State Protection

Unable or unwilling to utilize state protection and the Refugee Issues

As published by the UNHCR in relation to Unable or unwilling to utilize state protection: The final requirement in the refugee status determination analysis is whether the individual is unable or unwilling, owing to a well-founded fear of persecution, to avail herself of the protection of her country of origin.137 When assessing whether an individual maintains a well-founded fear of persecution in her country of origin, it is necessary to determine from whom she fears persecution. Persecution may be perpetrated by both State and non-State actors.138

The U.S. Gender Guidelines explain that an applicant claiming persecution or threats of persecution from non-State actors must show that the State is unable or unwilling to protect its citizens from these perpetrators.139 Of relevance in assessing whether an individual has been subjected to persecution by non-State actors is whether or not the applicant sought protection from the State or evidence that doing so would be ineffective.140 This issue of persecution perpetrated by non-State actors is particularly relevant in the trafficking context.

It is helpful to examine a sampling of State responses, or failure to respond, to incidents of trafficking to understand the significance of this issue in refugee status determinations involving victims of trafficking. The United States Attorney General indicates that in 2008, the majority of applications for trafficking protection visas in the United States came from trafficking victims from Mexico, the Philippines and South Korea.141 A closer examination into the specific situations within these countries illustrates each State's ability and interest in protecting victims from persecution within the trafficking context.

In Mexico, despite the fact that twenty-two states within the federal system have enacted some type of anti-trafficking legislation, NGOs report that there is rampant corruption, especially within local law enforcement an immigration officials who act with impunity.142 UNHCR explains that the mere presence of a law against trafficking is not alone sufficient to guarantee against persecution if it is not applied effectively in practice.143 Reports also indicate that it is not unusual for Mexican officials to accept or require bribes or sexual services and to discourage trafficking victims from reporting crimes.144

The Mexican Government has conducted investigations into state officials' involvement in organized crime and corruption but many victims are still fearful of seeking legal recourse or assistance for fear of retaliation from traffickers involved in organized crime. This indicates that Mexican Government may be unable to protect victims of trafficking from persecution both from State and non-State officials.145

In the Philippines, law enforcement and immigration officials are often complicit or at least tolerant of trafficking activities.146 There is widespread corruption, with claims of law enforcement officials requiring payment from brothels to ignore violations of the law.147 Despite reports that immigration officials are actively involved in the trafficking of individuals abroad, there were no prosecutions or convictions of State officials for trafficking related crimes between April 2008 and March 2009.148 Even though the Philippines enacted anti-trafficking legislation in 2003,149 it appears that the Government is not only unable to protect trafficking victims, but complicit in trafficking related persecution.

The Republic of Korea, in contrast, is in compliance with the minimum standards to prevent trafficking, according to the United States Department of State, and has made strong efforts in the prosecution of sex trafficking offences and in the area of victim protection. 150 These factors make an argument of persecution based on the unwillingness or inability of the Republic of Korea to protect victims of trafficking unlikely. The above information suggests that it may be possible for trafficking victims seeking trafficking visas in the United States from Mexico and the Philippines to make arguments for refugee status based on the inability or unwillingness of their governments to protect them from trafficking related acts of persecution, subject to the additional requisite elements of the refugee status determination.