This legal analysis of Section 63 of the Nationality and Borders Act 2022 and Modern Slavery Statutory Guidance has been conducted by Dr Marija Jovanovic from the University of Essex. The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre.
Since 2022, the UK has adopted several legal and policy instruments intended to restrict access to protections available to victims of modern slavery and human trafficking under domestic and international law. This analysis focuses on one such measure, introduced by Section 63 Nationality and Borders Act 2022 (NABA) and given effect through the Modern Slavery Statutory Guidance, which disqualifies from protection potential or confirmed victims of modern slavery and human trafficking on public order grounds – the so-called ‘public order disqualification’(POD). The analysis considers whether Section 63 and relevant provisions of the Modern Slavery Statutory Guidance are compatible with the UK’s obligations under Article 4 of the European Convention of Human Rights (ECHR) and the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT).
The analysis found that Section 63 (3) NABA and relevant provisions in the Statutory Guidance, which set out the application POD, exceed the scope of permissible restrictions to protective obligations contained in Article 13 (3) ECAT. As a result, these provisions, on their face, breach the obligation to identify and protect every victim of modern slavery and human trafficking without discrimination and without exception (Articles 4 and 14 ECHR and Articles 3 and 10 ECAT) by creating a legal presumption that every potential victim who falls within their scope is a threat to public order and by removing the burden of justifying the need for POD from the authorities. These provisions also contradict Article 26 ECAT, which requires States not to punish victims of modern slavery and human trafficking compelled to commit criminal offences, by terminating the victim identification process, which is a precondition for the application of the principle of non-punishment. In addition, the application of these provisions in practice is likely to lead to the breaches of a duty to investigate and prosecute the perpetrators of modern slavery and human trafficking (Article 4 ECHR and 27 ECAT).
The analysis is divided in seven parts.
Part 1 briefly explains international legal obligations of States under Article 4 ECHR and ECAT, which are binding on the UK.
Part 2 follows with the analysis of permissible restrictions of certain protective obligations contained in Article 13 ECAT.
Part 3 then discusses Section 63 NABA and its compatibility with these international obligations, while
Part 4 subsequently considers relevant provisions in the Modern Slavery Statutory Guidance, which seek to give effect to Section 63 NABA. This part also reflects on the applicability of POD to British Nationals.
Part 5 discusses legal challenges to POD before the UK courts and resulting changes in the Modern Slavery Statutory Guidance from January 2024.
Part 6 considers the relationship between the POD and removal of potential or confirmed victims of modern slavery and human trafficking from the UK, under the recent Treaty with Rwanda and the Safety of Rwanda Bill. This part also addresses the question of the location of exploitation in the POD risk of re-trafficking assessment and how the risk of re-trafficking outside the UK features in such an assessment. Lastly,
Part 7 reflects on the changes in the Modern Slavery Statutory Guidance pertaining to the threshold and required evidence for identifying victims of modern slavery and human trafficking and their compatibility with international obligations.
