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Nationality And Borders Act 2022

Contents

Part 5: Modern Slavery

Section 58: Provision of information relating to being a victim of slavery or human trafficking
  1. Overview: This section provides that the Secretary of State may serve a slavery or trafficking information notice on a person who has made a protection claim or a human rights claim. A recipient of such a notice is required to provide relevant information relating to being a victim of slavery or human trafficking within a specified period and, if providing information outside of that period, to provide a statement setting out the reasons for doing so.
  2. The purpose of this change is to achieve the following:
    • To identify individuals who have made an asylum or human rights claims who may also be potential victims of modern slavery at an early stage. This approach seeks to support the Government’s proactive duty to identify potential victims as early as possible and aims to ensure they receive the correct support package from the authorities at the earliest opportunity.
    • To enable potential grounds to be a victim of modern slavery to be considered alongside a protection or human rights claim, ahead of any appeal hearing. The factual account of previous experiences that can give rise to a referral as a potential victim of modern slavery can overlap with the factual accounts used to determine a protection or human rights claim. Considering all claims and information at the same time is intended to support both Home Office and judicial decision makers as well as victims by speeding up processes and considering all grounds collectively.
  3. Subsections 1 and 2 provide that a "slavery or trafficking information notice" may be served on individuals who have made an asylum claim or human rights claim. An information notice requires individuals to provide the Secretary of State (and any other competent authority specified in the notice) with any relevant status information before a specified time. Provision of late information will not bar modern slavery referrals from being considered. Whenever modern slavery grounds are raised, they will be considered.
  4. Subsections 3 sets out what is meant by "relevant status information", which is information that may be relevant for the purposes of making a reasonable grounds decision or a conclusive grounds decision in relation to the potential victim.
  5. Subsection 4 to 6 provide that, where information is provided on or after the date specified in the notice, the individual must set out in a statement the reasons for providing their evidence late.
Section 59: Late compliance with slavery or trafficking information notice: damage to credibility
  1. Overview: This section sets out the consequence if an individual, aged 18 or over, who has been served with a slavery or trafficking information notice under section 58, provides information relating to being a victim of modern slavery after the specified time period, without good reason.
  2. Background: Modern slavery matters are frequently raised after asylum or human rights grounds for remaining in the UK have been refused. This can also occur at the point of removal leading to that removal being delayed. Inappropriate use of detention and failed removal action results in costs to the Home Office and wider government, which could be prevented if all grounds are raised at the earliest point in the process.
  3. The purpose of this section is to reduce the potential for misuse of the National Referral Mechanism (NRM) system from referrals requested with the intention of delaying removal action from those who have made an asylum or human rights claim and to ensure that victims are identified as early as possible to receive appropriate support.
  4. Subsection 1 sets out that this section applies to individuals who have been served an information notice under section 58, and who were aged 18 or over when the most recent information notice was served, who have provided information late, and a competent authority is making a reasonable grounds or conclusive grounds decision.
  5. Subsection 2 sets out that the competent authority must take account, as damaging the individual’s credibility the late provision of evidence unless there are good reasons why the information was provided late.
  6. Subsections 3 and 4 provide the definition of "late" as being on or after the date specified in the slavery or trafficking information notice. It also provides the meaning of "relevant status information", which is set out in section 58.
Section 60: Identification of potential victims of slavery or human trafficking
  1. Overview: This section delivers two outcomes. Firstly, it clarifies the threshold applied in determining whether a person should be considered a potential victim of trafficking, so that assistance and support are made available to someone when there are reasonable grounds to believe the individual "is", rather than "may be", a victim of slavery or human trafficking. It also confirms in legislation the "balance of probabilities" threshold for the Conclusive Grounds ("CG") decision.
  2. Background: Under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), certain obligations flow if there are "Reasonable grounds to believe that a person has been a (sic) victim of trafficking ". ("RG" and the RG Threshold), subject to exemptions. Whereas the European Convention on Action against Trafficking uses the terms "is" or "has been" a victim, the Modern Slavery Act 2015 uses the term "may be" a victim in reference to satisfying the Reasonable Grounds threshold. Following a positive Reasonable Grounds decision in the UK, individuals receive a Recovery and Reflection period (the "recovery period"), currently a minimum of 45 days, during which they are protected from removal. The recovery period is set out at sections 61 and 64 and the disqualifications to it at section 63.
