A Step Backwards for Female Migrant’s Rights:

The Potential Impact of the Nationality and Borders Bill on Women Trafficked to the UK

(Metin Ozer, published 11th December 2019, downloaded from Unsplash, https://unsplash.com/photos/spFYbCSF-Ec [24/03/22])

Content Warning: discussion of human trafficking, sexual exploitation, and rape.

• The Nationality and Borders Bill will disadvantage victims of trafficking, especially female victims who face gender-specific difficulties.

• Clause 58 ignores the victim’s need for time to process their trafficking, especially when it comes to issues faced disproportionately by female victims like sexual exploitation.

• Clause 64 allows the Home Secretary to deny leave to remain without any guarantee the issues specifically faced by female victims of trafficking will be considered.

Introduction :

Article 4 of the ECHR prohibits slavery and forced labour, including human trafficking. The UK has positive obligations under Article 4 and The Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) to protect people from trafficking.

The Nationality and Borders Bill was introduced in May 2021 as part of the ‘New Plan for Immigration’ and is currently in the final stages of amendment. Part 5 of The Bill concerns modern slavery and will disadvantage victims of trafficking trying to be identified as an official victim for the purposes of support and leave to remain in the UK. Since women make up 71% of global trafficking victims [1], they will likely be disproportionately affected by part 5 of The Bill in a general sense. Yet, there is a growing argument that trafficked women will also be specifically impacted due to The Bill’s failure to account for the nuanced difficulties faced by female trafficking victims, especially those who have experienced sexual exploitation (98% of trafficking victims experiencing sexual exploitation are women).

The two key problematic clauses for female trafficking victims in Part 5 of The Bill are clause 58 and clause 64.

Clause 58:

Clause 58 states that when considering a potential victim’s asylum claim, “the competent authority must take account, as damaging the person’s credibility, of the late provision of the relevant status information”. This requirement places a deadline on trauma and completely ignores the victim’s need for time to process their trafficking, especially when it comes to issues faced disproportionately by female victims like sexual exploitation and rape. Sian Evans of Women Against Rape suggests that “rather than help women overcome the difficulties of reporting rape, government officials exploit them” and create environments of hostility in interviews [3]. Clause 58 would encourage such hostility in two ways: firstly, the clause fails to recognise that trauma takes time to unpack. The Victim’s Commissioner points out that “trauma can have a profound impact on recall and … narratives emerge piecemeal over time” [4]. The Commissioner gives the example of Agatha, who only disclosed that she had been trafficked for sexual exploitation after 17 months of support. Secondly, clause 58 disregards the notion that sometimes trafficking victims will not even realise they are such victims, this is especially so for female victims who have lost their sense of self-worth through sexual exploitation. Cora, a victim trafficked to the UK, told Stylist magazine that there will be “many who don’t disclose because they don’t know. It won’t be their fault, but the Nationality and Borders Bill may make it their fault” [5].

Clause 64:

The Anti-Slavery Commissioner has highlighted the importance of leave to remain (the permission granted to non-UK nationals to enter and stay in the UK for a limited period) in “improving the mental health of survivors…and [giving] a chance to focus on recovery” [6], clause 64 jeopardises this vital element of support for female trafficking victims.

Clause 64(2)(a) provides that leave to remain in the UK must be given where necessary for the purpose of “assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation”. This is intended to give effect to Article 14(1)(a) of ECAT which requires a State to issue a renewable residence permit to victims of trafficking where the competent authority considers their stay necessary owing to their personal situation. However, the leave is not required if the Home Secretary is of the view that the victim’s needs can be met in the country of nationality or a third country. In essence, the Home Secretary can deny leave to remain if the victim’s physical or psychological needs can be met elsewhere. This is a potent power which does not encourage the Home Secretary to go beyond surface level physical and psychological issues to look at the nuanced needs of female trafficking victims. How can we guarantee the Home Secretary will look at the social harms affecting women sent back to their home countries; for example, Cora, the above-mentioned victim, fell pregnant as a result of her sexual exploitation and explains how this was taboo in her home country with a culture that looks down on sex outside of marriage. How can we guarantee the Home Secretary will look at the educational or financial needs of women- whether sufficient pay or education can be accessed in their home country or whether they will be allowed financial independence at all? How can we guarantee the Home Secretary will look at pregnancy and childcare needs of women? As the Joint Committee of Human Rights states, clause 64(2)(a) “does not give full effect to the obligation in Article 14(1)(a) ECAT” since it does not require a holistic review of the personal situation; this seems especially so for women who often face extra, gender-specific vulnerabilities [7].

Conclusion:

The House of Lords have recommended the removal of both Clause 58 and Clause 64(2)(a). On the 22nd of March 2022 the Commons voted against both these amendments. Under the current version of The Bill, not only will the UK government potentially be failing to fulfil their obligations under the ECHR and ECAT, they will also be failing the vulnerable women reaching out for our help.

The Author:

Niamh Webb is a second-year undergraduate reading law at Murray Edwards College, Cambridge. She has broad interests in international human rights law and women’s issues in human rights law/the criminal justice system.

References:

[1] United Nations Office on Drugs and Crime, ‘Global Report on Trafficking in Persons’, 2016, https://www.un.org/sustainabledevelopment/blog/2016/12/report-majority-of-trafficking-victims-are-women-and-girls-one-third-children/ [24/03/22]

[2] Office for National Statistics, ‘Modern Slavery in the UK’, March 2020, Modern slavery in the UK - Office for National Statistics (ons.gov.uk) [24/03/22]

[3] Medlicott L.C, ‘How the Nationality and Borders Bill will affect women refugees and asylum seekers’, The Independent, January 2022, https://www.independent.co.uk/independentpremium/long-reads/nationality-border-women-refugees-asylum-seekers-b1996257.html [24/03/22]

[4] Victims’ Commissioner for England and Wales and Independent Anti-Slavery Commissioner, ‘The Nationality and Borders Bill fails to grasp what being a victim of slavery means’, Victims Commissioner, January 2022, https://victimscommissioner.org.uk/news/the-nationality-and-borders-bill-fails-to-grasp-what-being-a-victim-of-slavery-means/ [24/03/22]

[5] Medlicott L.C, ‘Will the Nationality & Borders Bill affect female asylum seekers?’, Stylist Magazine, February 2022, https://www.stylist.co.uk/news/politics/nationality-and-borders-bill-asylum-women/613404 [24/03/22]

[6] Letter from the Independent Anti-Slavery Commissioner to the Home Secretary, September 2021, https://www.antislaverycommissioner.co.uk/media/1668/iasc-letter-to-the-rt-hon-priti-patel-mp-home-secretary-march-2021.pdf [24/03/22]

[7] Joint Committee on Human Rights, ‘Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery’, UK Parliament, December 2021, https://publications.parliament.uk/pa/jt5802/jtselect/jtrights/964/96402.htm [24/03/22]