Protection from refoulement for victims of human trafficking - An analysis of the principles under the Refugee Convention and the ECHR

Sammanfattning: Being a victim of trafficking for sexual purposes could mean being subject to the most flagrant human rights violations there is, such as forced prostitution, rape, physical violence and sexual enslavement. After escaping captivity, the victim needs both social and medical assistance. Additionally, a victim could have a strong desire to reside in the country where the exploitation has taken place and not be returned to the country or origin where she was lured into exploitation. The risks of such repatriation could be re-trafficking and retaliation or rejection from family and/or community and social deprivation due to their engagement in sexual activities. Such protection from refoulement does not exist to any greater extent in the specific trafficking frameworks. To enjoy such protection victims ought to rely on other international legislation, such as claiming their right to refugee status or adherence to the complementary protection under the ECHR. Thus, the purpose of this thesis is to test the boundaries of the refugee definition and the principle of non-refoulement under the ECHR, to examine to what extent they are appropriate mechanisms to secure the victims protection from refoulement. The purpose is furthermore to analyze the human rights perspective within the existing legal frameworks of human trafficking. This is done by examining existing laws, case-law and research by authoritative experts. The thesis shows that the human rights perspective that is supposed to permeate the trafficking frameworks, in fact are highly unsatisfying. It also shows that challenges in recognizing victims as a refugees or as falling within the scope of the ECHR, largely is due to them often being at risk of socio-economic related harm. To reach the threshold of severity set in these frameworks is more challenging in such cases. The overarching barrier towards a satisfying protection scheme is the inability by states to fully understanding the concept of trafficking; how it at large is a part of a general discrimination in society, and that the traditional means of protection do not suit the specifics of how and why trafficking is in practice.