committed (para 55 and 57). Forms of punishment may include the arbitrary deprivation
of nationality (para 41). The troubled history of arbitrary deprivation of nationality is
rooted in histories of racism, positioned at the very heart of attempts to exclude and
limit the application of human rights law on discriminatory grounds. Arbitrary
deprivation of nationality is an administrative sanction that not only violates the nonpunishment principle, but also increases risks of trafficking or re-trafficking. The links
between statelessness and heightened risks of trafficking are well documented.
Exposing victims and potential victims to such risks is a failure of States’ to uphold
their legal obligations of due diligence and an egregious failure of protection (para 42).
The non-punishment principle is also intimately related to the obligation of
States to identify and protect victims, recognized as part of the positive obligations
deriving from the obligation to comply with article 4 of the European Convention on
Human Rights, ratified by Your Excellency’s government on 8 March 1953. In a recent
Judgement considering the application of the principle of non-punishment (V.C.L. and
A.N. v. United Kingdom), the European Court of Human Rights has noted that: “In
order for the prosecution of a victim or potential victim of trafficking to demonstrate
respect for the freedoms guaranteed by Article 4, his or her early identification is of
paramount importance. It follows that, as soon as the authorities are aware, or ought to
be aware, of circumstances giving rise to a credible suspicion that an individual
suspected of having committed a criminal offence may have been trafficked or
exploited, he or she should be assessed promptly by individuals trained and qualified to
deal with victims of trafficking” 45
Finally, the Special Rapporteur on trafficking has also raised concerns in
relation to the separation of children from parents. Where punishment of a victims of
trafficking includes the separation of a child from his or her parent or guardian, the
child’s right to family life is engaged, which includes the right to not be arbitrarily
separated from his or her parent or guardian and to maintain contact, if separation
occurs (A/HRC/47/34 para. 40). The Special Representative of the Secretary-General
on Children and Armed Conflict has highlighted States’ legal obligations not to “doubly
victimize” children who have been abducted, recruited, used and exposed to violence
at an early age. Of particular relevance is the requirement under the Trafficking in
Persons Protocol, to take into account the age, gender and special needs of victims of
trafficking in persons, in particular the rights of the child, including in the context of
forced criminality. That includes the obligations of States parties to ensure the right of
the child to be heard and that the best interests of the child are taken as a primary
consideration, also taking into consideration the fact that, in the context of international
migration, children may be in particularly disadvantaged and vulnerable situations. 46
As it is our responsibility, under the mandates provided to us by the Human
Rights Council, to seek to clarify all cases brought to our attention, we would be grateful
for your observations on the following matters:
45
46
European Court of Human Rights, V.C.L. and A.N. v. United Kingdom, (applications No. 74603/12 and
No. 77587/12), judgment of 16 February 2021, para. 160.
Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017) on the general principles
regarding the human rights of children in the context of international migration, para. 23.
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