Human Trafficking: Iconic Victims, Folk Devils and the Nationality and Borders Act 2022
| Published date | 01 September 2023 |
| Author | Jason Haynes |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12814 |
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Modern Law Review
DOI:10.1111/1468-2230.12814
LEGISLATION ARTICLE
Human Tracking: Iconic Victims, Folk Devils and the
Nationality and Borders Act 2022
Jason Haynes∗
On 28 April 2022, the Westminster Parliament passed the controversial Nationality and Borders
Act. The Act is the single biggest overhaul of the UK’s immigration system in decades.The Act
aims to deter illegal entry into the UK; remove more easily those with no right to be in the
UK; and increase the overall fairness of the system. Notwithstanding these seemingly laudable
objectives,however,this article argues that the Act represents a retrograde step in the protection
of victims of human tracking. Relying upon Nils Christie’s ‘ideal/iconic victims’ and Stanley
Cohen’s‘folk devils’ critique, the ar ticle contends that, in an age of heightened securitisation and
moral panics, the Act will create ‘folk devils’ of victims of tracking who do not self-identify,
and unduly penalise victims of tracking who have committed oences in the course,or as a
consequence, of being tracked.
INTRODUCTION
The Nationality and Borders Act was enacted in April 2022 to address the in-
creasing numbers of people who are alleging that they have been tracked, as
well as to stop misuse of the protection mechanisms in the UK, whilst disin-
centivising ‘dangerous people’ from coming to the UK. Part 5 of the Act deals
with the issue of modern slavery, of which human tracking is a specic man-
ifestation.1Human tracking is a global phenomenon,2and one of the fastest
growing and most lucrative forms of criminal activity today.3
In the UK, the Home Oce has reported that, over the last ten years, there
has been a steady increase in the number of referrals of potential victims of
∗Associate Professor of Law and Deputy Head of Research,Bir mingham Law School, University of
Birmingham. I am very grateful to the reviewers for their excellent feedback and guidance. All errors
are my own.
1Basfar vWon g [2022]UKSC 20 at [73]. Human tracking involves the commission of certain acts
(recruitment, transportation, transfer, harbouring, or receipt of persons) through cer tain means
(threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or
giving or receiving payments or benets to a person to achieve the consent of a person who
has control of the victim) for the purpose of exploitation (including slavery, sexual exploitation,
forced labour or slavery or servitude).
2 Navid Pourmokhtari, ‘Global Human Tracking Unmasked: A Feminist Rights-Based Ap-
proach’ (2015) 1 Journal of Human Tracking 156.
3 ‘Human Tracking:People for Sale’(United Nations Oce on Drugs and Crime, 2021) at https:
//www.unodc.org/toc/en/crimes/human-tracking.html [https://per ma.cc/247F-4LHR].
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(5) MLR 1232–1264
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Jason Haynes
tracking to the National Referral Mechanism (NRM). The NRM is the
national framework for identifying and referring potential victims of modern
slavery and ensuring they receive the appropriate support in the UK.4In fact,
in 2013, there were 1,746 referrals while in 2021, 12,727 potential victims of
moder n slavery were refer red.5Data from Hope for Justice estimates that 40 per
cent of its caseload are victims of tracking who have committed criminal
oences with a sentence of least 12 months imprisonment.6It is against the
backdrop of the increasing number of people who are claiming to be victims
of tracking in the UK, the need to ‘reduce the potential for misuse of the
National Referral Mechanism (NRM) system’, and the need to remove ‘those
who pose a threat to the UK’,7that the Westminster Parliament enacted Part 5
of the Nationality and Borders Act.
Section 58 of the Nationality and Borders Act 2022 requires that persons
who allege that they are victims of human tracking provide the competent
authority, before a specied date, with relevant information related to their
status. If the person supplies the requested information late or has no good
reasons for why the information is provided late, or does not provide the
information at all, the competent authority, in making a reasonable grounds
decision or conclusive grounds decision,may treat this as damaging the person’s
credibility. Separately, section 61 of the Act reduces the recovery and reection
period from 45 days to 30 days. Meanwhile, section 63 of the Act provides
for the disqualication from protection and removal of several categories of
victims of tracking, including those who have been convicted of a terrorist
oence or persons in relation to whom there are reasonable grounds to suspect
that they have been involved in terrorism-related activity; those who have
been convicted of an oence listed in Schedule 4 of the Modern Slavery
Act 2015 (MSA 2015) anywhere in the UK, or of a cor responding oense
committed abroad;non-Br itish citizens who have been convicted in the UK of
an oence and have been sentenced to a period of 12 months imprisonment;
‘serious criminals’ who have been convicted outside the UK and have been
sentenced to a period of imprisonment of at least 12 months; persons who
have been deprived of their British citizenship; persons who pose a risk to the
national security of the UK; and those who otherwise pose a threat to public
order.
