IDENTIFICATION AND REFERRAL OF, AND RESPONSE TO CHILD

‘’IDENTIFICATION AND REFERRAL OF, AND RESPONSE TO CHILD VICTIMS OF TRAFFICKING IN NEED OF INTERNATIONAL PROTECTION“ COUNCIL OF BALTIC STATES EXPERT MEETING RIGA 13 AND 14 MAY 2014

Andrea Vonkeman UNHCR Bureau for Europe

The story of Amah and her child 

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Amah is a young Nigerian women who claims she has been abused since she was a young girl by her stepmother, going by the name ‘’Mama P’’, Mama P is a well known trafficking ringleader, with good connections in Italy Amah lived with her foster mother from the age of 10 and was made to work as a prostitute from the age of 15. Amah tells that she would be beaten up if she did not earn enough money.

One girl who tried to leave the prostitution ring run by Mama P was poisoned by mama P (according to Amah) She left Nigeria in 2008 and ended up in Ivory Coast where she worked as a prostitute for a few months as instructed by ‘’Mama P’’

The story of Amah and her child 

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In 2009 she went to Tunis where she briefly worked as a street prostitute, until she met a man, (not a trafficker according to Amah) with whom she eventually came to Europe and arrived via Spain to Italy. She stayed only briefly in Italy and applied for asylum in a Nordic country Despite the fear she expressed for the life of herself and her child at the hands of Mama P, in the event of return, her asylum request was denied.  Available COI looks into existing laws in Nigeria rather than actual practice (including enforcement) and does not consider capacity for support for returned VoT, stigmatisation (voodoo), ostracism, risk of re-trafficking,  The decision also dids not consider past persecution (exposure to systematic violence from a very young age, forced prostitution and subsequently trafficking)

Trafficking may amount to persecution 

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Inherent in the trafficking experience are forms of severe exploitation incl. :  abduction, incarceration, rape, sexual enslavement, forced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment. Such acts constitute serious violations of human rights which will generally amount to persecution

Risk of reprisals or re-trafficking may amount to persecution  

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VoT may face reprisals or possible re-trafficking if returned E.g., cooperation with the authorities in the COA or COO in investigations may give rise to a risk of harm from the traffickers upon return, particularly if the trafficking has been perpetrated by international trafficking networks. Reprisals by traffickers could amount to persecution if the acts feared involve serious human rights violations or other serious harm Reprisals could affect the victim’s family members, which could render a fear of persecution on the part of the victim well-founded, even if she or he has not been subjected directly to such reprisals. Re-trafficking would usually amount to persecution

Ostracism, discrimination or punishment amounting to persecution 

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Victim may also fear ostracism, discrimination or punishment by the family and/or the local community or by the authorities upon return. Particularly relevant in the event of prostitution.

In the individual case, severe ostracism, discrimination or punishment may rise to the level of persecution, in particular if it is aggravated by trauma suffered during, and as a result of, the trafficking process. Even if the ostracism from, or punishment by, family or community members does not rise to the level of persecution, such rejection by, and isolation from, social support networks may in fact heighten the risk of being re-trafficked or of being exposed to retaliation, which could then give rise to a well-founded fear of persecution.

Compelling reasons may lead to grant of refugee status 

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Trafficking experience of the asylum applicant may be a one-off past experience, which is not likely to be repeated However, person may be a refugee if there are compelling reasons arising out of previous persecution E.g. where the persecution suffered during the trafficking experience, even if past, was particularly atrocious and the individual is experiencing ongoing traumatic psychological effects, which would render return to the country of origin intolerable.

For reasons of… link with one (or more) of the 1951 Convention grounds 

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Some ethnic or religious groups could e.g. be targeted by traffickers (already marginalised groups) Women are an example of a social subset of individuals who are defined by innate and immutable characteristics and are frequently treated differently to men. As such, they may constitute a particular social group. Factors which may distinguish women as targets for traffickers are generally connected to their vulnerability in certain social settings; therefore certain social subsets of women may also constitute particular social groups.

Particular social group 

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Men or children or certain social subsets of these groups may also be considered as particular social groups. Examples of social subsets of women or children could, e.g. be single women, widows, divorced women, illiterate women, raped women, women with children born out of wedlock, separated or unaccompanied children, orphans or street children. The fact of belonging to such a particular social group may be one of the factors contributing to an individual’s fear of persecution Former victims of trafficking may also be considered as constituting a social group based on the unchangeable, common and historic characteristic of having been trafficked.

RISK PROFILES IN EUROPEAN ASYLUM SYSTEMS

Risk profiles in EU asylum systems 

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Persons in need of international protection / refugees smuggled out of country of origin / first asylum who fall prey to trafficking in transit countries &/or in Europe Persons who were not in need of international protection and were smuggled out of country of origin and fall prey to trafficking in transit countries &/or in Europe and fear return because of trafficking experience Persons trafficked into Europe [EU] who escaped their trafficker(s) and seek international protection [in another EU MS and who become subject to Dublin transfer]

Who are we talking about and what may happen to them? 

