Immigration Detention: Victims of Trafficking

Richard Fuller Excerpts

Tuesday 27th April 2021 Westminster Hall

[Mrs Sheryll Murray (in the Chair)]

I remind Members that there have been some changes to normal practice in order to support the new hybrid arrangements. As there are only two Members here, I will just remind them that Mr Speaker has stated that masks should be worn in Westminster Hall.

[Richard Fuller (North East Bedfordshire) (Con)]

I beg to move,

That this House has considered the effect of immigration detention on potential victims of trafficking.

It is a pleasure to serve under your chairmanship, Mrs Murray, and to welcome my hon. Friend the Minister, who has been extremely helpful to me with my questions about immigration over many months. It is a pleasure to see him here. The core of the issues I wish to raise relates substantively to the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2021, which make amendments to the guidance on adults at risk in immigration detention. In brief, the changes remove the special rules governing the use of detention for potential victims of trafficking and modern-day slavery where there is already a strong presumption against the use of detention. I note the prayer against this negative statutory instrument in the form of early-day motion 1696, tabled on 24 March 2021, which has attracted 77 signatures. I also note that, subsequent to Mr Speaker granting this debate, a further debate has been scheduled for tomorrow in the main Chamber, so the Minister will certainly be busy. Again, I am grateful to him for being here today.

One of the reasons I called for the debate is that Yarl’s Wood, which has been a detention centre for women, is in my constituency, and over the years I have worked closely with a number of groups related to the detention of women in particular, including Yarl’s Wood Befrienders and Women for Refugee Women. I would like to thank Medical Justice in particular for its help in putting together some points. I will fire a series of questions at the Minister, which I am sure he will not have time to respond to immediately—it is in the nature of these 30-minute debates—but, if he will commit to writing to me with responses on those he does not have a chance to address, I would be grateful.

Let me start by quoting from the explanatory memorandum accompanying the statutory instrument, which says:

“This statutory instrument brings into effect amendments to the guidance on Adults at Risk in Immigration Detention…The purpose of the statutory instrument…is to bring people who are potential victims of modern slavery and/or trafficking fully within the…AAR Statutory Guidance. This is intended so that detention considerations for potential victims of modern slavery and trafficking will be made using criteria consistent with those that apply to other categories of vulnerable people.”

The reason provided by the Home Office for the change is that it will bring those with a positive reasonable grounds decision through the national referral mechanism fully within the scope of the adults at risk in immigration detention statutory guidance. The Home Office describe it as a measure to amend a “policy anomaly” and the changes will come into effect on 25 May. That leads me to my first and fundamental question to the Minister: why does he want to make this change, which will make it more likely that victims of trafficking will be held in immigration detention?

The Minister will be aware that a Home Office report confirmed that, in 2019, of 1,949 individuals referred into the national referral mechanism after being detained, 89% received a positive reasonable grounds decision and 98% were subsequently released from detention. However, the Independent Anti-Slavery Commissioner noted in her letter to the Minister:

“Having looked at the data on the AAR policy, between November 2017 and October 2018, the rates of rejection for detention by Detention Gatekeepers due to the person being an AAR fluctuated between 3.8% and 36.2%.”

She notes that that is a wide range, but it is substantially lower than the 89% to 98% rates under existing rulings. It seems to me that that is a significant difference, not just a policy anomaly. Can the Minister confirm that he expects more potential victims of trafficking to be detained for immigration purposes as a result of the policy change? What are his thoughts around that?

I understand that the Minister held a consultation on the statutory instrument before laying it. Can he confirm whether that is correct, state which organisations he has consulted with, and give a summary of their views and opinions? Why did the Home Office not include the Independent Anti-Slavery Commissioner in its consultation prior to making these changes? The Minister will be as aware as I am that it is important to get all expert advice prior to laying legislation before the House.

Let us spend a moment on concerns raised about the changes. Medical Justice makes two crucial points; first, that the

“new regulations…downgrade protections afforded to potential victims of trafficking held in immigration detention”,

and secondly that they

“run entirely counter to the government’s stated aim to protect victims of trafficking.”

