As noted by the Recommended Principles and Guidelines on Human Rights and Human Trafficking, "A failure to identify a trafficked person correctly is likely to result in a further denial of that person's rights. States are therefore under an obligation to ensure that such identification can and does take place". The early and accurate identification of individuals as victims should be treated as a priority, to ensure that:
A human rights-based approach to victims of trafficking is important for identification. McAdam (2013, pp. 43-44) notes that such an approach, in the context of identification, requires border (and other) officials to have the capacity to ensure that the rights and dignity of migrants are respected. They should also be trained and equipped to make appropriate referrals where they believe a person is a victim.
When making an assessment as to whether an individual is a victim, all that is required is reasonable grounds, not absolute proof (see Module 6 for a list of indicators of trafficking). In some cases, it will be clear from the available information that a person is a victim. In others, the situation will be less certain. In these cases, the person should be given the benefit of the doubt until their status can be clarified by further inquiries. Similarly, if it is not clear whether an individual is a child (under 18), they should be treated as such until their correct age is established.
It is generally easier to revoke a person's victim status if and when more information comes to light than to attempt to give them victim status retrospectively at a later date. Victims who are not identified as such may face prosecution for offences committed during their exploitation, and those of them who are irregular migrants may face deportation to their home countries. Others may fall back under the control of traffickers or, for one reason or another, become inaccessible to those wishing to offer them assistance ( The Bali Process, 2015).
It should be noted that the majority of anti-trafficking work has focussed on the identification of victims who have already been, or are in the process of being, exploited. Identification of such victims is easier, but it is also important to identify persons who are vulnerable to exploitation and trafficking in persons. Emphasizing identification at earlier stages is important to prevention efforts (McAdam 2013, p. 48).
It is important to differentiate between the determination of whether a person is a victim of trafficking and an assessment as to whether a criminal case can be brought against their traffickers. Victims should be identified as such and offered protection, assistance and support, even if law enforcement officials decide that there is insufficient evidence to mount a successful prosecution or the trafficker cannot be identified or located. Some important arguments for making protection non-conditional on prosecution are discussed in Brunovskis and Skilbrei (2016).
Securing successful prosecutions of traffickers relies heavily on the testimony of victims. Experience has repeatedly highlighted that the respectful and sensitive treatment of victims in a manner that recognizes their rights and assists in their recovery and reintegration into the community increases the likelihood of them cooperating with criminal justice authorities to prosecute offenders, as well as enhancing their potential effectiveness as witnesses in court. It has been observed that, where victim support is tied too closely to criminal justice responses to trafficking in persons, this can have a negative effect on the success and number of prosecutions. As Davy (2017, p. 129) notes, "trafficking victims' involvement in the criminal justice process may involve significant and ongoing risks to their personal safety, as well as their physical and emotional well-being, for little or even no benefit. Therefore, it is essential that victims are supported by strong, meaningful support programs".
As Elliott (2009, p. 732) observes, identification of victims of trafficking is commonly difficult. Victims often do not identify themselves, placing an onus on third parties to take active steps. Individuals may not identify themselves as victims for various reasons, including:
When designing and implementing identification programmes, all the above-mentioned challenges should be taken into account.
Victims and suspected victims should be allowed a time of reflection (at least weeks and preferably months) to think about their ordeal, decide whether they are victims and make an informed decision as to whether they will cooperate with law enforcement agencies to prosecute their traffickers.
Suspected victims should be informed that this reflection period is available to them regardless of whether they agree to testify against their traffickers. Unfortunately, State authorities often fail to give individuals adequate information and sufficient time to think through the choices required of them.
Article 13 of the Council of Europe Convention provides "[e]ach Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period, it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory".
Article 6 of the Council of the European Union Directive 2004/81/EC of 29 April 2004 requires Member States to grant a reflection period to victims to allow them to recover and escape the influence of traffickers so that they can make an informed decision about cooperating with authorities. Article 7 describes the support to be offered to victims during the reflection period, if provided for by national law, including:
[The] reflection period in destination countries, (…) is paramount in helping trafficked persons recover from their experience without feeling the pressure of detention and/or deportation, thereby enabling them to make informed choices about their future.
During the reflection period, presumed trafficked persons are afforded legal status and protection from detention and deportation in destination countries. During this period, trafficked persons have access to certain support services, such as appropriate and secure housing, psychological counselling, social services and health care, as well as professional advice, including legal counselling. These measures are intended to help them to recover from the trauma of having been trafficked and to remain safe from the traffickers. The reflection period is intended for trafficked persons to recover sufficiently from their experience that they might be willing and able to talk about it and to make informed decisions about whether to take legal action against the trafficker and to pursue legal proceedings regarding compensation claims. Since such decisions have serious and far-reaching consequences for both the life of the person concerned and for the safety of the family members in the country of origin, the trafficked person needs to have time to weigh all the possible consequences of their choice. Advocates with expertise in anti-trafficking and victim protection recommend a reflection period of not less than three months, as is granted by some destination countries.
Key advantages of the reflection period:
Key disadvantages of the reflection period:
In Belgium, victims of human trafficking are granted a reflection period of 45 days. One of the main conditions for the reflection period is that the victim must break the ties with the traffickers and accept the assistance of a specialized centre. If the victim decides to make a statement, she or he is given a residency document called a "declaration of arrival" ("aankomstverklaring") for a three-month period. One month before the expiry of this "declaration of arrival", the Immigration Office makes enquiries of the Prosecutor's Office and, if the person is considered to be a trafficked person and the complaint against the trafficker is still under judicial investigation, the Immigration Office may approve the issuance of a second temporary permit of stay, which is valid for six months. With either of these documents, the victim is allowed to access the labour market. The victim will also receive social welfare and have the right to education and to legal and psychological assistance.
The Government of the Czech Republic provides a 30-day reflection period during which victims can decide whether or not to cooperate with law enforcement efforts against traffickers. Victims who assist in the criminal justice process are granted temporary residence and work visas for the duration of the criminal proceedings and upon conclusion of the trial may apply for permanent residence.
Victims of trafficking are allowed a reflection period of from 30 to 60 days to decide whether or not they will press charges against their trafficker(s). Such persons have a right to a one-year residence permit, regardless of their decision.
The "Instruction on the conditions and the manner of regulating the residence of foreign citizens-victims of trafficking" issued by the Ministry of the Interior of the Republic of Montenegro grants victims of trafficking a three-month period of recuperation and reflection.
In the process of identifying victims it is important to bear in mind that interviewees may include other categories of vulnerable people who are entitled to protection and assistance, including:
(a) Children: under the Convention on the Rights of the Child (CRC), all children have rights by virtue of being children. A finding that a child is not a victim of trafficking must not result in authorities overlooking other rights to which they are entitled as children.
(b) Asylum seekers/Refugees: many migrants identified by authorities are fleeing oppression in their own countries and may be eligible for asylum.
(c) Victims of other crimes: it may be that an interviewee is not a victim of trafficking but is a victim of another crime.