Nationality and Borders Bill (Thirteenth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen. Electronic devices switched off, please, and masks on, if possible, as a courtesy to colleagues. No food and drink in the room, and all that sort of stuff. You will have noticed that there is a change of Minister this morning. [Hon. Members: “Hear, hear!”] Welcome, Mr Whittaker. We crack on.

[Holly Lynch (Halifax) (Lab)]

I beg to move amendment 185, in clause 48, page 43, line 3, leave out from “determination” to end of subsection (4) and insert

“determinations mentioned in paragraphs (c) and (d) are to be reviewed by the Multi-Agency Assurance Panels, who will have the power to overturn the determinations made by the competent authority.”

This amendment seeks to introduce Multi-Agency Assurance Panels at the reasonable grounds stage and will enable them to overturn decisions made by a competent authority.

It is a pleasure to serve under your chairmanship once again, Sir Roger. I both congratulate and commiserate with my neighbour, the hon. Member for Calder Valley, on his rapid promotion this morning to take forward an incredibly important piece of legislation. I wish him all the very best with the rest of the week.

Amendment 185 seeks to build upon the Modern Slavery Act 2015 and introduce multi-agency assurance panels at the reasonable grounds stage, as well as enabling them to overturn decisions made by a competent authority. That would ensure that multi-agency scrutiny is applied at the first stage, offering an important safeguard. Multi-agency assurance panels were part of a range of reforms to the national referral mechanism that were announced in 2017, following the NRM review commissioned by the Home Secretary in 2014. A recent review provided key recommendations, such as establishing new multidisciplinary panels headed by an independent chair, with a view to replacing the decision-making roles of UK Visas and Immigration and the UK Human Trafficking Centre with a single competent authority.

At present, there is multi-agency scrutiny only of negative conclusive grounds decisions, which, even then, is limited, with panels having the power only to ask the single competent authority to review a decision, as opposed to overturning it. A recent review of the national referral mechanism multi-agency assurance panels conducted by the Anti-Trafficking Monitoring Group found that

“at present, MAAPs do not adequately assure NRM decision-making”,

the reasons for which include that there is

“no multi-agency involvement in the reasonable grounds stage of the NRM, undermining confidence that there are any checks on bad decision-making at this first stage”.

The report also pointed to

“MAAPs lack of decision-making powers”

and times at which

“the evidence reaching the panels is minimal and of poor quality”.

The amendment applies those recommendations and highlights that, as the reasonable grounds stage is effectively the gateway to all anti-trafficking support, an extra level of safeguarding should be available to ensure good decision making. Both the amendments tabled to clause 48 are necessary to ensure that we are not turning our back on victims and restricting opportunities for individuals to refer into the NRM and receive the support they need. The measures have been widely endorsed across the sector and seek to introduce examples of best practice. I therefore strongly hope that the Minister will join us in endorsing these changes.

[The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)]

It is a pleasure to serve under you, Sir Roger, but not particularly in this role. However, as always, it is a pleasure to be sitting on a Committee that you are chairing.

I thank the hon. Member for Halifax for her valuable contribution on this point. Decision making is of course central to our ability to support possible and confirmed victims of modern slavery. That is why, throughout the Bill, as she will know, we have discussed ways for that to be done as quickly and fairly as possible. It is in that vein that we have sought to clarify the reasonable grounds and conclusive grounds thresholds in primary legislation, to support that effective decision making. It is also why we are committed to reviewing the guidance that under- pins the reasonable grounds test to ensure that it best supports that.

Central to that work is the premise that the reasonable grounds decision should be made quickly. Currently, where possible, that is within five working days of referral to the national referral mechanism. That timeline enables us to quickly identify possible victims and ensure that they receive the appropriate support that they need. All decision makers receive robust training to support that process, and any negative reasonable grounds decisions will be reviewed by a second caseworker or a manager/technical specialist to ensure that all decisions taken are in line with the policy. An individual, or someone acting on their behalf, may also request reconsideration of a negative reasonable grounds decision by the competent authority where there are specific concerns that a decision made is not in line with the policy, or if additional evidence becomes available that would be material to the outcome of a case.

At the conclusive grounds stage, we already have a process whereby negative decisions are considered by those multi-agency assurance panels. That process is set out in the modern slavery statutory guidance for England and Wales, under section 49 of the Modern Slavery Act 2015, and non-statutory guidance for Scotland and Northern Ireland. We believe that that is the right place for the process, enabling us to adapt it in future to changing needs. To put in place the duty for multi-agency assurance panels to review all reasonable and conclusive grounds decisions would cut across that approach. It is not appropriate for that to be set out in primary legislation, as amendment 185 seeks to do, as that would remove the ability to change such a process to appropriate bodies and needs in the future.

Moreover, the amendment would add a new power whereby multi-agency assurance panels can overturn competent authority decisions, rather than the current approach of asking the competent authority to review a decision in specific circumstances. It is right that only designated competent authorities have a decision-making role. The current approach supports a culture of continuous improvement.

As I have set out, we do not believe that primary legislation is needed here. The current multi-agency assurance panels have been subject to an evaluation, and we will consider the conclusions and lessons learned in due course. If in the future we wished to consider multi-agency assurance panels at the reasonable grounds stage, or to change their remit, it would follow that that, too, would be a question for guidance.

Although I presume not intentionally, the amendment would also remove the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery. That is the current test that is applied, in line with our obligations under the Council of Europe convention on action against trafficking in human beings.

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[Craig Whittaker]

I thank the hon. Member for that question. Unfortunately, I do not have those statistics for him, but I will ensure that he gets them by the end of today. I will ask officials to bring forward those numbers.

It is essential that the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery remains in the Bill to provide legislative clarity to that threshold. For the reasons that I have outlined, I respectfully ask the hon. Member for Halifax to withdraw the amendment.

