Alternative Legal Frameworks

Alternative Legal Frameworks

Alternative legal frameworks and the Refugee Issues

As published by the UNHCR in relation to Alternative legal frameworks: There are various options with respect to the protection and recognition of rights of trafficking victims in addition to grants of asylum. A system of temporary or permanent protection is sometimes necessary for a victim who is at risk of re-trafficking or to protect her fundamental human rights when these rights can not be guaranteed through the return of the victim to her country of origin.151 One particular form of protection which has been employed by many states is the issuance of temporary visas. Article 7 of the Trafficking Protocol states that each State Party “shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.”152

The weakness in this provision lies in the suggestive nature of protection in the form of permission to remain. It is entirely up to State Parties whether and, if so, how they will give effect to this aspect of protection. Additional weaknesses lie in the temporal limitations of these methods of protection. In contrast to refugee status, which is premised on providing protection to an individual so long as protection is necessary, several of the temporary visa frameworks maintain artificial temporal limitations. For example, the granting of a visa in connection with providing assistance to law enforcement in the investigation and prosecution of traffickers and the termination of the visa when the prosecution is complete or the victim's assistance is no longer needed. In this situation, the protective framework does not emphasize according protection so long as protection is needed, but instead focuses primarily on achieving the victim's continued presence to assist in the apprehension of traffickers.

The Council of Europe Convention on Action against Trafficking in Human Beings provides stronger obligations on State Parties to implement temporary measures on permission to remain for trafficking victims; however, only a little over half of all Member States of the Council of Europe, and no non-Member States, have ratified the Convention at present.153 The Convention requires that each Member State shall provide for a “recovery and reflection period of at least thirty days, when there are reasonable grounds to believe that the person concerned is a victim.”154 It is argued that the thirty day requirement is not sufficient to provide for the recovery of victims of trafficking and, furthermore, that the short timeframe lessens the likelihood of a victim's willingness and ability to cooperate in prosecutorial efforts by the State.155

In addition, the Convention requires that States provide a renewable residence permit where competent authorities determine it is necessary for personal needs of the victim or it is necessary to gain the assistance of the victim in the prosecution of the trafficker.156 While this provision mentions the granting of permits for victims assisting in prosecutorial matters, it is important that it also requires permission to remain if the personal situation of the victim so requires, however vague this requirement might be. It is argued that there is too much flexibility in this provision, allowing States to undermine the protection of the permit in national legislation.157

Member States are also obliged to adopt measures addressing the physical, psychological and social recovery of victims and the Convention further provides that this assistance shall not be made conditional on a victim's willingness or ability to assist with the prosecution of traffickers.158 This component is critical. Separating victim assistance and protection from State prosecutorial efforts ensures a stronger emphasis on victim protection than that contained in the Trafficking Protocol and in many national laws.

National efforts to provide protection to victims of trafficking vary in the content and scope of the temporary visa protection offered. For example, the Australian model provides for a forty-five day rehabilitation and reflection period to suspected victims of trafficking, regardless of their ability or willingness to participate in investigation and prosecution of their traffickers.159 It is however unclear what types of assistance are available to victims during this period. The Australian system provides an additional forty-five day visa for individuals who are willing but unable to participate in the investigation and prosecution for medical reasons.160 Victims of trafficking may also apply for a permanent Witness Protection visa if they have “contributed to, and cooperated closely with, a trafficking-related investigation or prosecution and would be in danger if they returned home.”161 This visa includes family members of the victim located both inside and outside Australia's borders.162

This requirement to contribute to investigation and prosecution is problematic. For example, in a situation involving a victim suffering from severe trauma, who is therefore unable to assist with the investigation and/or prosecution, is only entitled to a maximum ninety day visa and is excluded entirely from the permanent visa system.163 Furthermore, the victim must obtain a “Witness Protection Certificate” from the Attorney General in order to apply for the visa, raising questions about the objectiveness of the procedures in place for granting this certificate.164

A positive aspect of the Australian visa scheme is the recognition that the family members of a victim must be considered for inclusion. Traffickers often use threats against a victim's family in effort to control the victim165 and if the victim is in fear for her family's safety she is less likely to cooperate with authorities. However, if threats to family members are serious and imminent, this process of inclusion may be too cumbersome to alleviate a victim's fears.

