Distinguishing Trafficking from Illegal Migration
A person may move from one country to another or within one country in many different ways, either legally or illegally. In order to properly identify and protect victims of trafficking, it is important to distinguish trafficking from illegal migration or alien (migrant) smuggling. Although trafficking can include some of the components of illegal migration and alien smuggling—traffickers may, for example, smuggle their victims across borders—questions of consent and coercion separate trafficking from other illegal activities. As the UN Special Rapporteur on violence against women, its causes and consequences (“Special Rapporteur on Violence Against Women”) noted in her 2000 Report on trafficking in women and its relation to migration:
It is the non-consensual nature of trafficking that distinguishes it from other forms of migration. The lack of informed consent must not be confused with the illegality of certain forms of migration. While all trafficking is, or should be illegal, all illegal migration is not trafficking. It is important to refrain from telescoping together the concepts of trafficking and illegal migration. At the heart of this distinction is the issue of consent.
Issues of consent and coercion are at the core of the definition of trafficking contained in the 2001 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), which states, "[t]he consent of a victim of trafficking in persons to the intended exploitation . . . shall be irrelevant" where a trafficker uses force or coercion to exploit his victim or if the victim is a child.
According to the Special Rapporteur on Violence against Women, it is the use of coercion both during transport and upon arrival in the destination community or country that distinguishes trafficking from other illegal migration or smuggling activities:
Although numerous separate abuses are committed during the course of trafficking, which themselves violate both national and international law, it is the combination of the coerced transport and the coerced end practice that makes trafficking a distinct violation from its component parts. Without this linkage, trafficking would be legally indistinguishable from the individual activities of smuggling and forced labour or slavery-like practices, when in fact trafficking does differ substantively from its component parts. The transport of trafficked persons is inextricably linked to the end purpose of trafficking. Recruitment and transport in the trafficking context is undertaken with the intent to subject the victim of the coerced transport to additional violations in the form of forced labour or slavery-like practices.
European Union (EU) documents also make a point of distinguishing smuggling from trafficking. A 2002 EU Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union notes: "The expressions 'smuggling' and 'trafficking' are often used synonymously, although a clear distinction should be drawn as they are substantially different." Referring to definitions contained in the U.N. Convention Against Transnational Organized Crime and its accompanying Protocols, the Proposal continues:
These definitions make it clear that smuggling means helping with an illegal border crossing and illegal entry. Smuggling, therefore, always has a transnational element. This is not necessarily the case with trafficking, where the key element is the exploitative purpose. Trafficking involves the intent to exploit a person, in principle irrespective of how the victim comes to the location where the exploitation takes place. This can involve, in cases where borders are crossed, legal as well as illegal entry into the country of destination. Illegal immigration can also include trafficking aspects, but has indeed a wider scope and relates more to the general illegal entry and residence of persons.
The U.S. Department of Justice, National Institute of Justice, also notes the importance of distinguishing trafficking from the smuggling of migrants or illegal migration, stating:
Human smuggling, a related but different crime [to human trafficking], generally involves the consent of the person(s) being smuggled. These people often pay large sums of money to be smuggled across international borders. Once in the country of their final destination, they are generally left to their own devices. Smuggling becomes trafficking when the element of force or coercion is introduced.
However, a 2014 European Parliament report on the problem of human trafficking in the EU describes how migrant smuggling might easily become a trafficking crime, stating
“In practice . . . it is often difficult to distinguish between human trafficking and migrant smuggling, i.e. services offered by smugglers to migrants wanting to cross a border illegally, in exchange for money or payment in kind. Traffickers may well use the same routes as smugglers, but their purpose is different as they aim to force or deceive their victims into an exploitative situation (e.g. forced prostitution). The distinction is blurred however if smugglers abuse their inbalanced relationship with migrants who may have no other choice but to accept some form of exploitation, such as unpaid labour to pay back the "cost" of their journey. Such situations bring migrant smuggling closer to, or even turn it into, trafficking.
Thus, while trafficking is distinct from migration, advocates and law enforcement, including those involved in immigration, should understand the interplay between these two phenomena. Women who wish to migrate to a new country, as well as recent migrants, are often vulnerable to traffickers, particularly if they are migrating illegally, are poor, or do not speak the language of their destination country. A voluntary migrant who places herself in the hands of smugglers has put herself into a situation of dependency on the smuggler, and may subsequently become a victim of trafficking.