Relying upon Nils Christie’s ‘ideal/iconic victims’and Stanley Cohen’s ‘folk
devils’ critique, this ar ticle argues that Part 5 of the Nationality and Borders Act
will concretise a dangerous dichotomy between ‘iconic victims’and ‘folk devils’,
and represents a regressive step in the protection of the rights of victims of
tracking in the UK. It begins by situating the UK’s ongoing legislative eorts
to create a hostile environment for migrants within a securitisation framework,
which is characterised by moral panics. The ways in the Nationality and Borders
4 Nationality and Borders Bill Explanatory Notes (9 December 2021) at [572].
5 The report does not disaggregate data on the dierent forms of modern slavery.‘Modern slavery’
is a ter m that includes any form of human tracking, slavery, servitude or forced labour,as set
out in the Modern Slavery Act 2015.
6 Reported by Sara Thornton, former Independent Anti-Slavery Commissioner.See below n 114.
7ibid at [38].
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1232–1264 1233
Human Tracking and the Nationality and Borders Act 2022
Act falsely dichotomises victims of tracking as ‘iconic victims’ and ‘folk devils’
are considered next. Finally, the article goes on to present an assessment of the
implications of these legislative developments for victims,as well as their impact
on the UK’s compliance with its obligations under international law.
BACKGROUND AND CONTEXT
The Nationality and Borders Act 2022 is part of the legislative framework that
addresses human tracking in the UK. Prior to the enactment of the Nation-
ality and Borders Act, the Modern Slavery Act 20158was heralded in some
quarters as a ‘landmark’9and ‘historic’10 piece of leg islation. It substantively
implements the UK’s anti-tracking obligations under the UN Palermo Pro-
tocol,11 the Council of Europe Convention on Action against Tracking in
Human Beings (ECAT),12 and the EU Anti-Tracking Directive (Directive
2011/36/EU),13 although section 68 of the Nationality and Borders Act now
requires that the latter be disapplied in so far as it is incompatible with any
provisions in the new Act. The MSA 2015 seeks to achieve three objectives:
preventing tracking in persons, prosecuting perpetrators, and protecting vic-
tims. It is a progressive development14 in a eld which was hitherto dominated
by an arguably minimalist approach to the regulation of human tracking.15
The MSA 2015 criminalises the oence of human tracking;16 imposes a
maximum sentence of life imprisonment on those who commit the oence;17
allows for the conscation of the assets of exploiters;18 and enables the Crown
Court to order trackers to pay reparation to victims.19 It also places a re-
quirement, under section 50, on the Secretary of State to issue Guidance on
assistance and support to potential adult victims of human tracking. This pro-
vision has been amended by section 64 of the Nationality and Borders Act, so
8 Modern Slavery Act 2015, c 30.
9 ‘Landmark Moder n Slavery Bill Passes’ (CARE UK, 25 March 2015) at https://care.org.uk/
news/2015/03/landmark-modern-slavery- bill-passes (last visited 1 July 2023).
10 ‘Historical Law to End Modern Slavery’(Home Oce, 26 March 2015) at https://www.gov.uk/
government/news/historic-law-to-end- modern-slavery-passed (last visited 19 March 2023).
11 Protocol to Prevent,Suppress and Punish Trackingin Persons Especially Womenand Children,
supplementing the United Nations Convention against Transnational Organized Crime 2000,
2237 UNTS 319. Ratied by Great Britain and Northern Ireland on 9 Februar y 2006.
12 Council of Europe Convention on Action Against Tracking in Human Beings 2005, CETS
197. Ratied by the UK on 17 December 2008.
13 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on
preventing and combating tracking in human beings and protecting its victims and replacing
Council Framework Decision 2002/629/JHA.The UK opted into this Directive on 18 October
2011. The Directive became directly applicable in UK Law in December 2013.
14 Jason Haynes, ‘The Moder n Slavery Act (2015): A Legislative Commentary’ (2016) 37 Statute
Law Review 33.
15 See for example Group of Experts on Action against Tracking in Human Beings (GRETA),
Report concerning the implementation of the Council of Europe Convention on Action against Tracking
in Human Beings by the United Kingdom (Strasbourg, Council of Europe, 2012) 6.
16 MSA 2015, s 2.
17 ibid,s5.
18 ibid,s7.
19 ibid,s8.
1234 © 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1232–1264
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