[Holly Lynch]

I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).

Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.

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Identified potential victims of slavery or human trafficking: recovery period

[Holly Lynch]

I beg to move amendment 1, in clause 49, page 43, line 33, leave out “30” and insert “45”.

This amendment would increase the recovery period for victims of slavery or human trafficking from a minimum of 30 days to a minimum of 45 days.

This amendment would ensure that victims of modern slavery continue to receive a recovery period of at least 45 days, bringing this provision in line with current statutory guidance. We strongly welcome the inclusion in domestic law of a recovery period with support for victims, and we support this decision. However, the reduction of the minimum recovery period during which victims in England and Wales receive support from the current 45 days to 30 days is a worry.

The Independent Anti-Slavery Commissioner said in her written correspondence with the Home Secretary that the average length of time it takes for a conclusive grounds decision to be made in 2020 was 465 days. It is therefore difficult to understand why the Government are seeking to reduce the timescale from a target they are already significantly failing to meet. Their focus should be on increasing the efficiency of decision making, rather than reducing the already short recovery time to which victims are entitled.

In its written evidence to the Committee, Hope for Justice highlights that the explanatory report on the European convention on action against trafficking in human beings clearly states that the purpose of the recovery and reflection period is to allow victims to recover and escape the influence of traffickers. A reduction of this period therefore represents a step backwards in our ability to offer effective protection to victims of trafficking.

The assistance and support that should be provided during this recovery period is essential and wide-ranging, and it may include mental health support and counselling, legal advice, secure housing and access to social services. It also allows the police time to gather evidence during their investigation and to establish a working relationship with victims, strengthening their ability to secure a prosecution. It is estimated that there are between 6,000 and 8,000 modern slavery offenders in the UK, yet there were only 91 prosecutions and 13 convictions in England and Wales last year for specific modern slavery offences as a principal offence, and only 267 prosecutions for all related crimes.

Both sides of the Committee can agree on our desire to see more perpetrators of human trafficking and slavery brought to justice. This clause is a disappointing backward step away from the appropriate period necessary to break the bonds of slavery and to allow victims to establish a relationship with the relevant agencies in order to support their recovery and secure a prosecution.

Justice and Care has highlighted that many victims already decline to enter the national referral mechanism. As we have heard, Care UK says that 2,178 adults referred by first responders declined entry into the NRM last year. We have discussed the barriers that some might experience, including not recognising that they are, in fact, a victim, but it can also be because it is not immediately obvious what support the NRM provides for victims. This reduction in the recovery period certainly is not going to help.

I anticipate that the hon. Member for Calder Valley is about to tell me that under the Council of Europe convention on action against trafficking in human beings, the current threshold is set at 30 days. However, the minimum of 45 days in the UK, which was established in 2009, was a clear distinction that we could be proud of, and it is unclear why the Government are seeking such a change. Victims in Northern Ireland and Scotland are entitled to longer periods of support—the recovery period in Scotland is actually 90 days. I ask the Minister to outline how the change will have a positive impact for victims in any way. Amendment 1 would ensure that victims are protected and that we do not undermine the progress that has been made so far by reducing the recovery period further.

I will speak to clause 49 more broadly. I draw the Minister’s attention to subsection (2), which states:

“A conclusive grounds decision may not be made in relation to the identified potential victim before the end of the period of 30 days beginning with the day on which the positive reasonable grounds decision was made.”

I welcome the sentiment, but I wonder whether he could address the concerns raised by Dame Sara Thornton, the Independent Anti-Slavery Commissioner, that there are pilot schemes under way to test approaches to devolving national referral mechanism decisions for children to local safeguarding partners. As part of the pilots, conclusive grounds decisions are being taken at the same time as reasonable grounds decisions, where the evidence is strong enough to do so. I hope that the Minister will join me in welcoming that approach, and although I am worried about the clause’s intended consequences, I also hope that he will recognise that this could be an unintended negative consequence, which we can hopefully all agree would be wholly regrettable. The clause is relatively simple and we do not support it standing part of the Bill.

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[Craig Whittaker]

I thank both hon. Members for their contributions. Let me see if I can answer some of their questions. Basically, there is no need to amend clause 49 to provide a 45-day recovery period as that is already provided for in guidance. The guidance is the statutory guidance under section 49 of the Modern Slavery Act 2015, where victims will still receive a 45-day recovery period unless disqualifications apply.

The hon. Member for Halifax is right when she quotes our obligations under the Council of Europe convention on action against trafficking in human beings, which require us to provide a 30-day recovery period or, as the legislation states, until

“the conclusive grounds decision is made.”

In 2020, the average time for conclusive grounds decisions was actually 339 days. That long period stems from pressures on the system, which we are working to reduce through our transformation project, to ensure that victims get certainty much more quickly. This period is notably much longer than the 45 days that the hon. Member is proposing.

With regard to how that impacts on devolved pilots, as set out in the new plan for immigration, the Government are also piloting new ways of identifying child victims of modern slavery that will enable decisions to be taken within existing safeguarding structures by local authorities, the police and health workers. This approach will enable decisions about whether a child is a victim of modern slavery to be made by those involved in their care and ensure that decisions made are closely aligned with the provision of local needs-based support and any law enforcement response. The Government will continue to monitor the consequences of this measure and whether it will reduce further flexibility around decision making.

On that basis, I ask the hon. Lady to withdraw the amendment and to support the clause as drafted.

[Holly Lynch]

I thank the Minister for his response. We have seen this approach at previous stages of the Bill. The Minister cites the realities of processing times, but the fact that it is 45 days in the statutory guidance shows why the Bill is an absolute nonsense and does not make the first bit of sense. We should ignore it and trust the guidance. There is a commitment to driving down the processing times anyway. I hope that the Minister can therefore see why the amendment was tabled. On that basis, I will press the amendment to a vote.

