Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord McColl of Dulwich Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

Moved by

[Lord McColl of Dulwich]

27: After Clause 4, insert the following new Clause—
“Grant of leave to remain for confirmed victims of modern slavery who are EEA nationals
(1) Immigration rules must make provision for leave to remain in the United Kingdom to be granted to a person aged 18 years or over when—(a) the person is either a Swiss national or an EEA national who is not also an Irish citizen; and(b) there has been a conclusive determination that the person is a victim of slavery or human trafficking; and(c) subsection (2) applies and subsection (8) does not.(2) This subsection applies if the person meets one or more of the following criteria—(a) leave is necessary due to the person’s circumstances, including but not restricted to—(i) the needs of that person for safety and protection from harm including protection from re-trafficking;(ii) the needs of that person for medical and psychological treatment;(b) the person is participating as a witness in criminal proceedings; (c) the person is bringing any civil proceedings including pursuing compensation.(3) Where the person is receiving assistance from a support worker, the recommendations of the support worker must be considered in assessing that person’s circumstances under subsection (2)(a).(4) Immigration rules must provide for persons granted leave to remain in accordance with this section to have recourse to public funds for the duration of the period of leave.(5) Immigration rules must provide for leave to remain to be granted from the day on which the conclusive determination is communicated to a person for at least 12 months.(6) Immigration rules must allow a grant of leave to remain under subsection (5) to be extended subject to the requirements of subsection (7).(7) In determining whether to extend a grant of leave to remain under subsection (6), and the period of time for which such extended leave should be provided, the person’s individual circumstances must be considered, and whether that person meets one or more of the criteria in subsection (2).(8) A person may be refused leave to remain if—(a) the person is a sexual or violent offender; and(b) the Secretary of State considers that the person poses a genuine, present and serious risk to members of the public.(9) If subsection (8) applies, the Secretary State must ensure the person affected is given reasons for the refusal in writing.(10) In this section—“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Council of Europe Convention on Action against Trafficking in Human Beings;“conclusive determination” means a determination that a person is, or is not, a victim of slavery or human trafficking when the identification process conducted by a competent authority concludes that the person is, or is not, such a victim;“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as it has effect from time to time);“immigration rules” in this section has the meaning given by section 33 of the Immigration Act 1971;“sexual or violent offender” means a person falling within the definition of a “sexual or violent offender” in section 327 of the Criminal Justice Act 2003 (section 325: interpretation) or who has been convicted of an offence under the law of another country which would have constituted an offence falling within those subsections if it had been done in England and Wales;“victim of slavery” and “victim of human trafficking” mean a person falling within the definition of a “victim of slavery” or “victim of human trafficking” in section 56 of the Modern Slavery Act 2015 (section 56: interpretation).”

[Lord McColl of Dulwich (Con) [V]]

My Lords, I am very pleased to speak to Amendment 27 in my name and that of the noble Lords, Lord Kennedy and Lord Alton, and the noble Baroness, Lady Hamwee. I would like to thank my co-signatories for their support, and that of the noble Lord, Lord Randall, who would have been here to speak in support of my amendment had it been reached yesterday, but is unable to join us today. I would also like to thank the former Conservative Party leader, the right honourable Sir Iain Duncan Smith, for his support for my amendment, expressed in our joint PoliticsHome article yesterday. I should say at the outset that I very much hope that the Government will accept it, but if they do not it is my intention to test the opinion of the House.

I make no apology for raising once again the difficult situation that confirmed victims of modern slavery will face as a consequence of the current drafting of the Bill before us. By “confirmed victims”, of course, I mean those who have been through the national referral mechanism and received a positive conclusive grounds decision that they are indeed victims of modern slavery.

I am grateful to my noble friend Lord Parkinson, who responded to my Amendment 7, and to my noble friend Lady Williams, who responded to Amendment 81. The Government have made all the right noises about protecting trafficking victims, but it is clear, as I shall explain, that in future victims of modern slavery who come from EU countries will be significantly worse off than they are currently.

