Written evidence from Reprieve (NBB0063)

“Trafficking is trafficking is trafficking… There’s not a law that I’ve seen anywhere in the world that says "you’re trafficked unless you’re trafficked by this particular person, group or entity”.[1]

STEVE HARVEY, FORMER MET POLICE OFFICER INVOLVED IN UK’S FIRST ANTI-TRAFFICKING OPERATION

EXECUTIVE SUMMARY

In its current form, the Government’s Nationality and Borders Bill strips victims of trafficking of their right to protection, and emboldens armed, dangerous groups who use human trafficking as part of their activities. Through an unjustifiably wide-ranging ‘public order exemption’, Clause 51 of the Bill gives the Government the power to refuse vital support to trafficking victims and to deny victims the right to have their trafficking investigated.  

Reprieve would like to highlight the following concerns with the legislation as it stands: 

1        Clause 51 would allow the Government to pick and choose which trafficking victims merit protection, penalising certain trafficking victims for the acts of their traffickers. It "disqualifies" victims of trafficking from protection where there is a "suspicion" of "involvement" in terrorism-related activity even where it is clear that this activity "is attributable to the person being, or having been, a victim of slavery or human trafficking". A child trafficked by the Taliban could thus be denied protection purely on the basis that their trafficker is a member of a terrorist group.

2        By disqualifying victims from protection, Clause 51 effectively gives armed trafficking groups a licence to traffic. Traffickers rely on victims’ fears that authorities will not assist them or may take action against them.  This clause will decimate victim co-operation with the police and prosecutors in cases brought against human traffickers, particularly armed groups, ultimately emboldening these groups and supporting their activities. Because investigations would no longer be carried out in circumstances where an individual may have been trafficked by a terrorist organisation, the ability to prevent future trafficking by terrorist organisations will be severely hampered.

3        Clause 51 would expose some of the most vulnerable victims of trafficking to the risk of re-trafficking, torture and even death. For example, the majority of British women currently detained in camps in North East Syria are victims of trafficking by ISIS. Clause 51 would enable the UK to ignore its legal obligations in respect of these vulnerable women and girls, leaving them in conditions recognised by UK courts as constituting cruel, inhuman, and degrading treatment.[2] It also exposes them to the risk of torture and execution in Assad-controlled Syria or Iraq. 

4        Clause 51 violates the UK’s international legal obligations and undermines the UK’s reputation as a world leader in combatting human trafficking. Clause 51 undermines the achievements of the Modern Slavery Act and deepens the concerns of the UK’s closest security partners about the UK’s competence in protecting victims of trafficking by terrorist groups. The United States’ Department of State has already expressed concern that the UK Government “penalized some victims for unlawful acts traffickers compelled them to commit” and “stripped citizenship from British citizens who went to Syria and Iraq to join ISIS without screening them for indicators of trafficking".[3] 

This briefing describes each of these concerns in more detail and proposes arguments on each to be made during the Bill’s Committee Stage. 

CLAUSE 51 PENALISES TRAFFICKING VICTIMS FOR ACTS OF THEIR TRAFFICKERS

Clause 51 of the Nationality and Borders Bill would pick and choose which trafficking victims merit protection depending on the identity of their traffickers, penalising those trafficked by armed groups. The Clause therefore further isolates vulnerable victims of trafficking, removing their protections because they were coerced by their traffickers.

Currently when someone is assessed as a potential trafficking victim (a ‘reasonable grounds’ decision), the authorities must provide certain protections to safeguard them and prevent their re-trafficking. They must then investigate whether the person is in fact a victim of human trafficking and issue a ‘conclusive grounds decision’, after which victims are entitled to further protections to enable them to escape the cycle of trafficking.[4]

In evidence before the APPG on Trafficked Britons in Syria, ex-Metropolitan Police officer Steve Harvey stated that any approach which excluded victims from protection based on who trafficked them would violate international policing best-practice: “trafficking is trafficking is trafficking…There’s not a law that I’ve seen anywhere in the world that says ‘you’re trafficked unless you’re trafficked by this particular person, group or entity’”.[5]

Clause 51 seeks to depart from this best practice. Under Clause 51 the government no longer has to conclusively determine whether someone is a victim of trafficking and protect them if the Competent Authority[6] determines they fall within a ‘public order’ exemption. This extraordinarily broad exemption includes:  

• Anyone merely “suspected” of wrongdoing, such as where there is merely a “reasonable suspicion” that a victim has been “involved” in “terrorism-related activity.” The exemption applies even where this “involvement” was forced on victims – including child victims – by their traffickers: Clause 51 captures involvement even where it is “attributable to the person being, or having been, a victim of slavery or human trafficking” by a terrorist group.[7] 
• Anyone who has served a sentence of 12 months imprisonment or more, or who is a foreign criminal within the meaning of the UK Borders Act, seemingly even where that sentence was for an offence they were forced to commit by their traffickers.[8] 
• Anyone who has had their citizenship deprived under the British Nationality Act on the basis that is conducive to the “public good”.[9]  

These provisions would likely exclude a huge number of potential victims of trafficking from protection, such as those described in the following case studies.

