Conclusion
This chapter has focused on some of the challenges facing victims of trafficking who seek international protection in the asylum systems of Europe. It has sought to highlight some of the difficulties encountered by decision-makers in articulating the various elements of the refugee definition in relation to victims of trafficking, in particular: the qualification of the acts of trafficking as persecutory; non-state agents of persecution seen as mere criminals; the requirements around effective State protection; the challenge of the place of persecution in relation to return to the country of origin; and the establishment of the nexus with one or more of the Refugee Convention grounds. In addressing these challenges, this chapter has also referred to the UNHCR guidance, as well as to some of the recent jurisprudential developments that must be taken into account by asylum authorities. It has also stressed the interface with international human rights law and international criminal law, and the need for practitioners in the asylum system to keep abreast of developments in these fields.
Focus on cases of victims of trafficking for the purpose of sexual exploitation has resulted in jurisprudence in this field being developed. The phenomenon of trafficking, however, is much more diverse, and research is needed to better understand how claims by victims of trafficking for labour exploitation, for instance, are articulated, and to what extent standards of international labour law such as ‘worst forms of exploitation’ or ‘domestic servitude’ may be relevant to the adjudication of the persecutory nature of the acts suffered and/or feared in this context.
Likewise, research into the way asylum claims involving criminal activities, such as growing cannabis or recruitment of further victims by trafficked persons, are adjudicated would shed light on the legal standards applied, and whether, and if so how, the exclusion clause for serious non-political crimes of the Refugee Convention is dealt with in trafficking cases.
Notes
1 The views expressed here are personal to the author and do not necessarily reflect those of any other person or agency.
2 UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (7 April 2006, HCR/GIP/06/07), para 12.
3 See, for instance, the Country Reports of the Council of Europe (CoE) Group of Experts on Action against Trafficking in Human Beings (GRETA), Monitoring Body for the Implementation of the Convention on Action Against Trafficking in Human Beings, www.coe.int/t/dghl/monitoring/trafficking/Docs/Publications/Evaluations_en.asp; European Migration Network (EMN) Identification of Victims of Trafficking in the International Protection and Forced Return Procedures – Synthesis Report (EMN Synthesis Report, March 2014); and/or the EMN country reports that have been made public at: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/studies/results/trafficking-human-beings/index_en.htm.
4 189 UNTS 150.
5 To qualify for refugee status, an individual must establish a well-founded fear for reasons of race, nationality, religion, membership of a particular social group, or political opinion.
6 The EU Asylum acquis recognises refugee and subsidiary protection status to form part of international protection: Council Directive 2011/95/EU of 13 December 2011, Article 2(f).
7 999 UNTS 171. See Human Rights Committee, in its General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992, UN Doc HRI/GEN/1/Rev 7, para 9; and General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev 1/Add 13, 26 May 2004, para 12. Obligations under the ICCPR encompass the obligation not to extradite, deport, expel, or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as the harm described in Articles 6 (right to life) and 7 (right to be free from torture or other cruel, inhuman, or degrading treatment or punishment) of the Covenant, either in the country to which removal is to be effected, or in any country to which the person may subsequently be removed.
8 1465 UNTS 85. An explicit non-refoulement provision is contained in Article 3, which prohibits the removal of a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
9 ETS 5 (ECHR). The European Court of Human Rights has well-developed jurisprudence, ruling that non-refoulement is an inherent obligation under Article 3 of the ECHR in cases where there is a real risk of exposure to torture, inhuman, or degrading treatment or punishment.
10 Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02 (the Charter). Article 4 of the Charter has the same meaning and scope as Article 3, ECHR (in line with Article 52(3) of the Charter).
11 Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992, UN Doc HRI/GEN/1/Rev 7, para 9; and General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev 1/Add 13, 26 May 2004, para 12.
12 The Committee Against Torture has reaffirmed that the absolute and non-derogable character of the prohibition of refoulement has become accepted as a matter of customary international law since the adoption of CAT (UN Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2). The Human Rights Committee has stated that no derogation from the provision of Article 7, ICCPR is allowed (General Comment No. 20: Article 7, para 3). No derogation from Article 3, ECHR is allowed under Article 15(2), ECHR.
13 UNHCR Guidelines on Trafficking, para 13.
14 OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, 20 May 2002, E/2002/68/Add.1 (OHCHR Commentary on the Recommended Principles, November 2010), p. 17.
15 This approach is in line with the CoE Convention on trafficking, Article 1: “The purposes of this Convention are … (b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims…”; and the EU Directive on trafficking, which “adopts an integrated, holistic, and human rights approach to the fight against trafficking in human beings” (recital 7).
16 UNHCR Guidelines on Trafficking, para 12.
17 Palermo Protocol, Article 14.
18 Council of Europe, Council of Europe Convention on Action Against Trafficking in Human Beings (CoE Convention), 16 May 2005, CETS 197, Article 40(4): “Nothing in this Convention 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.”
