Stealth legislation grants new powers to detain victims “on even wider scale”
Under new policy, passed without debate, people recognised by the Home Office as ‘potential trafficking victims’ will still be liable for detention as a result of their immigration status
Home Office acknowledges increase in detained trafficking victims “may be an effect” of new policy passed through Parliament without scrutiny
Parliament’s Secondary Legislation Scrutiny Committee (SLSC) label the ‘consultation’ “poor practice”, raising concerns around process
Home Office has told the SLSC that legal entitlements to support for potential victims will be delivered from within detention rather than the community
MPs have only 30 days to object (via a ‘fatal’ Early Day Motion), due to be tabled tonight, and secure a debate on this issue, otherwise policy comes into force on 25 May 2021
Read the the Secondary Legislation Scrutiny Committee report, with evidence provided by NGOs led by Medical Justice’s Elspeth Macdonald and Theresa Schleicher
View a Briefing for MPs on the subject complied by the group of NGOs
Under sweeping changes, even those with a legal entitlement to trafficking support will have to provide additional ‘evidence’ of vulnerability to be considered for release from detention.
NGOs have condemned the changes, which will see safeguards further eroded for victims of trafficking wrongfully detained due to their immigration status. Since 2019 alone, 2,914 potential victims of trafficking who should have had access to safe housing, counselling, and medical intervention were locked behind bars due to their immigration status.
Now, changes in detention guidance will bring potential trafficking victims under a more ‘general’ policy for vulnerable people in detention, known as the ‘Adults at Risk’ (AAR policy). These changes will downgrade the value of trafficking status within detention decision making, and introduce a higher evidence threshold for victims to access support. As a result, more survivors “may be detained, and for longer” according to a submission to the Secondary Legislation Scrutiny Committee.
Submitting concerns to the committee, non profits After Exploitation, Anti Slavery International, Bail for Immigration Detainees, Focus on Labour Exploitation, Freedom From Torture, Medical Justice and The Helen Bamber Foundation explain:
“The very fact that a Potential Victim of Trafficking (PVoT) has been trafficked often leads to them having a negative immigration history.
For example, being under the control of a trafficker may result in the person entering the country unlawfully, being unable to claim asylum as soon as they arrive, or being unable to travel in order to report.
Secondly, in order to benefit from a stronger protection against detention (i.e. that afforded at Level 3), once brought under the [more general] Adults at Risk (AAR) Guidance, PVoTs with a positive Reasonable Grounds decision [Potential Victim of Trafficking status issued by the Home Office] will now need to provide additional professional evidence demonstrating not only that they are an adult at risk, but that detention is likely to cause them harm.
Therefore, compared to the current arrangements, the amended AAR Guidance will make it significantly more difficult for PVoTs to avoid or secure release from detention.”
In relation to the risk of more victims being detained for longer, the SLSC confirms that “the Home Office response indicates that this may be an effect for some individuals”. Within the submission, Home Office evidence recognises that potential victims are entitled to certain rights such as those “under Articles 12 and 13 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT)”. However, the Government submission argues that these rights “will continue” to be delivered within detention rather than in the community.
The changes have been made via a negative ‘Statutory Instrument’ (SI), which allows Government to make changes to guidance, under the banner of an existing Act of Parliament. A ‘negative SI’ is not subject to Parliamentary debate or scrutiny, and the only way to annul this is through a ‘fatal’ Early Day Motion (EDM), which is being tabled tonight by John McDonnell MP. Specialist NGOs are encouraging MPs to sign the motion, as there are only #30DaysToAct for survivors of modern slavery.
The Secondary Legislation Scrutiny Committee (SLSC) called the Home Office’s consultation on the changes “poor practice” with limited NGOs involved, many of whom had only two weeks to respond. No survivor groups were included in the consultation.
John McDonnell MP, tabling the Early Day Motion (EDM) to annul Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2021 (SI 2021/184), said:
“This law change is completely counter-productive and will deter victims from coming forward. The Government needs to think again.”
