In addition, policies aimed at countering irregular migration can place victims of trafficking at risk of arbitrary forced return. Such policies include denial of entry at border
points and expedited return procedures, including as part of re-admission agreements.
Accelerated re-admission procedures may lead to cases of refoulement, whereby the
victim of trafficking is denied access to asylum procedures at the border. Victims of
trafficking can also be negatively impacted by an asylum decision made on the basis
of a flawed assessment of safe country concepts (i.e., whether or not the country of
origin or third country is deemed to be safe) leading to a risk of refoulement. As such,
there are concerns that, in some countries, approaches to combating trafficking have
focused on the prevention of illegal migration, to the detriment of the human rights
of trafficked persons.
The proper identification of victims of trafficking is key to ensuring that they are not
expelled as irregular migrants and that they are accorded the rights to which they
are entitled. Accurate and timely identification requires a formal identification system that functions effectively. ODIHR recommends that such identification systems
are integrated into a national referral mechanism, staffed by appropriately-trained
officials.96 In this vein, Ministerial Council Decision No.5/08 calls on states not to
expel potential victims of trafficking until the identification process is complete. More
recently, the 2013 Addendum to the OSCE Action Plan recommends that participating
States ensure that decisions regarding referrals can be reviewed in compliance with
national law.97
The Council of Europe affirms that, where there are reasonable grounds to believe that
a person has been a victim of trafficking, that person must not be removed from the
territory of a country until the identification process is complete.98 The EU requires its
member states to “take the necessary measures to establish appropriate mechanisms
aimed at the early identification of, assistance to and support for victims, in co-operation with relevant support organizations”.99 The EU also prohibits the enforcement
96 OSCE/ODIHR, National Referral Mechanisms: A Practical Handbook (Warsaw: ODIHR, 2004), p. 59.
97 2013 Addendum to the OSCE Action Plan, part IV, paras. 1 and 1.3.
98 Council of Europe Trafficking Convention, art. 10(2). The Twenty Guidelines on Forced Return, issued by the
Council of Europe’s Committee of Ministers to identify best practice in the return of non-nationals, state that a
removal order shall only be issued on the basis of a reasonable and objective examination of the particular case of
each individual concerned, and shall take into account the circumstances of the specific case (see Committee of
Ministers of the Council of Europe, Twenty Guidelines on Forced Return, CM(2005)40, guideline 3). This requires
that the individual circumstances of the person be examined, and that individuals are not removed on the basis of
their membership of a particular group or nationality. See also Conka v. Belgium, Application No. 51564/99, Council
of Europe: European Court of Human Rights, 5 February 2002.
99 EU Trafficking Directive, art. 11(4).
Part 2: Explanatory Report to the Principles
49
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