Question put, That the amendment be made.

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No entitlement to additional recovery period etc

[Holly Lynch]

I beg to move amendment 180, in clause 50, page 44, line 4, at end insert—

“(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”.

This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.

[The Chair]

In line with what appears to be custom and practice, with this it will be convenient to consider clause stand part.

[Holly Lynch]

Clause 50, as drafted, should not stand part of the Bill. The amendment would ensure that those exploited as children will not be denied additional recovery periods if they are re-trafficked or if additional periods of trafficking are disclosed. Children, in particular, who make up 47% of those referred to the national referral mechanism, are at serious risk of being trafficked and going missing from care. In 2017, one in four identified trafficked children were reported as going missing. The number of children referred to the NRM is also rising, with last year seeing an almost 10% increase compared with the previous year. The average number of missing incidents for each trafficked child has also increased, from 2.4 to 7.4 between 2014-15 and 2017-18. Therefore, amendment 180 is even more vital, considering the worrying trends we are seeing.

Every Child Protected Against Trafficking UK has warned that clause 50

“may severely impact child trafficking survivors”

who are at high risk of going missing and being re-trafficked, particularly when

“they transition to adulthood and require access to support and protection through the NRM.”

To make that point, I want to share a real-world case study provided by ECPAT UK that demonstrates why our amendment is necessary.

Huang was referred to the local authority children's services at age 17, following a police operation in a nail bar. He was also referred as a potential victim of trafficking into the NRM and received a positive reasonable grounds decision. He was accommodated by the local authority. He told his support worker that he had been scared because his family back home were receiving threats to pay back his debt. Shortly after, he went missing. He was found by the police just after his 18th birthday and went on to develop trust with his lawyer, where he disclosed for the first time a significant period of exploitation in Vietnam, across Europe and in the UK, prior to being found in the nail bar. He remains in fear, and while the dangers facing his family back home persist, sadly, there is still a high likelihood that he will go missing again.

Without amendment 180, Huang may be unable to be referred to the NRM again, given the new disclosure of previously unknown periods of exploitation. As he is now 18, he would not be looked after by children’s services. Clause 50, as it stands, will place him at great risk of subsequent re-trafficking in the absence of access to safe accommodation and support through the NRM during his reflection and recovery period.

The increase in the number of British children in the NRM in relation to child criminal exploitation gives us further cause for concern. I recently met officers from the Metropolitan Police Service who are leading the response on trafficking, slavery and exploitation. They told me that it is becoming standard practice that when a child or young person is sent on their first county lines journey, their exploiter will arrange for them to be robbed of the drugs they have been instructed to sell. When they then have to come back and explain what has happened, they are immediately told they have to work off the value of the drugs. That traps them in debt bondage, even though the real criminal will have recovered the drugs, having arranged what can sometimes be a particularly violent mugging in the first place, so in reality there is no debt.

It would not be unusual for children in such vulnerable and exploited positions to be identified by the authorities but then go missing from the NRM because of the risks that persist. They must be treated as a safeguarding concern and not by way of immigration compliance, not least because so many of those children are British nationals. So I ask the Minister again: why are children subject to clause 50, given their particular vulnerabilities? Amendment 180 seeks to right that wrong. I am sure all colleagues will agree that a child rights-centred approach, which ensures children’s safety and their protection, must be a priority. I therefore hope the Minister will reflect on the points we have made and accept Amendment 180.

More broadly, clause 50 has the potential to exclude trafficked children and adults from being identified following re-trafficking, thereby leaving them unable to access the support they should be entitled to. I worry that with this clause the Government are suggesting that making repeat claims of having been trafficked undermines someone’s credibility. However, we also know that traffickers are increasingly coaching those they are exploiting on what to say should they be identified by authorities. An expectation is placed on the victim that they will return to their exploiters due to their perceived debt bondage, in order to avoid consequences for them or often their families.

Re-trafficking has increasingly become a part of a trafficker’s operating model, so why are we not responding to that? The changes negatively affect the victim and not the perpetrator of such crimes. It also appears to contradict the identified need for individual assessment and support, as required under ECAT. The Government have described the clause as necessary

“to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal where these are not needed”.

Will the Minister present the evidence to support that claim? That explanation fails, not least, to recognise that the most common nationality of all referrals to the NRM for victims of modern slavery in 2020 was that of UK nationals, primarily referred for criminal exploitation. We know that children make up the lion’s share of those referrals. Does that not make the Government stop and think about what is in the clause?

There is a fear that the NRM is being misused by those wishing to extend their stay in the UK. Without amendment 180, the clause means that we are sending children, both migrant and British, back into the arms of their exploiters. We plead with the Minister to think again about the clause. We cannot see it stand part of the Bill.

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[Craig Whittaker]

As I have said, there is already a provision for the decision makers to amend the care and support package needed on a case-by-case basis. That is the case for recovery periods as well. On the matter of children, I recognise the complexity of children’s vulnerabilities, as well as those of other modern slavey victims. As a result, this clause has scope to consider an individual’s circumstances, even where the new referral for exploitation occurred prior to the previous recovery period. That is why, under this clause, individuals will be considered for more than one recovery period on a case-by-case basis, taking into account their specific needs and vulnerability. Safeguarding and ensuring the welfare of children will, of course, be taken into account as part of any decision to withhold a recovery period.

Further details of how to apply this discretionary element will be outlined in guidance for decision makers. This will ensure that victims of modern slavery who genuinely need multiple periods of protection and support actually receive it. It would not be appropriate to have a blanket approach to children, but our proposed approach ensures that their vulnerabilities are considered. I hope that, in the light of that explanation, the hon. Member for Halifax will be content to withdraw her amendment.

[Holly Lynch]

I thank the Minister for that contribution. I have been consistently concerned by the lack of provision for children and young people within the clauses before us. With that in mind, I will not be withdrawing amendment 180.

