to one or more of the grounds listed in article 1A(2) of the Refugee Convention. In 2006 the Office of the United Nations High Commissioner for Refugees (UNHCR) issued a set of Guidelines on International Protection on the application of refugee law to victims of trafficking and persons at risk of being trafficked (UNHCR Trafficking Guidelines).150 The Guidelines acknowledge (para. 6) that not all victims or potential victims of trafficking fall within the scope of the refugee definition and that being a victim of trafficking does not, per se, represent a valid ground for claiming refugee status. UNHCR has qualified this, however, by indicating that “in some cases, trafficked persons may qualify for international refugee protection if the acts inflicted by the perpetrators would amount to persecution for one of the reasons contained in the 1951 Convention definition, in the absence of effective national protection.”151 The various elements of the international legal requirements for international refugee protection are considered briefly below. A WELL-FOUNDED FEAR OF PERSECUTION What amounts to a well-founded fear of persecution that would validate a claim to asylum will depend on the facts of each individual case. The following points, listed in the UNHCR Trafficking Guidelines, are considered relevant in the context of trafficking: • Forms of exploitation inherent in the trafficking experience (such as incarceration, rape, sexual enslavement, enforced prostitution, and forced labour) constitute serious violations of See also Ryszard Piotrowicz, “The UNHCR’s Guidelines on Human Trafficking”, International Journal of Refugee Law, vol. 20, No. 2 (2008), p. 242. 150 Refugee Protection and Migration Control: Perspectives from UNHCR and IOM, Global Consultations on International Protection, 2nd Meeting (EC/GC/01/11, para. 32). 151 human rights that will generally amount to persecution (para. 15); and • Individuals who have been trafficked may experience a fear of persecution that is particular to the experience of being trafficked. They may, for example, face reprisals and retrafficking as well as ostracism, discrimination or punishment should they be returned. Reprisals from traffickers (directed at the individual and/or the family of that person) could amount to persecution depending on the seriousness of the acts feared. Retrafficking would usually amount to persecution. Severe ostracism, discrimination or punishment may amount to persecution, particularly if aggravated by traffickingrelated trauma or if linked to an increased risk of retrafficking (paras. 17-18). The following additional points are relevant when the situation involves women or children who have been trafficked or who are at risk of trafficking: • Trafficking of women and children for purposes of enforced prostitution or sexual exploitation is a form of gender-related violence that may amount to persecution within the legal definition of “refugee” (para. 19).152 • Trafficked women and children can be particularly susceptible to severe reprisals, retrafficking, ostracism and discrimination.153 See also Office of the United Nations High Commissioner for Refugees, Guidelines on International Protection: Gender-Related Persecution within the context of article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/ GIP/02/01, para. 18) [Hereinafter: UNHCR Gender Guidelines]. 152 Office of the United Nations High Commissioner for Refugees, Guidelines on International Protection: “Membership of a Particular Social Group” within the context of article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (HCR/ GIP/02/02, para. 18) [Hereinafter: UNHCR Social Group Guidelines]. 153 COMMENTARY 89