Written evidence from ECPAT UK (NBB0046)

1. Key Points

1.1.  The bill is not compatible with the UK’s obligations under the European Convention on Human Rights, Council of Europe Convention on Action against Trafficking in Human Beings, the Refugee Convention, and the Convention on the Rights of the Child.

1.2.  Identifying, protecting, and supporting child victims of trafficking is not an immigration matter but a child protection matter.

1.3.  All decisions about children, including that of immigration leave must be made in their best interests as the primary consideration.

1.4.  Children must not face discrimination due to their immigration status.

1.5.  Children must not be disqualified from protection in the UK and all children who commit offences as a result of their exploitation should be safeguarded, not criminalised.

1.6.  All responses to children should be child centred, rights based and trauma informed, recognising the impact of abuse, the inherent nature of exploitation and understanding of child development. 

2. About ECPAT UK

2.1.  ECPAT UK (Every Child Protected Against Trafficking) (“”) is a UK-based children’s rights organisation advocating for the right of children to be protected from exploitation. ECPAT UK was established in 1994 to campaign against the sexual exploitation of children. Its efforts help prompt the passage, in 1997, of new legislation for the prosecution of British nationals who sexually abuse children abroad. It became the UK national representative of ECPAT International in 1997 and became a registered charity in July 2004. ECPAT International is a global network of children’s rights organisations coordinating research, advocacy and action to end the commercial sexual exploitation of children. There are 122 ECPAT members in 104 countries.

2.2.  ECPAT UK is grateful for the opportunity to raise the following concerns in connection with some of the questions identified in the Committee’s call for evidence. We make this submission, having regard to the specific issues in respect of which the Committee has invited responses, with a particular focus on matters concerning child victims of modern slavery.

3. Will the proposed instructions to decision-makers on how to interpret the Refugee Convention secure or restrict the protections that Convention guarantees?

3.1.  Clauses 27-36 purport to provide an interpretation of the Refugee Convention (“RC”) in primary legislation but are more restrictive than the RC, or EU Qualification Directive implementing domestic regulations which are revoked; and worse, omit the protective language. This includes definitions as to who is a refugee, circumstances for persecution, exclusion from refugee protection or refoulement.

3.2.  This approach is contrary to the RC and the European Convention on Human Rights (“ECHR”). These clauses will impact child victims of trafficking with protection claims particularly on the meaning of persecution, acts of a gender-specific or child-specific nature which are omitted and frequently serve as the basis of persecution in many claims raised. The provision of ‘membership of a particular social group’ child trafficking victims usually raise, requires a ‘characteristic’ which is not in the RC. It requires a subjective fear to be shown, which would impact children including those who express a fear of being re-trafficked in their home country. Also concerning is the inclusion of the introduction of two separate standards of proof in relation to the existence of a fear on the ‘balance of probabilities’, and then a reasonable likelihood that the person would be persecuted departing from well-founded fear.

4. Do the changes that the Bill would make to the law regarding modern slavery ensure appropriate protections for victims? What will be the consequences of the presumptions that compliance with procedural requirements should affect a person’s credibility as a victim?

4.1.  The UK government signed the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) on 23 March 2007. It was ratified on 17 December 2008 and came into force on 1 April 2009. This prompted the creation of the National Referral Mechanism (“NRM”), a victim identification and support process which is intended to help the UK meet its obligations under ECAT. The NRM was introduced by way of non-statutory guidance, rather than through legislation. The system is now set out in the Secretary of State’s Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland Version 2.3.[1]

4.2.  In 2009 there were two designated Competent Authorities: the Home Office division responsible for visas and immigration (to which non-EU/EEA nationals were referred), and the UK Human Trafficking Centre (“UKHTC”) within the National Crime Agency (to which British/EU/EEA nationals were referred). From the outset, the NRM suffered from a number of serious problems and limitations. In February 2014, the Anti-Trafficking Monitoring Group (“ATMG”) – which comprises a number of NGOs with expertise and experience in trafficking issues, including ECPAT UK - published a five-year review of the NRM.[2] The 2014 Review was submitted as evidence to the Joint Committee on the Modern Slavery Bill. It was based on research which identified a number of serious problems in the system. In particular, it concluded that based on publicly available data between 2011 - 2012 there was a serious disparity in the percentage of positive Conclusive Grounds decisions made for British and EU/EEA nationals by the UKHTC (80%) and the Home Office (less than 20%). It identified a ‘culture of disbelief’ in Home Office decision-making processes, by reference to further data showing disparities of outcome by reference to the nationality of children, and written reasons provided by the Home Office in trafficking cases.

