This is a Policy Brief aiming to inform the Government’s review of immigration law and policy by identifying specific changes which need to be made to the modern slavery measures in recent UK immigration law and related statutory guidance to make the legal and policy framework compatible with the requirements of human rights law.
Noting the Government’s unequivocal commitment to ensuring that all legislation is compatible with international law and the overarching duty on ministers in the Ministerial Code to comply with the law, including international law, the Brief identifies the most relevant human rights obligations for the UK and explains in detail what those human rights laws require.
It then considers the compatibility of the modern slavery provisions in recent UK immigration legislation and accompanying Guidance in the light of those requirements and identifies specific incompatibilities which need to be addressed. It goes on to make detailed recommendations about how to make the changes required by repealing or amending specific statutory provisions and amending the Guidance. Suggested textual amendments to give effect to the recommendations are included in an Annex.
Summary of Recommendations
Recommendation 1: The Safety of Rwanda (Asylum and Immigration) Act 2024 should be repealed in line with the Government’s decision to terminate the migration and economic development partnership with Rwanda and its commitment to acting compatibly with international law.
Recommendation 2: Sections 22 – 29 of the IMA should be repealed to bring the UK’s legal framework back in line with Article 4 ECHR and Articles 10 (2), 12 (1) and (2), 13, 14, 15 and 16 ECAT.
Recommendation 3: Section 63 of the NABA should be amended to bring the law and policy on public order disqualification in line with Article 4 ECHR and Articles 10 (2), 12 (1) and (2), 13, 14, 15 and 16 ECAT. See Annex for a recommendation of the changes in the wording of Section 63.
Overall, these amendments must reflect the position that disqualification on public order grounds is a narrow exception to the rule contained in international law binding on the UK that all victims or suspected victims of modern slavery must be identified and protected and that the burden is on the public authorities to establish that a suspected or identified victim is a threat to public order or has illegitimately claimed victim status in every individual case.
To achieve that, the following should be implemented:
- Remove the presumption that public order disqualification applies when a person belongs to a category listed in Section 63 (3) of the NABA – the burden of proof should be on public authorities to demonstrate the need for disqualification in each individual case.
- A final decision on victim status should be made before public order disqualification could be applied, unless a decision-maker has established that a person has claimed victim status illegitimately.
- The relevant decision-maker should note whether the application of the non-punishment provision/modern slavery statutory defence has been considered before making a public order disqualification decision.
Recommendation 4: Sections 58 and 59 of NABA should be repealed. If brought into force, Section 59 should be amended to change “must” to “may”, converting a duty on the competent authority into a power to ‘take account, as damaging the person’s credibility, of the late provision of the relevant status information, unless there are good reasons why the information was provided late.’ See Annex for a recommendation of the changes in the wording of this provision.
Recommendation 5: The Modern Slavery Statutory Guidance should be amended to give effect to the UK’s obligations under the ECAT, ECHR, and other binding rules of international law. In particular, the Guidance should be amended in the following way:
- Remove paragraph 14.242 of the Guidance which precludes an individual who is deemed to be a threat to public order from being conclusively identified as a victim of modern slavery.
- In the section on ‘Evidence gathering and decision-making process’, after paragraph 14.253, add a new paragraph to instruct a decision-maker to note whether the application of the non-punishment provision/modern slavery statutory defence has been considered when making a public order disqualification decision.
- Amend paragraphs 14.266 and 14. 267 to remove a presumption in favour of disqualification of those who meet the criteria from Section 62 (3) (b) and (f) of the NABA and require instead that a decision-maker justifies the decision to apply public order disqualification in each individual case.
- Remove paragraph 14.245 that regulates public order disqualification of British nationals.
- Amend paragraph 14.276 to require decision-makers to conduct the risk of re-trafficking assessment before applying public order disqualification regardless of whether such risk arises in the UK or the country where they may be removed/returned to.
Recommendation 6: The Home Office should collect and publish data on the risk of re-trafficking assessments undertaken as part of making a decision on public order disqualification (including the number of assessments undertaken, disaggregated by age, gender, nationality, type of exploitation) as well as the outcome of those assessments.
