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

Lord Morrow Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Morrow (DUP) [V]]

My Lords, paragraph 6 of Schedule 1 allows for any EU-derived rights to cease to be recognised in domestic law if they are either inconsistent with immigration legislation or

“capable of affecting the exercise of functions in connection with immigration”.

An important body of EU-derived rights has been the human trafficking directive, one of the aims of which is

“to enable the victim to recover”.

Article 11 requires assistance and support for victims. While the Modern Slavery Act 2015 made many positive changes, it did not, regrettably, include a statutory right to assistance and support, as in the parallel Northern Ireland and Scottish legislation. When the directive ceases to have effect, the EU rights for victims in England and Wales will disappear. It would seem, therefore, that the legal rights of these victims will be negatively affected by the power in Schedule 1.

Last week, the Centre for Social Justice published a report on modern slavery. It said that the Government must enshrine survivor rights in law to guarantee and protect access to support. It, like me, urges the Government to give all trafficking victims certainty over support and immigration status by adopting the noble Lord, Lord McColl, and Sir Iain Duncan-Smith’s Modern Slavery (Victim Support) Bill, which would give confirmed victims of trafficking immigration leave for a minimum of 12 months to receive assistance and support to recover from their abuse.

In the context of the imminent termination of the immigration rights implicit in the right to free movement and the protections in the directive, which have not been translated into UK law, the need for the McColl/Duncan-Smith Bill is now greatly strengthened. I hope the Government will now prioritise giving this Private Member’s Bill time to become law, led as it is in part by two eminent Conservative parliamentarians, one a former leader of the Conservative Party.

I very much welcome the Minister’s opening remarks. She said that all parts of the United Kingdom will be treated as equals. That is very important, and I could not support it more.

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

Lord Morrow Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Lord Randall of Uxbridge (Con) [V]]

My Lords, it is a great pleasure and an honour to follow my noble friend Lord McColl, who has been such a doughty campaigner on this issue. I would like to say at the outset that I would be a strong supporter of his Private Member’s Bill. I should start by declaring that I am a vice-chairman of trustees of the Human Trafficking Foundation, a position I share with the noble and learned Baroness, Lady Butler-Sloss, who with her legal background is more able to discuss these matters.

I share the concerns of my noble friend Lord McColl that the anti-trafficking directive from the EU will not necessarily be implemented into domestic law; he has explained clearly the exact position. I would like to say this. There has always been a conflict between the victims of modern slavery and the people who find them, who are often the same officers who check on illegal immigration. Many of the victims, certainly those not from the EU, could well be illegal immigrants. When they were EU citizens who had free movement, even if they were brought here under duress or false pretences they would not have been illegal immigrants. What will happen is that there will probably be more of an impetus to remove people, even though they are victims. That is not what the Government intend, and I am sure that the Minister will say so, but it might well be the result. In theory, the fact that we are supposed to be taking control of our borders might well mean that we should be in a position to stop more people coming in who are actually victims, and particularly to try to stop the evil purveyors—the traffickers themselves.

I am proud that when the Modern Slavery Act was brought in, I was still in the other place and able to be part of that. However, it is light on victim support. While it is acknowledged that it is world-beating in many respects, its provisions on victim support are not sufficient. There is therefore, as my noble friend Lord McColl has said, a real opportunity for this country to prove once again that we take the terrible crime of modern slavery extremely seriously and to be the world leader in how we deal with its victims.

I want also to commend to my noble friend on the Front Bench the review recently instigated by the Government. I am not sure, but I think that we are still waiting for a response to some of the points raised in the review by the noble and learned Baroness, Lady Butler-Sloss, the soon to be ennobled Frank Field —I do not know whether technically he is yet a Member of the House—and Maria Miller, an esteemed Member of the other place. While this is a probing amendment, we want assurances. This is a fantastic opportunity to do the right thing and to do it very well.