The UN Special Rapporteur on Trafficking in Persons, Especially Women and Children emphasized in a 2009 report that it is critical to recognize “how closely trafficking of human beings and migration are linked, because often it is difficult economic circumstances that make people consider the option of migration and it is also poverty that makes them vulnerable to becoming victims of trafficking.” The Special Rapporteur in 2014 reiterated this concern, stating:
The Special Rapporteur has consistently maintained that prioritizing other concerns, such as crime prevention and migration control over human rights, distorts the nature of the problem and obscures the most important and effective solutions. The two fundamental principles of a human rights approach . . . are first, that the human rights of trafficked persons must be at the centre of all efforts to combat trafficking and to protect, assist and provide redress to those affected by trafficking; and second, that anti-trafficking measures should not adversely affect the human rights and dignity of the persons concerned . . . .The creation of opportunities for legal, gainful and non-exploitative migration is crucial for preventing future trafficking. (Emphasis added).
For this reason, it is particularly important that border personnel and immigration officials are trained to recognize the signs of trafficking. The Special Rapporteur on Violence against Women has stated her concern that, “many Governments equate illegal migration, particularly illegal migration for prostitution, with trafficking in women," and view trafficked women as criminals rather than as victims in need of protection and assistance. This can deter many women from seeking legal protection from their traffickers; victims of trafficking may be unwilling to contact local authorities because they fear criminal prosecution or deportation.
Several organizations have created toolkits and guides to assist law enforcement, immigration officials, and service providers in properly screening, identifying and assisting victims of trafficking, including the UN Office on Drugs and Crime, the International Organization for Migration, the International Labour Office and European Commission, and the United Nations Children’s Fund.
More information on legal protections for victims of trafficking is available in the Trafficking in Women: Protection, Support and Assistance of Victims section of this website.
 United Nations, Commission on Human Rights, Integration Of The Human Rights Of Women and the Gender Perspective, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, E/CN.4/2000/68, par. 12, February 29, 2000.
 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000, United Nations, Treaty Series, vol. 2237, p. 319; Doc. A/55/383.
 United Nations, Commission on Human Rights, Integration Of The Human Rights Of Women and the Gender Perspective, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, E/CN.4/2000/68, par. 16, February 29, 2000.
 Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union, 2002/C142/02, par. 87, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52002XG0614(02)&from=EN.
 Ibid., par. 88.
 U.S. Department of Justice, Office of Justice Programs, “Human Trafficking,” http://www.nij.gov/topics/crime/human-trafficking/pages/welcome.aspx (accessed December 2014).
 European Parliamentary Research Service, “The problem of human trafficking in the European Union,” 2, April 4, 2014, http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/140780/LDM_BRI(2014)140780_REV1_EN.pdf.
 See, e.g., Damien Cave and Frances Robles, “A Smuggled Girl’s Odyssey of False Promises and Fear,” The New York Times, October 2, 2014.
 U.N. General Assembly, Sixty-fourth session, Trafficking in Persons, especially women and children, Report of the Special Rapporteur on trafficking in persons, especially women and children, U.N. Doc. A/64/290, par. 30, August 12, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/456/04/PDF/N0945604.pdf?OpenElement.
 U.N. General Assembly, Sixty-ninth session, Trafficking in Persons especially women and children, Report of the Special Rapporteur on trafficking in persons, especially women and children, U.N. Doc. A/69/33797, par. 37, July 28, 2014 (available for download at http://www.ohchr.org/EN/Issues/Trafficking/Pages/annual.aspx).
 United Nations, Commission on Human Rights, Integration Of The Human Rights Of Women and the Gender Perspective, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, E/CN.4/2000/68, par. 46, February 29, 2000.
 U.N. Office on Drugs and Crime, “Human Trafficking First Aid Kit for Law Enforcement Agencies,” http://www.unodc.org/unodc/en/human-trafficking/2011/first-aid-kit.html (accessed December 2014).
 “The IOM Handbook on Direct Assistance for Victims of Trafficking,” International Organization for Migration (Geneva: 2007).
 “Operational indicators of trafficking in human beings,” International Labour Office and the European Commission (September 2009).
 “Guidelines on the Protection of Child Victims of Trafficking,” UNICEF Technical Notes (September 2006).
The Advocates for Human Rights Site Map About the Site
330 Second Avenue South, Suite 800, Minneapolis, MN 55401 USA Phone: (612) 341-3302 Fax: (612) 341-2971 Email: firstname.lastname@example.org
Although Stop Violence Against Women endeavors to provide useful and accurate information, Stop Violence Against Women does not warrant the accuracy of the materials provided. Accordingly, this Web Site and its information are provided "AS IS" without warranty of any kind, express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular use or purpose, or non-infringement. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. We reserve the right to make improvements and/or changes in the format and/or content of the information contained on the Web Site without notice.This information is provided with the understanding that Stop Violence Against Women and its partners are not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
Copyright © 2010 The Advocates for Human Rights. All rights reserved. Permission is granted to use this material for non-commercial purposes with proper attribution to The Advocates for Human Rights.