23 The study confirmed that although the means used is theoretically immaterial to the irrelevance of consent, in practice the extent to which consent is irrelevant depends heavily on the means used. See UNODC Consent Study (2014), pp. 80–85.
24 This understanding is affirmed by the Interpretative Note in its reference to APOV being established where the victim is left with no alternative but to submit to the trafficker. See UNODC, Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1 (3 November 2000), para 63.
25 Moldova, which has sought to meet the evidentiary obstacles associated with APOV by establishing an objective test, appears to be an exception. The test requires that both the vulnerability and the abuse of that vulnerability be proven. Criteria have been developed to help ascertain vulnerability, and a range of factors, including knowledge of the vulnerability and the defendant’s state of mind, are brought to bear in proving the second element.
26 Chinese restaurant case, Supreme Court, 27 October 2009, LJN: B17099408.
27 Gallagher, A.T. and Holmes, P., “Developing an Effective Criminal Justice Response to Human Trafficking: Lessons from the Front Line” (2008) 18 International Criminal Justice Review, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292563.
28 UNODC, Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, A/55/383/Add.1 (3 November 2000), para 63.
29 Albert Moskowitz, in written correspondence with the authors.
30 UNODC Consent Study (2014); UNODC Exploitation Study (2015).
16
Unable to return? The protection of victims of trafficking in need of international protection
Fadela Novak-Irons1
Introduction
Some victims or potential victims of trafficking may fall within the definition of a refugee contained in Article 1A(2) of the 1951 Convention relating to the Status of Refugees and may therefore be entitled to international refugee protection.2
With these words, UNHCR introduces its substantive analysis for applying the refugee definition to trafficked victims, or persons at risk of being trafficked, in its 2006 Guidelines on International Protection.
Despite a dearth of data on victims of trafficking in the asylum systems of Europe, the limited evidence available indicates that, in some countries, a significant number of victims of trafficking, or persons at risk of trafficking, apply for asylum or, though outside the asylum system, may still be in need of international protection.3 Handling asylum claims lodged by victims of trafficking requires special procedures to support the holistic response demanded by law in Europe, which places at the centre the rights of victims derived from the various applicable protection regimes.
Asylum claims on grounds of trafficking are equally complex to determine, and practice has to develop to respond to changes in the way human trafficking operates and affects its victims. Covering a wide range of legal issues, this facet of human trafficking is still little researched and not fully understood by policy-makers and practitioners in the fields of trafficking and asylum. This chapter therefore focuses on the legal and policy tools, including the UNHCR Guidelines on Trafficking, to examine the need for international protection of victims of trafficking who are unable to return.
This chapter discusses the concept of international protection as it relates to trafficked victims, before analysing some of the challenges in applying the elements of the refugee definition to victims. These include the acts of trafficking, how they relate to the concept of persecution, the issues of the agents and place of persecution, and the grounds on which the nexus with the refugee definition can be established.
Victims of trafficking and international protection
International protection in the context of trafficking
The Convention relating to the Status of Refugees 1951 (Refugee Convention)4 provides the primary legal framework for international refugee protection. The refugee definition is outlined in its Article 1A(2), which provides that a refugee is a person who:
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
Because refugees do not enjoy the normal remedy provided by State protection, it is the duty of the international community as a whole to provide the ‘international protection’ they need to enable them to fully enjoy their rights. In this context, asylum is an instrument of international protection.
Some persons may also find themselves in a situation where they fear serious harm and are unwilling or unable to avail themselves of the protection of their State, or the State of their country of residence for stateless persons, but for reasons other than the five grounds enunciated in the Refugee Convention.5 These persons are not covered by international refugee law instruments but are still in need of international protection. Complementary forms of protection have thus been devised, through formal legal instruments, or ad hoc arrangements relying on the humanitarian policies of governments, to bridge the gap between the need for international protection and the principal international instruments available to provide it. These complementary forms of protection, referred to in the EU as subsidiary protection,6 reflect the prohibition of refoulement as developed in international human rights law, i.e., the prohibition of the return of a person to a place where the rights to life, to freedom from torture or cruel, inhuman, or degrading treatment or punishment, and to liberty and security could be threatened.
