Nationality and Borders Act has ‘significant negative impacts’ on protection and wellbeing of modern slavery victims

A significant new report published yesterday provides a comprehensive assessment of the impact of the Nationality and Borders Act 2022 (NABA) on modern slavery.

You can download the 74-page report here. A helpful 13-page summary of the report is available here.

The report was published by the British Institute of International and Comparative Law (BIICL) and is based on research conducted jointly with the Human Trafficking Foundation (HTF) and the Anti-Trafficking Monitoring Group (ATMG). The research project was funded by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) through its Commissioned Research mechanism.

Research for the report sought to analyse the impact of the NABA on the identification and wellbeing of people with lived experience of modern slavery, considering whether the impact is in line with the stated objectives of the legislation, and also the impact on the modern slavery sector more broadly.

Analysis is restricted to the impacts of Part 5 of NABA, which contains the provisions related to modern slavery, in the year following its entering into force on 30 January 2023. The provisions were implemented on the same day through amendments to the Home Office's Modern Slavery Statutory Guidance.

As the report notes, NABA introduced sweeping changes to immigration law and to modern slavery law. The House of Commons Library noted in a 2023 report that the Conservative government said the modern slavery system was being abused by some people to evade removal from the UK and the Act's changes would help decision-makers to distinguish more effectively between genuine and non-genuine cases.

BIICL's new report finds that the impact of the Act on modern slavery victims has been wholly negative.

Jumping straight to the conclusions, the report states: "Notwithstanding matters of compliance with the UK's obligations under international law, the evidence presented in this report demonstrates that the measures adopted to implement Part 5 of NABA have had significant negative impacts on the protection and wellbeing of people with lived experience of modern slavery in the UK, as well as on the organisations supporting them. The research did not identify any positive impacts of Part 5 NABA, including in terms of meeting its express aims."

Since entering into force, NABA and the associated changes to the Home Office's statutory guidance have coincided with a significant decrease in the rate of positive decisions within the National Referral Mechanism (NRM) system used to identify and support survivors of modern slavery in the UK.

Stakeholders who participated in the research for the report were overwhelmingly of the view that the increased evidentiary requirements introduced in January 2023 had resulted in very significant numbers of persons with lived experience of modern slavery being denied identification through the NRM.

Some stakeholders were also of the opinion that the political rhetoric surrounding the Act has led to a broader 'culture change' in how modern slavery decisions have been made, creating a general climate of mistrust towards individuals going through the NRM system.

The report's key findings on the impacts on the Act on decision-making and on people with lived experience of modern slavery are summarised as follows:

• The research revealed that NABA and the associated changes to the Statutory Guidance have coincided with a significant decrease in the rate of positive decisions within the NRM at the Reasonable Grounds ("RG") stage. This trend has been particularly extreme for specific groups of foreign nationals subject to immigration control (such as foreign national offenders and immigration detainees), as well as for certain nationalities. Some exploitation types have also been more affected than others.
• Research participants from statutory and non-statutory organisations suggested that the decrease in the rate of positive RG decisions was directly linked to the elevated evidentiary requirements introduced through the January 2023 Statutory Guidance. They also resoundingly expressed the belief that the elevated evidentiary requirements had resulted in very significant numbers of persons with lived experience of modern slavery being denied identification and support through the NRM.
• Despite commitments to speeding up the decision-making process within the NRM, the operationalisation of NABA through the Statutory Guidance has caused significant delays in rendering decisions at the RG stage. While, prior to 2023, the median time between an NRM referral and RG decision oscillated between 5 and 6 days, this peaked at 47 days in Q3-23
• The ratio of positive decisions at the Conclusive Grounds stage has also changed – though this has been less statistically significant than the changes at RG stage. Nonetheless, exploring the CG data in terms of nationality, gender, and type of exploitation reveals similar trends and patterns to those the rate of RG decisions over the same period. This is despite the fact that decision-making at the CG stage has not been amended under NABA or under the Statutory Guidance.
• Research participants also noted a significant drop in the quality and consistency of decisions delivered by the Competent Authorities since the adoption of the Statutory Guidance in January 2023. Connected to this, they also reported relying much more on reconsideration requests to overturn decisions that were negative on first instance, especially at the RG stage.
• The research noted a disproportionate impact of Public Order Disqualifications on people whose experience of modern slavery included an element of forced criminality, as well as on the profiles most impacted by the decline in the rate of positive decisions at the RG and CG stages since the adoption of the January 2023 Statutory Guidance.
• Increased difficulties were identified in securing limited leave to remain for persons with lived experience of modern slavery since the publication of the 'Temporary Permission to Stay' Guidance.
• Research participants noted that the clearest impact of the measures adopted to operationalise NABA has been the exclusion of people with lived experience of modern slavery from the statutory support provided within the NRM mechanism.
• Additionally, the changes introduced by NABA were reported as having a significant negative impact on the asylum claims of individuals with lived experience of modern slavery.
• Research participants explained that the NABA measures have had lasting impacts on the mental health of people with lived experience of modern slavery – both due to the impact of the measures on the operation of the system, and as a result of the broader discourse that has accompanied the adoption of this legislation.
• The measures adopted to implement NABA, combined with the broader rhetoric surrounding the Act, have contributed to greater reluctance for people with lived experience of modern slavery to enter the NRM or otherwise approach and engage with the authorities (including in the context of police investigations).

The report makes a number of recommendations to Parliamentarians, the Home Office, and to the modern slavery sector that would mitigate the negative effects of NABA. The authors stress, however, that the only corrective recommendation would be to repeal Part 5 of NABA and put in place non-discriminatory, evidence-based, and international law-compliant measures.