[Lord Morrow (DUP) [V]]

My Lords, I am pleased to speak in support of Amendment 7 in the name of the noble Lord, Lord McColl. I was one of those who raised concerns about paragraph 6 of Schedule 1 at Second Reading. As I stated then, an important body of EU-derived rights stems from the anti-trafficking directive—in particular, victims’ rights to support, assistance and protection. I have a particular interest in this subject because I took Northern Ireland’s equivalent legislation to the Modern Slavery Act—the human trafficking and exploitation Act—through the Northern Ireland Assembly. Although one of the central purposes of the directive is that the assistance and support should

“enable the victim to recover”,

there is no statutory requirement for support and assistance for victims in the Modern Slavery Act.

Section 50 of the Act, which deals with the statutory requirement to provide victim support, has never been used and remains optional, depending on the views of the current Minister. In this respect, the Modern Slavery Act is quite unlike the human trafficking and exploitation Act in Northern Ireland or, indeed, the Human Trafficking and Exploitation (Scotland) Act, in both of which the obligation to enable the victim to recover is transposed from the trafficking directive and on to the face of law in Northern Ireland and Scotland.

I note that, when previously challenged on this point, the Government said there would be no erosion of the rights of victims of human trafficking in England and Wales following the demise of the directive at the end of this year because legal obligations to victims under the Council of Europe human trafficking convention and under Article 4 of the European Convention on Human Rights remain unchanged. However, this assertion is deeply problematic and, to remind noble Lords why, I ask your Lordships to recall the period of May 2010 to March 2011. In May 2010, Britain was subject to both the Council of Europe trafficking directive and Article 4 of the ECHR, and the Government decided that they would opt out of the EU anti-trafficking directive because they claimed we did not need it. There was then a public outcry and a campaign by NGOs and Members of this House which resulted in the Government U-turning and opting into the directive in March 2011.

The convention covers much of the same ground as the directive, including victim support. The reason why those who work with victims of trafficking were not prepared to say, “Don’t worry about the EU anti-trafficking directive, because we are already signed up to the convention,” is very simple. The sanctions that exist in international law are much weaker than those in domestic or EU law. The passion that drove those who care for victims of human trafficking to campaign for Britain to opt into the EU anti-trafficking directive between May 2010 and March 2011, when we were already signed up to the human trafficking convention and Article 4 of the ECHR, means that the ongoing presence of the human trafficking convention and Article 4 of the ECHR are never going to result in those of us who speak for victims of human trafficking meekly trading the directive for the Modern Slavery Act, as currently defined, when that Act provides no statutory right to victim support.

Some might say, “But isn’t the statutory obligation to provide victim support part of retained EU law?” If we could be clear today that victim support is part of retained EU law, then the Government could respond to this debate by promising not to use the powers in paragraph 6 of Schedule 1 to remove these rights. That would at least provide an assurance as far as the current Administration are concerned.

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

Lord Morrow Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

Moved by

[Lord Morrow]

81: After Clause 4, insert the following new Clause—
“Requirements before making and amending immigration rules
Prior to making any regulations under subsection 4(1) to amend or create immigration rules the Secretary of State must lay a report before each House of Parliament assessing the impact of the regulations on victims of modern slavery.”Member’s explanatory statement
This amendment would require the Government to publish an assessment of the impact of changes to the Immigration Rules arising from this Bill on victims of modern slavery.

[Lord Morrow (DUP) [V]]

My Lords, I tabled Amendment 81 because I have real concerns about the proposed arrangements with respect to the end of free movement as they relate to victims of modern slavery. As I stated during the first day of this Committee’s proceedings,

“it is politically unthinkable that we should now stand by and allow an erosion in the rights of victims of modern slavery in this country.”

However, I fear that we are in danger of doing precisely that.

By way of introduction, I should perhaps anticipate the Minister. He made this point in relation to Amendment 7 and might make it again; I hope that my presumption is wrong. He stated that

“the system of identification and support for victims of modern slavery and the legal framework around it go far beyond the scope of the Bill we are debating. Indeed, the most commonly represented nationality among those referred to the national referral mechanism in 2019 was British. It is important to see this as distinct from an immigration issue alone.”—[Official Report, 7/9/20; cols. 618-21.]

