Drafters should ensure that the sex trafficking law contains immigration relief for trafficking victims without legal status in the destination or transit country. The forms should include, but not be limited to: A recovery and reflection period; access to services; protection from summary deportation, eligibility for temporary and permanent legal status; eligibility for refugee status if the trafficking victim meets the grounds of the Refugee Convention; a right to safe return, and resettlement or repatriation; and a prohibition against causing statelessness of any trafficking victim.
Drafters should seek to establish laws that uphold and protect the rights of victims of trafficking, as established throughout this module, irrespective of a victim’s immigration status.
Drafters should ensure that all victims of trafficking have access to all available services, regardless of immigration status.
Legislation should provide that asylum systems are gender-sensitive to incorporate many other types of violence that female refugees may have faced as persecution; for example, female genital mutilation.
Access to services, protection from summary deportation, and eligibility for temporary or permanent legal status should not be contingent on victim cooperation with law enforcement.
Legislation should provide that mechanisms to obtain asylum or another legal status are gender sensitive; for example, by providing child care.
Illustrative Examples
- Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse contains a non-discrimination provision that indicates child victims of trafficking shall not be precluded from services based on their national or social origin or other status.
- Article 2- Non-discrimination principle states,
“The implementation of the provisions of this Convention by the Parties, in particular the enjoyment of measure to protect the rights of victims, shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, state of health, disability or other status.” (See: Council of Europe Convention of the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 2, 2007)
- Spain has made significant improvements in respecting the rights of undocumented victims of gender based violence, putting the needs of the victim above immigration or other administrative status. As quoted in, Strategies to End Double Violence Against Undocumented Women, a public prosecutor from Spain articulates,
“Spain’s legal framework places prevention, protection, investigation and sanction of gender based violence above the administrative status. I think that is the right approach… Any other position violates human rights.” (See: Strategies to End Double Violence Against Undocumented Women: Protecting Rights and Ensuring Justice, Platform for International Cooperation on Undocumented Migrants, 103, 2012)
CASE STUDY: Australian law provides numerous protections for undocumented victims of sex trafficking. First enacted in 2004, Australia’s “People Trafficking Visa Framework” was amended in 2009, further strengthening Australia’s response to undocumented victims of trafficking. The provisions for undocumented immigrant victims of trafficking include:
- De-linking victim support from visas, which allows any valid visa holder to access support rather than needing to apply for a specific trafficking visa to access support.
- Offering support and services to victims who are unwilling or unable to participate in the prosecution of their trafficker(s).
- Allowing for a temporary visa to all individuals identified as ‘suspected victims of trafficking victims’. The Bridging F visa is valid for up to 45 days whether or not the individual is willing or able to assist with the investigation and prosecution of the trafficker.
- Extension of the Bridging F visa for an additional 45 days to trafficking victims who are willing, but unable to participate in the criminal justice process.
- Formalized assistance in the form of a 20 day transition period for those victims leaving the program.
- Allowing a victim to work and/or apply for other supports available when on a Criminal Justice Stay visa.
- Discontinuing the temporary witness protection visa for trafficking victims in favor of a permanent witness protection visa for trafficking victims and their immediate family members.
- Witness Protection Visas are available for immediate family members located both within and outside of Australia.
- Lowering the requirement for a trafficking victim to make a “significant contribution” to making a “contribution” in order to be issued a Witness Protection Certificate and be eligible for a Witness Protection visa.
- Inviting trafficking victims and their immediate family members to apply for Witness Protection visas earlier in the criminal justice process rather than after prosecution ended.
(See:Australian Government Anti-Trafficking Strategy Fact Sheet, June 2009; Australia: Government changes puts rights of trafficked people first, Asia Pacific Forum, 17 June 2009; Annual Report of the Australian Human Rights Commission, Section 10.2.17, 2008-2009; Visas for Trafficking Victims in Australia, University of Queensland Australia, TC Beirne School of Law, last accessed 2013)
Protection from summary deportation & eligibility for temporary and permanent legal status
Drafters should include a provision in the law declaring that trafficking victims are to be protected from “summary deportation or return where there are reasonable grounds to conclude that such deportation or return would represent a significant security risk to the trafficked person and/or her/his family.” Trafficking victims who are present in a destination country as a direct consequence of their situation as a trafficked person should not be deported. (See: Recommended Principles and Guidelines on Human Rights and Human Trafficking, Guideline 4(6), 2002)
Illustrative Example:
“No victim of trafficking [should be] removed from the host country if there is a reasonable likelihood that she will be re-trafficked or subjected to other forms of serious harm, irrespective of whether she decides to cooperate in a prosecution.” (See: Report of the Working Group on Contemporary Forms of Slavery, E/CN.4/Sub.2/2004/36, 20 July 2004, Section VII Recommendations adopted at the 29th session, p. 16, paragraph 29)
Access to services should not be predicated on a victim’s participation in the investigation or prosecution of the trafficker.