Question put, That the amendment be made.

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Identified potential victims etc: disqualification from protection

[Holly Lynch]

I beg to move amendment 164, in clause 51, page 44, line 31, at end insert—

“was aged 18 or over at the time of the circumstances which gave rise to the positive reasonable grounds decision and—”

This amendment would exclude children from the disqualification from protection measures outlined in clause 51.

[The Chair]

I will take the stand part debate with this, and would like to explain why. Where there are relatively short clauses with only one amendment to them, experience tells me that it is sometimes better to take the stand part debate with the amendment, because discussions that might be out of order in debate on the amendment can be in order if clause stand part is taken with the amendment. In other words, it allows for a greater freedom of discussion.

[Holly Lynch]

Thank you for that advice, Sir Roger.

Like a number of our other amendments, amendment 164 seeks to ensure that no child victim of trafficking or modern slavery is denied protection. Clause 51 introduces the following reasons why someone would be disqualified from protection: they are a threat to public order, or they have claimed to be a victim of modern slavery in bad faith. The Independent Anti-Slavery Commissioner, Dame Sara Thornton, says in her letter to the Home Secretary on the Bill:

“I have grave concerns about this clause because it casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised crime groups.”

She says these changes will make it harder to convict perpetrators and go after organised crime groups. I doubt any of us came into politics to pass laws that work to the advantage of criminals, so why is the clause included in the Bill?

The Children’s Society has emphasised concerns regarding the impact on children who are victims of child criminal exploitation. In 2020, of the 47% of referrals to the NRM that were for children, 51% were for criminal exploitation. According to the National Crime Agency, referrals to the NRM for British children have grown due to an increase in child criminal exploitation, particularly by groups using the county lines model. The average custodial sentence length given to children has increased by more than seven months over the last 10 years, from 11.3 to 18.6 months in 2020.

A case study supplied by the Children’s Society following a serious case review by Waltham Forest Safeguarding Children Board is one of the most depressing of the many case studies we have been sent during our preparations for this Committee. Child C was a vulnerable child who lived in Nottingham. He was regularly excluded from school and was eventually home-schooled. His family noted that he regularly ran away from home. In January 2018, his mother said he was threatened by an older youth, who said that Child C had money for them. The incident was reported to Nottinghamshire police, but the police have no record of it. Also in January, Child C was arrested by police in possession of an air gun, a knife and cannabis. He later informed the youth offending team that an older boy had given him these. The youth offending team worked with Child C on a programme designed to highlight the dangers of carrying weapons. The incident was reported to the multi-agency safeguarding hub, but no further action was taken because of the youth offending team’s involvement.

Child C moved to Waltham Forest in April 2018. In October 2018, he was arrested in Bournemouth in what is known as a cuckoo flat—a person’s home that criminals take over and use to facilitate exploitation. There was significant evidence of drug use and sales in the flat. Child C was found to be in personal possession of 39 wraps of crack cocaine, and was arrested for possession of class A with intent to supply. That was a pivotal moment in providing support to the child. For the first time, the authorities in Waltham Forest had been presented with completely unequivocal evidence that Child C was being criminally exploited. From that point, he had multi-agency involvement and a further conviction for carrying an offensive weapon. The case study ends with Child C being murdered in January 2019.

That is the operating model for county lines gangs. We know that criminally exploited children are driving up referrals to the NRM, meaning that children will be coerced into committing crimes as part of their exploitation. That is explicit in section 45 of the Modern Slavery Act 2015. It is unclear what, if any, assessment the Government have made of how children will be affected by changes in clause 51 and the risk to them of remaining in exploitative situations. Disqualifying child victims from protection is incompatible with the duties on local authorities and other public bodies under section 11 of the Children Act 2004 to safeguard and promote the welfare of children. I urge the Minister to adopt amendment 164 and stand with child victims of modern slavery; it will allow him to go after the criminal gangs who will welcome this clause.

Clause 51 is incompatible with the duties on local authorities and the Home Office to safeguard and promote the welfare of children. It fails to take into account that children are at greater risk of exploitation owing to their developing capacity and, under the UN convention on the rights of the child, should never be denied protection. The fact that the Government have decided to ignore those fundamental principles to protect the most vulnerable children is simply shocking. The Government’s equality impact assessment promises to mitigate the adverse impact on vulnerable people but fails to identify any exemptions or specialist support for children in part 4 of the Bill.

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[Holly Lynch]

I am grateful to the Minister for his response. As we have heard from the interventions made by hon. Members, the case studies before us mean that we have grave concerns about clause 51. The assurances that the Minister has sought to make do not overcome some of the barriers that clause 51 will put in place.

I look forward to hearing more detail about the Children’s Society projects that the Government are funding and the Look Closer campaign, which I very much welcome, but, as things currently stand, this is much more of a blanket exemption than the Minister has tried to suggest. The very broad public order definitions in the Bill go beyond the intention that he has tried to explain, so once again I am concerned that children will be particularly vulnerable to the negative impacts of clause 51 if unamended, so I am minded to press amendment 164 to a division.

Question put, That the amendment be made.

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Identified potential victims in England and Wales: assistance and support

[Holly Lynch]

I beg to move amendment 4, in clause 52, page 46, line 9, after “50A” insert—

“Meaning of assistance and support

‘(1) For the purposes of guidance issued under section 49(1)(b) and regulations made under section 50, “assistance and support” includes but is not limited to the provision of—

(a) appropriate and safe accommodation;

(b) material assistance, including financial assistance;

(c) medical advice and treatment (including psychological assessment and treatment);

(d) counselling;

(e) a support worker;

(f) appropriate information on any matter of relevance or potential relevance to the particular circumstances of the person;

(g) translation and interpretation services;

(h) assistance in obtaining specialist legal advice or representation (including with regard to access to compensation);

(i) assistance with repatriation, including a full risk assessment.