It is certainly important for us to recognise the reality of internal trafficking. However, this must not be allowed to obscure the fact that by far the largest number of trafficked persons in the UK are foreign nationals, for whom immigration status is of huge importance. It can be a source of vulnerability that leads them to be exploited; it can affect their rights to services and support; and it can affect the way in which they are dealt with by professionals and the general public. Immigration policy will therefore be of central importance to addressing human trafficking successfully. In this context, I make no apology for my amendment.

Amendment 81 would require that, before making and amending the Immigration Rules to establish the system that will take the place of free movement,

“under subsection 4(1) … the Secretary of State must lay a report before each House of Parliament assessing the impact of the regulations on victims of modern slavery.”

In considering the importance of this provision, we should recall that when the Government announced in February their intention to replace the rights associated with free movement for EEA nationals—including EEA nationals who are victims of modern slavery—with a points-based system, the Independent Anti-slavery Commissioner, Dame Sara Thornton, responded with a warning:

“traffickers will seek every opportunity to abuse new immigration policies and so the protection of vulnerable people needs to be front and centre of the debate.”

The purpose of Amendment 81, which mandates that there should be an assessment of the impact of the new Immigration Rules specifically on victims of modern slavery, is to give effect to the anti-slavery commissioner’s important recommendation that the protection of vulnerable people needs to be at the front and centre of the debate.

One area of concern is what will happen under the new Immigration Rules to a victim of modern slavery who is not British once they have been confirmed as a victim by the national referral mechanism. Under Section 18 of Northern Ireland’s human trafficking and exploitation Act, victims are guaranteed “assistance and support” and, under subsection (9), the Department of Justice in Northern Ireland is able to continue providing support after a positive conclusive grounds decision where it deems it necessary. However, the Northern Ireland Executive have no power to grant immigration leave to victims to enable them to remain in the UK even if they deem that support necessary.

At the moment, many victims who are EEA nationals, including confirmed victims of modern slavery, are able to stay in Northern Ireland and the wider UK under free movement rights, thus enabling them to access regular benefits and statutory services, to work and to study, and potentially to receive additional trafficking support from our Department of Justice on a discretionary basis as they continue their recovery. However, once free movement comes to an end, EEA nationals newly arriving in the UK will no longer have the right to live and work in any part of the UK, including Northern Ireland, unless they have relevant skills and are sponsored by an employer to get a highly skilled worker visa, which is unlikely to be the case for victims of slavery. Nor will they have recourse to public funds to access benefits and services that will help them in their recovery beyond the immediate crisis period of the NRM.

At Second Reading, I mentioned the Centre for Social Justice’s timely report, It Still Happens Here: Fighting UK Slavery in the 2020s, which was published in July. 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.”


Rather than responding to this key finding by extending access to recourse to public funds, it seems that we are about to remove the key provision from some victims of human trafficking that is central to victim recovery. Providing victims with secure immigration status and recourse to public funds is not simply a means to support their recovery; rather, it is also a vital measure to prevent them being retrafficked in the future.

The only option for a victim who arrives in the UK after 1 January to secure the right to remain in the UK and to access publicly funded benefits and services will be to apply for discretionary leave to remain, known as DLR, since EEA nationals are unlikely to be granted asylum. But, unlike victims from other countries, EEA nationals are not currently automatically considered for DLR. They have to make their own applications.

There are two significant additional problems with DLR. First, applying takes time, during which confirmed victims are vulnerable to destitution and re-trafficking. Secondly, to date only a very small proportion of confirmed victims of modern slavery have been granted DLR, with the attached access to public funds and support needed for their recovery, because it is available only in limited and defined circumstances. Deciding to depend on DLR in this knowledge, therefore, would be tantamount to voting to erode support for confirmed victims of modern slavery.

I am not opposed to the end of free movement. We have to give effect to that in order to honour the outcome of the referendum. However, it absolutely does not follow that we have to create a situation in which a significant proportion of trafficking victims have uncertain immigration status and will lose recourse to public funds. I can only assume that the failure to put in place clear and accessible alternative routes for EEA nationals to remain in the UK with public funds for a period of recovery beyond the NRM results from the absence of any formal requirement to assess the impact of the wide-reaching changes to free movement on this specific and particularly vulnerable group.