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Victims of trafficking forced into asylum system by traffickers and who present claims lacking in credibility Victims of trafficking who are not in need of international protection but whose only access to protection is through the asylum system Vulnerable asylum-seekers in EU asylum reception centres (or homeless) targeted by traffickers and who are at risk of trafficking Unaccompanied and separated children on the move across the EU - in asylum reception centres or not (victims or at risk of trafficking) Victims of trafficking in need of international protection but outside asylum system and not advised about right to seek asylum/allowed to access asylum (children on the move)

EU Asylum acquis

ASYLUM PROCEDURES (RECAST) DIRECTIVE

Special procedural safeguards Recital 29: Some applicants in need of special procedural guarantees due to i.a. age, gender,… or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence Art. 24 - Applicants in need of special procedural guarantees Obligation to identify applicants in need of special procedural guarantees within reasonable period of time after an application [art 24.1]  Adequate support including sufficient time (no acceleration) to benefit from rights and comply with obligations APD [ Art. 24.3] 

Special procedural needs also addressed if apparent at later stage [Art. 24.4] 

Art.10(3) - Requirements for the examination of applications (d) Possibility to seek advice from experts on particular issues, such as medical, cultural, religious, child-related or gender issues Art.15(3) - Requirements for a personal interview: (a) Personnel competent to take account of personal and general circumstances surrounding application, incl. applicant’s vulnerability (b) and (c) Same-sex interviewer and interpreter wherever possible

DUBLIN REGULATION (RECAST)

Guarantees for minors (article 6.3) In assessing the best interests of the child, Member States shall closely cooperate with each other and take due account of the following factors

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(a) family reunification possibilities; (b) the minor’s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity.

RECEPTION CONDITIONS (RECAST) DIRECTIVE

Victims of trafficking who are asylum seekers Chap. IV – Provisions for vulnerable persons Art.21: Take into account specific situation of vulnerable persons i.a. victims of trafficking Art.22: (1) obligation to conduct individual assessment to identify whether special reception needs and indicate the nature of needs Obligation to initiate within reasonable period of time after application (4) Assessment shall be without prejudice to assessment of international protection needs  Art 23: assessment of risk of trafficking for UAM (reception)

Holistic and Human Rights Approach Asylum acquis and victim protection regime in Europe

EU Anti-Trafficking Directive & Asylum acquis  

Obligation to identify victims (ATD) and RCD and APD Mechanisms for early identification of victims (not asylum applications) ATD

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Standard of proof : “reasonable grounds” (Art 11 ATD) Expert advice – with relevant support organisations (APD, ATD)

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Same-sex interviewer and interpreter wherever possible

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Competent (regularly trained) personnel (APD, ATD)

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Prevent secondary victimisation (detention, many interviews etc.) (ATD) Individual needs assessment without prejudice to assessment of international protection needs Proper reception and support (guardian, counselling, safety)

Effective identification of child victims of human trafficking 

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Need for effective coordination between national and local agencies, (asylum authorities and child protection services, with National Referral Mechanisms that support the early identification of (potential) victims and their referral to assistance and protection, and if necessary, to asylum proceedings. Officials should be trained to identify among unaccompanied children those children who may be in need of international protection. Clear and swift processes for referring (potential) child victims of trafficking by those who may first come into contact with them – border guards, police, health workers – to the child protection system, so that these children have immediate access to a guardian as well as appropriate services and protection.

CREDIBILITY ASSESSMENT IN VICTIM IDENTIFICATION

Evidentiary Matters & Victim Identification 

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Low threshold approach for identification “reasonable ground” (ATD) Standard of proof: NOT “beyond reasonable/any doubt” – Not appropriate for asylum adjudication Art.4(1) EU QD - “duty to substantiate” - NOT a matter of “proof” or search for truth Shared duty to substantiate application (esp. re. children) Applicant’s statements = primary and may be only source of evidence Lack of (reliable) documentary evidence

Individual, Objective and Impartial Assessment 

Other factors to take into account:  Impact

of feelings of shame, stigma, fear of reprisals on selfidentification & (late) disclosure  Frailty of human memory, effect of emotion on memory  Interviewer/Decision-Maker’s thinking processes, assumptions, expectations, misconceptions • Factors span disciplinary fields of neurobiology, psychology, anthropology, sociology, cultural & gender studies – Multidisciplinary approach 

Training: Knowledge, Skills, Attitude/Awareness

UNHCR “Beyond Proof – Credibility Assessment in EU Asylum Systems” Report & Checklists available at: UNHCR Refworld (ENG, FRE, GER, BUG, HUN, SLO, POL, ROM) Forthcoming: ‘’The heart of the matter’’; CREDO II on assessing credibility in child asylum claims

UNHCR Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07, available at: http://www.refworld.org/docid/443679fa4.html