Clause 47

Nationality and Borders Bill – in a Public Bill Committee at 3:45 pm on 28th October 2021.

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Late compliance with slavery or trafficking information notice: damage to credibility

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I beg to move amendment 190, in clause 47, page 42, line 19, at end insert—

“(aa) the person was 18 or over at the time of the incident or incidents in respect of which the slavery or trafficking information notice was issued;”.

This amendment seeks to ensure those exploited as children are not penalised for late disclosures.

The amendment seeks to ensure that those who were exploited as children are not penalised for late disclosure, because of their age-related vulnerability and safeguarding concerns. Statutory guidance under the Modern Slavery Act 2015 very clearly states:

“Whatever form it takes, modern slavery and child trafficking is child abuse and relevant child protection procedures…must be followed if modern slavery or trafficking is suspected.”

There is a remarkable lack of distinction between children and adults in the proposals set out in the Bill. That issue was picked up by the Independent Anti-Slavery Commissioner, who commented in her letter to the Home Secretary in September on the lack of detail on provisions for children.

This is the first in a series of amendments to clauses in part 4 of the Bill that seek to ensure that the worst elements of part 4 do not apply to children. As we know, the Children’s Society has been deeply critical of the Bill and of clause 47 in particular, arguing that the clause will disproportionately and unjustly affect children and young people, who we know are often unable to disclose evidence

“because of the trauma of their experiences, or due to inadequate legal representation.”

Putting the responsibility of disclosure on to a child victim of slavery or trafficking in order to comply with a pre-determined Home Office timeframe, so that they can access the support they need to escape slavery or trafficking, is a perverse barrier. Surely that is not what the Minister intends to achieve. If it is not, I urge him to adopt amendment 190 to make that clear.

In its written evidence, Every Child Protected Against Trafficking points to a 10% increase in the number of children identified as potential victims of trafficking from 2019 to 2020. There were 4,946 referrals last year. That is why we must recognise children within the NRM as requiring a different approach from that required by adults. I return to the point that child protection procedures must be followed as outlined in the modern slavery guidance. Nowhere does that feature in this part of the Bill.

ECPAT makes the point that child trafficking is a form of child abuse and that identifying child victims of trafficking is a safeguarding matter, not an immigration one—not least because so many children in the NRM are British citizens. However, we have a responsibility to any child victim of trafficking to protect them from exploitation, first and foremost. To put the burden of proof on to a traumatised child with trafficking information notices is not right; nor, I suspect, would it comply with various other safeguarding obligations.

The Children’s Society quotes a young person talking about their Home Office interview experience as an indicator that procedures are not child-centred. The young person said:

“I was asked over 200 questions and it lasted five hours with no break. They kept asking me similar questions, which made it feel so complicated. They were asking me specific questions about dates of things that happened to me in my country and it really made me anxious as I couldn’t remember as a lot of things happened and I can’t remember all the dates. They wouldn’t even look at me and kept typing on their laptop. They kept pushing me for specific dates.”

That is far from being a trauma-informed approach, which is why we share the Children’s Society’s serious concerns about this clause. We feel that amendment 190 is entirely necessary if we are to safeguard children from trafficking, by removing them from the burden of trafficking information notices and the consequences of late disclosure.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 4:00 pm, 28th October 2021

I thank the hon. Members for Halifax and for Enfield, Southgate for setting out their case, and for tabling this amendment. I appreciate their consideration of this clause and their concern for a vulnerable group of individuals. Ensuring that clause 47 enables decision makers to take account of individuals’ vulnerabilities is fundamental to our approach. That is why we have included the condition of good reasons, and we will ensure decision makers have the flexibility and discretion to appropriately consider them without prejudicing what that should cover.

What constitutes “good reasons” has purposely not been defined in the Bill. The detail on how to apply good reasons will be set out in guidance for decision makers. This will give decision makers the tools, for instance, to recognise that the age at which traumatic events took place may affect an individual’s ability to accurately recall, share or recognise such events, while maintaining a case-by-case approach. Doing so in guidance will ensure that we also have the flexibility to update and add to the range of considerations undertaken by a decision maker in exercising discretion. To create a carve-out for one group of individuals, as amendment 190 seeks to do, would undermine this approach and create a two-tiered system based on the age at which exploitation may have taken place.

I am sure that this is not the intention of the hon. Member for Halifax, but this amendment could also incentivise individuals to put forward falsified referrals regarding the timing of exploitation to delay removal action. Our approach avoids this potential avenue for misuse, but still allows for important considerations regarding the age of the victim to be looked at. Indeed, reasonable grounds decision making already takes account of the specific vulnerabilities of children by, for instance, not requiring there to be any means of exploitation when establishing whether an individual is a victim.

