Introduction

Despite the existence of national and international legislation (see earlier chapters), underpinned by practice guidelines and commitments, victims and survivors of human trafficking continue to be subject to prosecution and punishment by nation states that either fail to identify, recognise or acknowledge their status as victims of exploitation. Many individuals appear to be detained as ‘illegal migrants’ rather than treated as victims (or survivors) of crime. As with all areas of human trafficking, the extent to which this occurs is impossible to determine. However, despite a clear gap in evidence, there is a growing awareness of this problem. Indeed, it has been suggested that there are more victims of human trafficking detained in Scottish prisons than convicted traffickers (House of Lords 2014); while RACE in Europe (2013: 16) highlight significant concerns that while prosecution and conviction rates for trafficking crimes in the United Kingdom remain low, ‘there is a deep concern that those trafficked are instead being punished for the crimes that their traffickers force them to commit’ (see also All Party Parliamentary Group 2015). This would appear to be reflected elsewhere; despite international legislation and guidance to the contrary, victims of trafficking continue to be detained across the globe in prisons and immigration detention centres (for example, Amnesty International 2008; Human Rights Watch 2010; US Department of State 2010; CUNY School of Law 2014). This chapter considers why measures aimed at protecting victims of human trafficking from criminalisation and detention by host nation states do not appear to be operating effectively. It highlights the importance of locating these troubling circumstances within a broader context which links experiences of exploitation and trafficking with asylum-seeking, immigration and broader processes of criminalisation.

Background

Legal directives (for example, EU Directive 2011/ 36) are intended to prevent the ‘punishment’ of trafficking victims by criminal justice systems in the countries to which they have been trafficked. Although actual numbers are unknown, evidence continues to highlight circumstances where individuals who are almost certainly victims of trafficking have been imprisoned in the United Kingdom and internationally or held in immigration detention centres (Hales and Gelsthorpe 2012; Anti-Trafficking Monitoring Group (ATMG) 2013; All Party Parliamentary Group 2015).