4.3.  In April 2014 the Home Secretary commissioned a review of the NRM, led by Jeremy Oppenheim, a senior civil servant. The final report known as the ‘Oppenheim Review’ was published in November 2014.[3] It recorded: ‘concerns over the conflation of human trafficking decisions with asylum decisions, elongated timeframes for decisions, lack of shared responsibility and provision of relevant information for decision-making, [and] the complexity of the system and thresholds for decision-making.’ Following recommendations from the Government’s own Pilot Evaluation,[4] it was announced on October 2017[5] that a  single, expert unit to be created completely separate from the immigration system would be formed to undertake the NRM decision making function. This new Single Competent Authority (“SCA”) sits within the Home Office Serious and Organised Crime Directorate and outside of UK Visas & Immigration (“UKVI”) and the UKHTC subsequently renamed the Modern Slavery Human Trafficking Unit (“MSHTU”). This reform was undertaken in recognition of the demonstrated discriminatory decision-making which results in the conflation of trafficking decisions within the wider immigration decision framework.

4.4.  The modern slavery clauses included in this bill will undermine these advances and the separation between decision-making for victims and immigration matters creating a two-tier system for potential victims and a return to the discrimination faced by foreign national victims in the previous system including children.

4.5.  In 2017, the House of Commons Work and Pensions Committee concluded that ‘treating confirmed victims of modern slavery differently depending on their nationality has created a confusing landscape that is poorly understood by professions or victims themselves’, meaning that ‘some victims face destitution or even a return to their enslavers because they have no ongoing access to support”: Victims of modern slavery.’[6]

4.6.  Clauses 46-47 create a new slavery or trafficking information notice to be issued only to potential victims claiming asylum or human rights protection following referral by the Home Secretary seeking further information to make a reasonable grounds and/or conclusive grounds determination under the NRM. Failure to provide information within the designated time may lead to the credibility of children being damaged.  

4.7.  It is well understood, even in the Government’s own statutory guidance[7] that trauma amongst other factors, significantly impacts the ability to disclose exploitation. Child trafficking is a form of child abuse, and survivors of this form of abuse may be unable to provide effective disclosure even in adulthood.[8] Additionally, the ability to engage with processes may be hampered by symptoms of depression, anxiety and post-traumatic stress disorder common for child trafficking survivors.[9] Victims need time and a sense of safety before they can begin to disclose their experiences.[10] In light of the impact this proposal will have we ask for the withdrawal of modern slavery consideration amongst the ‘one stop process’.

4.8.  These clauses will add an additional burden for children due to their immigration status which is clearly discriminatory and in breach of Article 3 of ECAT, Article 14 of The Equality Act 2010 and Article 2 of the United Nations Convention on the Rights of the Child (“UNCRC”).

4.9.  Clause 48 amends the Modern Slavery Act 2015 from the current reasonable grounds threshold to believe that a person may be a victim to reasonable grounds to believe that a person is a victim. The reasonable grounds stage determines a potential victim’s entitlement to support and assistance.

4.10.                     The clause also sets out the threshold for conclusive grounds decision in statute for the first time as that of ‘balance of probabilities,’ unlike the threshold for the reasonable grounds decision which is not stated clearly.  The clause also gives the Secretary of State the power to change the threshold for decision making without full parliamentary scrutiny

4.11.                     There is currently no available information in the bill nor in the explanatory notes which set out what the new legal threshold for a reasonable grounds decision will be.