We believe that the right approach is to provide more detail in guidance on the varied and complicated reasons that may constitute good reasons. These will include the age when the exploitation took place, but a wider range of potential reasons and indicators will also be considered to avoid focusing specifically on one victim cohort. This approach will allow decision makers to consider each case on its merits, whilst considering all the information relevant to their case without prejudging it. To do otherwise would not be appropriate or fair to all victims. Again, I hope that the sector will work with Government to shape those guidelines and ensure that they are right. For these reasons, I respectfully invite the hon. Member to withdraw her amendment.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am concerned by some of the Minister’s response. He says that children, and the age of the victim, will be a consideration within good reasons. However, once again we have not got that guidance; it has not been nailed down, so we have no assurances of how the detail will look. He also says that it would not be appropriate to have a different approach for victims based on their age. However, I think that would be entirely responsible and appropriate, and we look to do so throughout a whole range of legislation and legislative approaches. I think it would be a responsible requirement to place on the Government. With that in mind, I will press amendment 190 to a vote.

Question put, That the amendment be made.

Division number 42 Nationality and Borders Bill — Clause 47

Aye: 5 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 7.

Question accordingly negatived.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I beg to move amendment 173, in clause 47, page 42, line 21, leave out—

“or a conclusive grounds decision”

This amendment would disapply this section when a conclusive grounds decision is being made (i.e. when a reasonable grounds decision will already have been made).

The amendment is designed to allow us to question how the new process will interplay with the NRM process, and to establish how long the notice period in the new process will be, so it is another short but important point. The amendment would disapply the section on credibility if a reasonable grounds decision is made. It is even less clear what sensible case can be made for the use of a trafficking information notice if sufficient information has already been provided to justify such a reasonable grounds decision.

Depending on how the system operates, and given the huge delays in making conclusive grounds decisions, the following scenario could play out. A person receives a reasonable grounds decision and is referred to the NRM process. That person makes a claim for protection, and the Secretary of State then serves them with a trafficking information notice. Full disclosure takes time because of their circumstances. The person is better placed to disclose much more information after the deadline for the trafficking information notice has passed but before a conclusive grounds decision is reached. It would surely be very strange, then, for the conclusive grounds decision to take account of late provision of information, but the clause appears to envisage that that could happen. Has that all been appropriately thought through? It would be useful to hear an explanation of how those two processes will interact.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for their amendments. I am pleased to see from the amendments that they acknowledge the benefits of a system that brings forward at the earliest opportunity all information related to modern slavery, enabling us to provide support and protection quickly to those who need it.

To that end, clause 47 covers information raised at the reasonable grounds and conclusive grounds stages, which are the two crucial decision-making stages in the national referral mechanism, and which both confer different rights on possible and confirmed victims. Although there are different standards of proof at those two stages, it is critical that the decision maker at both points can review all information to take decisions. Those decisions should include consideration of whether information has been provided late and whether there are good reasons for that. By removing that consideration at the conclusive grounds stage, amendment 173 would remove the consequence of providing late information when the decision-making threshold is higher. That could perversely incentivise misuse of the system at the later stage.

We are clear that that approach should be taken across both decision points to ensure that we meet the clause’s aim of identifying victims as early as possible and reducing opportunities for misuse.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I am confused. I cannot see the benefit of late disclosure if the conclusive grounds process is ongoing. What does the amendment incentivise?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Again, I simply make the point that decisions are made case by case. We maintain that we need all the information at both decision points to reach the right decisions in individual cases. For those reasons, I respectfully invite the hon. Member to withdraw the amendment.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

We will go away and study what the Minister has said. I am still confused about the interaction between the two processes. The amendment was designed to seek an explanation, and I suspect that we will not be satisfied with it, but in the meantime I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I beg to move amendment 174, in clause 47, page 42, line 23, leave out “or on behalf of”.

This amendment would exclude statements made on behalf of a slavery or trafficking information notice recipient (as opposed to statements made directly by them) from this subsection.

This is a very short point, but another important one. The amendment is designed to try to get further information from the Minister. I am sorry to have to test him on all the detail of the clause, but it is important. What we are asking here is why statements made on behalf of a trafficking information notice recipient should be impacted by the clause because of late provision of evidence. What does this cover? Is a medical report, for example, to be impacted by the clause so that its credibility is doubted because the recipient gave information late? Is analysis of the truth of what a social worker or a counsellor has said on behalf of the trafficking survivor to be impacted by the clause as well? We are really just asking this. What does it mean? What is the scope of the fact that this scheme applies to statements made on behalf of the trafficking information notice recipient and not just by the recipient himself or herself?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Again, I am grateful to the hon. Member for setting out his case for the amendment. We know that, given the nature of modern slavery and human trafficking, many individuals often struggle to provide information relating to their abuse. That is why these measures are supported by the provision of legal aid to support possible victims in understanding the process and the national referral mechanism. It is also for that reason that the clause is specifically drafted to capture information provided by the victim or on their behalf.

All relevant information should be considered, whoever provides it, when decision makers are taking into account the provision of late information. Not to do so would create an artificial divide between different cohorts of individuals, depending on who provides the information for consideration. That could inadvertently encourage misuse of the system by leaving it open for individuals to seek to use others to provide all information late, knowing that its late disclosure will not be part of the consideration of credibility, when they could provide it themselves. That could delay disclosure and therefore our ability to identify and support individuals at the earliest opportunity as well as reducing opportunities for misuse. To give a practical example, I am confident that if someone else failed to press “Send”, the individual affected would not be impacted negatively by that.

