Policy paper

Nationality and Borders Bill: abuse of modern slavery protections factsheet

Updated 13 October 2023

1. What are we going to do?

In line with our international obligations, following a positive Reasonable Grounds (RG) decision we provide potential victims of modern slavery with a recovery and reflection period (“recovery period”), during which they will have access to support, and are protected from removal from the UK. Our international obligations determine this period should be for a minimum of 30 days, however as a matter of policy we provide for 45 days and in any event until a Conclusive Grounds (CG) decision is made, unless disqualifications apply. 

Recovery Period

The recovery period is currently in the Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland. We intend to put this on a legislative footing and set out where the recovery period and protection from removal may be withheld, specifically on the grounds of public order, improper claims and multiple recovery periods – in specific circumstances.

Public Order

The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) highlights that the recovery period and protection from removal may be withheld on grounds of ‘public order’ and for improper claims.

In this context, it is right that the Government can remove dangerous individuals who pose a risk to public order from the protections that the National Referral Mechanism provides. These international obligations do not include a definition of ‘public order’, which has made the disqualification difficult to use in practice.

This provision will strengthen the UK’s ability to withhold protections from people of national security concern as part of our continued efforts to mitigate risk to national security. We therefore intend to introduce a definition which focuses on serious criminality and threats to national security. This will strengthen the UK’s ability to withhold protections from people of national security concern as part of our continued efforts to mitigate risk to national security. The provision would apply to both foreign and UK nationals and guidance will set out exemptions to this disqualification to enable decision making on a case-by-case basis.

Multiple Recovery Periods

The Government understands that victims of modern slavery may have had periods of high vulnerability and have multiple, complex needs. Indeed, some individuals experience multiple forms of exploitation at different points in time and therefore require multiple recovery periods. This protection is crucial and the Nationality and Borders Bill does not seek to amend this.

However, currently there is no guidance on individuals receiving multiple recovery periods under the National Referral Mechanism (NRM) following any sequential positive Reasonable Grounds (RG) decisions where the recovery period covers the subsequent period of exploitation.

The proposed measures in the Nationality and Borders Bill will introduce a presumption against multiple recovery periods where an individual has already benefitted from a recovery period and the further reported exploitation happened prior to the previous referral into the NRM unless in appropriate circumstances. Guidance will set out more details on exemptions to this presumption which can be applied at the discretion of the Secretary of State.

2. How are we going to do it?

We will place on a legislative footing that, following a positive Reasonable Grounds (RG) decision, potential victims will be entitled to a recovery period which includes access to support, in line with need, and protection from removal from the UK except in specific circumstances.

The legislation will also set out the criteria in which the recovery period is not granted – on grounds of public order, improper claims or multiple recovery periods, and where an individual has already benefitted from a recovery period and the further reported exploitation happened prior to the previous referral into the National Referral Mechanism unless in appropriate circumstances.

The public order grounds disqualification is based on the most serious threats, including serious criminality or threats to national security. The application will be discretionary and considered by the decision maker on a case-by-case basis taking into account the full facts of the case. This will balance the need to safeguard exploited individuals against public protection concerns and will allow the protections of the National Referral mechanism to be withheld where the particular circumstances of the individual mean it is appropriate to do so.

3. Frequently asked questions

3.1 Will you withhold protections from genuine victims of modern slavery?

No.

It is right that victims of Modern slavery should be entitled to certain protections and support to enable their recovery. Any decision to withhold protections from an individual will be balanced with our priority to safeguard vulnerable victims. Clause 62 will allow Government to remove individuals who pose a threat to public order from the protections that the National Referral Mechanism provides.  

As envisaged in the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), the Government should be able to withhold protections from those individuals who pose a threat to public order. It is right that this includes both individuals who pose a risk to national security and those who have been convicted of a serious criminal offence. This scope is necessary so that individuals who are a threat to public order can be removed from the UK, where lawful and appropriate, and to maintain public confidence in the National Referral Mechanism.  

Of course, it is right that this disqualification is only applied after the most careful consideration. We have drafted the Clause to specifically enable consideration of the individual circumstances of each case, rather than imposing a blanket exemption. This will allow decision makers to make a holistic assessment on a case-by-case basis including considerations around the needs of each individual as weighed against the relevant harm that may be caused by offering them the protections of the National Referral Mechanism.

3.2 What are you doing to ensure those whose criminality is a result of their exploitation are not disqualified from protection?

Potential and confirmed victims of modern slavery may have been convicted of serious criminal offences or be involved in terrorism-related activity. It is right that the Government should be able to withhold protections from those individuals who pose a threat to public order or to national security. However, this is not a blanket disqualification.

We are aware of the pressures victims can face to commit crimes during the period of exploitation and we are therefore developing underpinning guidance that balances both risk and vulnerabilities, giving consideration to both age and crimes committed as part of exploitation.   

First Responders should still always refer victims into the National Referral Mechanism in line with Modern Slavery Statutory Guidance, using the online form even where the individual has had a previous recovery period or has a criminal conviction. 

The Government has well-established and robust processes in place for determining whether an individual is a threat to public order. These processes involve experts from across the law enforcement and national security community. Trained decision-makers will then carefully consider each individual case and take into account the specific vulnerabilities and needs of each individual on a case by case basis, this includes consideration as to whether their crime was committed as part of their exploitation. 

Decisions to withhold recovery periods on public order grounds will be made on a case-by-case basis. This will balance the need to safeguard exploited individuals against public protection concerns and will allow the protections of the National Referral Mechanism to be withheld where the particular circumstances of the individual mean it is appropriate to do so. 

3.3 What about people who suffer from multiple forms of exploitation at different points in time?

We recognise that victims of modern slavery may have had periods of high vulnerability and multiple, complex needs, or experience multiple forms of exploitation at different points in time. Individuals who have been re-trafficked or suffered repeated exploitation following a recovery period will be allowed additional periods of protection and support.

However, additional recovery periods should only be provided when genuinely needed.

This provision introduces a power to withhold multiple recovery periods where an individual has already benefitted from a recovery period and the further reported exploitation happened prior to the previous referral into the National Referral Mechanism, unless appropriate in the circumstances of the case.

For example, where an individual has a second referral for an incidence which happened before the first incidence for which they were referred and have already received a recovery period for, it may not be appropriate or necessary to provide a further recovery period. The provision will include a discretionary element underpinned by guidance so that cases are considered on an individual basis, recognising the specific circumstances and vulnerability of each case.