Case study 1: UK women and girls trafficking to Syria and Iraq by ISIS

For years, ISIS systematically groomed and trafficked hundreds of women and girls into Syria and Iraq for the purpose of sexual exploitation,[10] many of whom are now detained in camps in North East Syria (NES). Reprieve’s investigations have found that at least 63% of British women detained in NES were trafficked, some when they were as young as 12 years old.[11]

‘Nadia’ (an anonymised name) is one such victim, described in detail in Reprieve’s report, Trafficked to ISIS.[12] Nadia was 12 years old when she was taken to Syria by a male relative from the UK. In Syria, Nadia was repeatedly raped, forced into marriage at the age 14, and had her first child conceived by rape at the age of 15. Eventually, after years of domestic servitude and sexual exploitation, Nadia and female family members managed to escape ISIS territory and seek refuge in territory held by the Syrian Democratic Forces. She is now arbitrarily detained along with her young son.

On the basis of her background, Nadia is likely to be denied protection pursuant to Clause 51, as she was coerced into living under ISIS’s control.

• Case study 2: Children trafficked by Taliban

In December 2020, it was disclosed in litigation that the Home Office had an “unpublished policy” that a person could not meet the criteria for a victim of trafficking if they were trafficked by a terrorist group.[13] In this case, the victim was a child trafficked by the Taliban, and the Home Office had refused to identify him as a victim of trafficking on the basis of this “unpublished policy.” Following High Court proceedings, the Government conceded that the policy represented a “misunderstanding of the law” and that it was wrong in law to deny this child protection.[14] Clause 51 would reverse the logic of this finding; if the Taliban sought to traffic more children, their status as a terrorist organisation would disqualify the child, an innocent victim, from protection.

Anti-trafficking groups have already raised concerns that with the end of the war in Afghanistan, trafficking by the Taliban will increase exponentially, with Afghan nationals already among the largest groups of people reported to anti-trafficking helplines.[15] Current and future victims of Taliban trafficking could be denied protection by Clause 51.

CLAUSE 51 EFFECTIVELY GIVES ARMED TRAFFICKING GROUPS A LICENCE TO TRAFFIC AND ASSISTS THEIR OPERATIONS

Clause 51 reflects a dangerous choice by Government not to investigate the use of trafficking by terrorist groups. This will impede law enforcement, hamper prosecution efforts, and weaken national security. Research has demonstrated groups like ISIS, the Taliban, and other armed organisations use trafficking as part of their funding, recruitment and logistical functions.[16] By deciding that victims of these groups cannot have their cases investigated, Clause 51 tacitly accepts that the groups can continue to traffic unhindered, and denies the intelligence services and the police vital information in combatting terrorism.

Traffickers rely on victims’ fears that authorities will not assist them or may take action against them, using “threats of physical harm to the victim or her family and friends or threatening to call the police to have the victim arrested or deported if they do not submit to the trafficker’s demands”.[17] By withdrawing protections for victims, Clause 51 would discourage victims reporting on trafficking operations and serving as witnesses in prosecutions, while also depriving the police and intelligence agencies with information on armed groups’ trafficking tactics and networks.

It is well established that “victims are crucial to human trafficking investigations and prosecutions”[18] and that “victims who trust and feel comfortable with law enforcement are more likely to share relevant facts…this increased participation can, in turn, lead to increased case clearance rates and more successful prosecutions”.[19] Recent analysis by an anti-trafficking NGO found that 87% of victims supported by the victim navigators engaged with police investigations, as compared to only 33% where support was not provided.[20]

Without protection, victims are therefore less likely to cooperate with law enforcement which, in turn bolsters the operations of armed groups, for whom human trafficking serves as an essential part of their modus operandi. As the Organization for Security and Co-operation in Europe (OSCE) has detailed, terrorist groups “accrue human capital, tactical adaptability and ideological reinforcement for their organizations by employing trafficking acts and means to exploit vulnerable adults and children for a variety of purposes, including sexual exploitation, forced labour and slavery, and even combat.”[21] The Financial Action Task Force has found that terrorist groups use human trafficking “as a way to raise funds and support to their organizations and activities.”[22]

Clause 51 will result in a reduction of crime reporting, less victim co-operation, and fewer successful prosecutions, ultimately emboldening traffickers. By abandoning victims, the Government will enhance armed groups’ ability to use human trafficking to support their operations.