For the reasons that I have outlined, I respectfully encourage the hon. Member to withdraw his amendment.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Again, I am grateful to the Minister for his answer and we will consider it. I am still not absolutely clear on precisely what the scope of the provision is and whether, for example,

“a statement…on behalf of the person” would include a medical statement—a medical report—so that its credibility would be damaged just because the person who underwent the medical report disclosed information late. We will go away and think about that. I think the Home Office may need to give it some consideration as well, but in the meantime I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I beg to move amendment 175, in clause 47, page 42, line 24, leave out from “account” to the end of the subsection and insert

“of all the factors that may have led to the person providing the information late.”

This amendment would remove the presumption that delayed disclosure in relation to slavery or trafficking will be deemed damaging to a person’s credibility.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss amendment 163, in clause 47, page 42, line 26, at end insert—

“(2A) For the purposes of subsection (2) ‘good reasons’ include, but are not limited to—

(a) the impact of trauma, including avoidant behaviours and memory fragmentation consistent with Post-Traumatic Stress Disorder;

(b) distrust of authorities, including fear of punishment or a lack of confidence in the confidentiality of information sharing;

(c) fear of reprisals against them, their children, families or friends if they make an allegation of slavery;

(d) experiencing pressures and fears related to bonded debt;

(e) where the claimant was under the age of 18 years at their time of arrival in the UK or at the time of their exploitation;

(f) where the claimant has diminished capacity;

(g) fear of repercussions from people who exercise control over the individual;

(h) a lack of understanding of Modern Slavery including being unable to identify themselves as a ‘victim’;

(i) narrative reasons including being unable or unwilling to identify themselves as a ‘victim’;

(j) Stockholm syndrome; and

(k) an ongoing or previous relationship with the trafficker.”

This amendment seeks to define “good reasons” for late disclosure.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

We know that it is common for the impact of trauma on trafficking survivors to result in late disclosure of the trafficking experiences. I will not repeat things that we have already said, but let us not pretend that we do not know that already. The clause places an additional burden on people to demonstrate good reasons for their late disclosure, or lose credibility and be less likely to be recognised and given the support essential to recover—in as much as one can—from the crimes that have been visited on them, as a trafficked person. They are no less in need, however, and for that reason, amendment 175 would stop the very common delayed disclosure of information from damaging a victim’s credibility.

If some Members find it hard to be interested in the victims of trafficking, or if they have a general sense of distrust, let me give an analogy about the impact of trauma and delayed disclosure. Victims of childhood sexual abuse can take decades to come forward. These days, we have no problem understanding their delayed disclosure, but it was not always so. It is now well documented; it may be because of the fear of reprisals, because people blame themselves or simply because they shut out what happened as the only way to cope. A delayed response is common. It is similar to the delayed response that many adult victims of rape experience, and we do not punish them for it—at least, we do not punish them in law for it.

That response is similar for victims of trafficking, who have also often experienced sexual violence. I went to school with someone who was raped at the age of 15 and took a year to tell anyone. The reason was that she had ended up somewhere where she had been told by her parents not to go, so she had disobeyed her parents and she was so afraid that they would blame her for the rape. That is very similar for the victims of trafficking, who have perhaps disobeyed or broken the law—they may have been forced to break the law or told that they had broken the law, although they might not necessarily have done so—so we can understand why the delays happen.

Amendment 163 adds a list of good reasons for late disclosure. What I think is a good reason will be very different from what someone else thinks is a good reason, so let us have clarity, as opposed to having the ambiguous “good reasons”, which will have to be defined in future anyway through the courts.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 4:15 pm, 28th October 2021

We very much support the SNP’s amendment 175, which, as we heard, seeks to strike “as damaging” from the clause and hand that discretion back to the Home Office decision maker, as the Minister has already gone to some lengths to assure Members will be the case.

I will also speak to our amendment 163. We seek to mitigate the Government’s refusal to spell out what, if anything, would constitute a good reason for late disclosure. In Committee on Tuesday, the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, argued for a similar approach during our debates on part 2. The Minister responded that

“the situation will be set out clearly in guidance. We think that is the better approach, because it allows greater flexibility on the sorts of factors that might be relevant to the disclosure of late information, and obviously on matters that are relevant to individuals circumstances.”––[Official Report, Nationality and Borders Public Bill Committee, 26 October 2021; c. 333.]

I understand the points that the Minister made, but he will appreciate that for the Opposition, it is feels although he is somewhat putting the cart before the horse. We are being asked to consider the clauses in blind faith without the guidance, and one way he could address that is by including something in the Bill. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said earlier, we can debate only what is in front of us.

I expect one thing we can agree on is that no list can ever be exhaustive. I suspect that, as we have heard, the most convincing reasons for late disclosure are ones that we cannot comprehend. It would be nonsense to think that any list would be exhaustive, but without having in front of us any indication of what good reasons might be, we are being asked to take a leap of faith too far. The reasons in amendment 163 include, but are not limited to, a person’s fear of reprisals against them, experiencing pressures related to bonded debt, and being unable to recognise themselves as a victim.