“This change in the law flies in the face of the Government’s stated aims of protecting the victims of trafficking. Contrary to what ministers have claimed about recognising the vulnerability of victims of trafficking, it [the changes] mean that someone trafficked will be at heightened risk of detention.”
After Exploitation’s Director, Maya Esslemont, said:
“Modern slavery is a deeply traumatising form of exploitation, which almost without exception features severe sexual, physical and emotional abuse. It is unthinkable that such serious changes to the treatment of survivors, already made vulnerable by abuse, have been introduced without any real consultation or Parliamentary debate. This policy will condemn more survivors to time behind bars, even when the Home Office recognises they have a legal right to support.”
“It is vital that MPs work at pace to challenge this stealth legislation. This significant change introduces a clear risk to some of the most vulnerable in our society.”
Anti Slavery International’s Researcher and Co-ordinator, Anna Sereni, said:
“Detention centres consistently fail to protect vulnerable people. By increasing the detention of slavery survivors, the government is taking a backward step on its world leading commitment to protect and support survivors of slavery
Survivors of slavery often have complex physical and mental health needs and require unique support to be able to disclose their experiences. The identification of trafficked persons in detention is often poor because people are unable to disclose their experiences in the prison-like settings of detention.
The Government should consider why historically it took the decision not to detain slavery survivors, knowing this would be viewed as a penalty and breach international law.
Despite acknowledging that under these proposals, survivors of slavery will be detained for longer periods, they appear destined to punish slavery survivors because of their commitment to hostile immigration policies.”
Bail For Immigration Detainees (BID)’s Research Co-ordinator, Rudy Schulkind, said:
“Through our front-line work, we meet survivors of human trafficking who should have been provided with support and protection but were instead locked up by the Home Office in prison-like settings with few legal protections or a release date. Unsurprisingly, the impact on victims’ long-term mental health and physical wellbeing is disastrous.
Identification of survivors of trafficking in detention is already poor, as detention settings can rarely make victims feel safe enough to share traumatic experiences.
Changes being introduced by the government will weaken already poor safeguards, and lead to more survivors of trafficking being detained for longer periods. The government has accepted this may be a consequence of the policy change but is pressing ahead regardless.”
Focus on Labour Exploitation (FLEX)’s Senior Policy Manager, Rebecca Kingi, said:
“The UK has positive obligations to support survivors of trafficking and prevent exploitation and we should be doing everything we can to design a system that does just that.”
“These changes are a step backwards for the UK as more victims of trafficking will be at risk of being detained or held in detention for longer periods of time and correspondingly, more individuals scared to come forward for help. The changes serve the interests of perpetrators, not survivors and not the UK’s attempts to stop modern slavery.”
“The proposed changes will have a devastating impact on survivors of trafficking who’ll be at greater risk of being detained and for longer periods of time. But they will also affect disclosure of cases of exploitation because survivors, who already fear that after reporting they won’t be believed and will end up in detention, will become even more fearful since the risk of remaining detained will be greater. Rather than safeguarding survivors, these changes will serve the interest of perpetrators who will continue to use the threat of detention and removal to coerce and control victims into exploitative situations.”
Helen Bamber Foundation’s Medical Director, Professor Cornelius Katona said:
“Many victims of human trafficking/modern slavery have been subjected to prolonged, repeated trauma equivalent to that of victims of torture and have severe mental and physical health problems because of their complex trauma. Immigration detention is likely to cause further deterioration and suffering.”
“Safeguards preventing their detention should be strengthened rather than weakened – as this morally repugnant proposed legislative change is trying to do.”
Medical Justice’s Director, Emma Ginn, said:
“We are extremely concerned about these proposed changes to the policies that should protect survivors of trafficking from immigration detention. The Home Office acknowledges that its changes may lead to more survivors of trafficking being detained for longer; this would mean more vulnerable people suffering lasting harm to their mental health, in situations where this is entirely avoidable.”
