Protections for people arriving irregularly to the UK are being deliberately dismantled. The 2022 Nationality and Borders Act raised evidence thresholds to make it harder for foreign victims of exploitation to access support. The government is appealing to the Supreme Court for permission to send asylum seekers to Rwanda. And the Illegal Migration Bill, which just passed the Lords, will soon put in place some of the most “draconian” anti-migrant provisions the UK has ever seen.

Part of this effort has been a sustained campaign to undermine the 2015 Modern Slavery Act. Since Theresa May was voted out as prime minister in 2019, the government has increasingly described the MSA as a loophole and the people it tries to support as “criminals”. Its proposed solution is the Illegal Migration Bill. Once it becomes law, this legislation will prevent anybody arriving irregularly to the UK from receiving support – including victims of torture and modern slavery.

It was not that long ago that the government was singing a very different tune. This same Conservative party, with May as home secretary, spearheaded the creation of the MSA eight years ago. The act was considered by the government of the time as a crowning achievement, one that offered the vulnerable “world-leading protections”.

But that project, at least with regard to foreign nationals, is now effectively abandoned. So before the UK fully enters this new, blatantly anti-migrant normal, it’s worth asking why the Tories have decided to destroy one of their own signature accomplishments.

The MSA was always part of the hostile environment

These days the MSA is often portrayed as the moral opposite of the Illegal Migration Bill: a policy of care is being replaced by a policy of callousness. That is a misconception. To understand the MSA’s fall from grace, we must first remember what it was actually created to do, and how that articulates with May’s other major project at the Home Office: the hostile environment.

The latter of these came first, and it does exactly what it says on the tin. “The aim is to create here in Britain a really hostile environment for illegal migration,” May said when she announced the approach in 2012. More an ethos than an official policy, this broad project of deterrence seeks to make life as difficult as possible for people whom the government does not want in the UK.

The MSA was conceived and passed in the years immediately following the announcement of this new policy orientation. It springs from the same source and exists in the same universe.

In The Truth About Modern Slavery, Emily Kenway, who was an advisor to the first independent anti-slavery commissioner, described the political utility of introducing modern slavery into the debate. She said it acted as a “moral foil” for stricter immigration controls.

“The political role of modern slavery for May et al. is evident in [May’s 2013] autumn conference speech,” Kenway wrote. “She focuses on immigration and crime … She promotes the Modern Slavery Bill and how it will ‘lock up slave drivers’ … Modern slavery provided a sense of balance to policies otherwise focused on kowtowing to UKIP’s anti-migrant base.”

The balance, though, was largely rhetorical. Fighting modern slavery meant the conversation was no longer just about being against arrivals, but for protecting victims and bringing perpetrators to justice. As such it also created a feel-good reason for being strict on migration. It provided a moral justification for policing borders, going after the individuals transporting people (cast as 'traffickers'), and interrogating those trying to enter on the grounds that they might be victims. And, finally, it offered a bargain to voters and MPs alike: support for a few victims in exchange for no mercy for everyone else.

Practically, the MSA was anything but balanced. “We said at the time, it was more about prosecution rates than victim care,” Avril Sharp, a policy manager at the domestic workers support NGO Kalayaan, told openDemocracy. “Victim care was glaringly missing from the bill.”

Kate Roberts, Head of Policy at Focus on Labour Exploitation, agrees. If it had been mainly about victim protection, she said, it would have challenged the hostile environment. But instead the MSA was subordinated to it.

“The MSA was flawed from the start as it never directly addressed the hostile environment, or had a rights-based, preventative approach to slavery,” Roberts told openDemocracy. “The act did not aim to address the structures which create risks of exploitation, or provide for early intervention against abuse. Had it done so this would have meant challenging wider policies on immigration.”

This is the great misunderstanding about the MSA. Its design makes clear that victim care – at least by the final draft – was a secondary concern. Yes, it created a system for officially identifying victims of modern slavery, and through that system the government offers a small group of people some limited support. But a primary function of the act was supposed to be dissuading and punishing migration. The UK is a country where legal entry is next to impossible for many groups – irregular entry is the only way in. The MSA extended the hostile environment by targeting the individuals making that irregular entry possible. And in that function, it has failed.

A policy not hostile enough

The prioritisation of criminality over care is clear from May’s 2013 speech, cited in Kenway’s book, as well as from conversations with civil society actors who were involved in the process. But in a twist of fate, the care bit, while being wholly inadequate, is the only part of the MSA that seems to have shown some results. Thousands of people enter the official system for identifying victims and distributing support (the National Referral Mechanism) each year – hinting at the potential scale of the problem – but the hoped-for numbers of prosecutions never materialised. Official reviews consistently saw this as a failure of the MSA, and sought to remedy it.

In its first year, there was a 40% rise in the number of modern slavery victims identified, but the 289 offences prosecuted under the act were seen by officials as unacceptably low. A 2016 review by the first independent anti-slavery commissioner, Kevin Hyland, blamed a lack of crime reporting. In response, May mandated police watchdogs to check on forces’ anti-slavery efforts.