In discussing part 2, again, the Minister went on to say that

“the Home Office will have discretion over who is served an evidence notice and the extent to which credibility is damaged by late evidence”,

and that

“claimants who raise matters late will have the opportunity to provide reasons for that lateness—and where those reasons are good, credibility will not be damaged. Decision makers will have the discretion to determine the extent to which credibility should be damaged, and that determination need not by itself be determinative of a claim”––[Official Report, Nationality and Borders Public Bill Committee, Tuesday 26 October 2021; c. 333.]

I felt that the Minister was very much talking up the discretion that the competent authority decision makers would have, in order to offer us assurances, but that is not reflected in the primary legislation in clause 47. I would be grateful if he could confirm that “good reasons” will be set out within the guidance for NRM decision making, as was the commitment for asylum decision making in part 2.

I would be grateful if the Minister also confirmed when that guidance will be published, and when the training, which he described as being necessary in accompanying the guidance, will begin. I hope he will recognise that amendment 163 is measured and sensible and that he will agree to adopt it.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I thank hon. Members for their genuine interest in these matters and for bringing forward their amendments. By introducing a statutory requirement to provide information before a specified date, victims of modern slavery will be identified at the earliest opportunity, ensuring that those who need protection are afforded it quickly. This measure is supported by the provision of legal aid to ensure that possible victims feel able to share information in a safe and supported manner.

It is important to state that the requirement to bring forward information related to being a victim of modern slavery does not mean that referrals brought late will not be considered; all claims of modern slavery will be considered, irrespective of when they are raised. We have purposefully not defined “good reasons” in the Bill, and the detail on how to apply “good reasons” will be set out in guidance for decision makers. That is the appropriate place, giving the Government the flexibility to respond to our ever-increasing understanding of modern slavery victims.

We will of course work carefully with stakeholders as we operationalise guidance to ensure that decision makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share, or recognise such events in some instances, while not seeking to prejudge their decision making by placing this detail in legislation. However, as has been recognised, we cannot legislate for every instance where someone may have “good reasons” for providing late information. To attempt to do so would be impractical. It would also limit the discretion and flexibility of decision makers, who are best placed to consider all factors on a case-by-case basis.

Amendment 163 would have the perverse impact of individuals facing different requirements simply because their situation is excluded from the amendment. It also ignores the possibility that a person may identify as one of the listed categories, but their information may be late for unrelated reasons. It would therefore create a blanket acceptance for late information in specific prescribed circumstances, while a vulnerable individual who did not fall within the specified categories would face a different test on whether they had good reason for providing late information. That would be unfair.

As I have set out, it is important that we are clear on the consequence of late disclosure of information in order to provide clarity for decision makers and victims, and to deter possible misuse of the system. Removing the reference to impacting credibility, as amendment 175 seeks to do, would remove our ability to require the provision of information up front. A duty to provide information requires a consequence and I think we are all agreed that seeking information on modern slavery issues up front is of benefit to all. The clause already includes mitigations to the possible consequence of damaged credibility, providing clear safeguards while still addressing the issue of potential misuse. The solution is not to stifle the clause of any robustness.

As I stated, more detail on good reasons and the credibility considerations will be set out in guidance. We will work to ensure that this takes account of vulnerabilities related to an individual’s exploitation. However, as I have outlined, we believe that removing the consideration of credibility as damaging would impede the ability to reduce potential misuse and reduce the impetus to identify victims as early as possible. As a result, that would perpetuate the issues that these clauses are designed to address, to the detriment of victims.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I am still not sure that the Minister has addressed a fundamental point here. The worry is that if somebody genuinely is a victim of trafficking—I hate even having to describe people in that way—and misses that deadline, the fact that there are possible consequences of that, even if they might have a good reason, means that all they know is that they have missed the deadline. It is a huge disincentive for them to then come forward with other information. That is the whole point, and I still do not think that has been addressed by the Government.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I recognise the sincerity of the hon. Gentleman’s concern about this. What I would say to him, as I have now said many times, is that I expect appropriate decisions to be taken on a case-by-case basis, taking proper account of all the circumstances, mitigations and issues that people bring forward in relation to good reasons. I am confident that that process can be properly developed and delivered in a way that is responsive to those sorts of issues. That is why—to address the point made by the hon. Member for Halifax—it is difficult to put a precise time on when that guidance will be put in place, for the simple reason that we want to engage properly with the sector in the way that I have outlined. I want that to be a thorough process and for the guidance to be put in place in an appropriate manner that is as exhaustive as possible, but does not lack common sense and means that proper consideration is given to the many varied reasons that people may have for providing information late, for example.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I have a couple of points to make. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East made the point that once people get past the deadline, they will be terrified to come forward. What will the Minister do about those people—

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I apologise for interrupting the hon. Lady in mid-flow. I just want to provide some clarity on this point. If there are reasonable grounds to believe that someone is a victim, they will get positive identification even if the information is provided late. I want to be clear about that and place it on the record.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

But the Government are refusing to accept amendment 163, which would put in the Bill what some of the good reasons could be. The Minister says that he will allow decision makers to have discretion, but what he is actually doing is allowing them to have discretion not to accept some perfectly valid reasons—including trauma, as we have covered. I would love to press the amendment to a vote, but we have to pick our battles in this place, so I reluctantly beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Amendment 163 has already been debated. Do the Opposition wish to move it formally?