19 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human being and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (EU Directive on trafficking), recital 10: “This Directive is without prejudice to the principle of non-refoulement in accordance with the 1951 Convention relating to the Status of Refugees (Geneva Convention), and is in accordance with Article 4 and Article 19(2) of the Charter of Fundamental Rights of the European Union.”
20 Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 14; and Article 18 of the Charter of Fundamental Rights of the European Union.
21 CoE Convention Explanatory Report, CETS No. 197, para 377.
22 CEDAW, General Recommendation No. 32 on the Gender-Related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women (5 November 2014), CEDAW/C/GC/32, para 45.
23 EU Directive on asylum procedures (recast), Art
icle 10(2).
24 Eurostat, Trafficking in Human Beings Report (Luxembourg: Publications Office of the European Union, 2013): 85% of suspected trafficking in the EU is for sexual exploitation; 68% of identified and presumed victims are women, 17% are men, 12% are girls, and 3% are boys.
25 The text of Article 61 (“Non-refoulement”) reads:
Parties shall take the necessary legislative or other measures to respect the principle of nonrefoulement in accordance with existing obligations under international law.
Parties shall take the necessary legislative or other measures to ensure that victims of violence against women who are in need of protection, regardless of their status or residence, shall not be returned under any circumstances to any country where their life would be at risk or where they might be subjected to torture or inhuman or degrading treatment or punishment.
26 See UNHCR Refworld, Trafficking in Human Beings Caselaw, www.refworld.org/thb.html.
27 In addition to the GRETA Country Reports and the EMN Study Reports which have been made public, see in UNHCR Policy Development and Evaluation Service New Issues in Refugee Research: Talsma, L., Human Trafficking in Mexico and Neighbouring Countries: A Review of Protection Approaches (Research Paper No. 229, June 2012); Christensen, T.M., Trafficking for Sexual Exploitation: Victim Protection in International and Domestic Asylum Law (Research Paper No. 206, April 2011); Helene Bak Riiskjaer, M. and Nielsson, T., ‘You Will Be Sold Like a Doll’: The Trafficking of Latvian Women Into the Danish Sex Industry (Research Paper No. 171, May 2009); Saito, K., International Protection for Trafficked Persons and THOSE Who Fear Being Trafficked (Research Paper No. 149, December 2007); Laacher, S., Les violences faites aux femmes pendant leur voyage clandestin: Algérie, France, Espagne, Maroc (Research Paper No. 188, April 2010). See, also, Asylum Aid, Comisión Española de Ayuda al Refugiado, France terre d’asile, Consiglio Italiano per i Rifugiati; and the Hungarian Helsinki Committee, Gender Related Asylum Claims in Europe: Comparative Analysis of Law, Policies and Practice Focusing on Women in Nine EU Member States (May 2012); Immigrant Council of Ireland in consultation with J. Pillinger and M. O’Connor, Asylum Seeking Victims of Human Trafficking in Ireland: Legal and Practical Challenges (November 2011).
28 Hathaway, J.C., The Law of Refugee Status (Toronto: Butterworths, 1991), pp. 104–105.
29 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV.3 (Reissued, UNHCR Handbook, December 2011), paras 51–53.
30 UNHCR Guidelines on Trafficking, para 15.
31 Explanatory Report of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, CETS 210, 12 April 2011 [entered into force on 1st August 2014] (CoE Convention on violence against women), para 310.
32 Istanbul Convention, Article 60.
33 Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 13 December 2011 (EU Qualification Directive (recast)), Articles 9(2)(a) and (f).
34 UNHCR Guidelines on Trafficking, para 17.
35 UNHCR Guidelines on Trafficking, para 15.
36 UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees (HCR/GIP/12/09, 23 October 2012 (UNHCR Guidelines on sexual orientation and gender identity)), para 25.
37 UNHCR Guidelines on Trafficking, para 18.
38 UNHCR Guidelines on Trafficking, para 16.
39 UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009), para 15.
40 UNHCR Guidelines on sexual orientation and gender identity, para 18.
41 EU Qualification Directive (Recast) article 6(c).
42 CoE Convention Preamble; and EU Trafficking Directive, recital 1.
43 UNHCR Guidelines on Trafficking, para 32.
44 See, for instance, PO (Nigeria) v. Secretary of State for the Home Department [2011] EWCA Civ 132.
45 UNHCR Handbook, para 65; and UNHCR Guidelines on Trafficking, para 21.
46 UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (31 March 2010 (UNHCR Guidance Note on victims of gangs)), para 27.
47 UNHCR Guidelines on Trafficking, para 23.
48 See, for instance, Danish Immigration Service, Protection of Victims of trafficking in Nigeria (Report from Danish Immigration Service’s fact-finding mission to Lagos, Benin City, and Abuja, Nigeria, 9 to 26 September 2007); and Allegations Against the National Agency for the Prohibition of Traffic in Persons (NAPTIP) and Warnings Against Return to Nigeria (Report from Danish Immigration Service’s fact-finding mission to Abuja, Nigeria, 9 to 17 June 2010).
