The Intersection of Immigration and Human Trafficking: How Canada Can Provide Further Support to Foreign National Victims and Survivors

by Genevieve Giesbrecht, winner of the 2023 Immigration Law Section Founders Award.

Introduction

Canada is a global leader in immigration and refugee programs, including those for workers, students, and permanent immigrants. Canada is not immune, however, to the presence of human trafficking across our borders, and its impacts on the most vulnerable members of our society.

Over the past two decades, Canada has increasingly adopted a rights-based, and victim-centric approach to combatting the issue of human trafficking, including an understanding of the different challenges faced by the most marginalized populations. Canada has created policies and programs designed to support the unique needs of migrants and other vulnerable communities. Through the adoption of international law instructions and domestic policies, Canada aims to balance the punishment of individuals who perpetrate and benefit from trafficking of persons, with the protection of individuals who have been, or are being, trafficked.

This paper will focus on the intersection of human trafficking and immigration. Specifically, it will consider how the Government of Canada has enacted policies designed to provide protection to migrant victims of human trafficking. It will also analyze the effectiveness of these policies, and where further protection and support for victims is required. Finally, it will consider whether these policies are in line with Canada’s international law commitments.

One such policy enacted to protect foreign nationals in Canada is Immigration, Refugee, and Citizenship Canada’s guidance entitled Temporary resident permits (TRPs): Considerations specific to victims of trafficking in persons. This paper aims to explore how this policy operates within the Canadian immigration system, including its availability, its benefits, and its limitations. It will also discuss alternative immigration pathways, such as refugee claims and humanitarian and compassionate applications.

Despite the Government of Canada’s objectives and commitments to providing protection for individuals who may be involved with human trafficking, non-government organizations and academics have critiqued these policies for being insufficient to protect migrants. In practice, a high burden of proof, the short-term nature of the policies and the evidentiary requirements have resulted in a lack of uptake and lack of accessibility of this policy.

Human trafficking across borders remains an ongoing concern for immigration practitioners, policy makers, and for migrants globally. Canada has been a progressive actor in certain aspects of combatting human trafficking but must ensure that all of the policies and programs continue to evolve in order to adequately protect foreign national victims and survivors.

Government of Canada Laws and Policies

Since 2002, the Government of Canada has ratified and engaged with a number of international commitments dealing with the concern of human trafficking, including: the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”; the International Labour Organization’s “Protocol of 2014 to the Forced Labour Convention, 1930”; and the “2030 Agenda for Sustainable Development” including the related Alliance 8.7,¹ committed to implementing measures to end human trafficking.

These international legal instruments represent Canada’s commitment to tackling human trafficking at its source, and protecting and supporting victims who have been trafficked. Each instrument has a section dedicated to the experience of migrants, and the unique challenges faced for those without status. These instruments provide a framework with which to view the laws and policies implemented from within Canada.

Domestically, in 2019 Canada introduced the “National Strategy to Combat Human Trafficking,” a five-year plan designed to “strengthen Canada’s response to human trafficking and support broader Government of Canada commitments, including preventing and addressing gender-based violence, and supporting the safety and security of Indigenous peoples.”² Recognizing the unique risks faced by foreign nationals, the Strategy discusses various measures in place to protect migrant workers, including a support network, funding to non-profit organizations, and increased employer compliance requirements.

Temporary Resident Permit for Victims of Trafficking in Persons

One such measure designed to protect foreign workers is public policy entitled “Temporary resident permits (TRPs): Considerations specific to victims of trafficking in persons”, enacted in 2007 through a set of Ministerial Instructions.³ This purpose of this policy is to allow victims of human trafficking to apply for temporary status to remain in Canada for a period of 180 days, and to overcome any issues of immigration non-compliance. This temporary resident permit (“TRP”) also confers an open work permit to allow the individual to obtain employment without the support of an employer and provides access to health care under Canada’s Interim Federal Health Program.⁴

This temporary status is designed to allow the individual time to remain in Canada legally while determining next steps for themselves, such as leaving the situation in which they are being trafficked, making plans to return to their country of origin, assist Canadian law enforcement with any action against the trafficker, and obtain Canadian health care or support for any trauma endured. At the end of the 180 day period, the individual may apply for a longer-term temporary resident permit (“TRP”) under this program, provided the individual demonstrates a compelling need to remain in Canada.

