UK Nationality and Borders Bill

A Regression in Protection for Trafficked Persons in the UK?

On 6th July 2021, UK Home Secretary, Priti Patel, introduced the Nationality and Borders Bill in the House of Commons, following the publication of the UK’s New Plan for Immigration earlier this year. Within the Plan was the assertion that immigration reform would result in a fairer immigration system. It has, however, been heavily criticised by academics and activists alike. The Bill itself contains provisions on nationality; asylum; immigration offences and enforcement; modern slavery; and miscellaneous provisions. Since the Bill’s publication, it has received criticism both on the floor of the House of Commons, and beyond. Much of that criticism has, rightly, focused on the problems with the proposed changes to the asylum system. The focus of this blog, however, is the possible impact of the Bill, if enacted, on the protection of trafficked persons in the UK. It is not an exhaustive overview of the key provisions relating to trafficking. Rather, I highlight two problematic aspects of the Nationality and Borders Bill insofar as human trafficking is concerned. First, I consider what is bad about the ‘bad faith’ provision. Then, I point to the implications of some of the provisions on asylum, in relation to trafficking risk. In so doing, I argue that the Bill represents a regression in protection for trafficked persons in the UK, and that amendments ought to be enacted to ensure compliance with international law.

Human Trafficking: What is bad about the ‘bad faith provision’?

Within part 3 of the Bill are a number of provisions on human trafficking, which will add to or amend the Modern Slavery Act 2015. Clause 51 stands out as particularly problematic. Essentially this clause provides that where an individual ‘has claimed to be a victim of slavery or human trafficking in bad faith’, the ‘requirement to make a conclusive grounds decision in relation to’ that person, will cease. So too, will ‘any prohibition on removing the person from…the United Kingdom.’ But what, precisely, amounts to bad faith? If enacted, will it now be up to the trafficked person to ‘prove’ their credibility? Indeed, as has been argued in a recent critique of the New Plan for Immigration, ‘the “culture of disbelief” will apply.’ Elsewhere, Soroya has noted that, ‘[w]hat constitutes “bad faith” is undefined and thus carries the risk that this change would give the Home Office broad powers to exclude a victim from support on the basis of a subjective judgement.’ There is indeed, no sign of a ‘good faith’ requirement in the international legal definition of human trafficking as laid down in Article 3 of the Palermo Protocol. Rather, that definition has three main elements:

An act: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs
A means: by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person
A purpose: exploitation

When each of these elements are fulfilled in an individual case, States have an obligation to provide a number of key protections. To add a ‘bad faith’ opt-out, is to renege on the scope of international law’s protection. In practice, it could mean that trafficked persons are excluded from protection. It may also act as a deterrent, with trafficked persons refraining from seeking protection, for fear of being deemed to have acted in bad faith. For many trafficked persons, providing evidence is a traumatic experience, requiring them to recount extremely distressing experiences. The thought of being disbelieved and excluded from protection will surely add to that.

Simply put: the act, means, purpose approach is sufficiently stringent in order to determine who ought to access protection. The bad faith opt-out may serve as a tool for exclusion, and ultimately as a denial of protection rightly owed under international law.

Asylum Reform: Aggravating Trafficking Risk?

The proposed amendments to the domestic legal framework on asylum have been subject to extensive analysis elsewhere. Among the concerns are the apparent criminalisation of many forms of entry to seek asylum, as well as the two-tier asylum system that is effectively created by the Bill. These changes have attracted widespread criticism and legitimate concern in relation to their compatibility with the 1951 Refugee Convention. Indeed, UNHCR’s UK Representative recently remarked that: ‘[t]his Bill would create a discriminatory two-tier asylum system violating the 1951 Refugee Convention and target bona fide refugees. The right to seek asylum is universal and doesn’t depend on the mode of arrival. Under the Refugee Convention, states must grant asylum-seekers access to their territory and refugees access to their rights.”

In practice, these restrictive provisions could lead to a regression in protection and an increase in vulnerability and precarity. For many, the implication may be that the internationally guaranteed right to refugee protection may remain out of reach. Especially the Bill’s provision on differential treatment of so-called “Group 1” and “Group 2” refugees with respect to recourse to public funds is problematic. In such cases, the risk of trafficking is arguably increased. The Palermo Protocol explicitly acknowledges ‘factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.’ In this context, the State has a duty to actively prevent trafficking though measures which alleviate those factors. The UK government, however, through the new legislation, will be exacerbating these factors. As such, questions ought to be raised about the compatibility of the Bill’s asylum provisions with applicable international trafficking law, both in the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and the Palermo Protocol. To experience trafficking because of a denial of legitimately owed guarantees of international protection is simply unacceptable. Thus, any provisions that may open up the door to such situations ought to be actively avoided. It is, therefore, essential, that those advocating for amendment (or subsequent reform) of these provisions, articulate the incompatibilities with international anti-trafficking law, as well as international refugee law.

Where to Now?

Even from this brief analysis, it is apparent that if the Bill is enacted as it stands, the result will be a regression in protection for, among others, potentially and actually trafficked persons. At present, the Bill has passed both a first and second reading in the House of Commons. It is now at the committee stage, where it will be further debated and possible amendments tabled before it returns to the floor of the Commons. A number of MPs have, during both readings, spoken out against the Bill and voted against it. It can only be hoped that, as it passes through the various stages of the legislative process, amendments will be made and a truly fair system will emerge. If you are interested in participating in the process, why not write to your MP? You can read about the New Plan for Immigration and the Nationality and Borders Bill in more detail by clicking on the resources below.