Drafters should ensure that the sex trafficking law contains immigration relief for trafficking victims without legal status in the destination country. The forms should include, but not be limited to: A recovery and reflection period; 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.

CASE STUDY:  As of July 1, 2009 Australia enacted changes to its “People Trafficking Visa Framework.” Non-governmental organizations urged such changes following a 2008 National Round Table on People Trafficking.  The changes included:

• 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.
• Extension of a temporary visa to all suspected trafficking victims who hold a valid visa for up to 45 days whether or not the individual is willing or able to assist with the investigation and prosecution of the trafficker. Undocumented individuals may be granted a Bridging F visa for up to 45 days.
• Extension of support for an additional 45 days to trafficking victims who are willing, but unable to participate in the criminal justice process. Suspected trafficking victims who do not hold valid visas may be granted a second Bridging F visa for up to 45 days.
• Formalized assistance in the form of a 20 day transition period for those victims leaving the program.
• 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.
• 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)

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)

“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 29^th session, p. 16, paragraph 29)

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) 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 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.  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.” The trafficking victim should not be denied a temporary or permanent residency permit because she no longer has her passport or other identity documents. 

(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)

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)

Ensuring the safe return, repatriation and/or resettlement of trafficked persons in their home or third countries

Drafter should include provisions on the return of trafficking victims to the country of their nationality 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)