Having discussed how the acts involved in human trafficking may amount to persecution, the availability of State protection in these cases now needs to be considered.
Agents of persecution
The agent of persecution is a concept in its own right, despite needing to be interpreted in conjunction with the other elements of the refugee definition to be able to conclude that there is a well-founded fear of persecution. Though the EU asylum acquis and the legislation or policy of many European States recognises that non-state actors may be agents of persecution,41 decision-makers often stumble on this point.
On the one hand, it is not uncommon that decision-makers fail to see traffickers as actors of persecution; their intentions are viewed as merely for personal gain, and their acts as merely criminal, which does not qualify them as agents of persecution. Adjudicators overlook the now-agreed definition of human trafficking as a serious crime and a serious violation of human rights.42 The UNHCR Guidelines on Trafficking provide: “this overriding economic motive does not, however, exclude the possibility of Convention-related grounds in the targeting and selection of victims of trafficking”.43
On the other hand, determining whether traffickers are operating on their own or as members of a gang – and/or form part of a co-ordinated chain of operators from the recruitment of the victim to his or her subjection to exploitation – also constitutes a hurdle for decision-makers, who question whether the recruiter is likely to effect harm upon the victim’s return if he or she was not the agent who submitted the victim to exploitation. The evolving modus operandi of traffickers in each individual case must be taken into account to answer this question.44
Importantly, the UNHCR Handbook and the Guidelines on Trafficking state in the case of persecutory acts at the hands of private actors that “they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection”.45 In addition, the UNHCR Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, who may include victims of trafficking, clarifies that “[State] protection needs to be real and effective”.46
State protection
What constitutes real and effective State protection? The UNHCR Guidelines reiterate that:
The mere existence of a law prohibiting trafficking in persons will not of itself be sufficient to exclude the possibility of persecution. If the law exists but is not effectively implemented, or if administrative mechanisms are in place to provide protection and assistance to victims, but the individual concerned is unable to gain access to such mechanisms, the State may be deemed unable to extend protection to the victim, or potential victim, of trafficking.47
The following factors may constitute further indicators of a lack of effective State protection:
Lack of measures to ensure durable security for victims of trafficking and other persons at risk of harm by traffickers. The availability and nature of shelters for victims of trafficking in case of their return are common issues in asylum claims raising the fear of (re-)trafficking;48
Lack of assistance and support to ensure victims’ durable social reintegration and to prevent their re-trafficking;
Lack of mechanisms to ensure victims’ right to reparation and compensation;
A general unwillingness on the part of the public to seek police or governmental assistance because doing so may be perceived as futile or likely to increase risk of harm by traffickers; or
A prevalence of corruption, impunity, and serious crimes implicating government officials, police, and security forces.
Conversely, serious and sustained efforts to adopt a victim-centred and rights-based approach,49 and reform and expansion of the criminal justice system to effectively prosecute traffickers and protect witnesses, may be indicative of available State protection.50 In general, efforts by the State to combat and prevent trafficking, and to protect its victims, should be examined in light of the positive obligations on States to take protective measures, as well as to put in place an appropriate legislative and administrative framework.51
The place of persecution
The fact that trafficking may not have happened in the country of origin prior to the victim’s departure may also constitute a difficulty in the examination of asylum applications. The GRETA Report on Spain provides such an example: “NGOs have reported that the asylum authorities consider that the persecution of victims of trafficking has taken place in Spain and therefore they are out of the scope of the refugee protection”.52 Piotrowicz argues that:
It is specifically acknowledged that a person may become a [sur place] refugee as a result of their own actions while abroad. If this is so for those who voluntarily take action that creates for them a well-founded fear of persecution, it must surely also be so, but even more legitimately, for those who are placed in such circumstances quite involuntarily, because of their exploitation by others.53
Referring to the UNHCR Handbook,54 the UNHCR Guidelines on Trafficking note that “the requirement of being outside one’s country does not, however, mean that the individual must have left on account of a well-founded fear of persecution”.55 The Guidelines further advise that,
depending on the sophistication of the trafficking rings involved, applicants may thus have experienced and continue to fear harm in a number of locations, including in countries through which they have transited, the State in which the asylum application is submitted and the country of origin.56
The grounds of persecution or the causal link
The establishment of the causal link may be the greatest hurdle for asylum claimants who are either victims of trafficking or fear (re-)trafficking. Indeed, to qualify for refugee status, a victim’s well-founded fear of being persecuted must be for one or more of the five grounds under the Refugee Convention.