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

The Minister has heard my comments, and we anticipated his response. We will follow the issue closely, but at this stage we will not press it to a Division.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

We now come to amendment 181, which stands in the name of Dame Diana Johnson.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I beg to move amendment 181, in clause 47, page 42, line 31, at end insert—

“(5) The provision of relevant status information identifying a person as a likely victim of human trafficking for sexual services shall constitute a “good reason” for the purposes of this section.”

This amendment would mean that the credibility of victims of human trafficking for sexual services would not be called into question by reason of the late provision of information relating to that fact.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss the following:

Amendment 187, in clause 47, page 42, line 31, at end insert—

“(5) Subsection (2) does not apply where the person is a victim of trafficking for the purposes of sexual exploitation.

(6) For the purposes of subsection (5) the person may be considered a victim of trafficking for the purposes of sexual exploitation if there is evidence that the person—

(a) Has been transported from one location to another for the purposes of sexual exploitation;

(b) Bears signs of physical abuse including but not limited to—

(i) Branding

(ii) Bruising

(iii) Scarring

(iv) Burns; or

(v) Tattoos indicating gang membership;

(c) Lacks access to their own earnings, such as by having no bank account in their own name;

(d) Has limited to no English language skills, or only such language skills as pertain to sexualised acts;

(e) Lives or stays at the same address as person(s) meeting the criteria in paragraphs (a) to (d); and

(f) Sleeps in the premises in which they are exploited.”

Under this amendment, late provision of relevant status information would not be taken as damaging the credibility of the person providing the information if that person were a victim of trafficking for the purposes of commercial sexual exploitation.

Amendment 182, in clause 48, page 42, line 36, at end insert—

“(za) at the end of paragraph (a) insert—

(aa) the sorts of things which indicate that a person may be a victim of human trafficking for sexual services;”

This amendment would require the Secretary of State to issue specific guidance on the sorts of things which indicate that a person may be a victim of human trafficking for sexual services.

New clause 42—Offence of human trafficking for sexual exploitation—

“(1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) to the United Kingdom with a view to V being sexually exploited in the United Kingdom.

(2) It is irrelevant whether V consents to the travel (whether V is an adult or a child).

(3) A person may in particular arrange or facilitate V‘s travel to the United Kingdom by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.

(4) A person arranges or facilitates V‘s travel to the United Kingdom with a view to V being sexually exploited in the United Kingdom only if—

(a) the person intends to sexually exploit V in the United Kingdom during or after the travel, or

(b) the person knows or ought to know that another person is likely to sexually exploit V in the United Kingdom during or after the travel.

(5) “Travel” means—

(a) arriving in, or entering, the United Kingdom,

(b) departing from any country outside the United Kingdom in circumstances where the person arranging or facilitating V’s travel intends that the destination will be the United Kingdom.

(6) A person who is a UK national commits an offence under this section regardless of—

(a) where the arranging or facilitating takes place, or

(b) where the travel takes place.

(7) A person who is not a UK national commits an offence under this section if—

(a) any part of the arranging or facilitating takes place in the United Kingdom, or

(b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.

(8) A person who commits an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for life;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both.”

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 4:30 pm, 28th October 2021

I have always wanted to be a dame—[Laughter.]

I thank Tom Farr of CEASE and Kat Banyard of UK Feminista for assisting in the drafting of the amendments and for their valuable work. Before I address each amendment in turn, I want to quickly highlight the concern that we have seen online in response to today’s discussions about some of the language that the Minister has used, specifically the issue of “genuine cases”. It is my understanding that nine out of 10 “reasonable and conclusive grounds” decisions were positive last year, and I gently urge the Minister to consider the impact of his words, especially when it comes to more people coming forward in the future. He said that he will listen to the sector. I hope that is a genuine offer, given that the sector does not feel that it was listened to. The consultation period was very brief and unexpected and has left the sector very unhappy.

Amendment 181 would help ensure that the credibility of victims of human trafficking for sexual exploitation would not be called into question by a late disclosure of being trafficked, which clause 47 would do. If a person discloses that they have been a victim of human trafficking for sexual services, the lateness of the claim should not matter.

As we are all aware, the treatment of trafficked women and children subjected to sexual exploitation is unimaginable. It is widely understood to severely impact on their ability to escape from the situation they find themselves in. For many, it impacts on their ability even to understand or admit what has happened to them, for reasons of denial and other issues that my hon. Friend the Member for Halifax raised in the debate on clause 46.

There is a bureaucracy behind the Government’s plans. Many individuals who have been sexually exploited are wholly unaware of the process of having to declare themselves as a victim of sexual exploitation. Many are likely to be suspicious of any involvement with the authorities. There may be a very good reason why a person feels that way, including that they have not been in control of their activities and are unaware that they have committed specific immigration offences or other criminal offences that they have been forced to engage in under duress, such as soliciting.

Clause 47, in practice, means that if trafficking status is disclosed at a late stage, that will have a devastating impact on credibility. That simply cannot be justified. As my hon. Friend argued, victims of trafficking for sexual exploitation must not be precluded from legal protections simply because they are too frightened or traumatised—we have previously discussed post-traumatic stress disorder—to disclose information as soon as they come to the attention of the authorities. To encourage disclosure can very often take time and sensitivity, something that the Home Office does not always currently allow for, and which the proposals in this Bill will affect to an even greater level. The amendment would make sure some of the most vulnerable people who have been trafficked continue to be protected under the law.