(2) Assistance and support provided to a person under this section—

(a) must not be conditional on the person’s acting as a witness in any criminal proceedings;

(b) may be provided only with the consent of that person;

(c) must be provided in a manner which takes due account of the needs of that person as regards safety and protection from harm;

(d) must be provided to meet the needs of that person having particular regard to any special needs or vulnerabilities of that person caused by gender, pregnancy, physical or mental illness, disability or being the victim of violence or abuse;

(e) must be provided in accordance with an assistance and support plan which specifies that person’s needs for support and how those needs will be met for the full duration of the period to which that person is entitled to support under this Act.

(3) Nothing in this section affects the entitlement of any person to assistance and support under any other statutory provision.

50B”

This amendment would define the types of assistance and support that must be provided to a victim of modern slavery in England and Wales in line with Article 12 of the European Convention on Actions Against Trafficking in Human Beings; and conditions associated with its provision.

[The Chair]

With this, it will be convenient to discuss the following: Amendment 2, in clause 52, page 46, line 16, leave out from “receiving” to the end of line 19 and insert

“in their physical, psychological and social recovery or to prevent their re-trafficking.”

This amendment would define the objective of assistance and support in line with Article 12 of the European Convention Against Human Trafficking 2005.

Amendment 3, in clause 52, page 46, line 16, at end insert—

‘(6A) When a person who is receiving assistance and support under this section receives a positive conclusive grounds decision, the Secretary of State must secure assistance and support for at least 12 months beginning on the day the recovery period ends.”

This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision the right to receive support and assistance for at least 12 months.

Clause stand part.

[Holly Lynch]

The amendments seek to incorporate our international legal obligations under ECAT within the provisions of support available to victims during the recovery period, as well as extending statutory support for those who have received a positive conclusive grounds decision.

Having already discussed the changes to the recovery period in our discussion of clause 50, I will not repeat myself, but it is important to consider these amendments alongside the provisions in clause 50. We share the concerns of Christian Action, Research, and Education, or CARE, which has worked with us on amendment 4, that clauses 52 and 53 have the potential, if they remain unamended, to

“make matters worse for victims”.

Amendment 2 would update the definition of the reasons for providing a recovery period as solely to harm

“arising from the conduct which resulted in the positive reasonable grounds decision in question,”

and replace it with the requirement to assist a person

“in their physical, psychological and social recovery or to prevent their retrafficking.”

Therefore, amendment 2 would put into the Bill the wording of article 13 of ECAT, which provides support

“necessary to assist victims in their physical, psychological and social recovery”.

The British Red Cross has highlighted that

“making support dependent on specific ‘harm’ caused by the ‘conduct’ that led someone to be identified as a victim, fails to recognise the reality of human trafficking”.

The Home Office’s own research from 2017 says that

“unlike most crimes, which are time-limited single events, modern slavery is a hidden crime of indeterminate duration”—

in that it involves multiple locations and individuals. Therefore, amendment 2 better reflects the Home Office’s own assessment of the nature of human trafficking.

Amendment 4 seeks to set out the types of assistance and support that must be provided to a victim of modern slavery. Colleagues will be aware that presently neither the Modern Slavery Act 2015 nor the Bill includes such a provision, and therefore amendment 4 would fill a significant void in the legislation. The types of assistance and support include a range of provisions, such as safe accommodation, medical advice, a support worker, access to translation services, counselling, and assistance in obtaining legal advice or representation.

Amendment 4 is a practical and reasonable measure, and one that we hope will provide a sense of certainty and security to support survivors as they move towards recovery and towards justice, as confidence in the process grows, which will foster trust between agencies and victims, and enable more perpetrators to be brought before the courts. The types of assistance defined are basic provisions that victims should be entitled to if they are to rebuild their lives.

Building upon this idea of defining assistance, amendment 3 would offer long-term support to survivors with a positive conclusive grounds decision, stipulating that the Secretary of State must also secure assistance for at least 12 months, beginning on the day that the recovery period ends.

Given that there is no mention of statutory support after a conclusive grounds decision, amendment 3 seeks to correct another considerable omission from the Bill. In 2020, the Centre for Social Justice said:

“Long-term support is a further significant gap in the support system. In recent years a number of reports have concluded that the lack of long-term support puts victims of modern slavery at risk of homelessness, destitution and even re-trafficking after they exit the NRM support provision. It also has a significant negative impact on their engagement with the criminal justice system”.

This approach has broad support, as these amendments would build upon the recommendations made by the Work and Pensions Committee in 2017, which stated that

“There is very little structured support for confirmed victims once they have been given a ‘Conclusive Grounds’ decision...We recommend that all victims of modern slavery be given a personal plan which details their road to recovery, and acts as a passport to support, for at least the 12 month period of discretionary leave.”

Similar measures were also incorporated in the Modern Slavery (Victim Support) Bill introduced by Lord McColl of Dulwich, which awaits its Second Reading in the House of Lords. That Bill was greatly welcomed across the human trafficking sector and by all parties.

To summarise the case for amendments 2, 4 and 3, they are vital in expanding support for victims, and can boast wide support. I very much hope that the Minister will reflect on their merits.

On clause 52 more broadly, we welcome the fact that support for victims in England and Wales is being placed on a statutory basis during the recovery period, but this change is undermined by the limitations on support, and the decision to reduce the minimum recovery period from 45 to 30 days under earlier clauses. The clause introduces provisions for assistance and support only

“if the Secretary of State considers that it is necessary”

for recovery, mental health and wellbeing purposes, and crucially only if the recovery is from harm caused directly by the trafficking.

In the explanatory notes, the Government state that the intention behind the clause is to implement the UK’s ECAT obligations under article 13 to provide a recovery period to potential victims of modern slavery, but that is not really what has been included in the Bill. The explanatory report on ECAT says that articles 12 and 13 are

“an important guarantee for victims and serve…a number of purposes.”