Does the Minister accept that the statutory instrument will, in practice, downgrade protection for victims of trafficking? He may be aware that this week the Royal College of Psychiatrists released its report “Detention of people with mental disorders in immigration removal centres”, which includes the following paragraph—it is quite a long quotation, but worth listening to:

“It is the view of the Royal College of Psychiatrists that people with mental disorders should only be subjected to immigration detention in very exceptional circumstances…There is substantial and consistent research evidence that detainees with pre-existing vulnerabilities (e.g. mental health issues or survivors of torture and other forms of cruel or inhumane treatment, including sexual violence and gender-based violence) are at particular risk of harm as a result of their detention. Detention centres are likely to precipitate a significant deterioration of mental health in most cases, greatly increasing suffering and the risk of suicide.”

Does the Minister agree, or does he not, with the Royal College of Psychiatrists’ conclusions? Does he, or does he not, agree that the changes that the statutory instrument makes may go directly against its advice?

Guideline 6, paragraph 1, of the UN’s recommended principles and guidelines on human rights and human trafficking states that trafficked persons

“should not be held in immigration detention centres”

or other forms of custody. There is no a priori reason for the UK Government to agree with everything that the United Nations says on the matter, but does the Minister agree that this change risks being seen as a significant step back from the UK’s international reputation of playing a leading role against modern-day slavery?

The direct effect of changing this policy anomaly on victims of trafficking and modern-day slavery seems to me quite profound. The practical impact seems to be that after a person has already satisfied the Home Office that they were subject to trafficking or slavery, the Home Office now expects them essentially to re-live that experience so that they can demonstrate the harm they will suffer from further future incarceration or detention—this time by the Government. Why would the Government want to do that?

Let us take a moment to see whether the adults at risk policy is working sufficiently well to warrant its application to this particularly vulnerable group. There are substantial grounds to suggest that it is not proving suitable for the policy anomaly change; let me share some concerns with the Minister.

Women for Refugee Women has commented that a key reason for the continued detention of survivors of trafficking under the adults at risk policy is the lack of a proactive vulnerability screening mechanism before the decision to detain is made. Under AAR, a new detention gatekeeper was introduced

“which assesses vulnerability and provides challenge to decisions about who enters immigration detention”.

However, the gatekeeper looks only at information that the Home Office already holds on record to assess whether a person is vulnerable. There is no proactive screening process to identify vulnerabilities that the Home Office may not be aware of before the decision to detain is made.

Let me note some findings from Her Majesty’s Inspectorate of Prisons on Yarl’s Wood, the detention centre in my constituency. Its reports have also highlighted how, while it was operating as the main detention centre for women, Yarl’s Wood consistently struggled to maintain an appropriate proportion of female staff, both those in direct contact with women and managers. Further, HMIP reports also identified a lack of understanding and knowledge among Yarl’s Wood staff about women’s specific experience of violence and abuse, including sexual exploitation and trafficking. I do not wish to cast any aspersions on the very capable staff at Yarl’s Wood in my constituency. My point is that, with this change, we are placing more reliance on individual case-based judgments and therefore on what might appear to be a rather more fragile decision process.

Let me note some more comments from the Independent Anti-Slavery Commissioner, Dame Sara Thornton:

“Whilst I acknowledge the rationale for bringing all categories of vulnerability under the AAR policy, there are multiple factors that are specific to victims of modern slavery that are significant.”

Also,

“under Article 13 of ECAT potential victims of modern slavery with a positive reasonable grounds decision are entitled to a reflection and recovery period where they cannot be removed from the UK. I am aware that in order to detain there must be ‘a realistic prospect of removal within a reasonable timescale’. It is therefore important to highlight that in 2019, it took the Home Office Single Competent Authority an average of 452 days”

to make a conclusive decision. Does the Minister acknowledge the tension in timescales between a realistic prospect of removal and an average of 452 days to make a decision?

I draw attention to the Independent Chief Inspector of Border and Immigration’s report “Annual Inspection of ‘Adults at Risk in Immigration Detention’ (2018-19)”. The first inspection report, which was published in April 2020, noted that

“there is a lot more that the Home Office can and should do to make each component”

of the AAR policy “more efficient and more effective.” Further, the inspector said:

“I have set a deadline (31 March 2020) for the implementation of the recommendations that are specific to Adults at Risk”.