In order to apply for a TRP under this policy, an individual must either self-identify as a victim of trafficking in persons, or may be referred to Immigration, Refugees, and Citizenship Canada (“IRCC”) by a law enforcement agency or a non-government organization.

There is no time constraint dictating when an individual may apply under this program. The applicant may seek to change their status in Canada under this program, may be encouraged to apply under this program by law enforcement, or may apply to remain in Canada under this policy if they are in Canada without status. If, however, an individual remains admissible to Canada at the time of their application, the TRP will not be issued until the applicant’s current status expires, or alternatively, the applicant’s Canadian status document may be cancelled.⁵

If a subsequent TRP is applied for, however, time may influence some of the factors that a decision maker considers. These factors include whether it is safe for the individual to return to their country of origin, and whether the individual continues to suffer trauma.

When applying, the applicant must demonstrate that they meet the requirements of the temporary resident permit, namely:

1. That there are reasonable grounds to believe the applicant is a victim of trafficking in persons; and
2. That the issuance of a TRP is justified in the circumstances.

“Trafficking in Persons” is defined by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; ⁶

In recognition of the vulnerability of victims and potential difficulty in establishing evidence, IRCC has established criteria to assist the decision maker in determining whether there are reasonable grounds to believe that the individual is a victim of human trafficking. Decision-makers are directed to consider:

• the recruitment of the individual was fraudulent or coerced and for the purposes (actual or intended) of exploitation;
• the individual was coerced into employment or other activity;
• the conditions of employment or any other activity were exploitative; and
• the individual’s freedom was restricted.

The decision-maker must also determine whether the TRP is warranted in the circumstances. This assessment includes the following factors:

• to allow the suspected victim of trafficking in persons to escape the influence of the traffickers;
• to provide a period of reflection for the suspected victim of trafficking in persons to consider their options for returning home;
• to allow time for the suspected victim of trafficking in persons to decide if they wish to assist in the investigation of the trafficker or in criminal proceedings against the trafficker;
• to allow the suspected victim of trafficking in persons to recover from physical and/or mental trauma (for example, counselling and/or medical treatment may be necessary);
• to facilitate the participation of the suspected victim of trafficking in persons in the investigation or prosecution of an alleged trafficking in persons offence in Canada, or to allow them to otherwise assist authorities; and
• any other purpose that is relevant to facilitate the protection of vulnerable foreign nationals who are victims of human trafficking.

If an Officer determines that there are reasonable grounds to believe the individual is a victim of human trafficking, and that the TRP is required for one of the above-noted purposes, then the Officer can issue the TRP for a duration of 180 days. Applicants may apply for subsequent TRPs under this program, but must meet a higher threshold to justify the continued need to remain in Canada.

Benefits of the Policy

The substantive benefits of the TRP include conferral of valid status for the applicant, an open-work permit to facilitate employment, and access to the Interim Federal Health Program.

The application process for the policy is designed to recognize the vulnerability of victims of trafficking in persons. It is meant to be facilitative and without time constraints, it does not require interaction with Canadian law enforcement, and it serves to overcome any immigration non-compliance on behalf of the victim.

The initial test for the issuance of a TRP under this policy (reasonable grounds to believe the applicant is a victim, and that the issuance of a TRP is justified) allows for a broad interpretation of this policy. Thus, a wide range of individuals may access protection and a TRP, including those trafficked in the sex trade, and those trafficked for labour purposes.

Furthermore, while cooperation with the criminal justice system is a factor that may be considered in the application, filing a criminal charge or testifying against the trafficker is not a pre-requisite for accessing this policy. This allows a great number of individuals to access the policy, without the need to re-traumatize victims through interactions with the police or filing criminal complaints.

