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Thesis Amendments This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Trafficked Persons as Refugees Gauci, Jean-Pierre Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 30. Sep. 2021 TRAFFICKED PERSONS AS REFUGEES Jean-Pierre Gauci Thesis submitted in partial fulfilment of the requirements for the award of the Degree of Doctor of Philosophy (Ph.D.) at the Dickson Poon School of Law, King’s College London October 2013 2 Abstract This research critically engages with the long-term protection of trafficked persons. In particular it assesses whether, and the conditions under which, trafficked persons can be considered as refugees under the Geneva Refugee Convention. The importance of international refugee law in this context is determined both by the number of trafficked persons seeking international protection and by its suitability to overcome the shortcomings of existing protection provisions in anti-trafficking instruments which remain discretionary, conditional and limited in scope. Trafficked persons, as examples of modern victims of human rights abuse par excellence, are examples of who refugee law—with its humanitarian and human rights imperatives—should be protecting. This thesis demonstrates that while a liberal interpretation of the refugee definition has been attempted by lawyers and courts alike to cover trafficked persons, a significant number of trafficking-based claims could be made out even if a more restrictive interpretation is adopted. It builds on judicial decisions from a variety of jurisdictions to elaborate on the fundamental inter-sectionality of issues and instruments which should underpin any assessment of trafficking based asylum claims. After a brief introduction to the content and structure of the thesis, Chapter 1 provides an overview of the definitions and legal context for the research, as well as outlines the methodological approach. Chapter 2 engages with the existing protection provisions under the anti-trafficking instruments, arguing that alone they are insufficient to adequately protect trafficked persons and that refugee law offers a viable alternative. Chapters 3 to 5 discuss the three main components of the refugee definition as applied to trafficked persons namely: well-founded fear (including [lack of] State Protection), persecution and the Convention ground nexus. Chapter 6 elaborates on the relevance of exclusion and cessation clauses to traffickers and trafficked persons who commit serious offences, whilst Chapter 7 examines some of the procedural issues in the context of determining such claims. The Conclusion highlights the main arguments identified throughout the thesis as briefly outlined above. 3 To my mum, I couldn’t have done it without you, I love and miss you. Rest in Peace. 4 Acknowledgements Thanks and much appreciation go to my supervisor, Satvinder Juss, Professor of Law at King’s College London, for his unwavering support and help throughout the period of research. His expertise, guidance and advice were invaluable and will always be deeply appreciated. I feel honoured to have been given the opportunity to work under his tutelage. I would also like to extend my thanks to my second supervisor Prof. Maleiha Malik. Her insights at various stages of the research, and her support for the project itself are greatly appreciated. Special thanks also to Olav Attard for proof reading this thesis and to Patricia Mallia and Carol Bohmer, for their academic support throughout the process. This research would not have been possible without the constant support, guidance and encouragement of my parents, Saviour and Teresa Gauci. You made me who I am today, and I am eternally grateful. Special thanks also to my sisters, Claudia, Giannella, Daniela and Elena, my brothers-in-law, Ivan, Olav, Jonathan and Joseph and nephews and nieces, Domenico, Maria-Pia, Matthias, Juan, Nathan, Martha, Hannnah, Izaak, Rakel and Liam. I simply cannot thank you enough. My academic journey has been supported by countless colleagues and friends with whom I’ve discussed the research, its findings, and the frustrations of the process itself. Many thanks to Andre, Christine, Diane, Egle, Ferya, and Katie, for being there throughout this journey. Your friendship is greatly appreciated. And finally, to all those who believed in me, because you did. 5 Table of Contents TRAFFICKED PERSONS AS REFUGEES .................................................................................... 1 Abstract ........................................................................................................................ 2 Acknowledgements ...................................................................................................... 4 Table of Contents ......................................................................................................... 5 Table of Figures ............................................................................................................ 9 Tables: .................................................................................................................... 10 Table of Abbreviations ................................................................................................ 11 Table of Cases ............................................................................................................. 14 Table of Statutes and International Instruments ....................................................... 22 International Instruments: ..................................................................................... 22 European law: ......................................................................................................... 26 National Statutes .................................................................................................... 27 Introduction ......................................................................................................... 29 Chapter 1: Definitions, Legal Mapping and Methodology ...................................... 42 Part 1: Human Trafficking – An Overview ................................................................... 42 Trafficking – A Gendered Phenomenon ................................................................. 45 Part 2: Definitions ....................................................................................................... 48 Refugee ....................................................................................................................... 58 Part 3: Mapping the Context ...................................................................................... 63 Human Trafficking .................................................................................................. 64 Refugee Law ........................................................................................................... 77 Part 4: Methodology ................................................................................................... 84 CHAPTER 2: NEXI AND JUSTIFICATION .......................................................................... 92 Part 1: The Trafficking-Asylum Nexi ............................................................................ 94 Part 2: Why Trafficked Persons Need Asylum .......................................................... 102 Protection Provisions in the Existing Counter-Trafficking Instruments ................ 104 Recent Critiques ................................................................................................... 105 Assessing the Protection Potential ....................................................................... 109 Further Remarks ................................................................................................... 130 Part 3: Concluding Remarks ...................................................................................... 132 6 Chapter 3: Well-Founded Fear ............................................................................ 134 Part 1: Well-Founded Fear Overview ....................................................................... 136 Part 2: Past Experiences of Trafficking ..................................................................... 140 Attempts and Threats of Trafficking and related Harm ........................................ 145 Return to One’s Country
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