Nationality and Borders Bill: Re-trafficked children no longer protected

The bill contains a range of measures which will be highly detrimental to all trafficked children, as well as migrant children who are at high risk of exploitation.

• Read more: Nationality and Borders Bill endangers vulnerable children, warn campaigners

The legislation does not just contain measures on immigration which fail to protect those in need of safety but also makes extensive changes to the identification, protection and support of victims of trafficking and modern slavery, which is not an immigration matter. 

There is much more of concern in the bill, including some of our key concerns identified previously in our response to the New Plan for Immigration as well as some additional provisions not included in the proposals:

Plans to create a ‘one stop’ process and introduce credibility assessments for victims

• The bill establishes a procedure for ‘slavery or trafficking information notices’ to be issued to potential victims subject to immigration control. The notices will be issued to seek further information needed to make trafficking determinations in the NRM. Victims must provide this information within a specified timeframe.
• This measure discriminates between victims subject to immigration control and other victims by adding an additional barrier to identification for those subject to immigration control. Identifying victims is not an immigration matter but a safeguarding matter. These measures will create a two-tier system of support for victims with irregular immigration status and those who are not.
• These measures will also likely increase already overwhelming delays in the NRM. Lengthy delays to NRM decision making has a significant impact on children’s ability to access support, recover and move on with their lives.
• It is unclear how this procedure will work for children who currently do not need to consent to being referred into the NRM. It is also unclear who will be notified and how will this be applied in the sites where devolved decision making is taking place per the government pilot scheme. We’re concerned that despite taking a positive step forward with local decision making within existing safeguarding structures, this new measure takes many steps back.
• Failure to provide this information within the required timeframe will result in damage to children’s credibility in the identification process. Moreover, if children do not disclose their exploitation within the set timeframe, they may not be formally identified at all. This is hugely concerning due to the complexity of disclosure and impact of trauma, particularly for children who face additional vulnerabilities and barriers due to their age.

Increasing the reasonable grounds threshold

• It is unclear how the bill will impact practice and if it is increasing the threshold of proof to obtain a ‘reasonable grounds’ decision in the NRM by amending provisions in the Modern Slavey Act. Neither the bill nor the explanatory notes provide a definitive threshold for this stage in the identification process, unlike that provided for a conclusive grounds decision which will be set in this bill as the ‘balance of probabilities’.
• If amending the language means introducing a higher standard of proof at the reasonable grounds stage, this will likely exclude many children from being identified as potential victims of trafficking and constitute a moral and legal failure to protect some of society’s most vulnerable children.

Clarifying the definition of “public order” 

• This bill will disqualify many children from protection. For example, it will preclude 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.
• This is hugely worrying as child victims are commonly criminalised for offences committed due to their exploitation. The bill would leave them without the possibility to access support or challenge their offences on appeal.
• Children even suspected of ‘terrorism related links’ will be precluded from being identified as victims, even if they have been groomed and exploited by armed groups. This is in direct contravention of international law.
• Children who are victims of exploitation and abuse should be protected, not prosecuted, in line with their fundamental human rights.

Immigration leave for child victims of trafficking is not taken into account at all within the Bill

• The bill does not set out the specific standard for immigration leave for children. This contravenes the European Convention Against Trafficking (ECAT) to which the UK is bound. ECAT clearly states that immigration leave must be granted in the child’s best interest as the only standard.
• The standard set out in the bill sets out a ‘temporary leave’ which can be granted if the victim is cooperating with a police investigation or due to personal circumstance, but these are unlawful thresholds to require for children. All child victims must be granted immigration leave in line with their best interests as the only standard, per international law.

Age assessment clause could see more children classed as adults and at risk

• The bill gives the government power to set out the details regarding the age assessment proposals at a later date by regulations but they have committed to supplement this clause ahead of Committee stage in the House of Commons.
• Age disputes are already a significant factor preventing children from receiving the care and support they are entitled to and putting them at risk of harm when wrongly treated as adults.
• The aims of this clause will not make the age assessment process any more reliable and will create significant risk for child victims of trafficking, such as imprisonment and detention among other breaches of children’s rights.

Wider asylum clauses will be particularly harmful to unaccompanied children who are at significant risk of exploitation

• This bill will create a two-tier asylum system for those seeking sanctuary in the UK. People seeking asylum arriving from a ‘safe third country’ on their journey to the UK will no longer be granted protection. Instead, they will receive temporary status and be subject to removal from the UK. This will leave them extremely vulnerable to exploitation by those who exploit their vulnerability and fuel, rather than tackle, trafficking.
• With regard to this measure, the bill makes no distinction between children and adults seeking asylum, despite the additional vulnerabilities and barriers children face due to their age and developmental stage. ECPAT UK has long highlighted the high numbers of trafficked and unaccompanied children going missing from care – an indicator that they are being exploited. Immigration insecurity and risk of removal is a key driver in children going missing.

New measures in the bill

• The bill sets out that victims who have been re-trafficked will no longer be entitled to support and protection. This may severely impact child trafficking survivors who are subsequently re-trafficked as they transition to adulthood and require access to support and protection through the NRM. What’s more, this demonstrates a fundamental misunderstanding of the nature of child trafficking and survivors’ ongoing vulnerability, and will diminish existing efforts to tackle trafficking.
• The bill has clearly disapplied derivate EU law from the Anti-Trafficking Directive from applying in the UK.

Laura Durán is a senior policy and research officer at ECPAT UK