  3. The objective of this measure is that sections 49 and 50 of the Modern Slavery Act 2015, which create an obligation to publish guidance and a power to make subordinate legislation, and section 51 "Presumption of Age", which makes direct reference to the provisions in Sections 49 and 50, should be changed from referencing "reasonable grounds to believe a person may be a victim of trafficking" to referencing whether "there are reasonable grounds to believe someone is a victim of trafficking" or "are victims of trafficking". This will bring the Modern Slavery Act in line with the test set out in the European Convention on Action against Trafficking. This will also bring England and Wales in closer alignment with the Scottish and Northern Irish definitions, both of which provide support when there are reasonable grounds to believe an individual" is" rather than "may be" a victim.
  4. A Conclusive Grounds decision, regarding whether an individual is a confirmed victim of modern slavery, should be made as soon as possible once there is sufficient information to make the decision. The Modern Slavery Statutory Guidance sets out that the Conclusive Grounds decision should be based on whether there is sufficient evidence to decide on the "balance of probabilities" that the individual is a confirmed victim of modern slavery.
  5. Regarding the Conclusive Grounds threshold, the intention of this section is to confirm in primary legislation that the test is to be based on the "balance of probabilities" in line with obligations under the European Convention on Action against Trafficking. This is the current test as accepted by the Courts.
  6. Subsections 1 to 3 and 5 to 6 amend references to the Reasonable Grounds threshold in the Modern Slavery Act 2015, specifically in sections 49, 50 and 51, changing these from reasonable grounds to believe a person "may be" a victim of trafficking to reasonable grounds to believe someone "is" a victim of trafficking.
  7. Subsection 4 inserts new subsection 1A, requiring that the guidance provide that the determination regarding whether an individual is a confirmed victim of modern slavery be based on the "balance of probabilities"
  8. With regards to extent and application of this section, Section 60 subsections 1-6 apply to England and Wales only, as these subsections amend sections 49 to 51 of the Modern Slavery Act 2015 (MSA), which apply only to England and Wales.
  9. Subsection 7 of Section 60 applies across the UK, as it amends Section 56 of the MSA, which itself extends UK wide.
Section 61: Identified potential victims of slavery or human trafficking: recovery period
  1. Overview: This section implements the UK’s Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) obligations to provide a recovery period to potential victims of modern slavery, during which the victim must not be removed from the UK.
  2. Background: ECAT provides that once there are reasonable grounds to believe a person has been a victim of trafficking, states have obligations to that person (such person being a "potential victim"). These obligations last until someone is determined to be a confirmed victim or not to be a victim, or until the end of 30 days from the Reasonable Grounds decision, whichever is later.
  3. ECAT provides (in Article 13) that states shall provide potential victims with a "recovery and reflection period" of at least 30 days (England and Wales provide 45 days in guidance) and until it is determined whether they are a confirmed victim unless disqualifications apply. Parties are obliged to authorise persons to stay in their territory during this period. The UK’s approach to implementing the provisions of ECAT is set out in guidance (opens in new window) . This Section puts some of the key principles of the guidance into primary legislation.
  4. Subsection 1 provides that this section applies to those identified as potential victims of modern slavery following a Reasonable Grounds (RG) decision, provided this is not a further RG decision as set out in Section 62.
  5. Subsections 2 to 3 set out that those identified as potential victims of modern slavery are not removed from the UK during the recovery period. This requirement is subject to the disqualifications contained in Section 63. The recovery period is the period following a Reasonable Grounds (RG) decision, until such a time as a Conclusive Grounds (CG) decision is made. This period must be at least 30 days, as stipulated under ECAT or until a Conclusive Grounds decision is made – whichever is later. This does not amend the minimum 30-day recovery period for victims provided in ECAT. An identified potential victim is entitled to a recovery period (giving them protection from removal) of at least 30-days even where a Conclusive Grounds decision is made within 30-days of the positive Reasonable Grounds decision.
Section 62: No entitlement to additional recovery period etc.
  1. Overview: This section provides that only one period of recovery will be provided to a potential victim, unless the Secretary of State considers it appropriate to provide a further period of protection from removal in the particular circumstances of the case, or unless the further instance of exploitation occurred after the previous reasonable grounds decision.
