Victim Protection and Immigration Law
last updated September 1, 2005

First, domestic legislation should ensure that all trafficked persons, not just those who act as witnesses, are afforded protection.  The UN Trafficking Protocol makes no distinction between trafficked persons who act as witnesses and those who do not in its provisions regarding State obligations to protect trafficking victims.  (Article 6).  The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, states that victims of severe forms of trafficking are eligible for certain protections, including medical services, confidentiality, and protection from intimidation and reprisals from traffickers if the victim and her family are thought to be in danger (Sec. 107c). However, only severe trafficking victims who are younger than 18 or who are willing and able to assist in the prosecution of their traffickers will have the possibility to remain in the United States.

Victim protection should also include the protection of the trafficked person's privacy and assurance of confidentiality.  The UN Trafficking Protocol obligates States "in appropriate cases and to the extent possible under domestic law, . . . [to] protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential."  (Article 6).  When victims' identities are revealed, they are placed in danger of retaliation by the trafficker.  One likely scenario is that the government reveals the names of trafficked persons when they are deported, if such information is made public record.  Furthermore, in cases when victims must be identified, as in the case of victims who testify or otherwise aid in prosecution, the Initiative Against Trafficking in Persons of the International Human Rights Law Group recommends that the government be prepared to grant residency to the victims and, in some cases, to family members as long the risk of retaliation exists.

The ability of a government to provide protection for victims is closely connected with how the trafficked person is viewed under domestic immigration law.  When victims are deported from a destination country as a result of having violated immigration laws, their safety cannot be assured.  Such victims may be re-trafficked or harmed by traffickers in retaliation.  In addition, many victims face serious risk if they are returned home or to their country of origin.  Victims of trafficking can be granted some level of protection through immigration policies that allow them to remain in the destination country.  The OSCE recommends that States refrain from immediate expulsion of trafficked persons based on their irregular residence status.  Instead, States are urged to grant victims at least temporary residence permits, without regard to whether the victim agrees to give testimony in criminal proceedings.  In particularly dangerous situations, permanent residency may be warranted.  The U.S. anti-trafficking law, the Victims of Trafficking and Violence Protection Act of 2000, is an example of legislation that includes provisions for temporary residence.  The Victims of Trafficking and Violence Protection Act amends the U.S. Immigration and Nationality Act, creating the T and U visa categories, which do not confer immigrant status but allow victims of trafficking to remain in the U.S. temporarily with the possibility of lawful permanent residence status in the future.  The T and U visas differ in scope and availability. 

In brief, to be eligible for a T visa, the victim must meet at least following requirements:

  • The trafficked person is a victim of "severe forms of trafficking" defined as
    (1) "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;" or
    (2) "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery."
  • The trafficked person is present in the U.S.
  • The trafficked person is under 18 years of age or has complied with a request to assist in the prosecution of trafficking (law enforcement certification of such compliance is required)
  • The trafficked person would suffer extreme hardship involving unusual and serious harm if removed from the U.S.

In brief, to be eligible for a U visa, the victim must meet at least following requirements:

  • The trafficked person is a victim of one or more of the following or similar activity in violation of U.S. Federal, state or local law: rape, torture, torture, trafficking (but not "severe form of trafficking"), incest, domestic violence, sexual assault or abusive sexual contact, prostitution or sexual exploitation, being held hostage (including involuntary servitude), kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, manslaughter, assault
  • The trafficked person suffered abuse because of a crime committed in the U.S.
  • The trafficked person possesses information about the criminal activity
  • The trafficked person would suffer extreme hardship involving unusual and serious harm if removed from the U.S.
  • There must be certification from a law enforcement official that the trafficked person "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution the criminal activity
As of August 2003, all petitions for interim relief pending the adoption of U-Visa regulations will be processed at the Violence Against Women unit at the U.S. Citizenship and Immigration Services' Vermont Service Center.  Before this time, the adjudication of U-Visa petitions was not centralized, as it was for T-Visa petitions and immigration relief self-petitions under the Violence Against Women Act. This meant that the adjudications of interim relief were inconsistent and in some cases, deserving petitioners were even denied relief.
 
On December 19, 2003, the Trafficking Victims Protection Reauthorization Act was signed, reauthorizing funding of the VTVPA for fiscal years 2004 and 2005 in the amount of $105 million each year. The TVPRA expands trafficking prevention initiatives, eliminates the VTVPAs requirement that severe trafficking victims between the ages of 15 and 18 cooperate with the investigation and prosecution of their traffickers in order to be eligible for the T-Visa, and extends benefits and services to members of the victims family who are legally able to reside in the U.S.

An alternative basis for providing protection for victims of trafficking is to recognize their status as grounds for asylum.  The interconnections between trafficking, smuggling and asylum policy are currently a topic of debate within the European Union.  In recent years, the European Union has been undergoing a process of harmonizing its asylum procedures for member States.  Differences still exist, however, in the types of benefits that asylum applications receive in EU countries, but generally changes in asylum law have aimed at tightening regulations to limit the number of asylum seekers.  Human rights activists have argued that these regulations have neither enhanced refugee protection not resolved the problem of trafficking in Europe, but instead undermine existing human rights standards, including the right to asylum.  A recent UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? identifies situations in which refugees may be targeted by traffickers and explains why trafficking victims may be eligible for asylum:

(1) Traffickers target vulnerable group, such as refugees in camps, many of which are women and children.  The International Organization for Migration reported that traffickers in organized criminal groups abducted young women from refugee camps in Albania during the conflict in the former Yugoslavia, with the intention of forcing them into prostitution in Western Europe.

(2) Because refugees, or persons who have suffered persecution, have few means of leaving their home country, they may engage the services of a trafficker, knowingly or unknowingly, at the beginning of the journey or while in transition.

(3) The trafficked person may qualify for refugee status on the ground of persecution inherent in trafficking.  This scenario is particularly likely to occur in the case of women who are trafficked into forced prostitution.

From UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? by John Morrison and Beth Crosland, April 2001 (No. 39).  This paper can be accessed from the UNHCR website under "Research," "Evaluation and Policy Analysis Unit," and "New Issues in Refugee Research."  A pre-publication version of this paper is also available through the website of the European Council on Refugees and Exiles.

From UNHCR Working Paper, The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy? by John Morrison and Beth Crosland, UNHCR Policy Research Unit, April 2001 (No. 29).