This is a report and a summary of the report ‘Assessing the modern slavery impacts of the Nationality and Borders Act 2022: one year on’, based on research conducted by the British Institute of International and Comparative Law (BIICL) in partnership with the Human Trafficking Foundation and the Anti-Trafficking Monitoring Group. The research was first published by BIICL in June 2024.
Background
The Nationality and Borders Act (“NABA”) passed into law in April 2022, introducing sweeping changes to British immigration, asylum, nationality, and modern slavery laws. Most of the NABA’s provisions related to modern slavery (contained in Part 5 of the Act) entered into force on 30 January 2023, and were implemented on the same day through amendments to the Modern Slavery Statutory Guidance (“Statutory Guidance”). These measures have been accompanied by corresponding changes to the National Referral Mechanism (“NRM”) online referral form and prompt sheet. Section 65 of NABA, meanwhile, has been implemented through the adoption of separate guidance on ‘Temporary permission to stay for victims of human trafficking and slavery’ (originally published on 30 January 2023).
Key findings
Impacts on decision-making
- NABA and the associated changes to the Statutory Guidance have coincided with a significant decrease in the rate of positive decisions within the NRM at the Reasonable Grounds (“RG”) stage. This decrease has been particularly sharp in respect to three types of referrals: adult referrals, referrals concerning Albanian nationals, and referrals for which the Immigration Enforcement Competent Authority (“IECA”) has been deemed responsible. In parallel, the operationalisation of NABA has caused significant delays in rendering decisions at the RG stage (from a median time of 5-6 days prior to 2023 to as high as 47 days in Q3-23).
- Research participants resoundingly expressed the belief that the elevated evidentiary requirements introduced in January 2023 had resulted in very significant numbers of persons with lived experience of modern slavery being denied identification and support through the NRM and was not an effective way of meeting the stated aims of the policy – namely, to address alleged ‘abuse’ of the NRM. In addition, they indicated that despite the withdrawal of the ‘objective factors’ test from the Statutory Guidance in July 2023, decision-makers continue to deliver negative RG decisions owing to a lack of evidence.
- Public Order Disqualifications (“POD”) have disproportionately affected people whose experience of modern slavery included an element of forced criminality (70% of all POD decisions), as well as Albanian nationals (70% of PODs, despite representing approximately 25% of all NRM referrals), and people originally referred into the NRM by the Home Office Immigration Enforcement (74% of PODs). These trends are cause for serious concern, highlighting a disturbing nexus between gender, nationality, and immigration status when it comes to disqualifying individuals on grounds of public order that closely resembles the profiles most affected by the fall in positive recognition rates within the NRM.
Impacts on people with lived experience of modern slavery
- The clearest impacts of the operationalised NABA measures have been the exclusion of people with lived experience of modern slavery from the statutory support provided within the NRM mechanism and, for those with a pending asylum claim based on a fear of re-trafficking or exploitation on return, the risk of their application being certified as ‘clearly unfounded’.
- NABA measures have also had lasting impacts on the mental health of people with lived experience of modern slavery – both due to the impact of the measures on the operation of the system, and as a result of the broader discourse that has accompanied the adoption of this legislation.
- Stakeholders voiced concerns that increasing numbers of individuals would be ‘driven underground’ by the changes, meaning that they would be absent from the NRM and DtN statistics altogether.
Impacts on organisations in the modern slavery sector
- Almost all research participants from the broader sector agreed that the changes have caused considerable uncertainty and confusion in the performance of their duties, especially due to a failure by the Home Office to officially communicate the changes ahead of time, or in some cases even after the changes had come into effect, and due to the lack of meaningful consultation and strategic planning around the changes.
- The changes introduced by NABA have exacerbated pre-existing issues regarding access to legal advice for people with lived experience of modern slavery on account of the increased of the demand for representation, but also the increased complexity of cases.
- The combined effects of the NABA changes in terms of increased uncertainty, the added pressure place on organisations’ capacity, and the distress caused to service users, were all reported to have taken a major toll on the mental health of staff working in this area.
Key recommendations
Based on the findings of the project, the research team makes recommendations to Parliamentarians, to the Home Office, and to the modern slavery sector. These are to be understood as mitigating recommendations: in light of the findings of the report, the only remedial recommendation would be to repeal Part 5 of NABA and to put in place a non-discriminatory, evidence-based, and international law-compliant set of measures to tackle modern slavery and ensure protection for people with lived experience of exploitation.
1. To Parliamentarians
• Revisit and amend relevant provisions of the Nationality and Borders Act (and implementing measures) to ensure compliance with the UK’s international obligations and alignment with best practice. Ensure that all stakeholders, including people with experience of modern slavery, are consulted as part of the process of reviewing the Act and its impacts.
• Avoid stigmatising language in all communications around modern slavery. Special attention should be paid to ensuring that claims around modern slavery – for instance, in relation to alleged ‘abuse’ of the NRM system – are clearly supported by publicly accessible data. Consider processes for examining explicit and implicit biases in policy and decision-making at all levels.
2. To the Home Office
• Ensure that any changes to modern slavery policy, including changes to the online referral form and Statutory Guidance, are effectively communicated to First Responder Organisations and other relevant stakeholders, allowing them time to prepare appropriately before the changes come into effect.
• Ensure compliance with international legal obligations in the development of legislation and policy including through an in-depth, transparent and open impact assessment ahead of the formalisation of proposals.
• Ensure the fairness of the decision-making process within and across the SCA and IECA, including through regular reviews of data around NRM outcomes, disqualification, and VTS decisions by nationality, age, gender, and exploitation type. Special attention should be paid to ensuring that policies are not themselves discriminatory, nor implemented in a discriminatory manner. An important step towards ensuring the fairness of decision-making would be the re-establishment of a Single Competent Authority responsible for deciding on all cases, regardless of immigration status or other factors.
3. To the modern slavery sector
• Provide ongoing support to staff within their organisations, including necessary psycho-social support, in recognition of the nature of the work and the possibility of burnout, secondary trauma, and related issues.
• Document and publish the impacts of policy measures, including NABA and implementing instruments, on sector staff and on people with lived experience of modern slavery, thereby contributing to the knowledge base around the impact(s) of such measures.