Can the Minister confirm whether the specific recommendations identified for implementation by 31 March last year have been accepted and implemented?

I understand the 2019-20 report is now in draft with publication due in September. Can the Minister advise whether the ICIBI has concluded whether their concerns have now been allayed? Or do those concerns remain, or have they risen? Even relying solely on the concerns raised in 2018-19 report, did they not give the Minister pause in making the changes? Can he, in his response, share what guided his thinking?

Finally, I want to touch on some comments in The Independent about the rationale so the Minister can clarify. The newspaper said:

“Ministers are planning to make it more difficult for trafficking survivors to be released from detention as part of plans to prevent serious criminals from taking advantage of modern slavery safeguards by using them to prevent their removal from the country.”

Essentially, this is a misuse of a provision. Is that the case? If so, what consideration did the Home Office give to improving the existing process rather than closing it down? What consideration has the Home Office given to managing a definition of a foreign national offender that will likely include actions that victims of slavery or trafficking were forced to undertake? Many survivors of modern slavery are forced to commit criminal acts, such as pickpocketing, drug cultivation or even fraud, as part of their exploitation. In 2020, potential victims were most commonly referred to in the national referral mechanism for cases related to purely criminal exploitation, which accounted for 34% of all referrals. I would be grateful if the Minister could just clarify this point, because it would be a shame if the references to foreign national offenders were getting caught up with the issue, whereby many people who are subject to trafficking are forced into crime as part of their victimisation.

May I just repeat how grateful I am for this opportunity to raise these points with the Minister today? There are issues with the adults at risk policy. I know that it was only introduced in 2016, but I think that both the Minister and I wish to see improvements to our immigration policies, to ensure that loopholes are not exploited by those who do not deserve the right to exploit those loopholes. Equally, however, I know that the Minister, the Home Office, the Home Secretary and I are committed to a system that is compassionate and that has eyes on that individual who might otherwise be lost in a very bureaucratic system. I am therefore very grateful for the opportunity to put these points to the Minister today.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

It is a great pleasure to serve under your chairmanship, Mrs Murray; I think for the first time, but I am confident not for the last.

I thank my hon. Friend the Member for North East Bedfordshire (Richard Fuller) for raising the matter in this afternoon’s debate. As he said, we will have the pleasure of discussing it twice in two days. He is an assiduous campaigner on these issues and I am very pleased to have the opportunity to discuss them with him today, and, I am sure, on future occasions as well.

As a starting point, it is important to understand that the United Kingdom’s commitment to looking after victims or even potential victims of modern slavery is resolute. We enacted the Modern Slavery Act 2015, which has some very substantial protections for victims of modern slavery. We launched a modern slavery strategy back in 2014 and we are assiduous as a country in upholding our obligations under the ECAT treaty—the Council of Europe convention on action against trafficking in human beings—to which my hon. Friend referred. Indeed, many more modern slavery claims are made and accepted in the UK than in comparable European countries; I think that we had around 10,000 last year, which was many times higher than in countries such as France and Germany. I think our record on identifying and protecting victims of modern slavery is second to none across Europe, which we can all be extremely proud of.

However, we should also be clear that someone being recognised as a victim of modern slavery does not and should not automatically result in their being given immigration status in the UK, or in their being exempted from immigration proceedings. There are protections granted by the modern slavery provisions. My hon. Friend mentioned the reflection and recovery period, which is 45 days. Of course, if there is a recovery need that can only be met by the person remaining, that is obviously respected as well. However, it does not follow that every single potential victim of modern slavery should be exempted from immigration proceedings or indeed from detention.

Therefore, it is very important that we have a proper way of weighing up the various considerations that come before decision makers: on the one hand, there are questions of vulnerability, or potential vulnerability; and on the other hand, there is the need to operate a proper immigration system. That is an important balance to strike. Both those things are important; we are not minimising the importance of either one of them.

