Trafficking Victims Will Face ‘Trauma Deadline’ Under Controversial Nationality and Borders Bill
Successive Home Secretaries have made ending modern slavery a priority – but new clauses in the Nationality and Borders Bill could make identifying victims harder, Sian Norris reports
Survivors of modern slavery will be penalised for not sharing details of their exploitation “fast enough” campaigners warn, if clauses in part 5 of the Nationality and Borders Bill become law.
The bill “will require many foreign national victims of trafficking to self-identify and communicate that they are a victim of slavery within a fixed time period, with a failure to do so or late declaration seen as damaging the individual’s credibility”.
Campaigners have warned that the clause ignores the impact of trauma on victims and survivors. Rather than a delay to disclosing details meaning a survivor is not credible, it could instead demonstrate how survivors of extreme abuse and exploitation often demonstrate delayed memory recall and memory loss due to trauma.
Survivors may also feel unsafe to disclose details of exploitation if they have been threatened by their traffickers.
“Many of the survivors we talk to tell us that it can take years to process and make sense of an experience as traumatic as trafficking,” director of the campaigning group After Exploitation Maya Esslemont told Byline Times. “It is not acceptable to shame and penalise victims of a serious crime for not disclosing abuse within a ‘convenient’ timeline. Cases must be decided on their merit, not convenience.”
The Home Office confirmed that referrals will be appropriately considered regardless of when they are brought to make sure that those who need protection are afforded it. Any individual who has good reasons why the information was provided late, such as the effects of trauma, will not be subject to damaged credibility.
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Speaking at the first sitting of the Public Bill Committee on the proposed law, Assistant Chief Constable of Derbyshire Police, Dave Kirby, explained how some survivors are “under a huge amount of duress, including their families being threatened”. He added how people are told by their traffickers “not to claim that they are a victim… if they then at some point change their minds for whatever reason, I think that needs to be allowed and not counted against them”.
The bill also threatens to make it harder for victims convicted of criminal activity to access support, even when that criminality formed part of their exploitation. The clause which identifies potential victims who should be “disqualified from protection” means anyone serving a prison sentence of 12 months or more could now be denied support.
“Given that 49% of all trafficking cases involve criminal exploitation,” Esslemont told Byline Times, “we will see huge numbers of survivors at risk of refusal because of criminalised activity they were forced into by abusers.”
More than 3,500 adults and children identified as potential victims of modern slavery were referred for criminal exploitation in 2020, while a further 1,590 were referred for criminal and labour exploitation.
Victims of trafficking can raise a section 45 defence in criminal proceedings, on the basis that a crime was committed as a result of coercion. However, survivors of criminal exploitation are routinely missed by the authorities until a significant time after a sentence is served. The Home Office confirmed that all decisions will be made on a case-by-case basis.
Conservative MP and former Prime Minister Theresa May made modern slavery her “personal priority” as Home Secretary, calling it an “abhorrent crime” that is “shameful and shocking”. Her successor Priti Patel has said that the UK Government “will not stop until slavery is consigned to the dustbin of history”.
However, concerns continue to be raised that, rather than support vulnerable victims, the Nationality and Borders Bill risks making, according Thornton, “the identification of modern slavery victims harder”.
“The Government is moving the goalposts to roll back support for survivors of modern slavery,” said Esslemont. “If part 5 passes, fewer trafficked people would be able to access help, justice, or even protection from deportation.”
Misuse of the System?
The Home Office has justified its plans by claiming that there has been an “alarming rise in people abusing our modern slavery system by posing as victims in order to prevent their removal and enable them stay in the country”.
The new plans, it wrote in May 2021, would mean “child rapists, people who pose a threat to our national security, serious criminals and failed asylum seekers will find it harder to take advantage of modern slavery safeguards”.
Part 5 of the Nationality and Borders Bill seeks to make the threshold for success in a trafficking claim tougher. Assistance and support will only become available when a decision-maker has reasonable grounds to believe the individual “is” rather than “may be” a victim of slavery or trafficking.
“Survivors would be asked to provide more evidence, sooner in their case, before they have even had access to a translator, lawyer, or material needs such as safe housing,” Maya Esslemont told Byline Times. “It is cruel to introduce a greater level of scrutiny for survivors before they have had a chance to put together a confident case or recover from the crime committed against them. The change would increase the risk of rejection earlier on.”
Frontline charities have highlighted that no public data has been released to verify claims that the system is being abused by “vexatious” claims such as those cited above.
The West Midlands Anti Slavery Network (WMASI) – a coalition of agencies tackling modern slavery at both a regional and national level – consulted two of its members on their experiences of potential ‘abuse’ of the trafficking system. Both the Adavu Project and Jericho had supported a combined 285 survivors of slavery over a 10-year period and all of their clients were genuine victims of modern slavery and human trafficking.
According to 2020 data, 89% of survivors who claimed they had been trafficked had a positive outcome.
The Government has further justified its proposals by claiming that rising numbers of trafficking referrals show that the system is being abused by opportunistic claims. However, After Exploitation argues that “a rise in reported slavery cases should be applauded as indicative of growing awareness amongst front-line practitioners, not of abuse in the system”.
The Centre for Social Justice estimates that there are 100,000 people currently living in settings of exploitation – a figure disputed by the Home Office which identified more than 10,000 potential victims of modern slavery last year.
The Home Office told Byline Times measures in the bill include granting victims temporary leave to remain in the UK so they can recover from their ordeal and help the authorities with criminal prosecutions. It introduces a new and expanded ‘one-stop’ process to ensure that asylum, human rights claims, and any other protection matters are considered at the earliest opportunity, which will be supported by an enhanced legal aid offer.
It will also reduce the risk of our generous safeguards being misused, ensuring that valuable resources go towards genuine victims, while non-legislative measures will offer other forms of support to modern slavery victims.
A Home Office spokesperson said: “The Government is committed to tackling the heinous crime of modern slavery; ensuring that victims are provided with the support they need to begin rebuilding their lives and that those responsible are prosecuted. Anyone who is referred as a possible victim of modern slavery will have their case properly considered, regardless of when the referral is brought.
“The Nationality and Borders Bill will go further in putting victims’ rights into law, ensuring they have support tailored to their personal needs to support their recovery. It is vital our broken immigration system is fixed, and our New Plan for Immigration will ensure we can stop the criminal practices of those who abuse it.”