivors of modern slavery since 2021: the rights The International Organization for Migration (IOM) have also highlighted available to survivors of modern slavery have been undermined as part of a broader the stark difference in decision-making following the introduction of policy of hostility and deterrence towards foreign nationals arriving in the UK. the Nationality and Borders Act 2022 and updated guidance: 34 Legislative and policy changes have: P otential victims of modern slavery wait ten times longer 1. Created barriers to identification, than the five-day target to receive an initial decision 2. Limited access to support services, and In 2023, only four out of 10 foreign nationals received a positive 3. Created a hostile environment which risks exacerbating vulnerability reasonable grounds decision, compared to eight out of 10 UK nationals 70% of people who were disqualified had received a positive reasonable grounds decision as a potential victim of criminal exploitation, meaning that Nationality and Borders Act 2022 they were potentially forced to commit the crimes as part of their exploitation Part 5 of the Act makes a number of critical changes to the identification Operation Challenger, a Greater Manchester Police initiative, reported a of, and support afforded to, survivors of modern slavery. Crucially, the marked decrease in positive reasonable grounds: from approximately 95% Act doesn’t offer any distinction for children and particular concerns to 18% between February 20th and 31st March 2023, noting in the area that have been raised about how these changes will impact them. four out of five potential victims could not get into the NRM system. 35 1. Time Limit on Disclosure It is hardly surprising that many of those who leave situations of exploitation are unable to produce evidence or documentation to If an individual makes a protection of human rights claim, the Home Office will corroborate their narrative: this is often a moment of crisis and intense issue a ‘Slavery or trafficking information notice’ requiring them to provide vulnerability, the reality of which the new legislation fails to reflect. information about their exploitation within a specified time period. Late compliance with such a notice will damage the individual’s credibility. 32 Survivor of modern slavery 33 Reports — Human Trafficking Foundation 34 Updated analysis of the National Referral Mechanism data | IOM United Kingdom 8 31 Supporting child trafficking survivors as they become adults | Hope for Justice 35 4 in 5 modern slavery victims denied justice as new law ‘gives traffickers impunity’ - Mirror Online 9  ‘Does a domestic abuse survivor have to prove they have been hurt before The Vienna Convention on the Law of Treaties 1969 requires that treaties seeking alternative accommodation? Or someone who has been hurt be ‘interpreted in good faith in accordance with the ordinary meaning to be by a weapon have to identify the weapon first? This shows the lack of given to the terms of the treaty in their context and in the light of its object understanding of trauma, the tactics of the traffickers and puts the onus and purpose’. 40 The purpose of ECAT is detailed in Article 1: to prevent and back on the survivor to feel responsible for what happened to them. I combat human trafficking; to protect the human rights of victims including a can hardly speak about my experiences, think of them and do everything comprehensive framework for the protection and assistance of victims and to block it out so to be asked to ‘prove’ them is impossible.’ 36 witnesses; ensure effective investigation, prosecution and cooperation.41 Following a judicial review based on Article 4 ECHR, this guidance has been revised The application of the public order provision, by both the 2022 so that the decision maker now has to consider whether ‘in all the circumstances, and 2023 legislation, is extensive. It effectively punishes survivors it is reasonable to expect supporting evidence or corroborating information’. 37 for entering the country through irregular routes, disregarding the deception and coercion at the very core of exploitation. 3. Shortened Recovery and Reflection Period with more limited support ‘the heart of trafficking is founded upon deception’ 42 Survivors who receive a positive reasonable grounds decision will now be guaranteed 30 days of support, reduced from 45 days.38 Whilst this remains in keeping with the Disqualification on the grounds of public order, therefore represents a breach minimum requirements of the European Convention on Action against Trafficking of various ECAT articles, including but not limited to: prohibition on removal (ECAT), it is indicative of the regressive approach and reduction of survivors’ rights. (Articles 13 and 10); duty to identify (Articles 13(1), 4, 10 and 18); duty to protect and support including non-refoulement (Articles 13(1)(2) and 12, 14, 16); non Section 64 requires the Secretary of State to provide survivors with assistance penalisation (Article 26); non-discrimination (Article 3); access to compensation and support which is ‘necessary’ to help the person recover from the and redress (Article 15); Protection of witnesses (including victims) from physical, psychological or social harm resulting from their exploitation. intimidation and retaliation before and after criminal proceedings (Article 28). Crucially, this may fail to take account of the individual’s specific