The UNHCR Handbook explains that the Convention grounds are not mutually exclusive, and that an applicant may be eligible for refugee status under more than one of the grounds identified in Article 1A(2).57 The Guidelines on Trafficking consider the reason(s) for the feared persecution. The examination of asylum claims by victims of trafficking often suffers from a narrow interpretation of the crime of trafficking, that of it being merely associated with commercial and criminal motivations. The UNHCR Guidelines advise that: “this overriding economic motive does not, however, exclude the possibility of Convention-related grounds in the targeting and selection of victims of trafficking.”58 In its Statement on the Application of Article 1A(2) to Victims of Trafficking, published on the occasion of two decisions by the Cour nationale du droit d’asile in France, UNHCR reiterated in this context that
[i]t is sufficient that the Convention ground be a relevant factor contributing to the persecution; it is not necessary that it be the sole, or even dominant, cause. According to UNHCR: “… Where the persecutor attributes or imputes a Convention ground to the applicant, this is sufficient to satisfy the causal link.”59
Whichever ground(s) may substantiate the causal link, the obligation deriving from the Istanbul Convention, “[p]arties shall ensure that a gender-sensitive interpretation is given to each of the Convention grounds”,60 and clarified in the Explanatory Report to imply, “recognising and understanding how gender can have an impact on the reasons behind the type of persecution or harm suffered”,61 should be kept in mind, given the often gendered nature of the persecution suffered by victims of trafficking. This leads to the consideration that such persecution relates to the membership of a particular social group in particular.
The ground of social group
‘Membership of a particular social group’ is the most commonly used causal link in asylum claims by victims of trafficking and persons fearing being trafficked; it is also the ‘ground with the least clarity’.62 The UNHCR comparative study of jurisprudential developments relating to membership of a particular social group (PSG) concludes that:
In combination with the Qualification Directive’s
imposition of a cumulative approach, it appears that PSG analysis over the past decade has largely become more stringent and presents a greater hurdle for applicants wishing to rely on the PSG ground alone.63
The UNHCR Guidelines on social group define a particular social group as:
[A] group of persons who share a common characteristic other than their risk of being persecuted [protected characteristic approach], or who are perceived as a group by society [social perception approach]. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.64
Unlike the EU Qualification Directive, which requires a cumulative approach (“and”),65 the UNHCR Guidelines on social group only require that one of two approaches be met. The Guidelines on Trafficking provide further guidance on this issue:
Former victims of trafficking may also be considered as constituting a social group based on the unchangeable, common and historic characteristic of having been trafficked. A society may also, depending on the context, view persons who have been trafficked as a cognizable group within that society.66
Legislation67 and jurisprudence have since developed to recognise that ‘former victims of trafficking’,68 ‘women subjected to human trafficking by trafficking networks’,69 or ‘women returning to Nigeria who are victims of trafficking and who have been freed from this and have testified against their traffickers’,70 may constitute a particular social group because of their shared and unchangeable background or past experience of having been trafficked, or may be a distinct group in the eyes of society because of their experience.
This notwithstanding, asylum applications by trafficked victims suffer from a restrictive definition of the social group71 and the lack of recognition that the experience of trafficking may lead its victims to share a common characteristic that sets them apart from the rest of society.
The judge did not accept that there was a distinct identity which would distinguish these workers from other domestic workers or even from other domestic workers in households of the wealthy who might or might not be victims of trafficking and therefore found that the appellant’s fear was not based on a Convention reason.72
Victims of trafficking claiming asylum on the ground of their membership of a particular social group may also be adversely affected by a requirement that the characteristics of the group be visibly identifiable to society, through the behaviour of the group’s members, under the social perception approach. UNHCR clarifies that its Guidelines on social group do not include any ‘visibility requirement’.73 “‘Social perception’ requires neither that the common attribute be literally visible to the naked eye nor that the attribute be easily identifiable by the general public”.74
Below are further hurdles these claims face in establishing the causal link with the Convention ground of social group.
Persecution and social group
According to the UNHCR Guidelines on social group: “[a] particular social group cannot be defined exclusively by the persecution that members of the group suffer or by a common fear of being persecuted”.75 This requirement has often been interpreted restrictively to mean that the experience of trafficking, or the fear of future (re-)trafficking, thus bar trafficked victims from belonging to a social group.
