Blog post by Nadia O'Mara of the Garden Court Immigration and Public Law Teams.
The Illegal Migration Act (‘IMA’) 2023 received Royal Assent in July, a piece of legislation which UNHCR has warned ‘extinguishes access to asylum in the UK’. The Act is monstrous in every sense of the word, the scope of its powers only to be outdone by the suffering which it will visit upon those to whom its provisions apply.
This piece deals with just one aspect of the Act, namely the implications for victims of trafficking and modern slavery. Over the coming months, colleagues in Chambers will look at other aspects of the Act, and how its most invidious effects can be mitigated.
The legal framework governing the identification and protection of victims of trafficking/ modern slavery in the UK is the Council of European Convention on Action against Trafficking (‘ECAT’) and Article 4 ECHR. ECAT defines trafficking and imposes an array of obligations on states to prevent and combat trafficking; to protect the human rights of victims; and to promote international cooperation on action against trafficking. The primary mechanism by which the UK complies with its obligations under ECAT is through the National Referral Mechanism (‘NRM’).
In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, the Strasbourg Court concluded that trafficking within the meaning of Article 4(a) ECAT fell within the scope of Article 4 ECHR [§297]. Article 4 ECHR imposes a number of positive obligations upon states, and those obligations ‘must be construed in the light of [ECAT] … the Court is guided by [ECAT] and the manner in which it has been interpreted by GRETA’ (Chowdury v Greece (2017) App No 21844/15 [§104]).
The central provision of the IMA 2023 is section 2(1), which while not yet in force, will impose upon the Secretary of State a general duty to remove a person from the UK where four conditions are satisfied, relating to unlawful entry/ absence of leave to remain.
Where a person has a positive reasonable grounds decision (i.e., they have been identified as a potential victim of trafficking/ modern slavery (‘PVOT’)) and meets the criteria in section 2, then section 22(2) applies. Section 22(2) disapplies the prohibition on removing that person under sections 61/62 of the Nationality and Borders Act 2022 (‘NABA’), and any obligation to grant them limited leave to remain under s. 65 NABA 2022.
There is one narrow carve out at s. 22(3) for those who cooperate with an investigation or criminal proceedings in respect of the relevant exploitation. However, even this restrictive exception is subject to a further ‘compelling circumstances’ test for being present in the UK (to be provided for in guidance: s. 22(5) and (6)).
Where a PVOT with a positive reasonable grounds decision who meets the s. 2 removal criteria, and to whom the s. 22(3) exception does not apply, the duty under s. 50A of the Modern Slavery Act to secure any necessary assistance and support is disapplied by s. 23(2) in relation to that person.
Finally, s. 29 of the Act contains an amended public order disqualification (POD). Section 63(1) NABA 2022 provides that a competent authority may determine that a recipient of a positive reasonable grounds decision can be disqualified from protection if satisfied that the person is a threat to public order or has claimed to be a victim of slavery or human trafficking in bad faith. Section 29(2) replaces ‘may’ with ‘must’.
However, a competent authority may not so determine if it considers that there are compelling circumstances which mean that it should not apply. Paragraph 152 of the Explanatory Notes states: “In determining whether there are compelling circumstances, the Secretary of State must have regard to the guidance”.
Section 63(3) NABA 2022 lists the circumstances in which a person might be considered a threat to public order. This included ‘foreign criminal’ within the meaning of s. 32(1) of the UK Borders Act 2007. Section 29(4) IMA 2023 substitutes ‘foreign criminal’ with those who have been convicted and sentenced to a period of imprisonment and adds anyone who is ‘liable to deportation’ from the UK, including conducive deportation under the Immigration Act 1971. Section 29(5)(5A) further defines ‘period of imprisonment’.
Finally, s. 96(6) provides that the POD provisions under s. 29 apply irrespective of whether a person has received a positive reasonable grounds or conclusive grounds decision, including if they were made before the Act came into force.
These provisions appear fairly obviously in breach of the UK’s obligations under ECAT and Article 4 ECHR. Indeed, the Secretary of State was unable to make a statement of compatibility under s. 19(1)(b) HRA 1998 and s. 1(5) of the Act provides that the s. 3 HRA interpretative obligation does not apply.
The Government’s view set out in the ECHR memorandum is as follows: “The Government is satisfied that these provisions are capable of being applied compatibly with Article 4 ECHR. The Government has concluded that radical solutions are required to put a stop to the small boats crossing the Channel and the approach adopted in these provisions is therefore new and ambitious but taking such an approach means that the Home Secretary is therefore unable to make a statement under section 19(1)(a) of the 1999 Act”.
That is a striking proposition to say the least: disqualification from protection based on mode of arrival raises numerous issues of compatibility with Articles 3, 4, 13 and 14 ECHR and Articles 10, 12, 13, 14, 16 and 26 ECAT.
For example, Article 10(2) ECAT prohibits removal from the state territory until the identification process is complete. There is no public order exception to this provision. The GRETA Explanatory Report is clear: “Under the Convention, if there are ‘reasonable’ grounds for believing someone to be a victim, then that is sufficient reason not to remove them until completion of the identification process establishes conclusive whether or not they are a victim of trafficking’ [§132].
Further, Article 13 ECAT requires state parties to provide a ‘recovery and reflection period’ of at least 30 days, save for where a narrow potential public order exception under Article 13(3) applies. The Government claims that suspension of protection for victims of trafficking is justified because: ‘it is in the interests if the protection of public order in the UK including to prevent persons from evading immigration controls in this country, to reduce or remove incentives for unsafe practices or irregular entry, and to reduce the pressure on public services causes in particular by illegal entry to the UK’ (Explanatory Notes, [§135]). However, the Article 13 duty is predicated on a person having insecure immigration status. The GRETA Explanatory Report states: ‘Article 13 is intended to apply to victims of trafficking who are illegally present in a Party’s territory or who are legally resident with a short-term residence permit’ [§172].
Article 4 ECHR places positive obligations on the UK to identify, protect and facilitate the recovery of victims of trafficking (Chowdury and Others v Greece). Being a victim of trafficking and being at a risk of re-trafficking are inextricably linked: ‘even if a victim has escaped or been removed, from the immediate control of their traffickers, he or she will very commonly still be sufficiently under the influence to be at real and immediate risk of retrafficking if not afforded proper support and protection’ (R (TDT) v SSHD [2018] EWCA Civ 1395, per Underhill LJ at [§40]).
The provisions of the IMA, therefore, give rise to avenues of challenge for foreseeable breaches of the Article 4 ECHR identification, protection, and investigation duties. This will inevitably involve challenging the legislation itself. However, because of the disapplication of the interpretative obligation under s. 3 HRA, the remedy sought will be limited to a declaration of incompatibility under s. 4 HRA.
It will also be important to keep a close eye on any amendments to the Modern Slavery Statutory Guidance. ECAT is an unincorporated treaty and therefore does not have direct effect in domestic law. However, ‘its obligations have been implemented by a variety of measures’, including the National Referral Mechanism (‘NRM’) (which is designed to fulfil the obligations of Articles 10, 12 and 13 ECAT), it would therefore be a ‘justiciable error of law if the NRM Guidance did not accurately reflect the requirements of ECAT’ (MS (Pakistan) v SSHD [2020] UKSC 9, at [§20]).
The IMA 2023 is a shameful dereliction of the UK’s obligations toward victims of trafficking and modern slavery, and there can be no question that these provisions will lead to a significant amount of litigation once they come into force.
Nadia O'Mara is a member of the Garden Court Immigration and Public Law Teams and is available for instructions in both of these areas of law.