CLAUSE 51 EXPOSES VICTIMS TO RE-TRAFFICKING, TORTURE, AND DEATH

Reprieve’s investigations indicate that at least 63% of British women detained in NES have been subjected to sexual and other forms of exploitation and were either under the age of 18 when they travelled, were coerced into travelling, and/or were kept and moved within Syria against their will.[23] Clause 51 appears designed to target these individuals, seeking to deny them the rights and protections owed to all trafficking victims.

Clause 51 would enable the UK to ignore its clear legal obligation to repatriate British victims of trafficking detained in camps in NES and investigate what happened to them. This will leave extremely vulnerable women and girls in conditions recognised by UK courts as constituting cruel, inhuman, and degrading treatment,[24] as well as potentially exposing them to torture and execution in Assad-controlled Syria or Iraq.

At least two British nationals have died whilst in detention in NES, with many requiring urgent medical and psychological care.[25] On 13 August 2020, it was reported that eight children under the age of five died in Al Hol Camp within five days.[26] Despite outbreaks of Covid-19 in the densely packed camps, Save the Children has reported just 28 intensive care unit beds and 11 ventilators in all of NES.[27] The security situation is catastrophic; so far this year, seventy people have been murdered in Al Hol camp.[28] Moreover, the United Nations Syria Commission of Inquiry recently reported that the security situation in NES has deteriorated and that attacks by remnants of ISIS have increased.[29] These “apocalyptic”[30] conditions and increasing instability leaves women and children vulnerable to re-trafficking and further exploitation by factions within and outside the camps.[31]

If UK nationals in Syria are not returned home, the only other places to which they could realistically be transferred are Iraq or Assad-controlled Syria where they would face torture and execution.[32] In May 2019, at least seven French citizens were sentenced to death in Baghdad after being transferred from Syria,[33] and Human Rights Watch has reported that “interrogators routinely use torture to extract confessions, and in most cases judges ignore torture allegations from defendants”.[34] As to Assad-controlled Syria, the UK Government’s most recent Human Rights and Democracy report notes “the arbitrary detention of tens of thousands of individuals” in Syrian prisons,[35] while a Human Rights Watch investigation in 2015 revealed at least 6,700 killings in Syrian detention.[36]

As UN Special Rapporteur on Trafficking in Persons, Siobhán Mullally, stated in July of this year, the UK is under a strict legal obligation under both UK and international human rights laws “to protect all victims of human trafficking, without discrimination”.[37] Clause 51 explicitly enables the UK to ignore this obligation and abandon them to potentially face torture and death.

CLAUSE 51 BREAKS INTERNATIONAL LAW AND UNDERMINES THE UK’S ANTI-TRAFFICKING REPUTATION

Parliament passed the flagship Modern Slavery Act in 2015, asserting Britain’s commitment to prosecuting traffickers and protecting trafficking victims.[38] However, Clause 51 of the Nationality and Borders Bill would undermine the purpose of that Act, emboldening traffickers and abandoning victims.

Further, Clause 51 would break the UK’s legal obligations, under domestic and international law, to identify and protect victims of trafficking.[39] Under Article 4 of the European Convention of Human Rights and Article 10 of the European Convention on Action against Trafficking, the UK Government is required to take steps to identify and protect victims of trafficking.[40] Clause 51 directly contravenes this obligation.

Britain is currently ranked by the US State Department as a Tier 1 country for combatting human trafficking – meaning Britain ranks as one of the top states in fighting trafficking. However, the UK Government’s approach to victims of trafficking by armed groups is threatening its leadership, with the 2021 US State Department Trafficking in Persons Report criticising the UK Government’s approach. It reported evidence that the UK Government “penalized some victims for unlawful acts traffickers compelled them to commit” and “stripped citizenship from British citizens who went to Syria and Iraq to join ISIS without screening them for indicators of trafficking".[41] The report asked the UK to “ensure victims are not penalized for unlawful acts…their traffickers compelled them to commit”.[42]

Clause 51 runs contrary to these recommendations, jeopardising the UK’s reputation as a world-leader in combatting human trafficking. In contrast to Clause 51, British Ambassador to the OSCE Neil Bush recently stated that “supported victims lead to stronger cases”, and called on “States to show the political will to address comprehensively this important issue” [43]. The UK cannot lead in the global fight against trafficking while introducing laws which leave it in breach of its international commitments.