vulnerabilities which initially led to their exploitation. Helping survivors address these In July 2023 the High Court gave permission for judicial review and granted underlying issues is critical to reducing the risk of re-trafficking. an interim order that the Secretary of State cannot disqualify anyone from receiving protection support pending trial unless an initial risk assessment 4. Public Order Disqualification and been conducted and factored into the disqualification decision.43 Section 63 of the Nationality and Borders Act 2023 casts a wide net in Following this legal challenge, in January 2024, the Home Office published terms of those who can potentially be disqualified from identification and updated guidance to include a risk of re-trafficking assessment as part of protection on the grounds of ‘public order’ or ‘bad faith’. The Act defines the process for issuing a public order disqualification: is there a ‘credible situations where an individual can be excluded, for example where they suspicion of a real and immediate risk that the individual will be re-trafficked have committed a criminal offence and been sentenced to 12 months’ in or from the UK’.44 The new assessment follows on from the process for imprisonment. The Act’s Explanatory Notes argue that this disqualification making a decision under the Public Order Decision Making Framework, so is provided for within the ECAT, specifically Article 13(3). 39 that when it is determined a Public Order Disqualification can apply to an Incorrect application of ECAT’s public order provision individual, the Competent Authorities must consider whether the issuing of that decision creates a real and immediate re-trafficking risk. 45 Parties are not bound to observe the recovery and reflection period if grounds of public order prevent it. Through the Nationality and Borders Act, Impact of the Public Order Provision and then the Illegal Migration Act 2023, the UK Government has sought to During the passage of the Nationality and Borders Act, Hope for Justice estimated apply this principle as part of its efforts to address immigration via irregular that at least 45% of our clients would be impacted by this disqualification, even routes. However, this is an incorrect interpretation and application of Article though many of them were not primarily survivors of criminal exploitation. 13(3), which is intended to apply in circumstances where the State cannot provide a recovery and reflection period to a survivor due to a particular IOM’s analysis of the first six months of 2023 notes that 71% of people public order situation, for example the commencement of a war. disqualified from protection under the National Referral Mechanism because they were a ‘threat to public order’ were referred into the NRM as a potential victim of criminal exploitation.46 40 Vienna Convention on the Law of Treaties (1969) (un.org) 41 See Article 1 of ECAT; Article 2 of the Palermo Protocol 42 Survivor of modern slavery 36 Survivor of modern slavery 43 High Court orders no public order disqualifications of slavery victims may take place 37 Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and non- without a risk assessment pending trial - Matrix Chambers (matrixlaw.co.uk) statutory guidance for Scotland and Northern Ireland (accessible version) - GOV.UK (www.gov.uk) 44 Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and non- 38 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 (accessible version) - GOV.UK (www.gov.uk) statutory guidance for Scotland and Northern Ireland (accessible version) - GOV.UK (www.gov.uk) 45 The factors to be taken into account when making a decision on re-trafficking risk are set out at 14.268 of the updated Guidance 10 39 72637 Chapter 36 EN 2022 Cover.indd (legislation.gov.uk), para 622 46 PowerPoint-præsentation (iom.int) 11  Extension of public order provision in the Illegal Migration Act 2023 Illegal Migration Act 2023 The Illegal Migration Act now casts the net even wider in respect of the public order Whilst the implications of the Nationality and Borders Act were still to be fully disqualification: it is no longer to be a discretionary measure, but a mandatory realised, Parliament passed the Illegal Migration Act 2023. This new legislation exclusion. Section 29 significantly widens the scope of the exclusion. Not only is intensified the hostile environment still further and, if implemented, will have anyone who has previously been sentenced to imprisonment to be excluded, it significant implications for those seeking refuge and survivors of modern slavery in extends to an individual who has been detained in an institution other than a prison the UK. The government’s justification is to ‘deter illegal entry into the UK’ and to which could include immigration detention, detention in a healthcare facility. ‘break the business model of the people smugglers and save lives’. 