Protecting trafficked migrants under European law: Equality of treatment versus minimum standards

Abstract

International anti-trafficking laws are frequently characterised as embodying a tension between immigration control and victim protection. However, the literature to date has focused overwhelmingly on the articulation of this relationship at the external borders of the state, addressing the limited possibilities foreseen for victims to remain in the territory of the country in which they have been identified. The present contribution adopts a different perspective, exploring how this tension manifests itself in the differential treatment of victims within the state. Through an analysis of the Council of Europe Anti-Trafficking Convention, I illustrate how entitlements to receive protection and support are distinguished according to whether victims are ‘lawfully resident’ within the territory, arguing that this approach is motivated not only by broader immigration concerns, but also by specific regime interests related to the effective enforcement of criminal laws. At the same time, I consider whether there are limits to the permissible scope of differential treatment. Here, I suggest that the jurisprudence of the European Court of Human Rights can provide important guarantees for trafficked migrants through the recognition of minimum standards of protection that apply regardless of victims’ immigration status or potential contribution to criminal proceedings.