  2. Background: The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) provides that once there are reasonable grounds (RG) to believe a person has been a victim of trafficking, states have obligations to that person (such person being a "potential victim"). These obligations last until someone is determined to be a confirmed victim or not to be a victim., and for a minimum of 30 days.
  3. During this time, states are obliged to authorise persons to stay in their territory and provide potential victims with support to aid their recovery, unless disqualifications apply. Section 60 will bring these obligations into domestic legislation. Section 61 seeks to set out the disqualification from an additional recovery period, where additional recovery periods are not needed.
  4. This section provides that additional recovery periods will only be granted in certain cases.
  5. Subsection 1 provides that a person who has previously been identified as a potential victim of modern slavery or human trafficking, and as such benefitted from a recovery period, may not be entitled to a further recovery period if they bring forward further grounds to be treated as a potential victim and those matters occurred wholly before the previous decision.
  6. Subsection 2 provides for discretion to enable a competent authority to protect the individual from removal from the UK during the additional 30-day recovery period or until the further Conclusive Grounds decision is made, if later.
Section 63: Identified potential victims etc.: disqualification from protection
  1. Overview: This section sets out disqualifications to providing a recovery period to a potential victim of modern slavery (as set out in Section 61), based on grounds that the individual is a threat to public order or has claimed to be a victim in bad faith.
  2. Background: The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) contains provisions for an exemption to the protections conferred during the recovery period on public order grounds or if it is found that victim’s status is being claimed improperly. This Section puts these disqualifications into primary legislation.
  3. Subsection 1 provides that subsection 2 may apply if a competent authority is satisfied that the individual concerned is a threat to public order or has claimed in bad faith to be a victim.
  4. Subsection 2 provides that the individual is no longer protected from removal from the UK by Section 60 and 61, and that where a positive conclusive grounds decision is made, there is no requirement to consider the individual for a grant of limited leave under Section 65. This is intended to enable the removal of those who pose a threat to the UK. This is in keeping with the UK’s ECAT obligations.
  5. Subsection 3 stipulates that an individual is considered a threat to public order if: they have been convicted of any of the offences listed in Schedule 4 to the Modern Slavery Act 2015, or a corresponding offence under the law of Scotland or of Northern Ireland or under the law of any other country; they are a foreign criminal within the meaning of section 32 of the UK Borders Act 2007; the individual has been convicted of a terrorist offence; they are subject to a TPIM notice, which imposes specified terrorism prevention and investigation measures on an individual who is, or has been, involved in terrorism-related activity; the individual is subject to a temporary exclusion order, which requires an individual not to return to the UK where the Secretary of State reasonably suspects the individual is, or has been, involved in terrorism-related activity outside the UK, or reasonably considers that an exclusion order is necessary to protect members of the public in the UK from a risk of terrorism; the individual has been deprived of citizenship status on grounds that the Secretary of State was satisfied that deprivation was conducive to the public good; or if they are considered a risk to national security.
  6. Subsection 4 defines a "terrorist offence" for the purposes of subsection 3(a).
  7. Subsection 5 defines "corresponding offence" for the purposes of subsection 3(b).
  8. Subsection 4 defines a "terrorist offence".
  9. Subsection 6 provides that whether or not an act that is punishable under the law of a country outside of the UK is described as an "offence", it is to be regarded as an offence for the purposes of this section.
  10. Subsection 7 provides definitions of terms used in this section.
Section 64: Identified potential victims etc. in England and Wales: assistance and support
  1. Overview: This section implements the UK’s Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) obligations to provide a recovery period to potential victims of modern slavery, during which the victim must be provided with assistance and support to aid their recovery.
  2. Background: The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) provides that once there are reasonable grounds (RG) to believe a person has been a victim of trafficking, states have obligations to that person (such person being a "potential victim"). These obligations last until someone is determined to be a confirmed victim or not to be a victim. If a conclusive grounds decision is made within the recovery period, victims will still receive the minimum 30-day recovery period.
  3. ECAT provides (in Article 13) that states shall provide potential victims with a "recovery and reflection period" of at least 30 days (England and Wales provide 45 days) and until it is determined whether they are a confirmed victim. During this time, potential victims are entitled to support from the state to help them recover. The UK’s approach to implementing the provisions of ECAT is set out in guidance. This Section puts provision relating to assistance and support during the recovery period into primary legislation.