54 Many subject- matter experts have warned that this legislation will be extremely damaging: 5. Leave to Remain ‘Thousands of potential victims of modern slavery will be denied protections Ensuring that foreign national survivors have secure immigration status provides by the modern slavery provisions in the Act, when commenced. This a critical foundation for their recovery. Uncertainty or even fear as to whether includes people for whom their entry to the UK is an integral element they may be removed from the UK can significantly hinder their ability to address of the criminal offence of trafficking committed against them’ 55 the trauma of their exploitation. Rather than granting confirmed survivors with leave to remain automatically, the Home Office has preferred to do so on a The legislation has been criticised by GRETA, the Group of Experts tasked with case-by-case basis. The result is that survivors of modern slavery rarely receive monitoring the implementation of ECAT, who stated that the legislation leave to remain, or temporary permission to stay. From 2020 to 2022: ‘would run contrary to the United Kingdom’s obligations under the Anti- 5 ,578 adults were confirmed as victims of trafficking. However, only 364 adults trafficking Convention, to prevent human trafficking, and to identify subject to immigration control were granted discretionary leave as a result. and protect victims of trafficking, without discrimination.” 56 Despite 5,266 children being recognised as victims of trafficking, fewer than 21 were granted discretionary leave in the same period.47 Prior to the Bill’s passage, the Joint Committee on Human Rights warned: The Nationality and Borders Act and Illegal Migration Act (discussed below) ‘By treating victims of modern slavery as ‘illegal migrants’ subject to limit the conditions upon which leave to remain can be granted, such as detention and removal, this Bill would breach our legal obligations to such cooperating with an investigation or criminal proceedings and it is necessary for victims and would risk increasing trafficking of vulnerable people.’ 57 them to remain in the UK to provide that cooperation. 48 This places significant Section 2 of the Act imposes the mandatory removal of those who have pressure on the individual to cooperate with police, again demonstrating that entered the UK by irregular routes when meeting certain criteria. The this approach is not trauma informed. Data is not published as to the number Act requires the removal of those did not come directly to the UK from a of applications for this form of leave to remain and anecdotally frontline country in which their life and liberty was threatened. If a person passed organisations report high levels of refusal with inadequate reasoning. through or stopped in another country where their life and liberty was not ‘In order for survivors to report their exploitation and abuse threatened, they will not be considered to have come directly to the UK. we must feel safe in the system, the fear of deportation can be For survivors of modern slavery, the Act removes the protection just as equal to fear of being under traffickers - we need time, of the recovery and reflection period, leave to remain and asylum reassurance to build that trust and time to breathe again.’ 49 system for those who enter the country irregularly. Once again, the legislation fails to reflect the realities of modern slavery. Slavery and Human Trafficking (Definition The use of irregular routes and deception are the modus operandi of Victim) Regulations 2022 of human traffickers, yet it is their victims who are penalised. Without consultation with subject matter experts, the Home Office redefined Given the lack of safe and legal routes for those seeking refuge, the majority what it means to be a victim of trafficking or slavery. 50 Whilst it is beyond the of those seeking refuge have no option but to arrive in the UK by irregular scope of this paper to detail the ways in which this redefinition is problematic, means via people smugglers and thus meeting the conditions in section 2. This it is important to note that the Regulations depart from the well-established cohort are effectively left in limbo. Even those who were not initially trafficked definitions contained in the Palermo Protocol 51 and ECAT. 52 In addition to to the UK risked being exploited without access to the asylum system. raising the threshold for who should be considered a victim, the new definition places a significant emphasis on ‘arranging or facilitating travel’, in keeping with the Home Office’s conflation of modern slavery with immigration.53 47 Leave in limbo_Final_Aug23.pdf (helenbamber.org) 48 Section 22 IMA Illegal Migration Act 2023 (legislation.gov.uk) 49 Survivor of modern slavery 50 The Slavery and Human Trafficking (Definition of Victim) Regulations 2022 (legislation.gov.uk) 54 Illegal Migration Act 2023 (legislation.gov.uk) 51 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, 55 Modern-Slavery-PEC-Explainer-Illegal-Migration-Act-v.2.pdf (modernslaverypec.org) supplementing the United Nations Convention against Transnational Organized Crime | OHCHR 56 www.coe.int/en/web/portal/-/-uk-s-illegal-migration-bill-should-be-reviewed-to-ensure-it-complies-with-the-anti- 52 CETS 197 - Council of Europe Convention on Action against Trafficking in Human Beings (coe.int) trafficking-convention-says-greta; See further criticism from UNHCR, CoE Commission on Human Rights and JCHR 53 Joint briefing to the SDLC - Draft Slavery and Trafficking Definition of Victims 57 Widespread human rights failings must be addressed in Illegal Migration Bill, 12 Regulations - debate 29 June 22 FINAL.pdf - Google Drive Human Rights Committee finds - Committees - UK Parliament 13  It is estimated that thousands of survivors of modern slavery will fall within Hostile migration policies will not deter people from taking dangerous journeys, the scope of the Illegal Migration Act, either due to the Section 2 