As a firm supporter of Brexit and advocate for victims of modern slavery, I know that, while free movement must end, the restoration of our sovereignty does not require us to create a situation in which the effective rights of some confirmed victims of modern slavery are diminished. Parliamentary sovereignty actually gives us the opportunity to improve provisions for all victims of modern slavery if we want to. It does not necessitate that we should acquiesce to the effective erosion of the rights of any confirmed victims. That we should inaugurate the Brexit era by doing so for EEA national victims is, in my judgment, unthinkable.

One of the main ways in which a confirmed victim of modern slavery who is an EEA national can seek help for their recovery today is through their treaty rights to remain in the UK and access public funds: in other words, to get benefits and access to local authority housing. In the event that an EU citizen is unable to exercise their treaty rights, perhaps because their ID documents were taken from them by the traffickers, or they have no paperwork to evidence the work they were doing while being exploited—for those exploitations, by their very nature, do not meet the requirements—they have the second fallback option of applying for what is known as discretionary leave to remain.

At the end of the transition period, and once any opportunity to apply for settled or pre-settled status has passed, victims of human trafficking who are EEA nationals will be worse off because they will lose one of the key avenues to support that is available today—exercising their treaty rights—and that will be replaced by nothing.

The confirmed victim will simply be left with the option of applying for discretionary leave to remain. This may not matter if there were a statutory basis for granting discretionary leave, with statutory criteria to make up for the loss of the opportunity for confirmed victims to access support through their treaty rights.

Discretionary leave is only given on a discretionary basis to confirmed victims in very special circumstances set out in the guidance, when they are not eligible for any other form of leave such as asylum or humanitarian protection. The criteria are that a victim is assisting police with investigations into trafficking or modern slavery, that there are compelling personal circumstances which mean the victim needs to stay in the UK, or that the victim is making a claim for compensation against their traffickers and needs to remain in the UK to pursue that claim.

As a Minister said in 2017, discretion to grant leave to remain has been considered as “exceptional”. That might have been acceptable when EU citizens had an opportunity to access treaty rights, but they will no longer be able to do so and it is unlikely that EU victims will be considered for asylum in the future.

In order to really understand this effective erosion of the rights of confirmed victims of modern slavery who are EEA nationals, it is also important to consider their lot in the wider context of that of victims who are non-EEA nationals. Many non-EEA nationals will have the option of applying for asylum, which, as I said, will not be open to EEA nationals; some will be granted humanitarian protection and the remainder will be automatically considered for discretionary leave. Given these other routes, it may not be surprising that discretionary leave has been considered “exceptional” for non-EEA victims as well.

Internal Home Office data, reported to the House of Commons Work and Pensions Committee in 2017, showed that just 12% of all victims of modern slavery were given discretionary leave in 2015. Of these, 52 cases were EEA nationals and 71 non-EEA nationals. On 24 September, the Government confirmed that they do not have current data in a reportable form for the different immigration outcomes for victims of modern slavery. This lack of data begs the question as to how the Government will measure the impact of changes in immigration policy on victims of modern slavery if there is no baseline from which to measure.

In July, the Centre for Social Justice, published a report on modern slavery, It Still Happens Here: Fighting UK Slavery in the 2020s. It states:

“For many, having no recourse to public funds poses further barriers to moving people on safely, putting victims at risk of homelessness and destitution, and making it more likely that they will fall back into exploitation and trafficking.”

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank my noble friend Lord McColl of Dulwich for instigating this important debate and I join other noble Lords in paying tribute to him for his dedicated and unswerving commitment to supporting the victims of modern slavery. As the noble Lord, Lord Alton of Liverpool, said, it is a commitment that is strong at any hour of the day and one that applies to all noble Lords who have spoken—and would have done to my noble friend Lord Randall of Uxbridge, who, as my noble friend said, would have spoken today had we reached this group sooner.

