Nationality and Borders Act 2022: impact on Modern Slavery

Written by Robyn Macarthur

Introduction

On the 25th June 2024, the British Institute of International and Comparative Law published a report titled ‘Assessing the Modern Slavery Impacts of the Nationality and Borders Act: One Year On’. Fundamentally, the aim of this report was to analyse the impacts of the Nationality and Borders Act 2022 (NABA) on the identification and wellbeing of those with lived experience of modern slavery. Additionally, the research sought to consider whether the impacts have been in line with the stated policy objectives and also analyse impacts that the NABA measures have had on organisations working within the modern slavery sector.

For the purposes of this article, modern slavery is considered to be “when an individual is exploited by others, for personal or commercial gain … whether tricked, coerced, forced [and] includes but not limited to human trafficking, forced labour, debt bondage”.

What is the Nationality and Borders Act 2022?

Essentially, the NABA 2022 is a piece of legislation containing provisions concerning asylum, nationality, immigration, victims of human trafficking and slavery. NABA came into force on the 28th June 2022. However, the majority of provisions relating to modern slavery (predominantly contained in Part 5 of the Act) did not enter into force until 30th January 2023. Moreover, these provisions were implemented on the same day that amendments were made to the Modern Slavery Statutory Guidance. Some of these amendments related to ‘Reasonable Grounds’ decisions and the distinction between defining ‘victims of trafficking’ and ‘victims of slavery’. For context, Reasonable Grounds decisions are essentially the formal determination of whether an individual is ‘a potential victim of slavery or of human trafficking’.

In the context of Modern Slavery, it can be said that essentially, NABA sought to raise the threshold for modern slavery claims and strengthen protections for those with modern slavery needs. However, as will be explored in due course, these objectives may not have been met in practice.

What is NRM?

When talking about NABA and the provisions for modern slavery, the NRM seems to be important. ‘NRM’ stands for the National Referral Mechanism. This is essentially a department of the Home Office who are responsible for determining whether an individual should be given protection due to them being a victim of trafficking. In order to be deemed a victim of trafficking one must have been referred to the NRM and this referral can only happen through a ‘first responder’ such as Migrant Help, Salvation Army and other organisations, charities and authorities.

Once a referral to the NRM has been made, the individual in question can not be removed from the UK whilst a decision is being made (the decision being whether or not they are a victim). The initial decision reached is called a ‘reasonable grounds decision’ (made based of a balance of probabilities) and this should be reached within 5 days of the referral reaching the NRM. However, like with many aspects of the UK immigration system, there can be delays in reaching this decision.

Following a positive reasonable grounds decision being reached, an individual will have to wait for a second decision to be made (namely a ‘conclusive grounds decision’). During this process, support provided by the Salvation Army and its partners is available. A few examples of this type of support can be: legal advice, financial support and accessing a safe place to stay. Also, following a positive conclusive grounds decision, an individual may be entitled to discretionary leave to remain.

Finally, if all goes wrong and a negative reasonable or conclusive grounds decision are reached, these can be challenged. One can challenge these decisions through simply asking the decision-maker for reconsideration or judicial review may be available in certain circumstances.

What does the report say/recommend?

Key findings of the report cover three categories:

1. Impacts on decision-making;

2. Impacts on people with lived experience of modern slavery and

3. Impacts on organisations in the modern slavery sector.

In regards to impacts on decision-making, the most notable findings are as follows. The associated changes to the Statutory Guidance (and NABA generally) have coincided with a decrease of positive decisions within the NRM at the reasonable grounds stage. Allegedly, this comes to light the most when looking at adult referrals, referrals of Albanian nationals and referrals where the Immigration Enforcement Competent Authority has been deemed responsible. In January 2023, evidentiary requirements were elevated which research participants feel that this has resulted in significant numbers of individuals being denied identification and support and that this was not sufficient in meeting the aims of the policy.

In regards to impacts on those with lived experience of modern slavery, the clearest impact seem to be the exclusion of these individuals from the statutory support provided within NRM and the subsequent damage to the mental health of those involved due to factors such as: the general operation of the system, broader discourse that came with the adoption of NABA and also for those seeking asylum who may hold a fear of being re-trafficked or exploited on return should their asylum claim fail.

In regards to impacts on organisations in the modern slavery sector, there is a general consensus amongst research participants that the changes have resulted in uncertainty and confusion regarding the performance of their duties. This could potentially be down to a lack of communication from the Home Office about the changes ahead of time. It has also been noted by the report that these changes to NABA have inflamed pre-existing issues concerning access to legal advice and also the increased complexity of cases. Like with those with lived experience of modern slavery, this uncertainty and pressure on organisations has unsurprisingly taken a considerable toll on staff’s mental health.

Additionally, the report made ‘key recommendations’ to three groups of people: 1. Parliamentarians; 2. The Home Office and 3. The modern slavery sector. Before summarising these recommendations it is crucial to note that these are only mitigating and not remedial recommendations. This is because the only remedial recommendation the report seems to suggest is to repeal Part 5 NABA in its entirety and replace it with a less discriminatory and more evidence-based/international law-compliant set of measures.

In regards to parliamentarians, the above pretty much summarises their recommendations. The report suggests to amend relevant provisions of NABA (ensures the UK is compliant with their international obligations) and to avoid ‘stigmatising’ language when discussing modern slavery in legislation and more generally.

In regards to the Home Office key recommendations seem to be clear and effective communication of changes to modern slavery policy should be given to First Responder Organisations (eg Salvation Army, Migrant Help and so forth). This communication should be received with plenty of time before the changes come into effect so these organisations can properly prepare in advance. Another key recommendation is that the Home Office should essentially ‘stamp out’ any discriminatory implementation of the policies.

In regards to the modern slavery sector key recommendations mostly include providing staff with ongoing support such as psycho-social support to help with the potential inevitability of burnout and secondary trauma. Also, the report has advised the modern slavery sector to document all the impacts of the policies on staff and those with lived experience as it will contribute to the ongoing discussion concerning these policies.

To conclude, this article has discussed briefly what NABA is, how the NRM operates and has discussed what this latest report has found concerning this legislation and its impacts on modern slavery. As always, UK Immigration Law is ever changing, for example the Illegal Migration Act was recently enforced and has restricted access to the UK’s modern slavery protections to those who enter this country “illegally”. The situation for modern slavery protections in the UK could look very different in a few years time however this is purely speculatory and only time will tell. Finally, if you want to read more into the key findings and recommendations of the report published by the British Institute of International and Comparative Law, I have included a link to a summary of it below.

A summary of ‘Assessing the Modern Slavery Impacts of the Nationality and Borders Act: One Year On’: