Briefing: Human trafficking in the UK by Charlotte Rubin

As many as 13,000 people are thought to be held in modern slavery in the UK today, with up to 25% believed to be minors. The Modern Slavery Act 2015 sets out the framework for their protection. Under that Act, certain public authorities such as police and local authorities have a duty to notify the Secretary of State about suspected victims of slavery or human trafficking through the National Referral Mechanism (NRM).
 
Once the potential victim is flagged, the Single Competent Authority (SCA), a department of the Home Office, evaluates the credibility of the claim. The potential victim then receives what is called a “Reasonable Grounds Decision,” which states whether the Home Office believes there are reasonable grounds to believe the person is a victim. This usually happens relatively quickly, with the goal being to get a decision within five working days of receiving the referral. The test for a Reasonable Grounds Decision is whether a reasonable person would think there are reasonable grounds to believe the individual is a victim of modern slavery considering the information in the mind of the decision maker.
 
The credibility of the victim’s account is assessed based on the potential victim behaviour and information provided by external parties, such as the organisation referring the potential victim. If the Home Office identifies the person as a victim of human trafficking, they will send out a positive Conclusive Grounds Decision. This takes longer, and requires further investigation, during which The Home Office will usually ask for additional documentation and testimony from the potential victim. Whilst the Home Office is making their decision, the potential victim is entitled to support services and medical assistance. Potential victims who are minors receive support from local authorities to safeguard them.
 
A positive Conclusive Grounds Decision means the Home Office believe the person is a victim. It is supposed to ensure that the victim gets extra protections throughout their processing in the UK immigration system, for example, when charging them with crimes relating to the trafficking. A common scenario is of Vietnamese nationals, usually young people, who are trafficked to the UK to work on cannabis farms. In fact, in 2020, more children than adults were referred through the NRM system for the first time ever recorded, though they were of course not all Vietnamese.
 
The government has frequently said they are committed to tackling modern slavery and eradicating human trafficking. Billboards and ads about the Home Office’s campaign against modern slavery can be found across the country, and especially at ports of entry such as St Pancras Station or international airports. Ms. Patel has made many
promises and speeches about it both in the UK and abroad. Ending trafficking and modern slavery is her purported reason for wanting to stop Channel Crossings. Yet, the Home Office continues to fail potential and confirmed victims.
 
In theory, if potential victims are confirmed as victims, that should be taken into account when charging them criminally for their offences. In practice, this is not always implemented as it should be. Earlier this year, for example, the European Court of Human Rights
ordered the UK to pay €25,000 for failure to protect two victims of trafficking, who were trafficked when they were minors. Additionally, delays in decision-making are frequent, with potential victims waiting for a conclusive decision for months, often locked up in detention centres while they wait.
 
Additionally, being a confirmed victim of human trafficking does not ensure that the victim is allowed to stay in the UK. In theory, the Home Office may grant the victims discretionary leave based on compassionate grounds, but there is no rule that they must do so. In reality, leave is rarely granted, and the UK’s overall track record is poor. The
Guardian reported that over the past five years, only 7% of confirmed trafficking victims were granted leave to remain in the UK. Those who are sent back to their country of origin are at heightened risk of re-trafficking or other abuse in their home country. Yet, instead of expanding support, Ms. Patel is pushing through the Nationality and Borders Bill, which includes proposals to narrow the grounds for discretionary leave to remain.
 
While awareness of trafficking and modern slavery is growing, many institutions and caseworkers are not equipped to deal with the extensive trauma slavery entails. The reality is that an overloaded immigration system inherently suspicious of claims made is not, and will never be, able to support victims adequately, yet it is all we have got.
 
If you suspect modern slavery, report it to the Modern Slavery Helpline on 08000 121 700 or the police on 101. In an emergency always call 999. Don't leave it to someone else. Your information could save a life.

Briefing: the Nationality and Borders Act’s effect on Nationality Law by Charlotte Rubin

The controversial Nationality and Borders Act, which has been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what they mean for the UK immigration system.
The Act makes significant changes to Nationality law as well as Asylum law. Last week we looked at the main changes for
asylum seekers and refugees; today, we consider the Act’s effects on Nationality law.
 
The stated overarching ambition of the Act when it comes to nationality is to provide some form of correction or redress on certain issues of legislative unfairness that have persisted throughout history in British law. Nationality law in the UK is widely known to contain gaps and issues, but these were not high up on the political agenda until exceptional cases like the
Windrush scandal forced nationality back into public consciousness.
 
Because the Windrush generation never received any paperwork proving their legal status in the UK, they not only had difficulties accessing public funds, proving their right to work and avoiding deportation, but they also encountered problems when applying for naturalisation further down the line, since they cannot easily prove their past residency in the UK.
 
The Nationality and Borders Act includes a number of provisions intended to rectify such situations. Firstly, section 1 and 2 rectifies the historical inability of mothers and unmarried fathers to transmit citizenship, respectively. Building on the British Nationality Act 1981, s.1 thus creates a registration route for adult children of
British Overseas Territories citizens (BOTC) mothers to acquire British Overseas Territories citizenship. Section 3-5 further widen the registration rights for BOTC and their children who were previously overlooked. Section 6 and 7 amend existing nationality law to entitle individuals who were previously unable to acquire British citizenship because their mother was married to someone other than their biological British citizen father at the time of their birth.
 
The old law, under the 1981 Immigration Act, provided recognised a “father” only as “the mother’s husband.” A 2006 updated definition broadened the concept of “father,” but had a cut-off date after which individuals were no longer entitled to apply or registration. The 2022 Act rectifies this.  Section 8 then grans the Secretary of State a discretionary power to give British citizenship and/or BOTC  to individuals who would have been or would have became a citizen had it not been for historical unfairness in the law, an act or omission of a public authority, or other exceptional circumstances.
 
Section 9 allows the Secretary of State to waive certain requirements ordinarily required to get citizenship, such as proof that the applicant has been present in the UK (or British overseas territory) at the start of the applicable residential qualifying period in special cases; these include cases like the Windrush applicants. It will also benefit those with Settled Status or indefinite leave to remain under the EU Settlement Scheme who were exercising pre-Brexit EU rights of free movement as students or self-sufficient persons but who lacked comprehensive sickness insurance (CSI) and were thus unknowingly in breach of immigration laws at the time.
 
On deprivation of citizenship and statelessness, the Act also amends existing law. Since 2006, the test for the Secretary o State to decide whether someone os to be deprived of their citizenship is whether it would be conducive to the public good to do so. Now, section 10 of the 2022 Act allows the Secretary of State to deprive a person of citizenship without providing them written notice  of the decision. The person need not be made aware, if giving notice is not possible or if there are reasons for not notifying them. This provision has been subject of much debate, nationally and internationally.
 
Internationally, the UNHCR explicitly flagging the risks of statelessness if individuals are to be deprived of nationality without notice; under the 1961 Convention on the Reduction of Statelessness, as well as under the International Covenant of Civil and Political Rights, to which the United Kingdom is party, the UK has a duty not to arbitrarily deprive individuals of their nationality. Nationally, the House of Lords opposed its insertion, but the House of Commons insisted on a revised version, which now has become law. The revised version allows the person in respect of whom the order is made may appeal the decision in the First Tier Tribunal, where the Secretary of State has made a deprivation order without notice. Additionally, a layer of judicial oversight has been inserted: the Secretary of State must apply to the Special Immigration Appeals Commission (SIAC), which in turn must determine  whether the view of the Secretary of State is ‘obviously flawed.’
 
Furthermore, section 10 of the Act discusses statelessness and stateless minors. Currently, the British Nationality Act 1981 provides that if a person is born in the UK, then they are entitled to be registered if they are and always have been stateless, are under 22 years old, and were in the UK over the preceding five years. Section 10 limits this provision, amending the law so that in addition to the existing requirements for stateless children (aged 5 to 17) to be registered as British citizens or BOTC, the Secretary of State must also satisfy him/herself that the child cannot reasonably acquire another nationality. A case which has received widespread media attention which has played a significant political role in the statelessness arena is the case of Shamima Begum, the ISIS bride. Ms. Begum was born and raised in the UK with British citizenship, so the clause does not exactly apply to her situation, as she was not a stateless person trying to register, yet her case remains relevant. Ms. Begum was only made stateless after the Secretary of State deprived her of her British citizenship. But one of the arguments put forward by the Secretary of State was that Ms. Begum was not actually stateless because she could acquire Pakistani nationality by descent; the likelihood of her being able to acquire another nationality was used as a justification to remove her British one. This argument was squashed in the courts. The same logic is used here in section 10; and just like with Ms. Begum, this section runs contrary to the UK’s obligation under the 1961 Convention on the Reduction of Statelessness.
 

The Nationality and Borders Act’s in action: differentiating refugees by Charlotte Rubin

The controversial Nationality and Borders Act, which had been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what it means for the UK immigration system more broadly.
 
The Act makes significant changes to Nationality law as well as Asylum law. This post looks at the main changes for asylum seekers and refugees; next we will consider the effects on Nationality law.
 
Section 12 of the Act starts by explicitly differentiating between “Group 1” and “Group 2” refugees. The distinction is paramount. “Group 1” refugees, once they receive refugee status, will get access to public funds and a 'relatively clear' path to settlement, not dissimilar from the one that exists for refugees now. They will be granted leave to remain for five years and be able to apply for indefinite leave to remain thereafter.
 
All remaining asylum seekers are considered “Group 2” refugees, meaning that even if they can prove their genuine fear of persecution, their status will remain more precarious. The intention is to grant “Group 2” refugees a temporary protection status for 30 months, to be re-evaluated when the 30 months end. Permission to stay will be renewable if the person is still eligible for refugee status when the Home Office re-evaluates the case, at the end of the 30-month period.
 
“Group 2” refugees will have no possibility to settle in the UK for at least a decade and no access to public funds. In some cases, Home Secretary Priti Patel has proposed to relocate “Group 2” asylum seekers to Rwanda, though she has not explained clearly how the Home Office would decide who to send away and who would be allowed to stay. All of the above is also applicable to any family members who may be accompanying or trying to join the “Group 2” asylum seeker.
 
So how does the Home Office differentiate between the two groups?
 
“Group 1” refugees are those who are considered to have complied with the new rules for claiming asylum. Those rules consider three factors. Firstly, the person claiming asylum must have come to the UK directly from a territory where their life or freedom was threatened as defined in the 1951 Refugee Convention (we did a
background briefing on the Convention recently if you want to read up on it). This requirement means that all asylum seekers and refugees who stopped in any other third-party country before reaching the UK will not be considered as “Group 1” refugees. Most refugees globally are unable to flee their country of origin by plane due to lack of means, time, and/or the right paperwork (including passports).
 
Since the UK is an island, it is only logical that most asylum seekers will not appear out of thin air without passing through European countries such as France first. This means most refugees will not be considered “Group 1” refugees based on this condition alone. As a caveat to this restrictive requirement, s.12(3) of the Nationality and Borders Act sets out that if a refugee has entered or is present in the UK unlawfully, they may still be considered a “Group 1” refugee if they have and can show good reason or their unlawful entry or presence. What exactly constitutes “good cause” remains vague.
 
The person claiming asylum must also present themselves to the relevant authorities without delay. This has always been the case; previously, if an asylum seeker delayed their asylum application, the Home Office would often use the delay against them in the decision-making process, arguing that it was a sign of dishonesty on behalf of the asylum seeker.
 
Importantly, if an asylum seeker enters the UK without the required entry clearance, they will not only be considered a “Group 2” refugee, curtailing their rights and benefits in the UK (unless they make up for it under s.12(3)), but they will also be committing a criminal offence. Section 40 of the Act defines the offence and sets the punishment as a fine and/or imprisonment of up to 12 months; in addition, the asylum seeker will of course have a criminal record to deal with in the future.
 