The principle of non-refoulement is the cornerstone of international protection. It is contained in Article 33 of the Refugee Convention, and developed under various universal and regional human rights instruments, such as the ICCPR,7 the CAT,8 the ECHR,9 and the Charter of Fundamental Rights of the European Union.10 The principle of non-refoulement protects against removal to a country where there is a risk of serious harm, as well as to any other country from where the person may subsequently be removed to a country where there is such a risk.11 Under human rights law, the principle is absolute, i.e., it does not allow for exceptions, for example for reasons of national security, and cannot be suspended in case of public emergency; it is non-derogable.12
The UNHCR Guidelines on Trafficking outline how victims of trafficking may be in need of international protection:
A claim for international protection presented by a victim or potential victim of trafficking can arise in a number of distinct sets of circumstances. The victim may have been trafficked abroad, may have escaped her or his traffickers and may seek the protection of the State where she or he now is. The victim may have been trafficked within national territory, may have escaped from her or his traffickers and have fled abroad in search of international protection. The individual concerned may not have been trafficked but may fear becoming a victim of trafficking and may have fled abroad in search of international protection.13
This chapter will examine in more detail how the key legal components required to trigger entitlement to international protection need to be met.
“Human trafficking is a complex issue that can be considered from a number of different perspectives, including: human rights; crime control and criminal justice; migration and forced displacement; sexual exploitation and labour”.14 The rights and duties applying in the context of international protection and human trafficking thus flow from international human rights law, international refugee law, international humanitarian law (in situations involving trafficking in armed conflict), international criminal law, and international labour law. Given that the rights of victims of trafficking in need of international protection are inter-dependent, inter-related, and indivisible, as a
re all human rights, the various protection regimes applying to these victims of trafficking ought to be approached in a holistic manner, placing the rights of the victims at the centre of all activities.15
The interface between trafficking and international protection in legal instruments
The UNHCR Guidelines recall that the possibility that victims of trafficking may fall within the definition of a refugee, and as such be entitled to international protection, was made implicit in the “Saving clause” contained in the Palermo Protocol:16
Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.17
At the European level, the CoE Convention18 and the EU Directive on preventing and combating trafficking in human beings and protecting its victims19 similarly identify a relationship with the Refugee Convention, and state that all measures taken under those instruments must be without detriment to, and interpreted in a manner consistent with, the Refugee Convention and the obligation of non-refoulement. The CoE Convention further refers to the right to seek and enjoy asylum20 in Article 14(5), and the Explanatory Report clarifies that “the fact of being a victim of trafficking in human beings cannot preclude the right to seek and enjoy asylum and Parties shall ensure that victims of trafficking have access to appropriate and fair asylum procedures”.21 The Committee on the Elimination of Discrimination against Women also urges States to “recognize that trafficking is part and parcel of gender-related persecution, with the result that women and girls who are victims of trafficking or who fear becoming victims should be informed of and effectively enjoy the right of access to asylum procedures without discrimination or any preconditions”.22
Despite the EU Directive on asylum procedures (recast) providing that, “when examining applications for international protection, the determining authority shall first determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection”,23 policies in some national asylum systems may prevent applications by trafficked victims from being examined for refugee status – instead being examined for subsidiary protection – which is in breach of the EU Qualification Directive. In this context, it is worth noting that, given the gender-specific nature of trafficking in Europe, and the predominance of trafficking for the purpose of sexual exploitation,24 Article 61 of the Istanbul Convention uniquely articulates the relationship between the protection of victims of Sexual and Gender Based Violence (SGBV), including trafficked victims, and State obligations under the principle of non-refoulement.25
Developing case law in this field,26 the limited research and reports,27 and anecdotal evidence seem to indicate diverging practices among States in both recognising that the harm caused by trafficking may amount to persecution, and in articulating the other components of the refugee definition in the case of trafficked victims or persons fearing trafficking. As a result, even where qualification for refugee status is not restricted by asylum policies, in practice, trafficked victims may only have complementary/subsidiary forms of protection available to them. This chapter therefore focuses primarily on the application of Article 1A(2) of the 1951 Convention to victims of trafficking and persons at risk of being trafficked.
Granting international protection to trafficked victims
Even though trafficking is not specifically referenced in the Refugee Convention, it is now accepted that it can fall within the scope of the refugee definition.
