PART 2.1 must also be able to show that its restriction is non-discriminatory. Since almost all emigration restrictions related to trafficking are limited to women and girls, it would be difficult for any State to argue convincingly for their lawfulness under current international legal standards. 3.4. ANTI-TRAFFICKING MEASURES, REFUGEE STATUS AND THE PRINCIPLE OF NON-REFOULEMENT147 The discussion on Principle 2 and related guidelines noted the connection between trafficking and refugee status. In the context of non-violation of established rights, several different legal questions arise. First: is a trafficked person, as a matter of principle, entitled to seek and receive asylum? Second: under what circumstances would the fact or threat of trafficking influence a determination as to whether or not an individual can be considered a refugee? Third: can a trafficked person be lawfully repatriated or returned by a State when there is a risk of ill-treatment? ENTITLEMENT TO SEEK AND RECEIVE ASYLUM In relation to the question of whether a trafficked person is entitled to seek and receive asylum, international law is clear on the point that asylum claims are to be considered on their substantive merits and not on the basis of the applicant’s means of entry.148 In other words, an individual cannot be denied refugee status – or This section draws on a more detailed consideration of trafficking and asylum and the impact of anti-trafficking measures on refugees and asylum-seekers in Gallagher, International Law of Human Trafficking, chaps. 3 and 9. 147 See Refugee Convention, art. 31; see also Guy S. Goodwin-Gill, “Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, detention, and protection” in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), p. 183. 148 88 the opportunity to make a claim for such status – solely because that person was trafficked or otherwise illegally transported into the country of destination. This rule has important practical significance. Many States impose penalties for unlawful entry, use of fraudulent travel documents, etc., and it has been noted that such penalties increasingly consist of a denial of rights in the context of refugee determination procedures.149 The possibility that some victims or potential victims of trafficking may be entitled to international refugee protection is explicitly recognized in article 14 of the Trafficking Protocol and article 40 of the European Trafficking Convention. The Explanatory Report on the latter instrument confirms that: The fact of being a victim of trafficking in human beings cannot preclude the right to seek and enjoy asylum and Parties shall ensure that victims of trafficking have access to appropriate and fair asylum procedures (para. 377). Asylum claims should be considered on their substantive merits and not on the basis of the applicant’s means of entry. In practical terms this means that all persons, including both smuggled migrants and trafficked persons, should be given full opportunity (including through the provision of adequate information) to make a claim for asylum or to present any other justification for remaining in the country of destination on that basis. TRAFFICKING AS THE BASIS OF A CLAIM FOR REFUGEE STATUS The question of whether trafficking or fear of trafficking could ever constitute a valid basis for asylum is more complex. In order to be recognized as a refugee, the individual concerned must be found to have a “wellfounded fear of persecution” that is linked 149 Hathaway, The Rights of Refugees…, p. 408. RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING