The High Court’s ruling that the Home Secretary’s use of ‘public order disqualification’ (POD) powers has been unlawful is a significant step forward for trafficking survivors.
This court judgment supports Hope for Justice’s repeated calls for the UK Government to repeal the public order disqualification provisions of the Illegal Migration Act 2023 (Section 29) and the Nationality and Borders Act 2022 (Section 63). We previously voiced our concern that the scope of the public order exemptions was too broad.
Reports from the Council of Europe’s Group of Experts on Trafficking (GRETA) and the Modern Slavery Policy and Evidence Centre also indicate that the public order disqualification is incompatible with international law.
Euan Fraser, our Senior Policy & Research Advisor, said:
“We have long opposed the extensive public order disqualification created by the Nationality and Borders Act because of the way survivors of modern slavery are barred from accessing support and protection that are essential for their recovery.”
Euan Fraser, Senior Policy & Research Advisor
He added: “Survivors can be subject to the public order disqualification even on the basis of offences they were forced to commit as part of their exploitation. We therefore welcome the High Court’s judgment that the approach to decision-making is unlawful and we continue to urge the Government to repeal this policy.”
In the first major ruling centred around the Home Office’s use of these powers, the High Court found that Home Secretary Shabana Mahmood’s general approach has been “unlawful” and “requires significant revision”.
Under the National Referral Mechanism (NRM) – the UK Government’s formal framework for identifying and supporting potential victims – survivors of modern slavery and human trafficking have a right to access various types of support if the Home Office gives them a positive initial ‘reasonable grounds’ decision. This means that they have reasonable grounds to believe that they are a potential victim of modern slavery. At this stage, potential victims may be assigned a caseworker, financial aid, safehouse accommodation, NHS support, counselling and legal help.
However, the Nationality and Borders Act gave the Home Secretary powers to exclude victims with ‘reasonable grounds’ decisions from accessing this support in their recovery. For example, if an individual is considered a ‘threat to public order’ and they meet certain criteria, the Home Secretary can choose to exclude them from this provision at her own discretion.
Public order decisions are also only made following a positive reasonable grounds decision, which means they only apply to those thought to be potential victims. Once a public order decision is made the person has 14 days to move on from the Modern Slavery Victim Care Contract (MSVCC). Currently there is no statutory right to appeal this decision or to challenge it with a reconsideration request.
Judge rules Home Secretary’s use of public order disqualification was unlawful in R (ABW) v Secretary of State for the Home Department
The recent High Court case heard how the Home Secretary Shabana Mahmood subjected a public order disqualification (POD) on a victim of repeated human trafficking and modern slavery. The Home Secretary found that his ‘high’ threat to public order outweighed his ‘high’ recovery needs and that he was not at risk of re-trafficking. The survivor’s support was stopped and he was informed that no conclusive grounds decision would be made in his case. Just a few weeks later, he was re-exploited. He issued a judicial review to challenge the POD decision and obtained interim relief so he could re-access NRM support pending resolution of his claim.
Mr Justice Morris found in favour of the claimant, and ruled that the public order disqualification was unlawful. The court found that the Home Secretary is under obligation to make ‘conclusive grounds’ NRM decisions for victims of human trafficking who have reasonable grounds decisions and who have been subject to a POD, while they remain in the UK. This is an obligation which the Home Secretary was in breach of and has failed to fulfil to date.
The court also held that Section 63 of the Nationality and Borders Act 2022 / public order derogations relating to the Home Secretary’s duties towards victims of trafficking are to be interpreted narrowly in line with Article 13 of the Council of Europe Convention on Action against Trafficking (ECAT). This is not currently being followed because the Modern Slavery Statutory Guidance creates an unlawful presumption in favour of making public order disqualifications. For example, it presumes that every case that falls within Section 63(3)(b) or (f) automatically poses a high threat to public order.
Further still, Mr Justice Morris found that the Home Secretary had irrationally concluded that there was not a credible suspicion that the claimant was at a real and immediate risk of re-trafficking. Her assessment of re-trafficking did not address the claimant’s general vulnerability to re-trafficking from other sources than his former traffickers.
Impact on survivors forced to commit crimes whilst in exploitation
Legislative changes have resulted in a sharp decline in the proportion of individuals positively identified as victims of modern slavery and able to receive assistance. The conflation of modern slavery with immigration has created barriers for many foreign national survivors being able to access their rights to support and protection. Under current policies, foreign nationals who were forced to commit crimes during their exploitation, may be excluded from support if they have received a custodial sentence of more than 12 months.
Our team of Independent Modern Slavery Advocates (IMSAs) have experience of the Home Office attempting to apply a public order disqualification to a survivor of modern slavery in relation to a criminal offence that happened several years prior, which they were forced to commit under duress whilst trapped in exploitation. This individual had already been exited from support via the NRM, so to pursue them with this public order was unnecessarily damaging.
Hope for Justice’s recommendations
The UK Government must work to de-conflate modern slavery from issues of immigration to ensure that access to support services is independent from law and immigration enforcement.
Hope for Justice has continuously made the following recommendations:
- Repeal harmful immigration legislation which restricts potential survivors’ rights and ability to access support, including Sections 58 to 65 and 68 to 69 of the Nationality and Borders Act 2022 and Sections 29 and 59 of the Illegal Migration Act 2023.
- Amend the Modern Slavery Act statutory guidance to facilitate identification and access to support services for all survivors.
- Develop and implement a response to modern slavery which reflects the complex nature of the crime, impacting across society and intersecting a range of policy areas, including violence against women, child protection and workers’ rights. A safeguarding response prioritises the rights and wellbeing of survivors over immigration concerns, which is crucial to ensuring that they are able to access the support necessary for their recovery.
In previous briefings, Hope for Justice has highlighted that Public Order Disqualifications (PODs) risk criminalising survivors and creating impunity for traffickers.
We again call for the repeal of the public order disqualification provisions of both the Nationality and Borders Act and Illegal Migration Act on the basis that these provisions:
- Are incompatible with the UK’s obligations under international law, and
- Undermine efforts to safeguard survivors and hold traffickers to account.
Additional notes
The explanatory report to the Nationality and Borders Act 2022 states that the purpose of the public order disqualification is to give effect to the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), which allows for: ‘an exemption to the protections conferred during the recovery period on public order grounds or if it is found that victim’s status is being claimed improperly. This Section puts these disqualifications into primary legislation’.
‘Public order’ is expansively defined in section 63. It includes those who have committed an offence for which they have been sentenced to 12 months or more in prison, or who have committed any offences detailed in Schedule 4 of the Modern Slavery Act 2015. Schedule 4 is extensive and contains many of the offences that victims/survivors may have committed as a result of their trafficking experience.
The exclusion also applies to those who are deemed a risk to national security. In light of hostile rhetoric, laws and policies towards migrants, there is scope for a large cohort of vulnerable people thought to be potential victims to be disqualified on this basis.
In summary, we strongly believe that the scope of section 63 is already extensive in its application and is negatively impacting on the ability of victims/survivors to access the protection and support they so desperately need for their recovery.
