Commentary on provisions of the Act Section 22: Provisions relating to removal and leave
The Council of Europe Convention on Action against Trafficking in Human Beings ("ECAT") provides that once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person (such person being a "potential victim"). Part 5 of the 2022 Act, which came into force on 30 January 2023, placed a number of the provisions of ECAT into domestic law. Section 61 of the 2022 Act provides for a minimum 30 day recovery and reflection period for potential victims of modern slavery during which, subject to section 63, the victim must not be removed from the UK; section 62 provides that only one recovery period will be provided to a potential victim, unless the Secretary of State considers it appropriate to provide a further period of protection from removal in the particular circumstances of the case, or unless the further instance of exploitation occurred after the previous reasonable grounds decision; section 63 sets out disqualifications to providing a recovery period, support or temporary leave to a potential victim of modern slavery based on grounds that the individual is a threat to public order or has claimed to be a victim in bad faith; section 64 (which inserts section 50A into the 2015 Act) sets out obligations to provide potential victims with assistance and support to aid their recovery during the recovery period; and section 65 sets out the circumstances in which the Secretary of State must grant temporary, limited leave to remain to confirmed victims of modern slavery.
	The public order disqualification may currently be applied to the category of persons listed in section 63(3) of the 2022 Act, including certain foreign national offenders. This section extends the operation of the public order disqualification such that the consequences listed in section 63(2) of the 2022 Act also apply to persons within the scheme provided for in this Act, subject to the qualifications outlined below.
	Subsection (1) provides that the public order disqualification provided for in subsection (2) automatically applies to an illegal migrant if the Secretary of State is required under section 2(1) to make arrangements for their removal from the UK, and a decision (known as a reasonable grounds decision) has been made by the relevant Home Office competent authority that they are a potential victim of modern slavery. In reaching such a decision, a competent authority will apply the statutory guidance issued under section 49 of the 2015 Act. The application of the public order disqualification to such persons is based on a number of factors including the pressure placed on public services, the large number of irregular arrivals and the loss of life caused by arrivals from illegal and dangerous journeys, including via small boat Channel crossings.
	Subsections (2) and (3) provides for an a exception to the automatic application of the public order disqualification, namely where the Secretary of State is satisfied that a person is cooperating with a public authority (this is not limited to a police investigation but in practice is most likely the National Crime Agency, a police force and/or the Crown Prosecution Service (or equivalent in Scotland and Northern Ireland)) in connection with an investigation or criminal proceedings in respect of the conduct or alleged conduct resulting in the positive reasonable grounds decision or which was relevant to any subsequent conclusive grounds decision. In order for the exception to apply, the Secretary of State must consider it necessary for that person to be present in the UK to provide that cooperation and must consider the public interest in the person providing that cooperation to outweigh any significant risk of serious harm to members of the public posed by that person.
	Subsection (2) sets out two of the effects of applying the public order disqualification to such persons, namely to disapply:
	any prohibition (contained in section 61 or 62 of the 2022 Act) on removing a potential victim from the UK; and
any requirement (imposed by section 65 of the 2022 Act) to grant limited leave to remain to a confirmed victim.
	Subsection (4) sets out that a person cooperating with a public authority in connection with an investigation or criminal proceedings is a refence to them doing so to the extent that is reasonable having regard to the person’s circumstances. Subsection (4) also defines "the relevant exploitation" set out in subsection (3) as meaning the conduct or alleged conduct resulting in the positive reasonable grounds decision, and where a positive conclusive grounds decision has also been made in relation to the person, any other conduct resulting in that decision.
	Subsection (5) sets out that for the purposes of the exception to disqualification on the basis of the person’s cooperation with an investigation, the Secretary of State must assume that it is not necessary for the person to be present in the United Kingdom to provide the cooperation in question. This presumption applies unless the Secretary of State considers that there are compelling circumstances which require the person to be present in the United Kingdom for that purpose.
	In determining whether there are compelling circumstances, the Secretary of State must have regard to guidance (subsection (6)).
	Subsection (7) provides for an exception to subsection (2) where:
Subsection (2) would apply to a child but subsection (3) applies that child’s parent or an individual who lives in the same household or has care of that child;
Subsection (2) applies to a parent of a child or an individual who lives in the same household as the child and has sole responsibility for them and subsection (3) applies to that child.
	Sections 23 to 25 deal with a third consequence of applying the public order disqualification, namely the disapplication of any obligations to provide assistance and support during the recovery period.
	Subsections (8) to (10) provides that the Secretary of State may revoke limited leave to remain granted under section 65(2) of the 2022 Act to a person falling within subsection (8). Section 65(2) of the 2022 Act provides that the Secretary of State must grant limited leave to remain to a person if it is considered necessary for the purposes of (a) assisting the person in their recovery from any harm arising from the relevant exploitation to their physical and mental health and their social well-being, (b) enabling the person to seek compensation in respect of the relevant exploitation, or (c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation. Unless the exception at sub-section (3) or (7) applies, a person falls within subsection (8) if they would otherwise be subject to the duty to make removal arrangements under section 2(1) save for the fact that they had been granted limited leave under section 65(2) of the 2022 Act on or after 7 March 2023 (that is, the day the Illegal Migration Bill was introduced in the House of Commons).
	Subsection (11) defines terms used in this section. The terms "victim of slavery" and "victim of human trafficking" take their meaning from the Slavery and Human Trafficking (Definition of Victim) Regulations  2022 (S.I. 2022/877).