Blog post by Sheona York (Kent Law Clinic, University of Kent), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
The ‘New Plan for Immigration’ states that ‘The UK’s response to the evil of modern slavery is world-leading.’ This statement presents a similar contradiction as does government policy towards refugees and asylum-seekers, in which Britain ‘welcomes refugees’ but treats real-life asylum-seekers with suspicion and hostility. In the abstract, ‘modern slavery’ is an evil which the government is committed to combating. But, in relation to real-life victims, especially if they are also migrants, the stance is suspicious and the measures proposed are weak and unhelpful.
In this blog post, I will challenge claims based on which the New Plan seeks to limit the rights of victims of modern slavery. I also highlight the dangers of two particularly concerning proposals: introducing a ‘reasonable grounds’ test for identifying victims of modern slavery, and providing them only with temporary protection.
The Plan’s Unsupported and Prejudicial Claims in Relation to Trafficking
The chapter devoted to trafficking and modern slavery, as the other chapters of the New Plan, is introduced by a series of unsupported and prejudicial claims. First, it notes that the number of National Referral Mechanism (NRM) referrals has more than doubled in 2 years. The Home Office implies that this has arisen from applicants raising trafficking issues at the last minute to stop being removed. However, applicant lawyers are noticing a trend in which it is the Home Office itself which initiates a trafficking referral, where an applicant is genuinely unsure whether this process is useful to them, or is just another part of an obligatory set of procedures. Applicants then pursue that trafficking claim out of fear that deciding not to pursue it might itself weaken their credibility.[1] This fear hangs over those applicants long after the principal application has been decided, since trafficking referrals take months and years to resolve. So it is not at all clear that the proliferation of these claims, and the delays attendant on them, can be blamed on the applicants. It would be good to know how many of them arise from a Home Office intervention in an applicant’s asylum or human rights application, encouraging them to enter the NRM, rather than from an application made by applicants themselves or via an NGO.
Secondly, the Home Office are using the fact of some abuse of the system to restrict the operation and applicability of the Modern Slavery Act. The New Plan mentions ‘the child rapists’ who are supposed to have taken advantage of the trafficking procedures, and those who are claimed to be ‘a threat to national security.’ The Plan does not tell us exactly how many child rapists have tried to enter the NRM; whether these are people who have been convicted, charged, accused, or just the subject of notes on police files. Similarly with ‘people who pose a threat to national security’ – a rather undefined category in any event. The Plan’s proposals are analogous to saying ‘we have found an increasing number of bogus gasfitters preying on elderly people. We must reduce the numbers of gasfitters!’ At the same time, away from the issue of immigration, the government is keen to emphasise the importance of its measures against modern slavery. In a 2016 Telegraph article, Theresa May herself stated that ‘the most recent estimates suggest that there are between 10,000 and 13,000 victims in the UK alone and over 45 million across the world.’
The Modern Slavery Act 2015 was intended to assist victims as well as stamp out the practice of trafficking, but this intention is vitiated by immigration policy aimed at keeping out all ‘illegals,’ regardless of whether they may be trafficking victims. The Plan refers to ‘illegal migrants who have travelled from a safe country.’ These, of course, are ‘asylum-seekers’ – who, especially if they have travelled through Libya, are more than likely to have been subject to trafficking and modern slavery on their journey to the UK. This government does not want them to come here – but there is virtually zero chance of their being assisted by the UK otherwise. Even when they do manage to arrive, their treatment by the Home Office may well be unlawful. The recent High Court case of NB & others, decided on 3 June 2021, determined that the Home Office procedures for selecting asylum-seekers for detention in Napier Barracks, Folkestone were unlawful. The applicants were found to have been unlawfully placed there after the Home Office had failed to consider whether, among other things, they were victims of trafficking and/or torture, (as well as failing to ensure that the barracks were Covid-secure or that quarantine measures could be safely imposed in the event of an outbreak).
