The submission suggests that the Bill’s retention of section 29 of the Illegal Migration Act 2023 (IMA), and of section 63 of the Nationality and Borders Act 2022 (NABA), which section 29 IMA amends, is incompatible with the UK’s obligations under the European Convention on Action Against Trafficking in Human Beings (ECAT) and Article 4 the European Convention on Human Rights (ECHR). It suggests that the Committee seek further explanations from the Government as to why, in its view, the retention of section 29 IMA and section 63 NABA is compatible with those obligations in specific respects.
(1) The Committee may wish to ask the Government for further explanation as to why section 63 NABA (alone and as amended by section 29 IMA) is compatible with the positive obligations contained in Article 4 ECHR and Articles 10 (2), 12 (1) and (2), 13, 14, and 26 ECAT.
Section 63 (3) NABA introduces the “Public Order Disqualification” (“POD”), which excludes a broad and loosely defined group of victims of modern slavery from any protection and assistance including the recognition of their status as a victim of crime. Together with the Modern Slavery Statutory Guidance, which outlines the decision-making process when applying the public order disqualification, section 63 NABA creates a presumption in favour of such disqualification, which victims would need to refute. This is contrary to several express obligations which the UK has voluntarily assumed in Article 4 ECHR and Articles 10 (2) and 13 ECAT.
Section 63(3)(b) NABA furthermore excludes from protection those individuals who are convicted of offences listed in Schedule 4 to the Modern Slavery Act (MSA). However, Article 26 ECAT (the non-punishment principle) does not permit automatic exclusion of certain offences from its reach. In addition, permitted exclusions from the non-punishment principle do not authorise restrictions of other protective obligations towards victims of human trafficking.
(2) The Committee may wish to ask the Government for further explanation of the rationale for the Border Security, Asylum and Immigration Bill retaining the presumption that the public order disqualification applies when a person belongs to a category listed in section 63 (3) NABA and further expanding the range of situations in which such disqualification ought to apply.
Section 29 IMA amends Section 63 (1) NABA to mandate rather than permit competent authorities to disqualify from any protection a broad range of victims listed in section 63 (3) NABA, unless there are compelling countervailing circumstances. Section 29 IMA also amends section 63 (f) NABA to exclude from protection anyone who has been sentenced to a term of imprisonment of any length. These amendments are incompatible with Article 4 ECHR and Articles 10 (2) and 13 ECAT, which impose express obligations on public authorities to identify and support every victim of human trafficking on their own initiative, including those with irregular immigration status and those involved in criminal offences, and to justify any restrictions or denial of protection in each individual case. They also create a strong likelihood of infringements of Article 26 ECAT, which guarantees protection against prosecution and punishment.
(3) The Committee may wish to ask the Government for further explanation of the rationale for the Border Security, Asylum and Immigration Bill not requiring a final decision on victim status before the public order disqualification is applied.
Section 63 NABA and paragraph 14.242 of the Modern Slavery Statutory Guidance absolve a decision-maker from the obligation to make a final decision on a person’s victim status when making a public order disqualification decision. Furthermore, when making a public order disqualification decision, more weight is being given to the public interest in disqualification than to the need for protections (paragraph 14.267 of the Modern Slavery Statutory Guidance) and there is “no expectation for decision makers to undertake extensive investigation to support their decision” (paragraph 14.266 of the Modern Slavery Statutory Guidance). This is incompatible with Article 4 ECHR and Articles 10 (2) and 13 ECAT, which impose express obligations on public authorities to identify and support every victim of human trafficking on their own initiative, including those with irregular immigration status and those involved in criminal offences, and to justify any restrictions or denial of protection in each individual case.