The Guidelines on social group specify, however, that “nonetheless, persecutory action toward a group may be a relevant factor in determining the visibility of a group in a particular society”;76 and UNHCR further explained that this “is meant to illustrate how being targeted can, under some circumstances, lead to the identification or even the creation of a social group by its members being set apart in a way that renders them subject to persecution”.77 In this regard, Piotrowicz states that:
the persecution feared in the future is not based on past persecution alone. Rather, it is based on their status as former workers in the sex trade … In this context, the focus is not so much on the victimisation as such of these women … but rather on their victimisation because of who they are.78
Vulnerability and social group
The notion of vulnerability is often referred to in the context of trafficking. It is commonly agreed to constitute a factor increasing the risk of trafficking; and abuse of a position of vulnerability is a means by which trafficking may be perpetrated. UNODC expounds that:
[I]nherent, environmental or contextual factors that increase the susceptibility of an individual or group to being trafficked … are generally agreed to include human rights violations such as poverty, inequality, discrimination and gender-based violence – all of which contribute to creating economic deprivation and social conditions that limit individual choice and make it easier for traffickers and exploiters to operate.79
The concept of vulnerability to trafficking may become relevant in the identification of a social group. The focus on vulnerable asylum-seekers in the EU asylum acquis,80 which lists trafficked victims among the categories of vulnerable asylum-seekers,81 may lead asylum practitioners to view victims of trafficking through a prism of vulnerability. Knowing that a large proportion of asylum claims relating to human trafficking are by female victims of trafficking for sexual exploitation, the conflation of vulnerability with female victims may lead to creating a hurdle for other claimants, in particular male victims of labour exploitation, or the growing number of victims with minority sexual orientation and/or gender identity. In this context, UNHCR recalls that:
Factors which may distinguish women as targets for traffickers are generally connected to their vulnerability in certain social settings; therefore certain social subsets of women may also constitute particular social groups. Men or children or certain social subsets of these groups may also be considered as particular social groups … The fact of belonging to such a particular social group may be one of the factors contributing to an individual’s fear of being subjected to persecution, for example, to sexual exploitation, as a result of being, or fearing being, trafficked.82
UNODC further clarifies, in its Issue Paper, Abuse of a Position of Vulnerability, that: “[m]ore specific factors that are commonly cited as relevant to individual vulnerability to trafficking (and occasionally extrapolated as potential indicators of trafficking), include gender, membership of a minority group, and lack of legal status”.83 UNHCR adds that “[i]t is further agreed that factors shaping vulnerability to trafficking tend to impact differently and disproportionately on groups that already lack power and status in society, including women, children, migrants, refugees and the internally displaced”.84 Gender signifies these power relationships in any given society, but remains little understood as a concept by asylum authorities.85 Kneebone argues that “the significance of gender must be seen in the context of other social categories [class, age, race, and ethnicity], as well as within the framework of power relationships, including between genders”.86
Lack of understanding of gender and vulnerability in the context of trafficking may also cloud the examination of asylum claims by educated women, for instance, who have fallen prey to traffickers.87 Education should not be assumed to preclude vulnerability; and the full array of “inherent, environmental or contextual factors that increase the susceptibility of an individual or group to being trafficked”,88 as noted by UNODC,89 should be considered in each individual asylum application.
Consent and social group
While it is clear that, “[t]he consent of a victim of trafficking in persons to the intended exploitation … shall be irrelevant where any of the means [of control] have been used”,90 the issue of consent has arisen when the social group is defined in asylum claims made by victims of trafficking. Some asylum authorities and judges, indeed, require that victims show they were not consenting to their subjection to exploitation; for instance, by having escaped from their traffickers (and not having been freed by law enforcement action), or by having asked for police assistance, or having self-identified at the first possible oppo
rtunity, or by co-operating with the authorities’ investigation.
With regard to the definition of social group, the UNHCR Guidelines do not set forth any requirement that the shared common characteristic or the social perception include victims’ lack of consent to their exploitation, or a similar show of their attempt to break free from their persecutors. Such a requirement, expressed through a restrictive definition of a particular social group, as in, “former victims of trafficking who have actively tried to escape their traffickers”,91 where the attempt to escape is used as an indicator of lack of consent, would be legally erroneous even if adjudicators then use the victim’s vulnerability to explain and nullify the apparent consent. Of note in this context is Rule 70 of the International Criminal Court Rules of Procedure and Evidence, which explicitly provides that “(c) consent cannot be inferred from the silence, or lack of resistance, by a victim”.92
International protection in general, and refugee status in particular, is available for trafficked victims and persons at risk of trafficking in law and in policy. Asylum decision-makers, however, still find it difficult to articulate the various elements of the refugee definition in these complex cases, and may fail, as a result, to grant the international protection to which some of these victims are entitled.
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