In 2017, the National Audit Office said prosecution rates remained “very low”. The Conservative manifesto released that same year said the government would seek to “strengthen our ability to stop criminals from putting men, women and children into criminal, dangerous and exploitative working conditions.”

In 2019, Frank Field MP maintained in yet another review that the act was “world leading”. However, he notes at the beginning of his foreword that while the MSA gave law enforcement the tools to tackle modern slavery offences, “there are still sadly too few convictions being handed down for the new offences prosecuted under the Act”.

May was ousted in 2019 and, under her successors, no further reviews have been commissioned. But statistics continue to show that while the number of potential victims being identified has steadily increased, prosecutions have continued to languish.

Philippa Southwell, Managing Director of Southwell & Partners, who acts in legal cases around modern slavery, says these figures do not portray the entire picture. “It doesn’t mean the Crown Prosecution Service aren’t bringing perpetrators to justice, but they might be prosecuting under different pieces of legislation – it might be kidnap or sexual offences rather than under the MSA itself,” she said.

But the figures do offer a stark indication of why the government today might see little utility in the act. The MSA has delivered on finding victims in need of state support, but not on prosecutions. That wasn’t supposed to happen.

Moving against a changing public tide

The MSA was created at a time when the public debate around immigration controls was at fever pitch. It was the early years of Conservative-led government, and the governing parties were fending off encroachment from UKIP. The general public was being inundated with “take back control” slogans and scaremongering about the dangers of immigration in the run up to the Brexit vote.

The Brexit referendum put immigration at the top of the political agenda, and successive governments under Johnson, Truss, and Sunak have all demonstrated their continuing conviction that drawing a hard line on immigration is a winning political strategy. They are not alone. Just last week, Red wall Tory MPs were again warning the government to bring down net migration or risk losing seats.

Tim Bale, a professor of politics at Queen Mary, University of London, suggests that “desperation” at the top of government to look tough may have led them to this point.

“The act was a pet project of a minority of self-styled compassionate Conservatives, plus assorted MPs who were keen to show that their tough stance on asylum and immigration was balanced by concern for victims of trafficking,” Bale told openDemocracy. “But the desperation to make that stance even tougher – and to do so publicly and at every opportunity so as to send a message to the so-called Red wall electorate – has, at the top of the party, overridden the idea that there should be a balance.”

The balance Bale describes seems to have been at least as much a marketing strategy to sell tough immigration controls as it was a genuine desire on behalf of some Conservatives to offer victim provisions, as Kenway argued. It was also always more in the realm of rhetoric than in practical protections in the law. Given these beginnings, it's not hard to see how many Tories could jettison it when political priorities changed without losing too much sleep.

Doubling down on being an immigration hardliner, however, may now be less of a winning political strategy than some Conservatives seem to think. That impulse no longer reflects the evolving opinions of the country as much as it once did. In the years since Brexit, public attitudes to migration have broadly grown more positive – just as the government’s rhetoric has become more hostile.

The Covid pandemic was a turning point on this. The obvious importance of “low-skilled” (according to the government) yet crucial jobs frequently filled by migrants – from care and agricultural workers to haulage drivers – drove a change in attitude. People became less concerned about high numbers of immigration, and more positive about it as long as people were contributing.

According to polling from Public First, immigration ranked as the second most important issue for 2019 Conservative voters – but fourth for the population at large. And even among Tory voters, a nuanced reading suggests the government is not necessarily addressing their concerns simply by closing the door.

“A lot of it is dependent on the perception of control,” says Sophie Stowers from UK in a Changing Europe. “So people may not care that much about how many people are coming into the country. They’re more concerned about whether it’s being done in a clear, transparent and controlled way, and a lot of these positive attitudes are contingent on that.”

If the Illegal Migration Bill is the government’s latest attempt to show that they have a handle on the situation, it makes sense that they would use it to try to neuter the MSA. It isn’t delivering on prosecutions. Its support mechanisms are “overwhelmed” by the amount of people being referred into them. The “balance” created by its protective functions is easily recast as softness, because it provides temporary respite from the rest of the hostile environment for some individuals. And it fits nicely with a narrative that lefty activists, lawyers, and practitioners are taking advantage of such laws to obstruct government policy and the public will. All this makes the MSA an easy target.

“It's a nonsensical situation and it's heart-breaking, but predictable, that the government's solution is to wreck the MSA rather than the hostile environment,” Kenway said.

When approached for comment, a spokesperson for the Home Office said that modern slavery is “a complex and multi-faceted crime”, and that the UK “has led the world in protecting victims of modern slavery.”

The MSA will remain law unless a government passes legislation to repeal it. But the Illegal Migration Bill will see to it that only British citizens and foreign nationals with a regular legal status will be allowed into the National Referral Mechanism. The MSA’s protections will no longer be available to migrants arriving irregularly in the UK, regardless of what they might have experienced along the way. All they will be met with is hostility.

Jack Barton contributed reporting to this piece.