definition merely the opposite: they create a fertile ground for people smugglers and or the Section 29 public order disqualification. On the basis of information traffickers. The policy and legislation fail to consider and understand the available, it is estimated that at least half of victims and survivors who accessed modus operandi of both people smugglers and human traffickers in targeting identification, support and protection under the NRM between January and those who are extremely vulnerable, deceiving them about entry and often March 2023, would be excluded if the Illegal Migration Act were in force at controlling where they are sent to or the limited knowledge that victims of that time. It is for this reason that the anti-trafficking sector briefing declared modern slavery and those seeking refuge have in respect of the UK systems. the then-Bill ‘a charter for exploitation, trafficking and modern slavery’. 58 Traffickers are known to use fear of detention and deportation as a means of Safety of Rwanda (Asylum and Immigration) Bill controlling their victims; this legislation makes such threats a reality. Foreign national survivors of modern slavery are therefore disincentivised from disclosing A cornerstone of the hostile environment policy is the removal of those exploitation or cooperating with state authorities. This impedes identification who enter the UK by irregular routes to Rwanda. The Bill was introduced and the ability of survivors to engage with law enforcement agencies which to prevent further legal challenge to removals on human rights grounds is essential to achieve successful investigations and prosecutions. following the Supreme Court’s ruling that it would not be safe to remove asylum seekers and survivors of trafficking to Rwanda. ‘This means it’s so easy for survivors to go back to trafficking. To escape or speak out takes courage, but when there is no hope in the The premise of the Bill is contrary to the UK’s obligation in ECAT to prevent system - you can sometimes ask yourself what is the point?’ 59 trafficking through safe migration policies. The policy which this legislation seeks to realise will only serve to heighten vulnerability to exploitation. Rather This legislation represents a breach of the UK’s international legal than offering protection to vulnerable people, the government risks penalising obligations. The UK is required by Article 26 ECAT to not impose survivors for the actions of those who exploit them. Deporting the prosecution penalties ‘on victims for their involvement in unlawful activities, witnesses also undermines the prospect of prosecuting criminal gangs. to the extent that they have been compelled to do so’. ‘Trafficking involves moving, this is another move and to me echoes Article 3 ECAT also imposes a duty of non-discrimination: ‘the enjoyment of the actions of traffickers - to be moved somewhere new, somewhere measures to protect and promote the rights of victims, shall be secured without uncertain and miles away - the fear of something happening there and discrimination on any ground’. The distinction drawn between survivors based upon it’s like there is nothing human - dehumanising and being exported how they entered the UK, regardless of whether they did so under coercion or like goods. If only, this much effort was to disrupt traffickers.’ 61 deception, clearly violates these provisions. The mandatory nature of the detention and removal of those who enter the UK irregularly also denies this cohort their right Article 4 ECHR and ECAT impose positive obligations on the UK to protect to a fair trial pursuant to Article 6 of the European Convention on Human Rights survivors of modern slavery and trafficking and prevent exploitation. An (ECHR) as well as the absolute obligations on the state to ensure that people are not individual’s right to be free from slavery is not a right from which the UK is able subject under section 3 to torture or inhumane or degrading treatment and section to derogate in times of emergency.62 The UK is obliged to establish a ‘spectrum 4 to all forms of slavery and forced labour (which includes human trafficking). of safeguards [which] must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking’.63 Lack of Evidence for the Legislation Even on the Government’s Own Research In attempting to remove individuals to Rwanda, the UK is in effect seeking to As with the broader policy of creating a hostile environment, the delegate its legal obligations, as contained in the Refugee Convention, ECHR legislation seeks to create a deterrent effect by denying access to and ECAT. It hopes to pass responsibility to a country which is not signatory to safeguarding, support or the asylum system. However there is no evidence the ECHR and ECAT and where there is therefore no accountability structure to to indicate that this approach will provide an effective deterrent. monitor and enforce fundamental human rights. Rwanda has been categorised by the US State Department as a ‘tier two’ country which does not meet the Research by the Home Office Analysis and Insight team into minimum standards for the elimination of trafficking in several key areas.64 why individuals seek asylum in the UK found: This policy is not only legally problematic, it will also be ineffective T he role of welfare policies, economic factors, and labour market access as in achieving a deterrent effect. In 2022, the Permanent Secretary potential drivers of migration to the UK is limited as many asylum seekers at the Home Office warned the Home Secretary: have little to no understanding of current asylum policies and the economic conditions of a destination country. Many asylum seekers have no experience ‘I do not believe sufficient evidence can be obtained to of a welfare state, and they expect to be able to work to support themselves. demonstrate that the policy will have a deterrent effect Restrictive migration policies may increase the number of significant enough to make the policy value for money.’65 applicants that fall into irregularity, displacing them into more dangerous and exploitative routes (such as trafficking). 