March 10, 2023
On Tuesday (7 March 2023), the government announced its ‘Illegal Migration Bill’ (the ‘Bill’), dubbed ‘the Small Boats Bill’. The Bill proposes to significantly reduce the protections available to migrant victims of trafficking and modern slavery, in breach of the UK’s obligations under international law.
The justification for reducing these protections derives from the government’s claim that people are “gaming” the modern slavery system. This claim is worrying, not least as the Office of National Statistics has found no “specific evidence” in support of it.
This article analyses the devastating effects on victims of modern slavery and trafficking the Bill would have if passed into law. It then dissects the legal justification the government has advanced in its attempts to circumvent international law, before finding that this justification fails by punishing victims themselves who, by definition, do not choose to be enslaved or trafficked.
Clause 2 of the Bill imposes a new duty on the Home Secretary to remove asylum seekers and others who enter the UK in breach of immigration law. There are very limited exceptions to this clause such as for children - but only until they turn 18. You can read more detail about these limited exceptions here. Where the duty to remove applies, the Bill introduces: i) a duty for the Home Secretary to ignore certain asylum or human rights claims made by the person; and ii) a power for her to detain them in immigration detention centres. The power to detain removes existing safeguards meaning even families with children and unaccompanied children may be detained.
In 2015, the UK government, led by the then Home Secretary Theresa May, introduced the Modern Slavery Act 2015 (MSA) designed to significantly enhance support and protection for victims and be ‘the first of its kind in Europe, and one of the first in the world, to specifically address slavery and trafficking in the 21st century.’ However, just 8 years after the MSA’s introduction, this Bill seeks to radically undermine these protections.
The duty to remove and power to detain under the Bill apply equally to victims of modern slavery and trafficking. This appears to be the case even if the individuals are forced to arrive or enter the UK illegally due to their modern slavery or trafficking situations. The only exception is where the victim is cooperating with public authorities in an investigation or criminal proceedings concerning their exploitation. However, victims have no say when the police or another authority decides to investigate or pursue proceedings. Further if victims are removed without their exploitation being explored, then no investigation or criminal proceedings would be possible. This is a key concern given victims are often, understandably, traumatised by their exploitation and require time and specialist support before they may disclose the facts of their exploitation.
The entitlement to time for victims to recover is enshrined in Article 13 of the European Convention Against Trafficking (ECAT), that the UK has ratified. Article 13 provides that parties to ECAT must provide a “recovery and reflection period” of at least 30 days. Under the Bill, victims would be denied this right. This is therefore in direct breach with the UK’s international obligation to victims of trafficking.
Article 13(3) of ECAT provides an exception to this obligation “if grounds of public order prevent it or it is found that victim status is being claimed improperly”. And herein lies the key to why the government is insisting that victims of modern slavery and trafficking are “gaming” the system, in spite of an absence of evidence. By suggesting there is evidence of this, they are seeking to get round their international obligations and justify their intention to remove modern slavery and trafficking support to migrants. Paragraph 35 of the Explanatory Notes to the Bill justifies the provisions on modern slavery accordingly:
it is in the interests of the protection of public order in the UK including to prevent persons from evading immigration controls in this country, to reduce or remove incentives for unsafe practices or irregular entry, and to reduce the pressure on public services caused in particular by illegal entry into the UK
The government is here purposefully slippery with its language and logic, conflating the crimes of traffickers with the actions of the victims themselves, thereby justifying its punitive decision to ban certain victims of trafficking and slavery from support and protection.
But the government’s position is oxymoronic.
Anti-Slavery International defines modern slavery as ‘when an individual is exploited by others, for personal or commercial gain. Whether tricked, coerced, or forced, they lose their freedom’. In other words, an enslaved person is an individual lacking agency in all or key respects of their lives. Yet, the new Bill punishes victims of trafficking and modern slavery by removing their entitlement to a recovery and reflection period, on the basis that they are in some way responsible for their victimhood which in turn is threatening public order or creating unsafe practices.
Victims of trafficking and modern slavery do not choose to be trafficked or enslaved and should not be punished for being so.
Opposing this Bill and its impact on victims of modern slavery and trafficking will not just allow them to recover, integrate and contribute positively to UK society, but it is the right and humane thing to do. Civil society, law firms, and the public must come together to oppose this Bill and the devastating impacts it would have on the real, human lives of victims of trafficking and modern slavery.
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.