The acts of trafficking amounting to persecution
What constitutes persecution? Though the term ‘persecution’ is not defined under international refugee law, the definition articulated by Hathaway, “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection”,28 is often referred to. International human rights law can further help asylum decision-makers determine whether the acts to which a victim of trafficking has been subjected are of a persecutory nature, as can international criminal law. The UNHCR Guidelines on Trafficking note that
persecution can be considered to involve serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm or intolerable predicament, as assessed in the light of the opinions, feelings and psychological make-up of the asylum applicant,
and the UNHCR Handbook explains that the individual circumstances of the applicant, including his or her age, gender, status, education, life experiences, beliefs and feelings, physical and mental health, as well as his or her contextual circumstances, including the particular geographical, ethnic, institutional context, will determine in each case what amounts to persecution.29
When considering the nature of the harm suffered or feared, the UNHCR Guidelines conclude that:
inherent in the trafficking experience are such forms of severe exploitation as abduction, incarceration, rape, sexual enslavement, enforced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment. Such acts constitute serious violations of human rights which will generally amount to persecution.30
This is echoed in the Explanatory Report of the Istanbul Convention: “There is no doubt that rape and other forms of gender-related violence, such as … trafficking, are acts which have been used as forms of persecution, whether perpetrated by state or non-state actors”.31 The Convention itself requires that parties
take the necessary legislative or other measures to ensure that gender-based violence against women may be recognised as a form of persecution within the meaning of Article 1A(2) of the 1951 Convention relating to the Status of Refugees and as a form of serious harm giving rise to complementary/subsidiary protection.32
The EU Qualification Directive (recast) in turn states that acts of sexual violence, as well as acts of a gender-and child-specific nature, can qualify as acts of persecution.33 The Guidelines also note that victims “may face reprisals and/or possible re-trafficking should they be returned to the territory from which they have fled or from which they have been trafficked”.34
The prevalence of asylum cases involving persons trafficked for sexual exploitation, as well as the focus over the first decade following the adoption of the Palermo Protocol on the trafficking of women and girls for the purpose of sexual exploitation, may have led some asylum practitioners to construct the acts of trafficking through a narrow interpretation, which requires sexual violence and exploitation for trafficking to be considered as amounting to persecution. As a result, trafficking for labour exploitation, domestic servitude, forced marriage, or forced begging, for instance, which are starting to appear in asylum applications, could be found not to reach the threshold of persecution. In this regard, the UNHCR Guidelines on trafficking clarify that “the evolution of international law in criminalizing trafficking can help decision-makers determine the persecutory nature of the various acts associated with trafficking”.35
Victims, in particular those trafficked for sexual exploitation, may also fear being ostracised by members of their family and/or their community. Ostracism and discrimination upon return may also have to be considered with the risk that former victims may be forced to rely on survival sex if it is highly improbable that they would get any kind of gainful employment. This may constitute persecution.36 The UNHCR Guidelines on Trafficking conclude that:
even if the ostracism from, or punishment by, family or community members does not rise to the level of persecution, such rejection by, and isolation from, social support networks may in fact heighten the risk of being re-trafficked or of being exposed to retaliation, which could then give rise to a well-founded fear of persecution.37
Past persecution and fear of return
Asylum decision-makers may also e
rr by determining that, given the crime of trafficking took place in the past, former victims do not qualify for refugee status because the well-founded fear of persecution is a forward-looking test. While past persecution alone may not be accepted as sufficient in many jurisdictions to ground refugee status, the Guidelines explain that there may still be “compelling reasons” arising out of that past experience which may require the recognition of refugee status:
This would include situations where the persecution suffered during the trafficking experience, even if past, was particularly atrocious and the individual is experiencing ongoing traumatic psychological effects which would render return to the country of origin intolerable. In other words, the impact on the individual of the previous persecution continues. The nature of the harm previously suffered will also impact on the opinions, feelings and psychological make-up of the asylum applicant and thus influence the assessment of whether any future harm or predicament feared would amount to persecution in the particular case.38
A similar approach is recommended in the case of survivors of female genital mutilation when “the woman or girl is experiencing ongoing and traumatic psychological effects, rendering a return to the country of origin intolerable”.39
The Refugee Convention purports to protect refugees from future persecution, but experience of past persecution is not a prerequisite for eligibility for international protection. UNHCR’s guidance clarifies in this context that “the well-foundedness of the fear of persecution is to be based on the assessment of the predicament that the applicant would have to face if returned to the country of origin”.40 As such, applications by persons who fear falling prey to traffickers should also be fully examined on their merits.
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