Italy provides another example of alternative domestic methods of protection for trafficking victims. The Italian model requires admittance to an assistance program before a residence permit may be obtained.166 In order to be admitted to the assistance program an individual must be in a situation of violence or serious exploitation and the individual must be in danger as a result of attempts to escape or statements made to authorities in the context of a pre-trial investigation or during the context of a trial.167

Following admittance to the assistance program, there are two methods of obtaining a residence permit, which is valid for a renewable period of six months.168 The first involves a situation where the victim is working with authorities and the permit is issued at the request of the prosecutor.169 The second method is via the request of a social service organization caring for the victim through the assistance program and is independent of the prosecuting officials.170

By not conditioning the residence permit on a willingness to cooperate with authorities, it is suggested that victims exhibit a greater willingness to participate following an adequate period of rest and rehabilitation.171 This method is also far more victim-centred than many national approaches which condition protection on a willingness or ability to assist with the prosecution of traffickers. However, there have been claims by NGOs that the Italian system sometimes results in a refusal of residence permits to individuals who refuse to cooperate with authorities,172 leading to questions about adequate enforcement of the legal provisions that clearly reject this precondition. The Italian system also provides for an additional form of temporary protection from three to six months for victims of trafficking, including basic assistance in the form of food, housing and medical care.173

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000 to address the global issue of trafficking in persons.174 The stated purpose of the TVPA is to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers and to protect their victims.”175 The TVPA contains two forms of temporary protection for victims of severe forms of trafficking in persons. A victim may apply for a T visa or receive a grant of “continued presence” by the United States Attorney General and the Secretary of Homeland Security.176 “Continued presence” is the most immediate form of protection a victim may receive and, while the speed of obtaining protection is critical, this is a temporary status with no option for achieving permanent protection.177

The TVPA accords benefits and services to victims of severe forms of trafficking in persons to the same extent as individuals accorded refugee status in the United States.178 These benefits and services include employment assistance, limited health care assistance, language training and vocational training.179 To qualify for benefits the individual must have been subjected to force, fraud or coercion for the purpose of performing a commercial sex act, subjection to involuntary servitude, peonage, debt bondage or slavery.180 In addition, the individual must either not have attained the age of eighteen or have been certified by the Secretary of Health and Human Services, in consultation with the United States Attorney General and the Secretary of Homeland Security.181

The purpose of the certification is to show that the victim is willing to assist in the investigation and prosecution of trafficking in persons or is unable to assist because of a physical or psychological trauma, and that the victim has either applied for a T visa, and not been rejected, or has been granted “continued presence” by the Unites States Attorney General and the Secretary of Homeland Security.182 The permission for continued presence is granted at the discretion of the Secretary upon application from a law enforcement official stating that an individual is a victim or potential witness.183 A grant of continued presence is initially for a period of one year and may be extended as long as the presence of the victim is deemed necessary for the prosecution of traffickers.184 In 2008 there were 239 requests for continued presence from federal law enforcement agencies of which 225 were granted.185

In order to qualify for a T visa, the following elements must be met: 1) the individual must be a victim of a “severe form of trafficking in persons” as defined in the TVPA,186 2) she or he must be physically present in United States territory, 3) the victim must have “complied with any reasonable request” for assistance in the investigation or prosecution of acts of trafficking, be unable to comply due to physical or psychological trauma or be under the age of eighteen, and 4) “would suffer extreme hardship involving unusual and severe harm upon removal.”187 A T visa applicant may also apply to include certain family members, including family members that the Secretary, in consultation with law enforcement officials, determines will face retaliation from traffickers due to the victim's escape or cooperation with law enforcement.188

The T visa is valid for a period of not more than four years,189 with the possibility of applying for permanent residence after three years.190 There is a limit on the number of T visas that may be awarded per year in the amount of 5000;191 however, the number of visas granted continually falls far short of this limit. In 2008, there were 394 T visa applications of which only 247 were granted.192 While this is the highest number of visas awarded to date, this number seems extremely low in light of the United States Department of State's estimation that between 14,500 and 17,500 individuals are trafficked into the United States every year.193


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