  4. Subsection 1 inserts new section 50A into Part 5 of the Modern Slavery Act 2015. This requires that those identified as potential victims of modern slavery are provided with assistance in their recovery from any physical, psychological or social harm arising from the conduct which resulted in the positive reasonable grounds decision concerned. The requirement to provide support is subject to disqualifications contained in Sections 62 and 63.
  5. Subsections 3 and 4 provide that when a further Reasonable Grounds (RG) decision, within the meaning given by section 61, is made in relation to a person, and it is appropriate to do so, the Secretary of State must secure that any necessary assistance and support is available to the person during the recovery period. This period starts on the day the RG decision is made until whichever is later a) the date the relevant CG decision is made or b) 30 days from the date of the RG decision.
Section 65: Leave to remain for victims of slavery or human trafficking:
  1. Overview: This section sets out the circumstances in which the Secretary of State must grant temporary, limited leave to remain to confirmed victims of modern slavery. Further detail pertaining to the grant of leave will be set out in the Immigration Rules. This section will also set out the circumstances in which the Secretary of State is not required to grant leave. It further makes provision for the circumstances in which leave, which has already been given, may be revoked.
  2. Background: Under Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) a renewable residence permit should be issued to victims of modern slavery if one, or both, of the following situations apply: the competent authority considers that their stay is necessary owing to their personal situation; the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings (Article 14(1)(a) and (b)). Section 65 also provides for a grant of leave where necessary to enable the person to seek compensation in respect of the relevant exploitation in line with the previous non-statutory guidance "Discretionary Leave for Victims of Modern Slavery" and in light of Article 15 of ECAT "Compensation and legal redress".
  3. Subsection 1 stipulates that this section applies to confirmed victims of modern slavery who are not British citizens and who do not have leave to remain in the UK.
  4. Subsection 2A provides that where the authority is satisfied that 63 (1) (a) or (b) applies there is no requirement to grant limited leave to remain in the United Kingdom to a person who meets any requirement under this section.
  5. Subsection 2 provides that the Secretary of State must grant limited leave to remain if it is considered necessary for the purposes of (a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation, (b) enabling the person to seek compensation in respect of the relevant exploitation, or (c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.
  6. Subsection (2)(a) clarifies the obligation in Article 14(1)(a) of ECAT which provides for a grant of leave where it is "necessary owing to their personal situation". This subsection provides that leave is necessary owing to the individual’s personal situation where, it is necessary in order to assist with recovery from any physical or psychological harm arising from the relevant exploitation.
  7. Subsection 2(b) provides a grant of leave for confirmed victims of modern slavery to pursue compensation in respect of the relevant exploitation, in light of the obligations in Article 15 ECAT.
  8. Subsection 2(c) reflects Article 14(1)(b) ECAT and provides for a grant of leave where necessary to enable the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation
  9. Subsection 3 (a) provides that, if the Secretary of State considers that the person’s need for assistance is capable of being met in another country or territory, as defined in subsection 4, leave is not necessary for the purpose of assisting the individual with their recovery.
  10. Subsection 3 (b) sets out that leave is not necessary for the purpose of Subsection (2)(b) if the Secretary of State considers that the person is capable of seeking compensation from outside the UK, and it would be reasonable for them to do so in the circumstances.
  11. Subsection 4 clarifies the meaning of "country" or "territory" for the purpose of subsection 3(a).
  12. Subsections 5 and 6 state that the Secretary of State is not required to grant leave under subsection 2 and may revoke any such leave if it has been granted where the Secretary of State is satisfied that the individual is a threat to public order (see Section 63 for further details) or has claimed to be a victim in bad faith.
  13. Subsection 7 sets out that leave given to a person under subsection 2 may be revoked in such other circumstances as may be prescribed in Immigration Rules.
  14. Subsection 8 sets out that subsections 3 to 7 of Section 63 apply for the purposes of this section.
  15. Subsection 9 provides definitions of "positive conclusive grounds decision" and "the relevant exploitation", for the purposes of this section. The "relevant exploitation" is defined as the conduct that resulted in the positive conclusive grounds decision.
  16. Subsection 10 stipulates that this section is to be treated for the purposes of section 3 of the Immigration Act as if it were provision made by that Act.
Section 66: Civil legal services under section 9 of LASPO: add-on services in relation to the national referral mechanism
  1. Overview: This section amends various paragraphs of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") to enable advice on referral into the national referral mechanism (NRM) to be provided as "add-on" advice where individuals are in receipt of civil legal services for certain immigration and asylum matters.