4.12.                     Research shows that children, find it difficult to disclose their experiences of abuse.[11] In consequence, disclosure is rarely a single event, but happens over time and occurs only when the child has a trusted and secure relationship with a practitioner. In addition, children who are exploited may, on first contact with a public authority, repeat stories which their traffickers have coached them to provide. Once included by the First Responder in the referral form, this information can be (and, in our experience, is) used to make adverse credibility findings if the child subsequently seeks to provide a true account.[12]

4.13.                     Most children will not have legal representation to support them when entering the NRM. In our experience, it is also very rare for expert medical or country evidence to be available at the Reasonable Grounds stage. The absence of expert evidence contributes to negative Reasonable Grounds decisions because, in our experience, this evidence is often critical in reaching an informed conclusion on a child’s case. For example, it can help explain relevant social, cultural or economic factors, or the effect of a potential victim’s mental health issues on their recollections.

4.14.                     Data obtained following a Freedom of Information request, shows that between 01 January of 2016 to 30 September 2020 there were 30,683 reasonable grounds decisions made of which 13,233 relate to those potentially exploited as children, including British national children who will also be significantly impacted by this clause.   

4.15.                     Clause 51 in the Bill seeks to preclude victims, including children, who have served custodial sentences of over a year, as well as those prosecuted for particular offences, from being identified as victims in contravention of international law.  

4.16.                     ECAT sets out a clear proportionality clause in article 13 which states: ‘the Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.’ Rightly, this provides member states a mandate to consider and interpret the possible reasons for public order grounds, but the clause aims to define ‘serious criminality’ as ‘specifically, where there is a prison sentence of 12 months or more’ without any view to ascertaining the proportionality of such a wide definition which will exclude children on an arbitrary basis solely on the length of custodial sentences. There are many offences which result in sentences of more than 12 months commonly committed by victims of trafficking, particularly children, who in the absence of identification[13] may not benefit from the protections of the non-punishment provision nor the statutory defences in primary legislation in Northern Ireland, England and Wales.

4.17.                     It is accepted that criminal exploitation is the most commonly reported form of abuse for potential child victims.[14] The Modern Slavery Statutory Guidance[15] sets out the specific case of children with regard to criminal exploitation stating: In cases involving children, criminal activity may appear not to have been forced but decision-makers should bear in mind that children cannot give informed consent to engage in criminal or other exploitative activity, and they cannot give consent to be abused or trafficked. A significant number of cases are for drug related offences, including so called ‘county lines’ which may carry custodial sentences of over 12 months. As an example, the Sentencing Guidelines Council’s Guidance for Drugs Offences[16] classification of cannabis cultivation as an either way offence which means it may carry a maximum sentence of six months imprisonment in the Magistrates’ Court to a 16 years’ custody in the Crown Court, on trial on indictment.

4.18.                     Professionals report that many children come to attention of statutory agencies when exploitation is already present in their lives and criminal groups are controlling them to deliver drugs, and that law enforcement takes precedence over safeguarding responses.[17] Data on arrests of children aged 10 to 17 for drug related offences shows that more children are arrested for ‘possession with intent to supply Class A drugs’ with an increase of 13% from 2015/16 to 2017/18.[18] Given the significant overrepresentation of children amongst those exploited for criminality, this proposal will detrimentally and disproportionality impact the ability of children from accessing the victim identification procedure under the NRM .

4.19.                     Additionally, the ‘terrorism’ sub sections of this clause will also exclude child victims exploited by non-state armed groups from accessing protection. The Bill does not account for the international legal framework on the use of children in armed conflict, a worst form of child labour as set out in International Labour Organisation (ILO) Convention No.182.[19] The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict[20] prohibits all recruitment – voluntary or compulsory – of children under 18 by armed groups.

4.20.                     The ILO sets out how ‘some children are used as fighters and take direct part in hostilities while others are exploited in supportive roles such as cooks, porters, messengers, or spies or for sexual purposes. Some may be abducted, forcefully recruited or personally decide to enrol (for instance for survival, for protection or for vengeance). However, when personal initiatives are analysed, it becomes clear that they were taken under duress and in ignorance of the consequences.’[21] Additionally, the Rome Statute of the International Criminal Court[22] makes it a war crime, leading to individual prosecution, to conscript or enlist children under the age of 15 years or use them to participate actively in hostilities.