Amendment 187 supports amendment 181. It details how a person making a late disclosure of trafficking for sexual exploitation might better be identified by any relevant authority. A person may be considered a victim of trafficking for the purpose of sexual exploitation in a number of ways: first, if there is evidence they have been transported from one place to another for the purpose of sexual exploitation; secondly, if a person has signs of physical abuse, including but not limited to branding, bruising, scarring, burns or tattoos; thirdly, if a person has no access to their own earnings—for example, a person who does not have access to a bank account—fourthly, if a person has limited or no English language skills, could not cope on their own and has been managed previously; fifthly, if a person lives at the same address as anyone who meets any of these criteria; and finally, if they sleep in the same place they have been or were exploited.

Although authorities may have the best interests of an exploited individual at heart when investigating any trafficking-related crime, they may not even be aware of how to recognise such an individual, given the distinct and specific treatment that they have been subjected to. Putting these comprehensive but by no means exhaustive guiding factors into the Bill aims to ensure that authorities have a deeper understanding of the factors they should be aware of and how to identify and help victims.

It is important to note that it is often only when the authorities make wider arrests of criminal gangs that exploited individuals are discovered, usually in brothels or closely-controlled transient places of residence. In a situation of criminality, it may be difficult for authorities to discern who may ultimately be responsible for such criminality.

Acknowledging that exploitation often manifests in ways such as physical and mental trauma, as well as a total lack of autonomy over their own lives, will improve the current legal situation in two tangible ways. First, it may deter lengthy and expensive prosecutions of victims of exploitation, who may otherwise fall between the cracks and be prosecuted for an offence they committed under duress. Secondly, it will put into law current Crown Prosecution Service policy, which is to treat these individuals as victims as and where they are discovered. That is not happening now—we see the prosecution rate for sex crimes in this country at a historic and terrible low.

Amendment 187 would allow the UK to further build its status as the world leader it wants to be when it comes to a toolkit to combat human trafficking and sexual exploitation. These individuals must be viewed as victims of crime and not criminals requiring punishment.

Amendment 182 is an alternative probing amendment that would require the Secretary of State to issue guidance on the specific factors that may indicate that somebody is a victim of trafficking for the purposes of sexual exploitation. I hope the Minister will give an indication of whether that is the direction of travel for the Government.

The amendment would also provide greater clarity for the relevant authorities. As already said, it would prevent the prosecution of individuals who may have been compelled to commit offences while being sexually exploited, as well as providing a framework for authorities to refer to when trying to discern exactly the type of exploitation that has taken place. I hope that the aim behind these amendments will be welcomed by the Minister today, even if they are not accepted.

New clause 42 would put into law a specific offence of trafficking for the purposes of sexual exploitation. The clause makes it an offence to arrange or enable the travel of another person for the purpose of sexual exploitation, regardless of whether the person consented to travel. Arranging or enabling travel can be done in numerous ways: by recruiting a person, by moving or carrying a person, by holding or receiving a person, or by transferring or exchanging control of a person.

Trafficking for the purposes of sexual exploitation means planning to sexually exploit a person during or after travel to the UK, or knowing another person is planning to sexually exploit a person during or after travel to the United Kingdom. Travel means arriving in the UK or leaving any country outside of the UK if the destination is the United Kingdom. A UK national commits the offence regardless of where the facilitating, arranging or travelling takes place. A non-UK national commits the offence by facilitating, arranging or travelling into and out of the UK. Committing the offence carries up to life in imprisonment if tried in a Crown court and would be a welcome step forward.

New clause 42 is necessary because while the Modern Slavery Act 2015 covers exploitation more broadly, the issue of sexual exploitation, specifically within the commercial sex industry, now merits being recognised as a distinct offence due to the catastrophically high numbers of trafficking victims brought into the commercial sex industry in the UK, organised by serious organised crime outfits.

The link between trafficking and commercial sexual exploitation—industrial-level prostitution—is undeniable, and the problem is getting worse. During the covid pandemic there was a 280% increase in the advertising of sexual services online in the west midlands, with the women being predominantly of eastern European origin. A 2010 report suggested that at least 10,000 women involved in off-street prostitution were victims of trafficking or non-UK nationals who were highly vulnerable. These statistics are shocking. We are not seeing provisions in current legislation to match the scale of the problem in the country.

Introducing new clause 42 would ensure that authorities and the Government recognise these intrinsic links and would aid in all our efforts to combat the scourge that is human trafficking and broader violence against women and girls. The benefits of the clause would include, firstly, requiring authorities to dig deeper to examine whether human trafficking has taken place when investigating any prostitution-related offence. Second, it would protect victims of sexual exploitation who have been trafficked. If an individual is being investigated for a prostitution-related offence, it is wholly unacceptable that they should be prosecuted for acts committed under duress or threat of violence from exploitative traffickers.