Lastly, this policy is helpful in that it overcomes an applicant’s inadmissibility to Canada, such as if the individual entered Canada irregularly, used false documentation, overstayed their legal status in Canada, or engaged in unauthorized work. As a result, successful applicants are not at immediate risk of deportation or other immigration consequences.⁷

Limitations

While the TRP policy can be a facilitative and accessible option for some victims, there are several limitations with the policy that reduce its ability to effectively assist all victims. The burden of proof for subsequent applications, short-term availability, and evidentiary requirement makes the program difficult for some victims to access. The uptake numbers confirm that this policy is not widely used, with only 90 permits issued to both victims and their dependents from 2021-2022.⁸

While the burden of proof for both initial applications and subsequent applications is “a reasonable ground to believe” that the applicant is a victim, in practice, the subsequent applications under this policy are treated with increased scrutiny and require a higher burden from the applicant. Initial applications are decided based on a preliminary assessment, whereby future applications are subject to a more complete verification and assessment of the circumstances and may require an interview. The interview itself can be difficult for victims, who may experience additional trauma from re-telling their stories and being questioned in an institutional setting.⁹

Case law has shown that applicants are more likely to be refused on the second application, although these refusals are not always held to be reasonable if the applicant’s reason for remaining in Canada was not considered.¹⁰ In practice, applicants who are not seeking to remain in Canada for the purpose of assisting with criminal proceedings, or who are not assisting law enforcement, have been more likely to be refused subsequent TRPs.¹¹

An additional challenge under this policy is the evidentiary burden placed on the applicant.¹² An individual’s inability to demonstrate, through the evidence available to them, that they were trafficked can be a barrier to accessing status under this policy. In certain cases, the individual may require evidence of psychological harm, such as letters from health care providers. Such a letter, however, would require that the individual is able to afford an appointment or assessment with the health care provider. Without status, the individual will not have access to publicly available health services, and thus may not be able to afford such an appointment until they receive status under this policy.¹³

Applicants must also show sufficient evidence to convince the officer that they were, in fact, trafficked. In the case of Shala v Canada (Citizenship and Immigration), 2021 FC 326, the applicant was able to demonstrate that his labour conditions were exploitative, but the reviewing officer determined that there was insufficient evidence that these conditions rose to the level of trafficking. In the labour context, applicants who are unable to demonstrate that their labour was forced or coerced versus feeling economically obligated to accept illegal working conditions may not be able to benefit from this policy, despite experiencing a form of exploitation.¹⁴

Finally, this policy is designed as a short-term stop gap measure for victims of human trafficking, and not as a long-term solution. Individuals benefitting from this policy effectively defer their immigration concerns into the future. After the initial 180-day permit, individuals are eligible to apply for an additional (3) year permit, but as noted above must meet a higher threshold in demonstrating why the additional permit is required. Reasons for extending the TRP include seeking mental health treatment or filing complaints against employers but are subject to the discretion of the officer and the onus relies on the applicant to prove why the longer term TRP is required.¹⁵

Even when additional TRPs are provided, the policy is explicit that it does not provide a pathway to permanent residency. As a result, recipients of TRPs under this measure do not have a direct path to remaining in Canada on a long-term basis, even if they do not wish to return to their home country. They cannot access the same rights and services available to permanent residents or Canadian citizens, and will eventually either need to leave Canada or access permanent status under a different immigration stream.

Other Immigration Options for Victims of Trafficking in Persons

To overcome the evidentiary burden required to demonstrate trafficking, some individuals may apply for work permits under the 2019 Open Work Permit for Vulnerable Workers policy. This Open Work Permit, however, is limited in scope as it simply provides authorization to work in Canada. It does not restore lost immigration status in Canada or provide a long-term solution.¹⁶

Some victims of trafficking in persons may also avail themselves of Humanitarian and Compassionate (“H&C”) Applications for permanent residence, or refugee claims. These applicants may be made concurrently with the TRP application, or as an alternative. H&C applications are highly discretionary, and involve balancing an applicant’s degree of establishment in Canada with the hardship they may face upon return to their country of origin, as well as considering the best interest of any children involved.¹⁷ For victims of trafficking, demonstrating establishment in Canada (such as history of stable employment, community and Canadian integration, and remaining in one community) may be difficult due to the history of being trafficked. Moreover, processing times for H&C applications are currently 22 months¹⁸, and a pending H&C application does not have the benefit of conferring status on the individual. Thus, an H&C application alone does not provide a short-term solution for an individual without status.

