Immigration and Asylum Bill

294. Clause 38 amends section 63 of the Nationality and Borders Act 2022, which deals with disqualification from the National Referral Mechanism on grounds of public order, and inserts new section 63A, which expands upon and more clearly defines the basis on which disqualification can occur on grounds of ‘bad faith’. Section 63 previously dealt with both public order and bad faith, but clause 38 separates them into two separate provisions. This provision sets out the UK Government’s interpretation of Article 13(3) of the European Convention on Action against Human Trafficking. These amendments sit alongside the commencement of section 29 of the Illegal Migration Act (IMA) 2023. 295. Subsection (1) signposts that these changes will take the form of amendments to Part 5 of the Nationality and Borders Act 2022. 296. Subsection (2) outlines the amendments to be made to section 63. Subsection (2)(a) amends the title of the section to reflect the fact that it now only relates to disqualification on the grounds of threat to public order. and (2)(b) removes section 63(1)(b), which relates to bad faith (now dealt with separately in new section 63A). 297. Subsection (2)(c) amends section 63(1) to make clear that, when a competent authority is satisfied that a person poses a risk to national security (section 63(1)(a)), or where the person is a threat to public order (section 63(1)(b)), the consequences at section 63(2) (i.e. disqualification) must apply. This will apply to any person coming before the competent authority. 298. Section 63(1)(b) is subject to an exception in new section 63(1A), inserted by clause 38(2)(c). The effect of this is that the duty to disqualify on the basis of public order threat will not apply to people under 18 with either the right of abode in the United Kingdom, or leave to remain other than under section 65 NABA. In effect, this means children meeting these criteria remain eligible for modern slavery protections, even if they might otherwise be considered a threat to public order. This puts in place an explicit statutory safeguard reflecting the need for enhanced protection of children within the modern slavery framework. 299. Subsection 2(d) replaces the current section 63(2) NABA, setting out the consequences attaching to a determination under section 63(1). Where a decision to disqualify is made, under new section 63(2), any prohibition on removing the person, or requiring them to leave the United Kingdom no longer applies. This removes the protections of the recovery period provided under sections 61 and 62 NABA. Further, any requirement to grant the person limited leave to remain (also known as temporary permission to stay or TPS) will no longer apply (new section 63(2)(b)), and there will be no requirement to make a conclusive grounds decision in relation to that person following a decision to disqualify, on the basis that a section 63 determination will be regarded as the conclusion of the identification process. 300. Subsection 2(e) amends section 63(2A), as inserted by section 29(3) of the IMA 2023, such that the duty to make a determination of disqualification on public order grounds will not apply where the competent authority considers the person to beat immediate and significant risk of becoming a victim of modern slavery or human trafficking, or further slavery or trafficking, in the United Kingdom. 301. Subsection 38(2)(f) inserts new section 63(2B) into NABA, defining what constitutes a ‘risk to the national security of the United Kingdom’ for these purposes by setting out a list of circumstances that will bring a person within scope of this provision, namely: a) the person has been convicted of a terrorist offence (new section 63(2B)(a)); b) the person is subject to a TPM notice (within the meaning given by section 2 of the Terrorism Prevention and Investigation Measures Act 2011) (63(2B)(b)); c) there are reasonable grounds to suspect that the person is or has been involved in terrorism-related activity within the meaning given by section 4 of that Act (whether or not the terrorism-related activity is attributable to the person being, or having been, a victim of slavery or human trafficking (63(2B)(c)); d) the person is subject to a notice under Part 2 of the National Security Act 2023 (63(2B)(d)); e) there are reasonable grounds to suspect that the person is or has been involved in foreign power threat activity within the meaning given by section 33 of that Act (whether or not the foreign power threat activity is attributable to the person being, or having been, a victim of slavery or human trafficking) (63(2B)(e)); and f) the person is subject to a temporary exclusion order imposed under section 2 of the Counter-Terrorism and Security Act 2015 (63(2B)(f)). 302. Subsections 2(g) and (h) make consequential amendments to section 63(3), which sets out the offences and behaviours to be captured by the public order disqualification, to ensure there are clear definitions of what constitutes a national security or public order threat respectively for the purposes of this section. 303. Subsection (2)(i) amends section 63(5A)(b), as inserted by section 29(5) IMA 2023, so that a person in receipt of a suspended sentence is not excluded from the scope of public order disqualification. 304. Subsection (3) inserts new section 63A into NABA which makes separate provision enabling disqualification from protections on grounds of bad faith. 305. Under section 63A(1), when a competent authority is satisfied that a person has claimed to be a victim of slavery or human trafficking in bad faith, the consequences at section 63A(2) must apply. This will apply to any person coming before the competent authority who is aged 18 or over at the time the claim was made (section 63A(1)(b)). New section 63A(8) sets out that for these purposes, a person ‘claims to be a victim of slavery or human trafficking’ if they disclose information that tends to suggest they may be a victim. 306. New section 63A(2) sets out the consequences attaching to a determination under section 63A(1). Where a decision to disqualify is made, under section 63A(2), any prohibition on removing the person, or requiring them to leave the United Kingdom no longer applies. This removes the protections of the recovery period provided under sections 61 and 62 NABA. Further, any requirement to grant the person limited leave to remain (also known as temporary permission to stay or TPS) will no longer apply (new section 63A(2)(b)), and there will be no requirement to make a conclusive grounds decision in relation to that person following a decision to disqualify. 307. New section 63A(3) sets out a non exhaustive list of circumstances where a person will be taken to have made a claim to be a victim in bad faith, specifying that this will include where a person has made a claim at a point in time where the person was due to be removed from the United Kingdom (section 63A(3)(a)); and where the person has knowingly provided false or fabricated information to support their claim (section 63A(3)(b)). 308. Under new section 63A(4), there is an exception to the duty to disqualify with regard to section 63A(3)(a) (late claims), where the person has been served with a claim notice under clause 11 and that claim was made on or before the prescribed deadline (section 63A(4)(a)), or the Secretary of State is satisfied there are compelling reasons why the person did not make their claim prior to becoming due for removal from the UK (section 63A(4)(b)). This provides the person with an opportunity to rebut the presumption in favour of disqualification in these circumstances. 309. New section 63A(5) defines ‘due to be removed from the United Kingdom’ for these purposes with reference to section 10A of the Immigration and Asylum Act 1999. 310. New section 63A(6) provides a regulation-making power enabling the Secretary of State to add to the circumstances where a claim will be taken to be made in bad faith. Any regulations made under that power are subject to the affirmation procedure (section 63A(7)). 311. New section 63A(9) sets out definitions of “claim notice”, meaning a notice issued under section 11; and “claim notice deadline”, with reference to section 11(3).