Placing this specific offence in law would encourage authorities to think more carefully about whether individuals who may initially be viewed as criminals are, in fact, victims of trafficking for the purposes of sexual exploitation. It would further allow for the specific prosecution of those who traffic people for the purposes of sexual exploitation, and the full scale of what is going on would perhaps become clearer. Amendments 181, 187 and 182 and new clause 42 would ameliorate and offer some specific protection to women trafficked into the UK for sexual exploitation. I hope the Government will look favourably on these probing proposals.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I thank the hon. Members for setting out, through the hon. Member for Bermondsey and Old Southwark, their case and for putting forward their amendments. I appreciate their consideration of these clauses and their concern for a vulnerable group of individuals. They have raised important issues around identifying victims who have faced the most heinous crimes.

Ensuring that clause 47 enables decision makers to take account of individuals’ vulnerabilities is fundamental to our approach. That is why we have included the condition of good reasons, and ensured that decision makers have the flexibility and discretion to appropriately consider those without prejudging what that should cover. What constitutes good reasons has purposefully not been defined in the Bill: the detail on how to apply good reasons will be set out in guidance for decision makers, as we have already discussed. That will give decision makers the tools to, for instance, recognise the effect that traumatic events may have on individuals’ ability to accurately recall, share or recognise such events, while maintaining a case-by-case approach. Doing so in guidance will also ensure that we have the flexibility to update and add to the range of considerations undertaken by a decision maker in exercising discretion.

To create a carve-out for one group of individuals, as amendments 181 and 187 seek to do, would undermine this approach and create a two-tiered system based on the type of exploitation faced. I am sure this is not the intention of the hon. Member for Bermondsey and Old Southwark, but amendment 181 could also incentivise individuals to put forward falsified referrals regarding the specific forms of exploitation, or delay removal action. We believe that the right approach is to provide more detail on the varied and complicated reasons that may constitute good reasons in guidance, where these can be explored in more detail and where we can be more flexible as our understanding of exploitation develops.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Minister has said that the intention is to address some of the issues and concerns raised by organisations and by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in the guidance. Can I request that the Minister meets those organisations and the hon. Member before Report, to make sure that any guidance plans take those concerns fully into account their concerns?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I have made this point several times now, but it is certainly worth repeating: there is a real willingness and desire to engage thoroughly in relation to the development of the guidance. I would of course be very happy to consider any meeting requests that come in the usual way, but I assure the hon. Member for Bermondsey and Old Southwark that there is a firm commitment here, which I have made several times. As I have said, the hon. Member is a canny parliamentarian, and will take every possible opportunity to hold Ministers to account on that commitment to engage constructively with the shaping of the guidance.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

There is a real test here, because the Minister is saying that he wants to listen to the sector. The sector is saying that it does not feel particularly listened to up to this point. It is a simple request to meet before Report, and the Minister has not quite said yes.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

What I would say to the hon. Member is that if he makes contact with my office in the usual way, with information about who he would like me to meet alongside him, I will absolutely consider that appropriately.

Decision makers’ considerations will include the indicators highlighted in the amendment, but they will also consider a wider range of potential reasons and indicators to avoid focusing specifically on one victim cohort. This approach will allow decision makers to consider each case on its merits while considering all the information relevant to that case without prejudice. To do otherwise would not be appropriate or fair to all victims.

Amendment 182 seeks to insert a specific reference to human trafficking for sexual services into clause 48. We are agreed that this provision must enable decision makers to identify the most vulnerable victims, including victims of trafficking for sexual services. However, to set out a particular purpose of trafficking on the face of the Bill would fragment the types of exploitation victims have faced.

Exploitation for the purpose of human trafficking is defined under section 3 of the Modern Slavery Act 2015, and that definition includes sexual exploitation. This is supported by the modern slavery statutory guidance in section 49 of the Act, which sets out considerations that may indicate that a person is a victim of human trafficking for sexual services. The existing guidance provides detail on indicators of specific types of modern slavery, including indicators that apply specifically to victims who have suffered from sexual exploitation. I am certain that hon. Members agree that there should be no grading of exploitation, and it is correct that exploitation for any one purpose should be considered with the same severity as exploitation for other purposes. We believe that to set out one particular purpose for exploitation on the face of the Bill would create fragmentation. Our guidance already provides detail on indicators of several types of modern slavery.

I will now turn to new clause 42. As I have already stated, I agree with hon. Members that the abhorrent crime of trafficking in individuals for the purposes of sexual exploitation should be treated with the utmost seriousness. That is why section 2 of the Modern Slavery Act 2015 already accounts for human trafficking offences, and makes specific reference to sexual exploitation in section 3. In fact, the Modern Slavery Act allows for a wider provision of the offence. Section 2 makes human trafficking an offence in any part of the world, which includes trafficking to the UK but also trafficking within the UK, which the amendment does not.