Some individuals may also apply for refugee status from inside of Canada. A refugee assessment, however, does not consider the circumstances of the individual in Canada. Instead, the individual would need to demonstrate a nexus between having been trafficked and persecution in their country of origin. While refugee claimants can obtain valid temporary status for the duration of the processing of their applications, the process is again lengthy.¹⁹

Are Canada’s Immigration Solutions in Line with its International Commitments?

Given that the Government of Canada has ratified a number of important multi-lateral agreements with respect to the trafficking of persons, it is important to consider whether the immigration options for victims are in line with Canada’s commitments on a global scale. For the purpose of this paper, three (3) instruments will be analyzed: “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”; the “Protocol of 2014 to the Forced Labour Convention, 1930”; and the “2030 Agenda for Sustainable Development”.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime

Article 7

Status of victims of trafficking in persons in receiving States

1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.
2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors.

In implementing the TRP policy, the Government of Canada partially fulfilled their commitments under Article 7. A designated stream to permanent residence for victims, however, remains lacking, as the TRP measure only provides temporary status to victims. The TRP policy is specific that it does not provide a route to permanent status in Canada.

Furthermore, Article 8 of the above-noted protocol pertains to the repatriation of victims of trafficking in persons, indicating that the “return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary.” The operational instructions pertaining to the TRP do not discuss the nuances of repatriation, beyond that Officer’s may refer individuals to their embassy or representative, if specifically requested, or to the Canada Border Services Agency if enforcement action is ongoing against the individual.²⁰ This limited guidance does not recognize the unique repatriation needs of victims of human trafficking.

As such, to fulfil its commitments under the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”, Canada should consider implementing a designated stream for permanent residence for victims of trafficking, and should also bolster guidance related to the repatriation of victims.

Protocol of 2014 to the Forced Labour Convention, 1930

The International Labour Organization’s “Protocol of 2014 to the Forced Labour Convention, 1930” Article 3 and Article 4 state:

Article 3

Each Member shall take effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced or compulsory labour, as well as the provision of other forms of assistance and support.

Article 4

1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.
2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

The Canadian TRP policy addresses in part the above-noted article, insofar as it aids victims of human trafficking regardless of their status in Canada. It also temporarily overcomes any immigration-related non-compliance or unlawful behaviour, thereby mitigating any immediate immigration consequences, such as deportation or detention.

The remedy provided by the TRP program is, however, limited. It provides only the temporary provision of assistance and support in the form of health care and access to employment and does not inherently provide victims with access to other social services that may be required. In addition, the TRP is not designed, based on the temporary nature, to allow for rehabilitation of all victims.

Therefore, extending the duration of the TRP as well as the availability of social services would bring Canada in line with its commitments under the “Protocol of 2014 to the Forced Labour Convention, 1930”.

2030 Agenda for Sustainable Development

In 2020, Canada joined Alliance 8.7, an inclusive global partnership committed to achieving Target 8.7 of the SDGs:

8.7 Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms

Canada’s implementing of the TRP does serve to further the elimination of human trafficking, by providing one form of recourse for victims. This allows migrant victims a method by which they can escape trafficking, with some stability while determining next steps. As discussed, this policy presents challenges in practice that mean it may not be accessible to all victims. There is additional work to be done to bring the policy in line with Canada’s commitments to the Sustainable Development Goals.

Conclusion

Canada remains a leader internationally in its commitments to protect victims of human trafficking, including foreign nationals.

In furtherance of these goals, Canada enacted a policy to issue Temporary Resident Permits to victims of trafficking in persons, allowing those eligible for the policy to access health care and work permits for an initial period of 180 days. While subsequent TRPs under this policy are available, they require a higher degree of scrutiny and evidentiary burden, that make it difficult for individuals to access.

As a result, although the TRP policy does provide short-term benefit to some victims, it remains inaccessible and ineffective for other victims who may not be able to demonstrate to the required degree that they have been trafficked. Furthermore, the short-term nature of the policy leaves victims without permanent stability.

While this policy represents an important step for Canadian’s fulfillment of its international legal objectives, there continues to be a need for a bolstering of the policy to fully serve the needs and rights of migrant human trafficking victims.

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Endnotes