It is worth observing that the reasonable grounds threshold for a modern slavery decision is, by design, extremely low. At the moment, it is set out as “suspects but cannot prove”, which is an extremely low threshold. We are looking to make adjustments to that, as set out in the policy statement a few weeks ago, consistent, of course, with our ECAT treaty obligations. However, once the reasonable grounds decision is made, that does not mean that the person involved is a victim of modern slavery. It means that there are reasons to suspect, but without proof, that they might be a victim of modern slavery, which is extremely important to bear in mind.

There has been some evidence recently—I am talking about the last 12 months in particular—that for some cohorts in particular, including some foreign national offenders, it appears that modern slavery claims are increasingly being used as a means of disrupting immigration proceedings. We need to be mindful of that, and mindful that we should do everything to protect genuine victims of modern slavery, many of whom will have suffered appalling trauma and mistreatment. It is in the spirit of achieving that balance that the changes we are discussing today and will discuss again tomorrow are being made.

The change that my hon. Friend outlined so eloquently, enshrined in the statutory instrument laid on 25 February this year and coming into force, if passed, in a few weeks’ time, to make the release decision in relation to people with a positive reasonable grounds decision if they might be a victim of modern slavery is inside the ambit of the existing adults at risk policy. That is not to say that their potential vulnerability will be ignored, but the issue will be considered in the round and a balancing exercise will be performed, as it is with other forms of vulnerability in the existing scope of the adults at risk policy to make sure that everything is being properly accounted for in the round.

Having done that exercise, release decisions might, and in many cases will, still be made. An adults at risk policy, as my hon. Friend said, was introduced in 2016. It has had time to bed in and is being continuously improved upon, but it has a well-defined grading scale—level 1, level 2, level 3—and the more serious the evidence of vulnerability or potential harm, some of which my hon. Friend laid out in his speech, the higher the balancing factors have to be in order not to release.

Viewing the matter in the round and considering everything is an appropriate thing to do. It is a balancing exercise that we are trying to achieve. The caseworker guidance that will be published in due course will address the specific situation of potential victims of modern slavery. My hon. Friend laid out some of the unique circumstances associated with them, and the caseworker guidance will take into account the particular vulnerabilities that my hon. Friend drew attention to in his speech.

I hope that gives some reassurance about the approach that will be taken. The detention decision making process will of course include an assessment of the individual’s recovery needs. That will ensure that detention is maintained where the balancing criteria are met, and also where those needs can be provided from within detention. If those needs cannot be met from within detention, that would obviously argue very strongly and persuasively, probably decisively, in favour of a release decision being made.

It is also worth saying by way of context—I know my hon. Friend has a wider interest in detention; we have discussed it on many occasions—that detention is used sparingly. At any one time, 95% of people who might be eligible for detention are in fact in the community. The numbers being detained are relatively small by historical standards. If I take the figure from 31 December 2019, before coronavirus, because coronavirus has caused the number to go down even further, there were 1,637 people in immigration detention, which is a pretty small number when we measure that against the number of people who probably do not have the right to be in the country.

The 1,637 number approximately halved in the two-year period preceding. From 30 September 2017 to 31 December 2019, the number of people in immigration detention roughly halved. The vast majority of people—we have debated this previously—are in detention for relatively short periods of time. Some 74% are detained for 28 days or less, so detention is not being used on a widespread, indiscriminate basis, but it is an essential component of running a proper immigration system. Where someone does not have the right to be here, or where they have committed a serious criminal offence and they are a foreign national, it is right that we take steps to remove them. Without having immigration detention available, it is extremely difficult to do that, so it is an important thing to be able to do.

As I have set out, we accept that modern slavery is a truly despicable crime. We take our responsibility to identify victims very seriously. We also take our responsibilities in using immigration detention very seriously as well. Our focus as we take forward these changes will be to make sure that the right balance is struck and that potential victims with genuine vulnerabilities are protected. We are determined not only to protect those vulnerable individuals, but to bring the perpetrators of modern slavery to justice. It is in that spirit that we have introduced the changes that will be debated in the main Chamber tomorrow.

[Richard Fuller]

I have a very small point. Will the Minister respond to specific questions that I asked and commit to reply in writing?

[Chris Philp]

Yes, I am happy to give that commitment.

Question put and agreed to.