New Council of Europe Guidance on Rights of Trafficking Victims
The Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) has published new guidance for States on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection. See Council of Europe GRETA, Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection, GRETA(2020)06, June 2020. In particular, GRETA’s new guide explains when trafficking victims are entitled to international protection in countries where they are not citizens or permanent residents, and identifies the kinds of services and treatment those countries must provide. [COE Press Release] Relying on various international and regional human rights instruments, including the Council of Europe Convention on Action against Trafficking in Human Beings, European Court of Human Rights (ECtHR) jurisprudence, as well as the principle of non-refoulement, the guide is intended to assist Council of Europe (COE) Member States in meeting their obligations. The guide builds on the guidelines from the United Nations High Commissioner for Refugees and elaborates on the scope of application of the Convention on Action against Trafficking in Human Beings. [COE Press Release]
Guidance to States on International Protection
The GRETA guidance note first identifies the relevant international protection principles in international law and then applies those principles in the context of human trafficking, establishing that victims of trafficking should have access to asylum, be afforded specialized support, and not be punished for crimes they were forced to commit while being trafficked. See GRETA, Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection.
Applicable International Law
In general, GRETA notes that States must comply with the principle of non-refoulement, which is a basic principle of refugee law that refers to States’ obligation not to return a refugee to a country where “his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” See id. at para. 6. The principle has been interpreted to protect individuals who “face particular risks in their country of nationality, in particular where there is a risk of being exposed to treatment that would violate the prohibition of torture and inhuman and degrading treatment or punishment,” regardless of whether they meet the refugee definition. See id. at para. 7. Moreover, the Council of Europe Convention on Action against Trafficking in Human Beings, which GRETA is responsible for monitoring, has been interpreted to protect victims of trafficking or individuals at risk of being trafficked from being removed to a country “where they are at risk of being trafficked.” See id. at para. 15. The guide clarifies that such removal “will constitute a violation of the principle of non-refoulement.” See id. at paras. 15, 31.
Although some trafficking victims may not be entitled to refugee status, when they have not been trafficked because of their “race, religion, nationality, membership of a particular social group or political opinion,” GRETA explains that some individuals may be more vulnerable to trafficking because they are members of a specific ethnic group, minority, or particular social group, which would qualify them as refugees. See id. at paras. 17-19. For example, women may constitute a particular social group “because of being treated differently than men or due to stereotyped gender roles.” See id. at para. 20. Additionally, individuals who identify as lesbian, gay, bisexual, transgender, and intersex (LGBTI) may also qualify as refugees because of their sexual orientation and/or gender identity – a ground increasingly recognized by States as a protected ground, qualifying for refugee status. See id. at para. 22.
GRETA also highlights that the COE Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) applies in the context of human trafficking, specifically by protecting individuals from sexual exploitation and gender-based violence and recognizing that individuals who experience gender-based violence or sexual exploitation may have a legitimate claim to asylum. See id. at paras. 26-30. With respect to the application of the European Convention on Human Rights (European Convention) to the issue of human trafficking, GRETA explains that Article 4 of the European Convention protects individuals from being subjected to slavery, servitude or forced labor, and Article 3 protects from physical, sexual, or psychological violence that amounts to inhuman or degrading treatment, or torture. See id. at paras. 32-33. GRETA relies on the ECtHR’s application of the European Convention to the issue of human trafficking. See ECtHR, Factsheet – Trafficking in Human Beings (July 2019); ECtHR, Factsheet – Slavery, servitude, and forced labour (July 2019). While trafficking is not expressly referenced in the European Convention, the Court has interpreted articles 4 and 3 of the Convention to protect victims of trafficking. See id.
Specific Guidance to States
Applying these standards, GRETA identifies six main areas that States should be mindful of when dealing with trafficking victims or individuals at risk of being trafficked. See GRETA, Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection, paras. 34-48.
First, GRETA stresses that States should not punish victims of human trafficking for unlawful acts they were compelled to commit or that they committed as a consequence of being trafficked, recognizing that a “trafficked person is not acting of their own volition.” See id. at paras. 34-36.
Second, GRETA emphasizes that victims of trafficking should have access to asylum, which requires States to conduct a risk assessment in order to identify the risk of persecution and ensure that trafficking victims are “informed about their right to request international protection and have access to fair and efficient asylum procedures.” See id. at para. 37. GRETA cautions States to avoid evaluating the merits of an asylum claim based on the victim’s willingness to “give evidence in proceedings against the traffickers,” underscoring the trauma that trafficking victims suffer from and the complexity of trafficking crimes. See id. at para. 38. Third, and relatedly, GRETA’s guide calls on States to conduct risk assessments in a manner that ensures compliance with the principle of non-refoulement, as well as to ensure compliance with the Dublin Regulation – a European Union law that prevents the return of individuals to countries where they first applied for asylum, but where they would be at risk of being re-trafficked. See id. at paras. 44-45.
Fourth, the guide explicitly states that countries have a positive obligation under the European Convention to identify victims of trafficking “in the context of receiving persons seeking asylum, in determining applications for asylum and in resettlement procedures.” See id. at paras. 39-40. Fifth, GRETA emphasizes that States must provide “specialized support measures” to victims of trafficking who are seeking asylum. See id. at paras. 41-43. This includes ensuring that victims have access to assistance for physical, psychological, and social recovery, and that these services are provided “on a consensual and informed basis.” See id. at para. 42. Examples of such services include accommodation centers that meet the standard of “appropriate and secure accommodation” (not immigration detention centers), and providing education and health care services. See id. at paras. 42-43.
Finally, GRETA explains that under Article 5 of the COE Convention on Action against Trafficking in Human Beings, States have an obligation to adopt measures that reduce “children’s vulnerability to trafficking, notably by creating a protective environment for them.” See id. at paras. 46-48. This requires that States take a “child-and gender-sensitive” approach to the identification, asylum and age assessments, and measures related to victims of trafficking who are children. See id.
GRETA is responsible for monitoring States parties’ implementation of the COE Convention on Action against Trafficking in Human Beings. See COE, GRETA. The Convention entered into force in February 2008 and has been ratified by all 47 Council of Europe Member States. The Convention encompasses all forms of trafficking (national or transnational, and linked or not linked to organized crime) and accounts for all persons who are victims of trafficking, including women, men, and children.
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