4.21.                     Currently, the Modern Slavery Statutory Guidance does not set out how children exploited by armed groups fit within the criteria for consideration by decision makers under the National Referral Mechanism. Children have received negative reasonable grounds determinations as this was not considered by SCA decision makers to constitute exploitation within the parameters of Modern Slavery framework, already precluding children from being identified. Further exclusion on public order grounds will significantly hinder the ability of child victims to access support and protection.

4.22.                     Clause 53 creates a statutory discretionary leave provision for victims of trafficking and modern slavery for the Secretary of State to grant temporary immigration leave circumstances if a person receives a positive conclusive grounds decision. Eligibility is contingent on long-term recovery needs and assisting prosecutions. This standard is unlawful for child victims and does not fulfil the Government’s obligations under ECAT.  

4.23.                     Child victims of trafficking have rights to protection under the UNCRC and ECAT to ensure they can recover from exploitation and transition to adulthood in safety and stability. Article 14 of ECAT sets out how member states should issue renewable residence permits to victims when required such as owing to their personal situation, to pursue compensation and ongoing cooperation with law enforcement.

4.24.                     The standard for children is clarified at Article 14 (2) which states that ‘the residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.’ The explanatory report to ECAT goes on to state at paragraph 186: ‘In the case of children, the child’s best interests take precedence over the above two requirements. The words “when legally necessary” have been introduced in order to take into account the fact that certain States do not require for children a residence permit.’

4.25.                     The government currently has a policy to consider a grant of leave for victims of modern slavery and trafficking outside of the immigration rules following a positive conclusive grounds NRM decision in order to meet its obligations under ECAT by discretion. The policy states that the Home Office should automatically consider a grant of discretionary leave and that[23] in cases involving children decision makers must consider: ‘the best interests of the child is regarded as a primary consideration (although not necessarily the only consideration) and one that can affect the duration of leave granted. See section 55 of the Borders, Citizenship and Immigration Act 2009 for further guidance, and article 14(2) of the Council of Europe Convention on Action against Trafficking in Human Beings.’ Where the child or their parent meets the criteria for a grant of DL based on modern slavery, consideration should be given to factors such as the length of residence in the UK, where the child was born, and the strength of the evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than indefinite leave to remain (ILR). This does not alter the expectation that in most cases a standard period of up to 30 months DL will be appropriate.’

4.26.                     There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows its policy is not being implemented adequately. The Home Office reports on confirmed victims of human trafficking in one figure that includes all adults and children including British nationals issued with a National Referral Mechanism (NRM) conclusive grounds decision which shows that between January of 2016 to March of 2020 there were 5,054 confirmed victims. Thousands of decisions are still pending given the significant delays in the NRM.[24]

4.27.                     ECPAT UK requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response of which was published in our Child Trafficking in the UK 2020: a snapshot.  We requested a review of the data provided following irregularities and claims from the Government that the information was ‘misleading’[25], albeit it was their own data. The final data provided following this review shows that of the 5,054 decisions made in relation to modern slavery discretionary leave to remain for people with positive Conclusive Grounds decisions between January 2016- March 2020, 1645-2230[26] decisions related to those exploited as children out of which between 67 to 133 were grants of leave.  This means that only about 5% of child-related considerations resulted in a positive decision.  This 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 and providing minimal stability.

4.28.                     It is unknown how many child victims of trafficking were subsequently granted Indefinite Leave to Remain (ILR) under this policy but based on these figures we can estimate they are few. This is despite the explicit current policy that states the need to consider the length of leave including a grant of ILR in line with the child’s best interest. This 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.

