Protecting Trafficked Persons through Refugee Protection

Abstract

This paper critically engages with the long-term protection of trafficked persons. In particular, it assesses whether, and the conditions under which, trafficked persons can be considered as refugees under Article 1A of the Geneva Refugee Convention. The importance of international refugee law in this context is highlighted both by the number of trafficked persons seeking international protection and by its suitability to overcome the shortcomings of existing protection provisions in anti-trafficking instruments, which remain discretionary, conditional, and limited in scope. The paper begins by discussing the relevance of refugee protection for trafficked persons. It then applies the various components of the refugee definition to trafficked persons, focusing on the concepts of persecution and membership of a particular social group. Within these, it focuses on aspects of the debate that are currently missing from the broader literature. This includes the question of whether trafficking qua trafficking meets the threshold of persecution and the value of developments in international law in that regard, the merit of using race as a convention ground in cases of trafficked persons, and the contribution of legislative developments recognizing former victims of trafficked persons as members of a particular social group. It then concludes by highlighting the benefits of refugee protection for trafficked persons and indicating the challenges on the road to that protection.