Principle 5: Durable solution without further harm If trafficked victims are at risk of re-victimization, including prosecution, retaliation against them and/or re-trafficking upon return, then it may not be possible to ensure their safe return. The criminalization of trafficked persons for status-related offences, such as unlawful entry or illegal work, and their arrest, prosecution and detention are common forms of re-victimization. Trafficked persons should not be detained, charged, prosecuted or penalized (including through forced return) merely on account of their illegal entry or presence in a state, or for their involvement in unlawful activities, to the extent that such involvement is a direct consequence of their situation as trafficked persons, regardless of their ability or willingness to co-operate with the authorities. Trafficked persons should not be deprived of personal liberty (including through detention in a shelter or immigration detention facility) except where it can be demonstrated that the deprivation of liberty can be justified as legal, necessary and proportionate to its aim. In cases where detention can be justified and is imposed, states are required to ensure that the rights of the detained trafficked person are respected and protected at all times. This includes, but is not limited to, judicial or administrative oversight of the situation to determine its ongoing legality and necessity, as well as an enforceable right on the part of the victim to challenge her or his detention. When returning trafficked persons, states must ensure that the return process is conducted without distinction of any kind, including as regards the race, colour, sex, language, religion, national or social origin, minority status and political or other opinions of the trafficked person. Due care needs to be taken to ensure that trafficked persons are not negatively affected prior to, during or after their return on account of their gender or any other status, and that they receive adequate attention and support or assistance. The application of re-entry bans against returning trafficked persons is a punitive measure that may conflict with the principle that trafficked persons should not be penalized for status-related offences, including their illegal presence in a state or involvement in unlawful activities, to the extent that such involvement is a direct Part 1: Guiding Principles of Return 27