This wording emphasises the “guarantee” of support, and its serving different purposes. By contrast, the clause narrows the scope of the recovery support received solely to support needed as a result of harm

“arising from the conduct which resulted in the positive reasonable grounds decision in question.”

The Anti Trafficking and Labour Exploitation Unit claims that as a result, the clause will

“create a huge evidential burden on survivors, in demonstrating that their recovery needs are linked to their experiences of having been trafficked”.

It adds that the clause will also

“necessitate an increase in the number of medico-legal reports that the Competent Authority will be required to consider.”

To summarise, the clause has the potential to further disqualify victims from support entirely. It has nothing at all to offer a person who had physical and mental needs before being trafficked—needs that may have been a factor in them having been targeted by criminal gangs. It risks trapping victims in an endless cycle of exploitation, which will undermine our ability to identify victims and prosecute the perpetrators of these crimes. For these reasons, the clause should not stand part of the Bill in its current form.

[Craig Whittaker]

I thank the hon. Lady for raising important issues around the support and assistance offered to victims of modern slavery and trafficking. Support for potential victims is a fundamental pillar of our approach to assisting those impacted by this horrendous crime and reducing the risk of their being re-trafficked. We are agreed on the importance of placing the entitlement to support in legislation, which is what the clause will do. Our intention in our drafting was to provide victims with certainty about the circumstances in which support is provided through the NRM; we know that is imperative in aiding their recovery. To this end, we have sought to put in clause 52 that support will be provided where

“it is necessary for the purpose of assisting the person receiving it in their recovery from any harm to their physical and mental health and their social well-being arising from the conduct which resulted in the positive reasonable grounds decision in question.”

Amendment 2 would restrict this support to where it was needed for a victim’s

“physical, psychological and social recovery or to prevent their re-trafficking.”

This provides less clarity on what these terms mean for victims and decision makers, reducing the clause’s effectiveness in supporting victims. Our approach is not to do as amendment 4 suggests and go into detail in the clause on the types of support provided, but to instead do that in guidance. The reason is twofold: it provides us with the flexibility to tailor support to victims, and to ensure that we are able to amend the guidance and support as our understanding of victims’ needs changes.

After entering the NRM, potential victims are entitled to access a wide range of specialist support services to help them rebuild their lives. This includes safe house accommodation, financial support, and a social worker to assist with access to services including, but not limited to, health care, legal advice and translation services. Following a positive conclusive grounds decision, confirmed victims’ ongoing recovery needs are assessed, and a clear plan is tailored to their specific recovery needs to help them transition out of support and back into a community, where this is possible. Confirmed victims’ recovery needs are assessed to ensure that the overall support package provided through the modern slavery victim care contract is specific to the individual. This needs-based approach ensures that the Government provide targeted and personalised support to victims to help them recover and rebuild their lives.

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[Craig Whittaker]

I think I have made it quite clear that the amendment would restrict the ability to assess on an individual, case-by-case basis, as the clause intends. I also went on to say that the time period for that is up to six months but is not limited. I hope that answers the hon. Gentleman’s question. Amendment 3 would go against that approach and would not increase benefits to victims. For the reasons I have outlined, I respectfully invite the hon. Member for Halifax to withdraw the amendment.

[Holly Lynch]

I am grateful to the Minister, once again, for his response. He paints a picture of the NRM that I do not think would be recognised by those working with it on the frontline. We heard testimony from those within the NRM that it was not clear that they were even in it, because it was not clear what provisions or support they were receiving. I wish it was the case that the description and the offer of support that he outlines were there in reality.

The Minister says the discretion within the Bill is necessary in order to facilitate going further and doing more, but we know that discretion is also used to offer less than we think is appropriate for victims who require that support. We will continue to argue and make the case for amendments 2, 3 and 4, but in the interests of time, we will simply vote against clause 52 in its entirety. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

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[The Chair]

For future reference, I understand that abstentions are supposed to be recorded by saying, “No vote”, although I am happy to be corrected. I am not always right.

Clause 53

Leave to remain for victims of slavery or human trafficking

[Holly Lynch]

I beg to move amendment 7, in clause 53, page 47, line 12, after “Kingdom” insert

“for a minimum 12 months”.

This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision leave to remain for a minimum of 12 months.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 5, in clause 53, page 47, line 14, leave out from “recovery” to the end of line 16 and insert “personal situation,”.

This amendment would define the criteria of providing leave to remain in line with Article 14 of the European Convention Against Human Trafficking 2005.

Amendment 189, in clause 53, page 47, line 21, at end insert—

“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.

(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—

(a) the person’s wishes and feelings;

(b) the person’s need for support and care; and

(c) the person’s need for stability and a sustainable arrangement.”

This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.

Amendment 6, in clause 53, page 47, line 22, leave out subsections (3) and (4).

This amendment would remove the criteria of not granting leave to remain if assistance could be provided in another country or compensation sought in another country.

[Holly Lynch]

Amendments 7, 5 and 6 concern the provisions to provide leave to remain for survivors of trafficking. Similar to our amendments to clause 52, amendment 5 seeks to bring the provisions in line with article 14 of ECAT by changing the criterion for providing leave to remain from “recovery” to “personal situation”. The reference to “personal situation” recognises that leave is necessary for a range of reasons. The explanatory report to ECAT states:

“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”

Amendment 6 would remove the criterion for not granting leave to remain if assistance could be provided in another country or compensation sought in another country. It is not clear why the Government introduced that criterion, and I would be grateful if the Minister could outline in his response how he could possibly envisage that working in practice.

Amendment 7 provides a clear minimum timeframe for granting leave to remain, thereby creating more certainty for victims. Under the Home Office’s current guidance on assessing discretionary leave for survivors of modern slavery, leave to remain is granted for a mixture of different time periods—sometimes as little as six months. Those timeframes are short, and the inconsistency can set back recovery.

