The Home Office has been criticised for a “stealth” legal change which makes it easier for victims of modern slavery or human trafficking to be detained in immigration facilities.
The government has removed a specific clause in immigration guidance ordering the Home Office to take account of modern slavery laws before detaining possible victims.
Charities have condemned the change, saying it will make it “significantly more difficult” for possible victims of trafficking to avoid detention or gain their release.
People recognised by the government as having “reasonable grounds” to claim trafficking status will now be classed as at-risk adults, putting them in a broad category with over-70s, torture victims, pregnant women and those with a disability.
Under current laws those deemed to have “reasonable grounds” are entitled to support including accommodation and counselling.
But they could now need a specific assessment from a doctor, charity or social worker to stay out of detention.
The change to the guidance was set out without fanfare in February and will take effect from May.
It was made using a statutory instrument, meaning MPs aren’t set to debate it and it can pass without the usual parliamentary scrutiny.
Statutory instruments allow the government to make or alter laws under existing acts of parliament.
Anti-Slavery International said the government was “taking a backward step on its world leading commitment to protect and support survivors of slavery”.
It warned ministers to consider why the UK had previously taken the decision not to detain slavery survivors, saying this would be viewed as a breaching international law.
Maya Esslemont, director of non-profit group After Exploitation, called on MPs to “work at pace to challenge this stealth legislation”.
Describing modern slavery as “a deeply traumatising form of exploitation”, she said it is “unthinkable” that such changes have been made without a parliamentary debate.
She added: “Under the new policy, even those recognised as having legal rights to trafficking support by the Home Office may still be held behind bars.
“This significant change introduces a clear risk to some of the most vulnerable in our society, who are already wrongfully detained rather than supported.”
Last month the government was revealed to have detained at least 2,914 potential victims of human trafficking in “prison-like” detention settings since the start of 2019.
Charities have suggested as many as half that number could eventually be officially confirmed as victims.
In a reply to a House of Lords Committee, the Home Office admitted that “some individuals” would be more likely to be detained as a result of the new guidance, but insisted there was a “presumption” against detaining people.
The department was also criticised for “poor practice” by the Lords Secondary Legislation Scrutiny Committee for taking just two weeks to consult on the changes after considering them “for at least two years”.
Labour’s John McDonnell attacked the new guidance as “completely counter-productive” and said it “will deter victims coming forward”.
The former shadow chancellor has sponsored a motion with MPs, including former Labour leader Jeremy Corbyn, calling for the guidance to be rejected.
Mr McDonnell said the change “flies in the face of the government’s stated aims of protecting the victims of trafficking”.
He added: “Contrary to what ministers have claimed about recognising the vulnerability of victims of trafficking, it means that someone trafficked will be at heightened risk of detention.”
Mr McDonnell’s motion gives MPs a month to reject the change, though this would require a majority vote in the Commons.
The Home Office insisted the law change will “rebalance” the system and allow vulnerabilities and immigration factors to be considered when potential victims are being considered for release.
The government’s “generous safeguards” were “open to abuse by failed asylum seekers or foreign criminals who have no right to be here,” a Home Office spokesperson said.
They added: “Attempts to cheat the system diverts resources away from genuine victims of trafficking, persecution and serious harm.
“The UK has led the world in protecting the victims of modern slavery and we will continue to support those who have suffered intolerable abuse at the hands of criminals and traffickers so they can rebuild their lives, while preventing the exploitation of the system.
“We are fixing an anomaly in the system to make sure that those who we believe may have been a victim of modern slavery are treated consistently with all other vulnerable people in immigration detention, such as those with serious physical disabilities.”