60 61 Survivor of modern slavery 58 072023 Anti-trafficking sector IMB briefing - international compliance amendment.pdf - Google Drive 62 Article 15(2) ECHR. 59 Survivor of modern slavery 63 Rantsev v Cyprus and Russia (2010) 51 EHRR 1. 60 Microsoft PowerPoint - Annex A - Sovereign Borders International Asylum Comparisons Report - Section 64 Rwanda - United States Department of State 14 1 Drivers and impact on asylum migration journeys with references (freemovement.org.uk) 65 Letter from Matthew Rycroft to Rt Hon Priti Patel (accessible) - GOV.UK (www.gov.uk) 15  Indeed, this policy of hostility has proven ineffective in deterring people from Civil society organisations have often called for the creation of safe and legal routes for coming to the UK. In the year ending 2022, net migration reached a record those seeking refuge in the UK. The experience of providing such routes for Ukrainians high of 745,000.66 According to the Office for National Statistics, net migration appears to demonstrate that this may minimise the risk of exploitation and the need to for the year end to June 2023 was 672,000, up from 607,000 for the year take dangerous journeys, such as crossing the Channel in small boats. This is shown by ending June 2022.67 It is also expensive: from the cost of housing asylum the fact that there is no data showing Ukrainians crossing small boats to get to the UK. seekers in hotels or the Bibby Stockholm barge, holding people in immigration detention, or the plan to remove people to Rwanda.68 Creating a deterrent through hostility does not appear to offer a positive return on investment. Recommendations Protecting the rights and wellbeing of those seeking refuge and survivors The hostile environment has failed survivors of modern slavery and will continue of modern slavery is vital to ensuring an effective strategy to prevent to do so. The erosion of rights for those seeking refuge in the UK has heightened modern slavery. It is also essential to successfully disrupting trafficking vulnerability to exploitation and hindered the ability of law enforcement to disrupt networks: by supporting survivors to access trauma-informed support, trafficking networks and prosecute those responsible. Hope for Justice therefore safe accommodation, legal advice and other services, they will be better recommends that the UK Government urgently take the following measures in placed to assist investigations and prosecutions of their traffickers. order to enhance protection from exploitation and mitigate further harm. Not only does this Bill fail to comply with the international legal framework D  econflate modern slavery and immigration policies: these issues need to be separated, to which the UK is a signatory, it is morally wrong and counterproductive to with survivor support coming under appropriate ministerial governance focused on the objectives of preventing exploitation, identifying and protecting victims safeguarding and care rather than law and immigration enforcement. This will require: and ensuring that serious organised criminals are held to account. R emoving modern slavery from the portfolio of the Minister for Illegal Migration, and placing it within the remit of the Minister for Safeguarding Safe and Legal Routes: Ukraine Developing a multi-departmental response to tackling modern slavery, ensuring that the Home Office cannot dominate the strategy, and Conflict is commonly understood to increase vulnerability to other departments with relevant existing responsibilities and expertise exploitation. As people are displaced and seeking refuge, often with assist in preventing exploitation and supporting survivors few resources or safeguards, traffickers see an opportunity. Creating a comprehensive, evidence-based and overarching strategy on immigration which is aligned with efforts to tackle modern slavery ‘Each year, thousands of people living in and fleeing warzones are subjected to horrific violence and abuse. Forced recruitment and use by armed groups, abductions and kidnapping for ransom, forced D  irectly incorporate the European Convention on Action against Trafficking marriage, and forced labour are among the daily risks faced.’ 