The Government are equally committed to tackling this heinous crime, which has absolutely no place in our society. We are now identifying more victims of modern slavery and doing more to bring the perpetrators to justice than ever before, and we are committed to supporting victims and survivors and helping them rebuild their lives. However, we do not accept that the victims of modern slavery who are EEA citizens should automatically be granted leave to remain in the UK, which is what my noble friend’s amendment seeks to do.

Granting leave to remain is appropriate in some cases, but the individual circumstances of a case are what must be central to the decision. I hope that all noble Lords will agree that a decision on whether leave is granted should not be determined by someone’s nationality. That is certainly an approach which complies with our international obligations under the trafficking convention. Where leave to remain is granted, it is normally where the victim is supporting the police either in an investigation, through being a witness in court or because of a requirement for medical treatment that needs to be provided in the UK—or, as the noble Baroness, Lady Hamwee, noted, because they are pursuing compensation for the exploitation that they have suffered. It is perhaps worth reiterating, as we touched on in Committee, that the most common nationality among all referrals in 2019 to the national referral mechanism was British, with UK nationals accounting for 27% of all those being referred, so tackling this abhorrent crime is separate from immigration policy.

For those who are not UK nationals, some victims of modern slavery already have leave to remain in another capacity or may qualify for a more advantageous status, such as refugee status. Victims from the EEA, who, as my noble friend noted in his opening remarks, may find that not possible, may also qualify for leave to remain under the EU settlement scheme. There is a further option that my noble friend did not touch on in his remarks, which is that victims can apply for support from the Home Office modern slavery victim care contract, which includes accommodation and support. We want to ensure that all victims and survivors, who are often very vulnerable people, as has been made apparent so powerfully today, have the support that they need.

For those who do not qualify for leave to remain, the Government are committed to supporting them to return to their home country and to rebuild their life. As the noble Baroness, Lady Hamwee, said, they often want to do that as soon as possible. We have links with NGOs around the world, including a memorandum of understanding with La Strada Poland, which supports the victims of modern slavery when they return home and helps them reintegrate into their communities. The Government are proud of the work we are doing to stamp out this abhorrent crime and I was pleased to hear the noble Lord, Lord Alton of Liverpool, pay tribute again to the world-leading legislation which has been passed in this area.

A blanket policy of granting discretionary leave risks creating the incentive for some—a minority of individuals—to make false trafficking claims in an attempt fraudulently to obtain leave to remain. We have to ensure that the system we have put in place is focused on those who truly need our help and is not abused by the sort of organised and callous criminality which, as has been said, profits from human misery. It is for these reasons that we believe that my noble friend’s amendment is unnecessary, and I hope that he will withdraw it.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I thank all noble Lords who have taken part in this debate. I thank the noble Lord, Lord Alton, for his kind remarks and for all the support and hard work that he does on this and many other subjects. I also thank the noble Lord, Lord Morrow, who has done such wonderful work in Northern Ireland, and the noble Baroness, Lady Hamwee, for her support and her amazing stamina. She never seems to get tired.

To respond to the debate, it is clear that my Amendment 27 does not—I emphasise this—automatically grant leave to remain to all EEA nationals who are confirmed victims of modern slavery. It guarantees leave only where the criteria in the amendment are met, which will require an assessment of the circumstances in each case. The amendment does ensure that all confirmed victims who are EEA nationals are automatically considered for leave to remain. Without this change, confirmed victims who are EEA nationals will not only lose one of the avenues for recovery currently accessible to them—immigration status and recourse to public funds through treaty rights—they will find themselves at a disadvantage when compared with victims who are not EEA nationals and who are already automatically considered for discretionary leave to remain.

Without Amendment 27, EEA confirmed victims of modern slavery will be significantly worse off as a result of the Bill. It is unthinkable that this House should acquiesce to allowing the rights of some victims of human slavery to be moved backwards, and so I wish to test the opinion of the House.