  2. Background: Each paragraph of Part 1 of Schedule 1 to LASPO 2012 describes the types of civil legal service that may be made available. Services listed in that Part are known colloquially as "in scope". To obtain legal aid, an applicant must have a determination from the Director of Legal Aid Casework that their issue is in scope by virtue of being listed in Schedule 1, and that they qualify for the services in accordance with the statutory means and merits tests which are set out in section 11 LASPO 2012 and in Regulations made under that Act.
  3. The aim of the section is to identify and support individuals who may be potential victims of modern slavery or human trafficking. This section will ensure that where individuals are receiving advice on an in scope immigration issue listed in these specific paragraphs of Part 1 of Schedule 1 to LASPO 2012, that they are also entitled to add-on advice on referral into the NRM as part of that advice. The intention is that potential victims of modern slavery or human trafficking will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it.
  4. Subsection 1 sets out that Part 1 of Schedule 1 to LASPO 2012 is being amended.
  5. Subsections 2 to 5 amend paragraphs 19, 25, 26, 27, 27A, 30 and 31A by inserting a new paragraph into each of those paragraphs, setting out that civil legal services on referral into the NRM will also be available to an individual who is already receiving advice under one of those paragraphs. It also provides that certain civil legal services cannot be provided as part of this advice, such as advocacy and attendance at an interview.
  6. Subsection 6 provides definitions.
  7. Subsection 7 sets out that civil legal services on referral into the NRM will only be available as add-on services in relation to a determination made after the amendment comes into force.
Section 67: Civil legal services under section 10 of LASPO: add-on services in relation to national referral mechanism
  1. Overview: This section amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") to enable advice on referral into the national referral mechanism (NRM) to be provided as "add-on" advice where individuals have received an exceptional case determination under section 10 of LASPO 2012.
  2. Background: Section 10 of LASPO 2012 makes civil legal services that are not described in Part 1 of Schedule 1 to LASPO available in exceptional cases. The determination by the Director of Legal Aid Casework that an applicant can get these services is called an "exceptional case determination", and to get such a determination the Director must determine that the circumstances in subsection 10(3) apply, which is that a failure to provide funding could give rise to a breach of the individual’s ECHR or other retained enforceable EU rights. The Director must also determine that the individual qualifies for the services in accordance with the statutory means and merits tests which are set out in section 11 LASPO 2012 and in Regulations made under LASPO 2012.
  3. The aim of this section is to identify and support individuals who may be potential victims of modern slavery or human trafficking by ensuring they receive advice on referral into the NRM to understand what it does and how it could help them.
  4. This section inserts new subsections 3A, 3B, 3C, 3D and 3E into section 10 of LASPO 2012 providing that civil legal services relating to advice on referral into the NRM are also available to an individual who has an exceptional case determination. The exceptional case determination must have been made in relation to a claim under section 6 of the Human Rights Act 1998 that removing the individual from, or requiring the individual to leave, the UK, would be unlawful.
Section 68: Disapplication of retained EU law deriving from Trafficking Directive
  1. Overview: This section states that the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Act.
  2. Background: Directive 2011/36/EU, on preventing and combatting trafficking in human beings and protecting its victims (the "Trafficking Directive") was adopted by the UK on 5 April 2011. Following the UK’s departure from the EU the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Act.
  3. Subsection 1 provides for the disapplication of the Trafficking Directive in so far as it is incompatible with any provisions in this Act.
  4. Subsection 2 provides a definition of "The Trafficking Directive" as explained above.
Section 69: Part 5: Interpretation
  1. Overview: This section provides definitions of terms used in Part 5 of this Act and confers a power on the Secretary of State to set out the meaning of "victim of slavery" and "victim of human trafficking" in Regulations.
  2. Subsection 2 provides that regulations made under this section are subject to affirmative resolution procedure.
  3. There is an amendment to Section 82 of the Nationality and Borders Act which applies to this section. Subsection 82(4) of the Act provides that Section 69 comes into effect two months after Royal Assent. This will be amended so that the power to make regulations under Section 69 come into effect at Royal Assent. This is to ensure that the regulations which will define "victim of slavery" and "victim of trafficking" have time to progress through Parliament and themselves come into force in line with the commencement of the sections relating to modern slavery.

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