“Our volunteer clinicians have repeatedly seen and documented the effects of detention on survivors. The locked doors, the sound of officer’s footsteps approaching, the jangling of the keys, the sudden unannounced transfers at night, the sounds of other distressed detainees, the profound lack of any control over one’s circumstances – all can be highly retraumatising for people who have already experienced abuse at the hands of traffickers.”
“We urge the Home Office to reconsider: rather than weakening existing safeguards, there is an urgent need for the government to strengthen protections for survivors and to ensure such measures are properly effective.
Requests for comment from legal, medical, policy and slavery experts at the above NGOs contact Maya Esslemont: firstname.lastname@example.org / 07415374064
About change in guidance
The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2021 (SI 2021/184) was laid before Parliament on 25 February 2021.
NGOs argue that survivors are already detained in huge numbers, despite exiting guidance stating that there must be a ‘public order’ reason to do so. Under the Statutory Instrument due to be passed through Parliament without debate, survivors referred by the authorities and recognised as ‘potential trafficking victims’ by the Home Office, will not automatically be considered too ‘at risk’ to detain. The new guidance will expect exploited people to give further evidence of ‘future harm’, via a medical professional, before they are recognised as too vulnerable to be held in prison-like settings. Experts warn the move will lead to survivors being detained on an even wider scale, and for longer.
What is modern slavery? Via Anti Slavery International
“Modern slavery in the UK can take many forms, including forced sexual exploitation, domestic slavery or forced labour on farms, in construction, shops, bars, nail bars, car washes or manufacturing. Forced labour is the most common form of slavery in the UK, fueled by a drive for cheap products and services. A growing form of slavery is trafficking into crime. In the UK, it’s fuelled by the trafficking of primarily British children, forced into ‘county lines’ drug trafficking and trafficking of Vietnamese nationals forced to work in cannabis production.”
“Vulnerable people often take big risks in order to provide for their families. Typically, they can be offered an apparently good job in the UK. Often they take a loan from the traffickers in advance.
When they arrive in the UK, the situation is completely different. Their passport might be taken away and they’re told they need to pay off the debt before they can leave. Violence and threats are common. They are trapped here with no possessions, no means to return and totally reliant on their traffickers. Vulnerable British people are also targeted, especially children from disadvantaged backgrounds, to be groomed into drug criminal gangs in so-called ’county lines’ trafficking.”
Why are people held in immigration detention? Via Oxford University’s Migration Observatory
“Immigration detention refers to the Home Office practice of detaining foreign nationals for the purposes of immigration control. Policy reasons for detaining typically include one or more of the following: to effect the person’s removal; to establish their identity or the basis of their immigration or asylum claim; where there is reason to believe they will abscond if released on bail; or when release is not considered to be ‘conducive to the public good’. In some instances, the reasons for a person’s detention change while he or she is being held.”
How do modern slavery survivors end up in detention? Via After Exploitation
“The Home Office introduced a Detention Gatekeeper (DGK) function as part of the wider Adults at Risk (AAR) policy [introduced in 2016], which is supposed to identify individuals too vulnerable for detention. DGK assesses whether detention decisions are “proportionate” and is supposed to identify instances where “individuals may be at risk of harm in detention due to any vulnerabilities”. However, what little data we can publicly access on DGK indicates it rejects referrals for detention infrequently. During a House of Lords debate in September 2020, it was stated by the Government that “Since 2016, the gatekeeper has rejected more than 2,300 referrals for detention.” Given that, prior to the pandemic, around 25,000 people entered detention every year, this number of rejections appears very low.”
 FOI requests by After Exploitation + Women For Refugee Women, published in Survivors Behind Bars (2021). Accessible: https://www.independent.co.uk/news/uk/home-news/trafficking-modern-slavery-detained-immigration-home-office-b1797186.html
 Accessible: https://www.legislation.gov.uk/uksi/2021/184/contents/made
 Accessible: https://www.parliament.uk/about/how/laws/secondary-legislation/#:~:text=What%20is%20Secondary%20Legislation%3F,-Statutory%20instruments%20procedure&text=Secondary%20legislation%20is%20law%20created,and%20