Flagship Nationality and Borders Act Criticised by US State Department
The State Department recommends that the UK Government does more to ensure trafficking victims are not criminalised – but experts warn that would require significant reform to brand new legislation. Sian Norris reports
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The UK Government’s approach to modern slavery could “hinder [trafficking] victim identification and protection efforts, particularly among undocumented migrants”, warned the US State Department in its annual Trafficking Persons Report.
While the UK has kept its Tier One status and “fully meets the minimum
standards for the elimination of trafficking”, the report was critical of many aspects of the Government’s approach to protecting victims.
Criticisms were raised about the criminalisation of trafficking victims for offences committed as part of their exploitation; “inadequate” long-term care and reintegration of victims; and long delays for victims entering the National Referral Mechanism before receiving support. There were also worries that children in the protection system remained vulnerable to trafficking and further exploitation.
The National Referral Mechanism is the system in place to refer victims of modern slavery. Victims can be referred by first responders, such as police, or by designated NGOS.
The report praised the UK Government for increasing prosecutions of traffickers, despite the pressures of the pandemic, with the number of active investigations into suspected trafficking offences doubling between June 2020 and August 2021, from 1,845 investigations to 3,335.
Maya Esslemont, Director of After Exploitation, an NGO campaigning on issues of modern slavery, said: “We welcome acknowledgement by the US State Department of the significant barriers to justice and support facing survivors of exploitation in the UK”.
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‘Hinder Identification and Protection Efforts’
Earlier this year, the UK Government passed its controversial Nationality and Borders Act. As reported in this paper, campaigners warned that changes in the Act to the way modern slavery is addressed could risk making it harder for victims to access support.
These changes included a ‘trauma deadline’, where late disclosure of evidence relating to the trafficking allegations could be used to discredit a claim, and disqualifying potential victims from protection if they are considered a threat to “public order”.
Such concerns about the Nationality and Borders Act were echoed in the US State Department report, which stated that the UK Government had “introduced legislation that experts believe would hinder identification and protection efforts”.
One of the key changes in the Act was to the treatment of victims who have committed crimes as part of their exploitation, including immigration offences.
This issue has been in the public eyes after the Olympic champion Sir Mo Farah revealed how he had been trafficked to the UK as a child and forced to work as a domestic servant. Farah’s moving testimony, where he revealed his real name was Hussein Abdi Kahin and the horrific treatment he endured after he was separated from his family, touched people’s hearts.
But disclosing his story also made him vulnerable to being investigated by the Home Office. The Government can remove a person’s British nationality if their citizenship was obtained through fraud, although it is assumed children are not complicit when their citizenship is gained by deception. Farah expressed “relief” that the Home Office was not going to take action over his citizenship.
The fear that immigration enforcement will detain and deport a victim of trafficking has a stifling effect on people coming forward, experts say, as does the fear they will face deportation if they have committed a crime while being enslaved.
“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.”
The report recommends that the UK Government puts measures in place to “ensure victims are not penalised for unlawful acts, including immigration violations, that traffickers forced them to commit”.
UK authorities detained at least 2,914 potential victims of trafficking for immigration violations between January 2019 and September 2020, according to data quoted in the report. The US State Department therefore also recommended that “all potential victims, including individuals subject to immigration control, are consistently screened for trafficking indicators and referred to services”.
Victims have a statutory defence in England and Wales for crimes committed as a direct result of trafficking, although this defence does not apply to the most serious offences such as sexual assault.
However, the US State Department expressed concern that “many criminal defence lawyers did not have sufficient knowledge of trafficking and the non-punishment principle”, putting an unfair burden on victims to prove their exploited status, and putting up barriers for their use of the statutory defence.
“While recommendations to identify survivors on the basis of their experiences, rather than immigration status, seems like an achievable standard, it is important to note that the Nationality and Borders Act will need significant reform before the UK can commit to this basic recommendation,” explained Esslemont. “The Act says decision makers are required to consider withholding trafficking status on the basis of a potential survivors’ offending history under ‘Public Order’ grounds. The bar for an exemption is low – a sentence of 12 months or more – and could encompass convictions given for crimes committed as a result of exploitation which often carry sentences of longer than a year.
“Some of the most vulnerable survivors of exploitation are at risk of missing out on vital support like counselling and safe housing, or even State recognition of trafficking, simply for crimes they were forced to commit”, she added.
The detaining of vulnerable victims emphasises the need for secure reporting, allowing those in need of support to feel safe that they can report the crimes committed against them without being reported to immigration enforcement and facing deportation.
A Home Office spokesperson told Byline Times:
“This report shows the UK continues to lead the world in tackling the heinous crime of trafficking, with the assessment finding that we remain a Tier 1 country and recognising our domestic and international policies as amongst the best in the world. We take the recommendations seriously and will take them into consideration as we continue to improve our modern slavery approach, including improving victim support, strengthening law enforcement, and preventing modern slavery in supply chains and overseas”.