49 On a human-rights-based approach see: Prevent. Combat. Protect: Human Trafficking; Joint UN Commentary on the EU Directive – A Human Rights-based Approach (Joint UN Commentary), November 2011; and OHCHR Commentary on the Recommended Principles, November 2010.
50 Adapted from UNHCR Guidance Note on victims of gangs, para 28; and ‘Key International Standards on the Durable Return of Trafficked Persons’, Box U, Joint UN Commentary, p. 63.
51 Rantsev v. Cyprus and Russia, Application No. 25965/04, European Court of Human Rights, 7 January 2010.
52 GRETA Report: Spain, para 214.
53 Piotrowicz, R., “Victims of People Trafficking and Entitlement to International Protection” (2005) 24 Australian Year Book of International Law 159.
54 UNHCR Handbook, para 51.
55 UNHCR Guidelines on Trafficking, para 25.
56 UNHCR Guidelines on Trafficking, para 27.
57 UNHCR Handbook, paras 66–67 and 77.
58 UNHCR Guidelines on Trafficking, para 31.
59 UNHCR, UNHCR public statement in relation to decisions J.E.F. and A.O. by the Cour nationale du droit dásile, 12 June 2012, para 3.1, quoting UNHCR Guidelines on Trafficking, para 29.
60 Istanbul Convention, Article 60(2).
61 Istanbul Convention Explanatory Report, para 312.
62 See UNHCR, The ‘Ground With the Least Clarity’: A Comparative Study of Jurisprudential Developments Relating to ‘Membership of a Particular Social Group’ (August 2012, PPLA/2012/02 (UNHCR The Ground with the Least Clarity)).
63 UNHCR, The ‘Ground With the Least Clarity’, p. 74.
64 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (7 May 2002, HCR/GIP/02/02 (UNHCR Guidelines on social group)), para 11. [Stress and comments added by this author].
65 The EU Qualification Directive (recast) introduced a cumulative test when replacing “or” with “and” in the definition of social group under Article 10(1)(d).
66 UNHCR Guidelines on Trafficking, para 39.
67 In Norway, for instance, Act of 15 May 2008 on the Entry of Foreign Nationals into the Kingdom of Norway and their Stay in the Realm (Immigration Act), s. 30(d): “Former victims of human trafficking shall be regarded as members of a particular social group”.
68 See, for instance, SB Moldova v. Secretary of State for the Home Department CG (2007) UKAIT, para 112(c).
69 See, for instance, Décision No. 10012810, CNDA, France, 29 April 2011; Décision AO (Kosovo), No. 11017758, CNDA, France, 15 March 2012.
70 See, for instance, Verwaltungsgericht (VG) Wiesbaden [Wiesbaden Administrative Court], 3 K 1465/09 WI.A, 14 March 2011.
71 See, for instance, the above examples in France and Germany.
72 EK v. Secretary o
f State for the Home Department (2010) AA/16743/2010, Upper Tribunal (Immigration and Asylum Chamber), para 35.
73 UNHCR, UNHCR Intervention Before the United States Court of Appeals for the Ninth Circuit in the Case of Henriquez-Rivas v. Holder, Attorney General, 23 February 2012, No. 09–71571 (A098–660–718), p. 16.
74 UNHCR Statement, para 2.3.2.
75 UNHCR Guidelines on social group, para 14.
76 UNHCR Guidelines on social group, para 14.
77 UNHCR Statement, para 2.3.5.
78 Piotrowicz, R., “Victims of People Trafficking and Entitlement to International Protection” (2005) 24 Australian Year Book of International Law 159.
79 UNODC, Issue Paper, Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons (UNODC Issue Paper, Abuse of a Position of Vulnerability, 2013), p. 13.
80 For instance, the Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (EU Reception Conditions Directive (recast)) dedicates a full chapter to the Provisions for Vulnerable Persons (Chapter IV).
81 EU Reception Conditions Directive (recast), Article 21; EU Qualification Directive (recast), Article 20(3).
82 UNHCR Guidelines on Trafficking, para 38.
83 UNODC Issue Paper, Abuse of a Position of Vulnerability, p. 13.
84 UNODC Issue Paper, Abuse of a Position of Vulnerability, p. 14.
85 See, for instance, Arbel, E., Dauvergne, C., and Millbank, J. (eds.), “Introduction”, in Gender in Refugee Law, From the Margins to the Centre (London: Routledge, 2014), p. 2.
86 Kneebone, S., “Human Trafficking and Refugee Women”, in Arbel, E., Dauvergne, C., and Millbank, J. (eds.), Gender in Refugee Law, From the Margins to the Centre (London: Routledge, 2014), p. 200. [Comment added by this author].
87 See Richards, S., Steel, M., and Singer, D., Hope Betrayed – An Analysis of Women Victims of Trafficking and Their Claims for Asylum (POPPY Project and Refugee Women’s Resource Project at Asylum Aid, February 2006).
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