69 (ECAT) into domestic law: for survivors’ rights to be effective, and for state responsibilities to be binding, ECAT must be directly incorporated into In the wake of Russia’s invasion of Ukraine in February 2022, there were concerns domestic legislation. Such a move would also signal the UK’s commitment that those fleeing the conflict would be exploited. Shortly after the conflict began, to adhering to the highest standards in international law. the UK Government introduced two visa schemes to enable people impacted by the war to come to the UK: the Ukraine Family Scheme and the Ukraine Sponsorship S  trengthen the rights of those vulnerable to exploitation, including asylum Scheme. Ukrainians in the UK could also apply for permission to remain in the UK. seekers: when an individual’s rights and options are limited they become As of March 2023, 169,300 people have arrived in the UK under these schemes.70 increasingly susceptible to taking desperate or risky measures, accepting exploitative offers of travel or work. However, when they have rights which can Contrary to the expectation that Ukrainian refugees would be exploited, there be enforced, their opportunities and resilience to exploitation improve. have been relatively few instances of Ukrainians being identified as survivors of modern slavery in the UK.71 In part this can be attributed to the significant E  nable secure reporting: survivors must feel safe to report exploitation effort made by civil society organisations to raise awareness of the risks of and abuse, regardless of their immigration status. This requires a exploitation and provide appropriate resources. However, it could also be mechanism for secure reporting, provided for by legislation, through explained by the existence of visas which enabled Ukrainians to travel safely which safeguarding is prioritised over immigration enforcement. to the UK, find safe accommodation and have the right to work. There was no need to rely on smugglers to help them across borders, or to accept C  reate safe and legal routes: enabling Ukrainian refugees to safely travel exploitative offers of ‘assistance’. Rather than treating Ukrainian refugees to the UK significantly reduced their risk of exploitation and harm. As other with hostility or seeking to deter their arrival, they were safeguarded. groups are forcibly displaced by war or climate change, the availability of ‘Why is this route not for everyone fleeing war?’ 72 safe and legal routes will be essential to ensure they too are protected. 66 UK net migration hit new record high in 2022 in latest blow for Sunak | Reuters 67 Long-term international migration, provisional - Office for National Statistics (ons.gov.uk) 68 The UK aid budget and support for refugees in the UK in 2022/23 - House of Commons Library (parliament.uk) 69 Global Slavery Index | Walk Free 70 Statistics on Ukrainians in the UK - GOV.UK (www.gov.uk) 71 National Referral Mechanism statistics - GOV.UK (www.gov.uk) 16 72 Survivor of modern slavery 17  P  rovide the right to work: survivors do not have permission to work whilst they are in the NRM and receive only limited financial support. Allowing those seeking refuge in the UK and survivors of modern slavery to access legitimate employment would significantly reduce vulnerability. P  ilot a Trafficking Visa: survivors require secure immigration status to provide the stability necessary to recover and reduce the risk of re- exploitation. A Trafficking Visa for those trafficked to the UK would provide survivors with regularised status and a pathway to permanent residence in the UK based on their holistic individual circumstances and best interests, including but not limited to cooperation with investigation or prosecution and/or pursuing a compensation claim. Discretionary leave to remain linked to supporting an investigation or prosecution can result in leave being withdrawn following the criminal case and survivors at risk of destitution, homelessness and ultimately re-trafficking. This is at a point when they can be extremely vulnerable including the risk of reprisals from wider elements of an organised crime group who may not have been prosecuted. A Trafficking Visa would also reduce the costs of the NRM system by giving people recourse to public funds early on thus spreading the costs between different government departments with little budgetary impact, allowing people to work which also improves recovery and investment back into the UK. In addition, this enables survivors to engage with criminal justice responses at a point they are ready to in their own personal journey of recovery thus actively improving engagement. E  nd the hostile environment: the vilification of migrants and the undermining of the rights and protections of those seeking refuge in the UK only fosters greater vulnerability and harm. The UK Government must reverse its policy of creating a hostile environment and reaffirm its commitment to adhering to its obligations under international law to safeguard the rights of vulnerable communities. The language used in relation to those seeking refuge in the UK also needs to change: ending the negative discourse about asylum seekers and survivors of modern slavery, instead using language which respects their dignity and humanity. For more information, please contact Euan Fraser, Senior Policy and Research Advisor: [email protected] 18 19  Hostility for Survivors, Impunity for Traffickers: How the Hostile Environment enables Modern Slavery Hope for Justice Briefing Paper January 2024 25 Reports — Human Trafficking Foundation 26 PowerPoint-præsentation (iom.int) 27 4 in 5 modern slavery victims denied justice as new law 'gives traffickers impunity' - Mirror Online 28 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 (accessible version) - GOV.UK (www.gov.uk) 29 Modern Slavery: statutory guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and non- 20 statutory guidance for Scotland and Northern Ireland (accessible version) - GOV.UK (www.gov.uk)