As mentioned above, the New Plan also claims that ‘The UK’s response to the evil of modern slavery is world-leading.’ At the same time, the policy proposes to ‘consult on seeking bilateral or multilateral agreements with safe, ECAT-signatory countries which would enable the removal of victims of modern slavery ensuring their needs are met in the country to which they are removed in line with our obligations under ECAT.’ The ECAT is the Council of Europe Convention on Action against Trafficking in Human Beings. However, aside from the fact that the UK’s obligations under the ECAT are not compatible with outsourcing assistance to trafficked persons to other countries, the New Plan provides no details about how asylum-seekers having experienced modern slavery or human trafficking would be dealt with in Greece, Italy or France, the places through which most asylum-seekers will have travelled to get to the UK. Casework experience suggests that, in Italy and Greece at least, there are no or only rudimentary procedures for assisting such victims. This might explain why many asylum-seekers who have passed through Libya then try to reach the UK. But there are no proposals in the New Plan for multilateral discussions about the treatment of such victims – only for heavier enforcement procedures.
A New Reasonable Grounds Test and Credibility
The Plan proposes a new ‘reasonable grounds’ test and stronger tests of an applicant’s credibility. Because the burden of proof is placed on the applicant, any such new test will straight away move the trafficking procedure into the same realm as asylum: the ‘culture of disbelief’ will apply. The Plan states that ‘the [reasonable grounds] threshold will not be met on the basis of an unsubstantiated claim.’ If so, the situation for trafficking victims may be worse than for asylum-seekers, where at least the UNHCR Handbook advises on how to treat applications where evidence cannot be corroborated. The Plan’s proposed change would draw trafficking and modern slavery claims into the same terrain as requiring a victim of rape or sexual abuse to ‘substantiate their claim,’ and would vitiate even Home Office guidance about how to deal with gender-based persecution, asylum claims from children, etc.
The Offer of Temporary Protection
The New Plan under the heading Providing Victims of Modern Slavery with Increased Support proposes that a period of temporary leave (of unspecified length and conditions) may be offered. It should be appreciated that such an offer does not provide much hope and is of little utility to victims of modern slavery, especially children. As a report by the Office of the Children’s Commissioner confirms, you can’t recover from such an experience in a short time, especially if you have no idea what will become of you at the end of that time. It is worth noting that victims of modern slavery may have a right to remain on human rights grounds, which will result in a grant of discretionary leave to remain, normally ‘not more than 30 months.’ More useful to them, however, and more humane, would be simply to grant refugee status or humanitarian protection, providing 5 years’ leave to remain with access to public funds, giving opportunities to study and develop their ability to support themselves without falling dependant on a new set of exploiters and abusers: and the possibility of moving to settlement at the end of that time. Otherwise, we will continue to see cases like Miah, in which a young lad who had been sold by his parents to someone who brought him to the UK to work, was given temporary leave to remain until he was 18 and then expected to return to Bangladesh, to either return to the family which sold him, or to make his own way in a place he had never known as an adult. The child’s application for subsequent leave to remain, refused by the Home Office, then fell foul of the art 8 public interest considerations introduced in the Immigration Act 2014. The Upper Tribunal stated: ‘While the impact of sections 117B(1)-(5)[2] on children will appear harsh and unfair to many, this is the unavoidable consequence of the legislative choice which Parliament has made.’
In the face of those legal provisions, the New Plan’s modern slavery proposals are empty – worsening the chances of being identified as a victim, and merely postponing the moment of return to an unsafe environment. As such, the proposals are also incompatible with the Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) which calls on states to ‘permit [trafficked persons] to remain in the country of destination, temporarily or permanently’ (para 26(h)).
[1] Analogous to the concerns discussed in the case of JA (human rights claim, serious harm) [2021] UKUT 97, which referred to HH v Secretary of State for the Home Department [2017] CSOH 11, in which the SSHD sought to impugn an applicant’s claim on the basis that they did not choose to make an asylum claim to support a claim of ‘serious obstacles to integration’ in their home country.
[2] s117B Nationality, Immigration and Asylum Act 2002, introduced by s19 Immigration Act 2014.
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