We must ensure that any future changes to the DLR system serve to make it more accessible for EEA nationals, and that the full impact on victims of modern slavery is assessed, which is why I introduced Amendment 81. As well as seeking to assess the impact of immigration rules on victims after they have escaped their exploitation, it seeks to provide an opportunity for scrutiny of how immigration rules may protect people, or inadvertently put them at risk of trafficking.

In this context, I raise the issue of temporary migration routes such as the seasonal workers pilot scheme, which has been running since last year. A report published last year by the International Organization for Migration, Migrants and their Vulnerability to Human Trafficking, Modern Slavery and Forced Labour, found:

“Restrictive immigration policies (such as restrictions applied to certain visas or arbitrary changes to asylum procedures for nationals from certain countries) and weak migration governance structures are frequently noted as major causes of vulnerability to modern slavery, especially when combined with low-wage migration.”


Elsewhere, the report says that

“migrants whose visas are tied to a specific employer are also at higher risk of exploitation.”

Experts in labour exploitation, such as Focus on Labour Exploitation, have cautioned that temporary migration schemes are

“well-recognised to increase the risks of abuse and exploitation of workers”.

In July the Government published a document called UK Points-Based Immigration System: Further Details Statement, which includes the following text:

“As we replace freedom of movement with the Points-Based System, we remain committed to protecting individuals from modern slavery and exploitation by criminal traffickers and unscrupulous employers.”


I welcome the Government’s statement, but sadly it reads as pure assertion. It does not demonstrate any kind of means to secure this end. I very much hope that the Minister will appreciate how, in the context of the proposed removal of a route to protection from re-trafficking offered by remaining in the UK and having recourse to public funds, and without a guarantee of a safe route for migration for EEA nationals who do not qualify for the skilled worker scheme, this assertion, divorced from any delivery mechanism, is vulnerable to seeming profoundly disingenuous.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have no requests to speak after the Minister, so I now call the noble Lord, Lord Morrow.

[Lord Morrow (DUP) [V]]

My Lords, I am very grateful to all those who have taken part in this debate. I am also grateful to the Minister. I have listened very carefully to all that she has said but I am afraid that I remain very concerned on two fronts: first, the absence of a discipline to ensure that, going forward, the Immigration Rules will be forged out of regard for the need both to minimise opportunities for people trafficking and to help those who have been trafficked to enjoy a full recovery; and, secondly, that at the moment there is a real risk that victims of modern slavery will experience an erosion of their effective rights from 1 January. I do not believe that this is a satisfactory state of affairs.

However, as I said, I listened carefully to what the Minister said but will go away and study her comments more carefully before deciding how best to proceed on this issue. For the moment, therefore, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

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

Lord Morrow Excerpts

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

As has been said on a number of occasions, and by the noble Lord in introducing his amendment today, debates on this must also be seen in the context of his Private Member’s Bill, which still stands on our Order Paper. I hope that we find time to debate that Bill. Although this amendment is welcome, and I will support it if it is pressed to a Division later, there is a bigger and wider question that has to be addressed, and his Bill is the way to do it.

[Lord Morrow (DUP) [V]]

My Lords, I am pleased to add my support to Amendment 27 in the name of the noble Lords, Lord McColl, Lord Alton and Lord Kennedy, and the noble Baroness, Lady Hamwee. In Committee, when introducing my Amendment 81, I made plain my grave concerns about the possible negative impact that ending free movement will have on victims of modern slavery. I said then, and I reiterate today:

“I am not opposed to the end of free movement.”


However, as I said then,

“it absolutely does not follow that we have to create a situation in which a significant proportion of trafficking victims have uncertain immigration status and will lose recourse to public funds.”—[Official Report, 16/9/20; col. 1343.]

This, however, is precisely what will happen, courtesy of the Bill before us, if the Government do not accept Amendment 27.

With the ending of free movement, victims of modern slavery who are EEA nationals and who arrive in the UK from 1 January onwards will no longer be entitled to stay in the UK or to access benefits, beyond the period of support granted under the national referral mechanism. This means that the effective rights of these confirmed victims of modern slavery will be subject to significant erosion, and there is currently nothing in the Bill to put in their place.