On that basis, I want to ensure that we do not inadvertently narrow our scope to prosecute the most serious criminals by focusing only on people being trafficked to the UK. For completeness, both Scotland and Northern Ireland have equivalent legislation that also covers this offence in the Human Trafficking and Exploitation (Scotland) Act 2015 and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. I recognise the terrible nature of these offences, which is why the Modern Slavery Act was introduced in 2015 to consolidate existing offences and provide enhanced protection for victims. In recognition of the seriousness of these crimes, these Acts have already increased the maximum sentences for slavery and human trafficking offences from 14 years to life in prison. For the reasons outlined, I respectfully invite the hon. Gentleman to withdraw his amendment.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 4:45 pm, 28th October 2021

I think the sector has a concern that the proposal in this legislation undermines the Modern Slavery Act and measures to encourage and support victims who have come forward. I hope that the Minister will hold that meeting before Report, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Clause 47 sets out the consequence if an individual who has been served with a slavery or trafficking information notice as discussed under clause 46 provides information relating to being a victim of modern slavery after the specified time period. The clause aims to ensure that possible victims are identified as early as possible to receive appropriate support and to reduce potential misuse of the national referral mechanism system from referrals intended to delay removal action. Under clause 47, the decision maker must decide whether information provided through the one-stop process is outside the specified time limit and therefore is late. This consideration will take into account whether there was a good reason for the late information, such as the impact of trauma, but where there are no good reasons, an individual’s credibility is damaged due to the provision of late information.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The Minister referred to abusing the process but he has not said much about what evidence there is for this problem. What is the scale of it? Much like statelessness, perhaps he could write to us with the evidence of what it is that the Government are trying to get at here. The big problem is the three-year delay for making decisions. Is not that the problem rather than anything that the Minister has referred to?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I recognise the invitation to write with more detail around this and I am happy to do that. That would be advantageous to the Committee. Given that time is getting on and we want to continue to make progress, I am very happy to take that request back to the Department. I will provide that information.

The Government will ensure that any changes to processes as a result of these measures are designed in a way that accounts for the impact of trauma. This includes ensuring that individuals working in the system are aware of the factors that can affect the task of obtaining information such as the effects traumatic events can have on people’s ability to accurately recall such events. This assessment will be set out in guidance for decision makers and we will engage stakeholders as we develop it. We will continue to consider all referrals on a case-by-case basis to ensure that support is tailored to the needs of genuine victims.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

We intend to vote against clause 47. It is closely linked to clause 46 and I will try to avoid repetition as we are returning to elements that have been well discussed under part 2 on Tuesday.

The number of survivors able to receive support through the national referral mechanism will be reduced as a result of clause 47.

As the Human Trafficking Foundation outlined in written evidence:

“Introducing a trafficking information notice and so converging immigration with human trafficking risks creating another layer of bureaucracy and so would likely increase the length of time survivors must wait in the NRM.”

If we are to ensure that victims with complex psychological and physical needs are not punished by the system or left in limbo while their claims are processed, the clause cannot stand part of the Bill.

As other hon. Members have said, the Home Office’s own statutory guidance states:

“Victims’ early accounts may be affected by the impact of trauma. This can result in delayed disclosure, difficulty recalling facts, or symptoms of post-traumatic stress disorder… It is also vital for decision makers to have an understanding of the mitigating reasons why a potential victim of modern slavery is incoherent, inconsistent or delays giving details of material facts… Throughout this process it is important to remember that victims of modern slavery have been through trauma”.

The clause runs completely contrary to that guidance.

The VITA Network explained in its consultation response to the new plan for immigration that:

“Psychological trauma causes profound disturbances to normal brain function and memory, including memory loss and inconsistencies” in recollection. We know that a high proportion of trafficked people experience violence prior to and during trafficking. Long after they have escaped exploitation, many still fear that harm will come to them and their families if they disclose information about their experiences. It is often those who are most in need of protection who will find it the hardest to disclose such information.

In 2015, the PROTECT programme was established. It was an independent piece of research, commissioned and funded by the Department of Health and Social Care’s policy research programme, and led by King’s College London and the London School of Hygiene and Tropical Medicine. The programme aimed to develop evidence to inform the NHS response to human trafficking, and it was comprised of surveys and qualitative research, including interviews with trafficked people and with NHS and non-NHS professionals. It found that psychological distress was highly prevalent: four fifths of women in contact with shelter services screened positive for anxiety, depression or post-traumatic stress disorder at interview.

My hon. Friend the shadow Minister told the harrowing story of Gloria in his contribution on Tuesday, and demonstrated why the clause will be damaging to those who have been subject to trauma. The clause flies in the face of best practice and runs contrary to all we heard from witnesses in oral evidence. Earlier this week, my hon. Friend the Member for Bermondsey and Old Southwark made excellent points about how PTSD is just one reason why the approach in the clause will be unworkable and unconscionable for those who really need our help. We do not seek to punish or discredit other victims for late disclosure, so why are the Government seeking to do so in this case? The clause highlights the inconsistencies and the unjust nature of the Government’s approach.

It is also deeply worrying that the Government have offered no clarity in subsection (2) on the timescales within which individuals would have to provide that information. Will it be days, weeks, months? I would be grateful if the Minister gave us an indication of his thinking on that. As things stand, the clause will put barriers between victims and the support that they need to recover and secure prosecutions against the real criminals, who we all want to see brough to justice. On that basis, we cannot support clause 47.

Question put, That the clause stand part of the Bill.

Division number 43 Nationality and Borders Bill — Clause 47

Aye: 7 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 6.

Question accordingly agreed to.

Clause 47 ordered to stand part of the Bill.