4.29.                     The Government’s own response to the consultation on the New Plan for Immigration stated: ‘There was also general support for proposals around providing temporary leave to remain for potential victims of modern slavery, but there were some concerns raised about what this measure would mean in practice for victims, particularly children. The Government will provide further detail on the application of the measure through the Nationality and Borders Bill and corresponding Immigration Rules.’[27]

4.30.                     This concern is shared by the Independent Anti-Slavery Commissioner who states in her letter to the Home Secretary: ‘There is considerable concern within the sector regarding the absence of children throughout the Bill, and this clause in particular is felt to be at odds with Article 14.2 of ECAT. The guidance on discretionary leave for victims of modern slavery states that where the case involves a child, the best interest of the child should always be factored into any consideration regarding discretionary leave. The lack of clarity around what this clause would mean in practice for children was acknowledged in the government response to the New Plan for Immigration consultation and it is disappointing that this detail was not included as part of the Bill.’[28]

4.31.                     In line with the Government’s international and domestic obligations and responsibilities towards children, reform must put children’s rights and protection first and provide them with immigration outcomes consistent with their best interests. Legislation must ensure the rights of child victims are met, they still require meaningful policy solutions to the actual barriers they are facing such as providing meaningful durable solutions, [29] [30][31] appropriate accommodation [32] [33] and the ability to rebuild their lives. [34] [35] [36] [37] [38] [39] The clauses, as set out, will only increase the risks child victims face in current systems including their vulnerability to re-trafficking and going missing.[40]

5. Is the Bill otherwise compliant with the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child, the European Convention Against Trafficking in Human Beings, and international refugee conventions that the UK has ratified?

5.1.  The European Convention on Human Rights Memorandum[41] states that the provisions of the bill are compatible with the UK’s human rights obligations. The language and content of the provisions of the bill seek to override the ECHR, including Article 4 which prohibits slavery or servitude and forced or compulsory labour.

5.2.  The explanatory report to ECAT sets out the key aims of Article 12 sub-paragraphs a. to f “assist victims in their physical, psychological and social recovery.” Obligations include the special protection that children may require,[42] access to a residency permit,[43] access to compensation[44] and access to non-punishment provisions including Section 45 of the Modern Slavery Act (Statutory Defence). 

5.3.  The European Court of human Rights (“ECtHR”) found in the case of J and Ors v Austria [2017] ECHR 37,[45] that Article 4 generates a positive obligation on states to put in place a legal and administrative framework to identify and support victims and potential victims. The Court considered that such treatment was independent of the duty to investigate and prosecute cases recognising potential victims need protection before the offence of human trafficking is formally established. In the case of Chowdury v Greece [2017] ECHR 300,[46] the Court examined the positive obligations under Article 4 of the ECHR, including the duty to have an appropriate legal and regulatory framework to identify victims and to assist in their physical, psychological, and social recovery.

5.4.  Most significantly, in the recent case of V.C.L. AND A.N. v. The United Kingdom[47] the Court considered for the first time the relationship between Article 4 of the Convention and the prosecution of victims and potential victims of trafficking. The decision found a violation of Article 4 due to failure by the to take operational measures in line with international standards to protect children prosecuted despite credible suspicion they were trafficking victims. The disqualification of children as set out in Clause 51 will further truncate the UK’s operational measures to identify child victims leading to further violations of Article 4. 

5.5.  Article 12 of the UNCRC states that every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This principle recognises children and young people as actors in their own lives and applies at all times throughout a child's life.

5.6.  Given the information available to ECPAT UK, we are not aware of any engagement with children and young survivors in the development of this legislation. Government guidance setting out the principles out of good consultation also states that ‘consultations should be targeted to consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate. Ensure they are aware of the consultation and can access it. Consider how to tailor consultation to the needs and preferences of particular groups, such as older people, younger people or people with disabilities that may not respond to traditional consultation methods.’[48] No consideration has taken place taking into account the specific vulnerabilities of children and young people, particularly trauma, those who don’t or have limited English, are without access to digital devices, have learning difficulties or other disabilities which impede their access to the on-line portal.

5.7.  On September 16, 2021, the Government published a Equality and Impact Assessment[49] which accepts there ‘is a risk that our policies could indirectly disadvantage protected groups’ including children.

5.8.  The Government has so far not undertaken a Child Rights Impact Assessment to understand the impact of this Bill on the effects on children and the enjoyment of their rights. The UN Committee on the Rights of the Child recommends that States introduce a statutory obligation to conduct systematic CRIA.

5.9.  Particular clauses in the Bill are also clearly in breach of the UK’s obligations under the UNCRC as set out in the previous section in detail.

17/09/2021