As the noble Lord, Lord McColl, said, from next year EEA victims, who have never enjoyed the option of asylum that many non-EEA victims can access, will lose the immigration status and recourse to public funds that they currently enjoy through treaty rights. The only remaining option for victims from EU countries to gain a credible immigration solution will be through an application for discretionary leave to remain. All victims can seek discretionary leave at present but, as with accessing the option of asylum, EU nationals are again at a disadvantage. Unlike victims of other countries, victims of EEA countries are not, at present, automatically considered for a grant of discretionary leave.

Amendment 27 would remedy this difference and ensure that all EEA nationals who are confirmed by the NRM as victims of trafficking are given a grant of leave if they meet the criteria set out in the amendment, which are similar to criteria by which applications are currently assessed under guidance. I urge the Government to support this amendment to ensure that there is a clear route for EEA nationals to have the option of immigration security and recourse to public funds to enable them to recover.

In reflecting on this, we must not forget that care for confirmed victims of modern slavery is not just about fulfilling our moral obligations to the victims, who, let us not forget, have been exploited in the UK; it is also in our self-interest. There is no point spending taxpayers’ money finding victims, then taking them through the national referral mechanism, only to release them without the requisite immigration security to enable them to access the kind of help they need to recover. Failure to provide them with security and tailored support will leave them vulnerable to being re-trafficked and make it impossible for them to have the space needed to consider giving evidence against their traffickers in court. This is unsustainable. Securing increased testimony from victims in court is crucial if we are to see an increase in the stubbornly low conviction rate of traffickers.

In reflecting on these imperatives, the truth is that, while we badly need Amendment 27 to pass today, we also need a more far-reaching solution that provides immigration certainty and support for all confirmed victims, including UK nationals. This is a position which all 27 organisations that make up the Free For Good campaign agree with. That is why the Modern Slavery (Victim Support) Bill, introduced to the House by the noble Lord, Lord McColl, and sponsored in the other place by Sir Iain Duncan Smith, is so important.

It is odd that if someone is recognised as a refugee they automatically get five years’ leave to remain, but if they are recognised as a confirmed victim of human trafficking they get no statutory leave to remain on that basis. I am not entirely sure why we consider that we have a lesser obligation to people whose lives have been exploited and traumatised in the UK than we have to refugees. I am not saying for a moment that the way we treat refugees should become less generous. I am not saying that at all. My point is simply that we should treat confirmed victims of modern slavery more generously.

The Modern Slavery (Victim Support) Bill states that, once someone has been through the national referral mechanism and is a confirmed victim of modern slavery, they should be offered specialist tailored support to help them recover and a minimum of 12 months’ leave to remain to access that support. In that context, they will be protected from re-trafficking and be much more likely to have space to consider giving evidence against their traffickers in court.

Moreover, it will benefit not only England and Wales but Scotland and Northern Ireland by providing immigration security to those who are given support after they have been in the NRM. I note that, in the commemoration of UK Anti-Slavery Day later this month, a Motion is to be debated at Stormont on 13 October that calls on the UK Parliament to pass the Modern Slavery (Victim Support) Bill.

In conclusion, I hope the Minister will agree to act to ensure that there is a clear immigration path for confirmed victims of modern slavery who are EEA nationals, and to accept Amendment 27. To lead the way on modern slavery and to take immigration policy back into the hands of the UK Parliament, I call on the Government to make time for the Modern Slavery (Victim Support) Bill to become law by the end of the year. In the 2017-19 session, it cleared the House, unamended, in less than four hours. If the Government want it, this very Conservative Bill—sponsored, as it is, by a former leader of the Conservative Party and the noble Lord—could easily become law by Christmas. Rather than inaugurating the Brexit era on 1 January by eroding the effective rights of some confirmed victims of modern slavery, we could strengthen the rights of all victims, on a basis that, as the University of Nottingham’s Rights Lab has demonstrated, will save the Government money.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Lord, Lord Randall, has withdrawn and I understand that the noble Baroness, Lady Bennett, is no longer with us. The noble Lord, Lord Naseby, has also withdrawn, so I call the noble Baroness, Lady Hamwee.