In 2017, the UK Government issued figures on grants of leave to confirmed modern slavery victims. Some 21% of confirmed victims who were neither UK nor EU nationals were granted asylum in 2015. A group of more than 13 frontline charities that are expert practitioners in providing support to victims of slavery highlighted the problem, stating that:

“The support currently provided to survivors of human trafficking and modern slavery is not meeting recovery needs. Government funded support ends abruptly and too early and there is little information or data as to what happens to survivors in the longer term. The current situation leaves survivors with little realistic opportunity to rebuild their lives, with some ending up destitute, vulnerable to further harm or even being re-exploited.”

The Government may argue that they are already providing support for confirmed victims in England and Wales through the recovery needs assessment. However, under the RNA, victims are not guaranteed long-term support. Victims will receive a minimum of 45 days of move-on support, with the RNA determining how much—if any—extra support is required under the modern slavery victim care contract; that extra support will be for a maximum of six months at time, and may be only a few days or weeks.

Furthermore, Labour believes that victims’ needs are not fully addressed in the RNA. In the 2020 annual report on modern slavery, the support recommended by victim support workers was agreed to in full by the Home Office in only 53% of cases, which raises questions as to whether the process genuinely responds to victims’ needs or is, instead, focused on moving victims out of the service. In summary, amendments 7, 5 and 6 are necessary to address the fundamental challenge facing victims and provide them with far greater certainty.

Amendment 189 is necessary because all child victims must be granted immigration leave in line with their best interests as standard, as stated in international law and UK guidance. The amendment seeks to incorporate the entitlement to immigration leave for child victims as per article 14 of ECAT into primary legislation. It will specify that if the person is aged 17 or younger at the point of referral into the national referral mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests, giving due consideration to a victim’s need for support and care and a sustainable arrangement.

The Independent Anti-Slavery Commissioner has echoed concerns on the lack of clarity around what the clause would mean in practice for children, with this having been acknowledged in the Government’s response to the new plan for immigration consultation. Dame Sara Thornton states

“it is disappointing that this detail was not included as part of the Bill”,

and we share that frustration. There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows that our current policies are not being implemented adequately.

Every Child Protected Against Trafficking requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response to which showed alarming results in the data. It found that only about 5% of child-related considerations resulted in a positive decision for discretionary leave. The data indicates that discretionary leave is not being granted to children as victims of trafficking, and that in the small number of cases where it is, the average length of grant is short, suggesting that decisions are not being taken with their best interests as a primary consideration, providing minimal stability.

How many child victims of trafficking were subsequently granted indefinite leave to remain under the policy is unknown but, based on those figures, we can estimate that they are few. That is despite the explicit current policy that states the need to consider the length of leave, including a grant of indefinite leave to remain in line with the child’s best interests. That requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children. All child victims of trafficking must be granted immigration leave in line with their best interests as only standard, as stated in international law and UK guidance.

[Stuart C. McDonald]

I want to say a few words in support of the amendments, which have the SNP’s full support. Currently, while someone might be in limbo for a long time, they are more secure the day after their referral into the NRM than they are the day after they receive a positive conclusive grounds decision, and that is not right. If they have been accepted as a survivor of trafficking, it makes them less secure. We should move towards a period of automatic leave to remain. The provision of leave is often an absolute prerequisite for meaningful recovery. With some security of status, the ability to seek employment or education and participate in the community builds confidence and stability, and the amendments broaden the number who will achieve that stability.

We also absolutely agree that there are problems regarding consistency between article 14 of the trafficking convention and current Home Office guidance. That is what amendment 5 would fix, so we support it. The convention speaks of allowing leave where necessary, given a survivor’s personal situation, and the explanatory report to the convention refers to issues around safety, their state of health, and the family situation or similar. The Home Office guidance calls for a much broader, individualised human rights and children’s safeguarding legislation-based approach, which seeks to protect and assist a victim and safeguard their human rights. Decision makers are to assess whether a grant of leave is necessary to meet the UK’s objectives under the trafficking convention and to provide protection and assistance to that victim owing to their personal situation. The current guidance is therefore closer to the convention than what is in this Bill.

The clause considerably reduces the scope of article 14 and the idea of a personal situation by adopting wording from the totally different article 12 and not offering any justification for that. The purpose and aim of leave to remain is recovery first in the host state if a survivor seeks that before any further upheaval is forced on them. That helps a survivor, and it helps us with law enforcement. It is also the only realistic way that they will be able to seek redress through compensation from those who exploited them. Pursuing such compensation from abroad just does not happen in practice.

Putting emphasis on the possibility that protection might be offered in the survivor’s home state, as the clause does, risks undermining a proper analysis of the personal circumstances as a whole and risks putting survivors back to square one and at risk of re-trafficking. Crucially, watering down the current position will mean fewer survivors remaining here or being in the best position to work with law enforcement authorities to bring the perpetrators of these awful crimes to justice. Again, that is dreadful news for survivors, but dreadful news for all of us as the perpetrators will escape punishment and other people will become the next victims. We support these amendments and call on the Government to explain why they do not just adopt the wording of article 14 of the European convention.

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[Craig Whittaker]

I have resisted saying these words, but I will make sure that we write to the Committee with those statistics if they are available.

The link to exploitation is an important one, and it is based on our Council of Europe convention on action against trafficking in human beings obligations to assist victims in their recovery. Given that the aim is to provide a clear framework to deliver certainty for victims and decision makers, I do not think that amendment 5 would enhance that at all. Turning to amendment 189, I recognise the importance, again, of bringing clarity to victims about the circumstances in which they are entitled to temporary leave to remain. That is exactly what clause 53 will do. I understand the particular vulnerabilities of children, and I can reassure the Committee that these are built into our consideration of how the clause will be applied.