A related issue is whether local law enforcement must report undocumented individuals to federal immigration officials responsible for deportation. The State Model Law on Protection for Victims of Human Trafficking recommends that sex trafficking laws contain a non-referral provision. (See: State Model Law on Protection for Victims of Human Trafficking, Division E, Section 2, 2005)
A trafficking victim should not be denied a temporary or permanent residency permit because she does not have a passport or other identity documents.
Research demonstrates that sex traffickers often use the threat of deportation as a means of control over the trafficking victim. If governments also have the power to deport trafficking victims, the likelihood of trafficking victims to come forward will diminish significantly.
Drafters should provide for temporary and permanent legal status. The law should provide for temporary residency permits, with the option to renew, for at least the established length of the reflection period during which time the victim need not cooperate or participate in the criminal investigation of her sex trafficker. The temporary residence permit should provide the victim with assistance, benefits, services and protection and should not require cooperation with law enforcement to receive such services. Where the trafficking victim is a child, the temporary or permanent residency permit should be issued if it is in “the best interest of the child.”
(See: UNODC Model Law Against Trafficking in Persons, Art. 31, 2009; State Model Law on Protection for Victims of Human Trafficking, Division E, Section 1, 2005; Recommended Principles and Guidelines on Human Rights and Human Trafficking, Principle 9 and Guideline 4(6), 2002)
The trafficking victim should not be denied a temporary or permanent residency permit because she no longer has her passport or other identity documents.
All temporary immigration provisions afforded to victims of trafficking should allow for a clear path to permanent residency or status.
Drafters should include provisions that allow for family reunification for victims of trafficking.
Illustrative Example:
In Chile, undocumented victims of trafficking are eligible for temporary residency, including a minimum six-month work visa during the established reflection period. The law also outlines a victims’ right to seek a more permanent legal status in Chile. (See: U.S. State Department 2012 Trafficking in Persons Report, 117-118, 2012)
Tool:
Platform for International Cooperation on Undocumented Migrants, Strategies to End Double Violence Against Undocumented Women Protecting Rights and Ensuring Justice (2012). This report offers a practical overview of methods that address discrimination and violence against undocumented survivors. It aims to inform advocates about support services and methods to empower their clients by offering legislative, financial, and practical measures which have been used successfully in Europe. Available in English, French, and Spanish.
Eligibility for refugee status where the trafficked person has a well-founded fear of persecution linked to one of the Refugee Convention’s grounds
Drafters should include a provision which allows the victim and her accompanying dependents to apply for refugee status or permanent residence status on humanitarian grounds. (See: UNODC Model Law Against Trafficking in Persons, Art. 31, 2009; Recommended Principles and Guidelines on Human Rights and Human Trafficking, Principle 9 and Guideline 2(7), 2002; UNHCR Guidelines on International Protection: 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, Section II (paragraphs 12-18), 2006)
Drafters should also include provisions that allow for family reunification for victims of trafficking.
Ensuring the safe return, repatriation and/or resettlement of trafficked persons in their home or third countries
Legislation should include provisions on the return of trafficking victims to theirhome country provided that the safety of the victim may be assured, including “no danger of retaliation or other harm the trafficked person could face upon returning home, such as arrest for leaving the country or working in prostitution abroad, when these are actions criminalized in the country of origin.” (See: UNODC Model Law Against Trafficking in Persons, Art. 32, 2009)
The mandate to ensure safe return is contained in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and should be read in conjunction with the mandate against statelessness. If a trafficking victim is not allowed safe return, the victim is effectively rendered stateless and denied the protection of that country. (See: UNHCR Guidelines on International Protection: 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, Section III(43), 15, 2006)
Prohibiting actions that would cause statelessness
Drafters should include provisions specifying that a country must avoid actions that would result in statelessness. This includes the obligation to avoid situations where statelessness may arise by default or neglect, except where nationality was acquired fraudulently. These principles are consistent with the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. While trafficking victims are not per se stateless, they may have had their identity documents seized by their traffickers making it more difficult to prove their citizenship. (See: UNHCR Guidelines on International Protection: 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, Section III(41-42), 15, 2006)