In addition, the Act amends existing law to broaden the definition of the existing crime of “assisting unlawful immigration” so that it is now an offence to facilitate the commission of a breach or attempted breach of ‘immigration law’, the latter being broadly defined, and including regulation of entitlement to arrive in a state. Maximum penalties for such assistance has been raised, from 14 years to life imprisonment. The Act also changes the offence of helping asylum seekers enter the UK; the new definition includes not only those who help them enter for gain, but also everyone else. This may have implications for rescuers at sea, for example, who help sinking vessels in the Mediterranean to make it to the shores safely. There is limited provision, therefore, in the Act, in s.25(BA), for a defence: a person does not commit a facilitation offence if the act of facilitation was an act done by or on behalf of, or co-ordinated by either Her Majesty’s Coastguard, or an overseas maritime search and rescue authority exercising similar functions.
 
The government stated goal with these changes is to improve protection for those at risk of persecution and combatting people smugglers by discouraging asylum seekers from traveling to the UK other than via safe routes; its effect, however, will most likely do the opposite. The Home Secretary has said that the Act “aims to influence he choices that migrants may make when leaving countries of origin.” But of course, refugees and asylum seekers do not choose to leave their country of origin at all – there is no choice involved in the matter, as the whole point of the Refugee Convention is to protect those forced to flee their homes. There is no legal justification in the Convention, for differentiating between refugees based on mode of arrival; for penalising it, or altering conditions of their stay thereafter. The only thing that matters, according to the Convention, is the actual merits of the asylum claim. That is what should determine the outcome of an application.
 
The UNHCR has highlighted that the Act potentially breaches international law at numerous stages, including the international law of the sea, international human rights law, the 1951 Refugee Convention, and the European Convention on Human Rights, of which the UK is a signatory. What will happen next is most likely a long battle in the courts fighting many of these provisions to uphold international law; a slow and costly affair - for which lawyers and judges, holding the Government to account, will be labelled by the the Government as its enemies. In the meantime, the 2022 Act has become law, and once it is in force (most provisions discussed above will be by 28 June) affect the most vulnerable seeking help when they arrive on UK shores.
 
 

Briefing: High Potential Individual visa launched by Charlotte Rubin

On Monday, the Home Office announced the launch of a new visa that is meant to fix the (huge) labour gap caused by the compounded upheavals of Brexit and COVID: the much-anticipated High Potential Individual visa.
 
As part of the New Plan for Migration, Home Secretary Priti Patel has long boasted that the UK will only attract the “brightest and best” individuals from abroad. However, since the post-Brexit immigration rules ended on 30 January 2020, and the EU Settlement deadline passed on 30 June 2021 (which does not mean you cannot make a
late application!), that has been mostly talk and very little action. In reality, professional fields that typically recruit heavily amongst a steady stream of incoming EU workers, especially recent graduates, have struggled to fill positions.
 
The High Potential Individual visa allows graduates from select universities around the world to apply to come to the UK under a new visa scheme. Crucially, applicants will not need a job offer in order to apply. All they need is a degree from a
set list of 37 universities deemed “top” institutions. For 2021, 20 schools on the list are US universities, and three more are from Canada, leaving 15 spots for the rest of the world. Though a variety of countries fills those 17 spots (Japan, China, Singapore and Switzerland get two schools), and Sweden, Australia, and Hong Kong each get one), no schools in Africa, Latin America, or South East Asia made the cut. And even in Europe, the selection is very limited.
 
Successful applicants will receive a work visa for two years if they hold a bachelors or masters degree and three years if they have a Ph.D. The degree must have been awarded within the five years prior to applying for the visa, as the UK is trying to attract people early on in their careers. Those who receive the visa will be allowed to bring dependants / family members with them. Importantly, the visa does not lead to settlement directly, but the expectation is that once the individual is working in the UK they will then be able to stay by switching into a different visa route.
 
The visa requires applicants to pay the immigration health surcharge (£1248 for two years) in addition to an application fee of £715 and a £210 fee to check that the foreign qualification is valid – so the price tag is pretty steep, though the Home Office might imagine that this is not a problem for graduates of Columbia University and the likes.
 
Since the Home Office announcement, some obvious criticisms have already been made, including that the school list is elitist and unfairly skewed; it is expected that other countries will lobby the government to include their universities. Whether that will happen, and whether it will make the list more balanced, remains to be seen.

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