Clause 53, in contrast to amendment 189, seeks to clarify our interpretation of our international obligations and it brings clarity for victims and decision makers, too. It purposefully does not use terms such as

“the person’s wishes and feelings”,

which are unclear and would not enable consistent decision making.

We are also clear that all these considerations must be based on an assessment of need stemming from the individual’s personal exploitation. Amendment 189 seeks to remove that link to exploitation, moving us away from the core tenets of our needs-based approach. It would not support victims in better understanding their rights; nor indeed would it help decision makers have clarity on the circumstances in which a grant of leave is necessary.

I want to be clear that clause 53 applies equally to adult and child confirmed victims of modern slavery. Crucially, through this clause, we have already placed our international legal obligations to providing leave for children in legislation—which I think we all agree is a milestone in itself.

I want to reassure the Committee that decision makers are fully trained in making all leave to remain decisions, including considering all information to assess the best interests of the child and to account for the needs to safeguard and promote the welfare of all children. All decision makers will receive training and up-to-date guidance on the policy outlined in clause 53.

For the reasons I have outlined, such changes do not add clarity and, in our view, are not required. I hope the hon. Member for Halifax will not press her amendments.

[Holly Lynch]

I thank the Minister, once again, for his contribution. In the interests of time, I will seek to move amendment 189 formally as, once again, I am not satisfied that the appropriate provisions for children have been recognised. I will gently make the point that statutory guidance has been referred to so often as the place where we would look for further detail on how the Bill would actually affect people’s lives that it would have been diligent to produce the statutory guidance at the same time as the Bill. That would have given Members the ability to really scrutinise it in full.

With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 189, in clause 53, page 47, line 21, at end insert—

“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.

(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—

(a) the person’s wishes and feelings;

(b) the person’s need for support and care; and

(c) the person’s need for stability and a sustainable arrangement.”

This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.—(Holly Lynch.)

Question put, That the amendment be made.

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[Craig Whittaker]

The Government have tabled a minor amendment to subsection (9) of the clause to reflect that a grant of leave comes after the positive conclusive grounds decision rather than the reasonable grounds decision. Subsection (9) has therefore been amended to provide that the relevant exploitation for the purpose of granting leave under subsection (2) of the clause means the conduct resulting in the positive conclusive grounds decision rather than the positive reasonable grounds decision. This corrects a minor drafting error.

I will briefly speak on clause 53. It reflects our commitment to supporting victims of modern slavery by setting out in legislation, for the first time, the circumstances in which a confirmed victim may qualify for a grant of temporary modern slavery-specific leave. The aim of the clause is to provide clarity to decision makers as to the circumstances in which confirmed victims qualify for temporary leave to remain. It is a Government priority to increase prosecutions of perpetrators of modern slavery. As such, the legislation makes it clear that where a public authority such as the police is pursuing an investigation or criminal proceedings, confirmed victims who are co-operating with this activity and need to remain in the UK in order to do so will be granted temporary leave to remain, to support that crucial endeavour. The clause will ensure that victims and public authorities have surety about victims’ ability to engage with prosecutions against those who wish to do harm.

[Holly Lynch]

I have heard the Minister’s opening remarks on clause 53 stand part. Only 11% of confirmed victims with a positive conclusive grounds decision between 1 January 2016 and 31 March 2020 received discretionary leave. I therefore ask the Minister to make it clear how an individual’s need for leave will be judged under the criteria in the Bill, and to provide us with clear evidence on how he believes that clause 53 is in keeping with the ECAT obligations.

As colleagues are aware, just weeks ago the High Court delivered a significant judgment that foreign national victims of human trafficking should be granted leave to remain, which really requires starting from scratch on these clauses. The ruling came following the case of a 33-year-old Vietnamese national who was coerced into sex work in Vietnam back in 2016, before being trafficked to the UK in the back of a lorry. From November 2016 to 2018 she suffered further exploitation, being forced to work in brothels and cannabis farms. In April 2018, she was identified as a victim of human trafficking. However, as is the case with many victims, she was charged with conspiring to produce cannabis, and was sentenced to 28 months imprisonment. In May 2019, a trafficking assessment was sought once again by her lawyers, to which the Home Office responded that it had no record of her case; she was later placed in immigration detention. It was not until her legal representatives made a further referral that she was finally recognised as a victim. In his judgment, Mr Justice Linden said,

“The effect of the refusal to grant the claimant modern slavery leave is that she is subject to the so-called hostile environment underpinned by the Immigration Act 2014.”

--- Later in debate ---

[Craig Whittaker]

Let me see whether I can answer some of those questions. The hon. Member for Halifax asked how the clause is compatible with ECAT, and where is the certainty. This measure will clarify in primary legislation the obligations set out in article 14 of the European convention on human rights, and clarify the policy that is currently set out in guidance. This confirms that victims of all ages, including children, who do not have immigration status will automatically be considered for temporary leave. A grant of temporary leave to remain for victims of modern slavery does not prohibit them from being granted another, more advantageous, form of leave, should they qualify for it. It continues to be the core principle of the approach to modern slavery—

[Holly Lynch]

The Minister refers to a piecemeal approach to extending leave—and extending leave—and extending leave. That is preventing victims from moving on with their recovery, from trusting the agencies and from establishing relationships that will lead to the prosecutions that we all hope for. Since he says that further extensions are likely, could we not reflect on more significant periods of leave being given in a single grant?

[Craig Whittaker]

I am a little surprised that the hon. Lady says “piecemeal approach”. I thought I was very clear throughout the process that it is a highly trained decision maker that will be looking at each individual on a case-by-case basis. They will have the ability to look at the individual person’s needs and extend. That approach is at the opposite end of the spectrum to the “piecemeal approach” mentioned by the hon. Lady.