On 17th June the Federal Government announced changes to its Support for Victims of People Trafficking Program, to take effect as of 1 July. The government has radically reformed its policy with regards to victims of trafficking after years of campaigning by non-government organizations and advocacy groups.  Previously based on the victim’s usefulness to criminal proceedings, the system recognizes the complex needs and vulnerabilities of victims and their difficulties, however willing, in providing a “significant contribution” to a criminal investigation. The program is therefore afforded to all victims regardless of their instrumentality.  Taking a human rights-based approach, the new legislation removes the temporary visa entirely and bases permanent visa attainment on any “contribution” (including a police statement) and a risk of harm if returned home.  Furthermore, the reflection period has been increased to 45 days, with the possibility of extension to 90 days to provide an adequate period over which to seek assistance and make an informed choice about their future.

The Australian Federal Minister for Immigration and Citizenship summarized the legislative changes in a media release on 17 June:

• extending the initial stage of the Support for Victims of People Trafficking Program from 30 to 45 days, and making it available to identified victims irrespective of whether they are willing to assist police. This will provide all victims with an opportunity to recover and seek advice about their future options
• providing up to 90 days assistance for victims who are willing but not able to assist police, due to factors such as trauma. Where the victims do not hold a valid visa they can be granted a second Bridging F visa
• access to the Support for Victims of People Trafficking Program will be available to identified victims who hold any kind of valid visa so victims do not have to relinquish existing visas in order to receive support
• providing up to 20 days transitional support so victims assisting law enforcement can consider their future options, seek legal advice, arrange travel and find support networks after involvement  in the Support for Victims of People Trafficking Program
• removing the temporary visa stage in  the Witness Protection (Trafficking) visa process, and starting the process before the completion of a prosecution. This will reduce the pathway to a permanent visa for eligible victims by at least two years
• reducing the threshold for a Witness Protection (Trafficking) Certificate from having made a “significant contribution” to making “a contribution”
• enabling immediate family members who are outside Australia to be included in an application for a Witness Protection (Trafficking) visa.

This is amazing news and represents a monumental shift forward in the federal government’s policy for trafficking victims.  Indeed, this makes the Australian response an example of global good practice in addressing this issue.  More importantly, Australians can now wait expectantly for the practical implications of this legislation, in the hope that it will be better able to support victims of human trafficking.

For further information see:

Restrictions eased for sex trafficking victims

Overhaul of human trafficking visas ‘will help victims’

Many of these asylum seekers are human rights advocates forced to flee their own countries to avoid persecution. As one such man, Jean-Pierre from West Africa, describes, “They handcuffed me like a criminal…It was like reliving my jail in Guinea.” Because immigration courts follow different procedures than criminal ones, trials do not have to be made public and often require a lower burden of proof for conviction. Asylum seekers who cannot afford lawyers face further difficulties in detention, as immigration courts are not required to provide legal representation to defendants, even for mentally ill or mentally incompetent individuals. The hazards of these policies can be seen in the case of Xiu Ping Jiang, a Chinese woman with no past criminal record, who has spent over a year in jail. According to her lawyer (who agreed to work on her case pro bono), she is currently “suicidal, emaciated, and deprived of proper medical treatment.”

Jiang fled China after being forcibly sterilized by Chinese officials for violating the one-child policy when she gave birth to her second son. For over ten years she remained in the US as her mental health deteriorated. In 1997, Jiang attempted suicide following a failed effort to bring her youngest son to the US. Her two sisters believe that the stress of living in the country undocumented and seeking asylum, while being separated from her children, significantly worsened her already poor mental health. Now that she is in prison, frequently in solitary confinement and without any access to psychological care, both her family and her lawyer fear that she will again attempt suicide. A habeas corpus petition seeking her release was recently filed by her lawyer. It maintains that the severity of her mental illness, magnified by a lengthy imprisonment, makes her incapable of managing her own case. An experience from earlier this year seems to support this: Jiang’s mental health had deteriorated to the point where she was unable to recognize her older sister during a visit to the prison.

Jiang’s experience of detention and lack of medical treatment despite mental illness is unfortunately not an exceptional case. The number of detainees needing treatment for psychological illnesses is not recorded, and many asylum seekers fail to receive the care they need. As Sunita Patel, a lawyer at the Center for Constitutional Rights, told the New York Times, “…more and more people with mental illnesses are being put into the detention system. And sometimes these people disappear.”

More links:

Human Rights First

Report Finds U.S. Often Greets Asylum Seekers with Prison, not Protection

US Detention of Asylum Seekers and Human Rights

Immigration Detention and In-Custody Deaths

Another Jail Death, and Mounting Questions

It depends on who you ask. UK’s National Health Service (NHS) states that its mission is “to make good healthcare available to all, regardless of wealth, as long as you are a resident of the UK.” Overturning last year’s decision, appeals judges ruled that rejected asylum seekers are no longer legally entitled to free secondary NHS care, although hospitals can treat them at their discretion if they are penniless. Lord Justice Ward argues in his decision that “failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return.” Last year, Matthew Elliot of the TaxPayers’ Alliance argued that rejected asylum seekers should not be paid for at the expense of law-abiding taxpayers, and that providing them with free care will only create a burden on the already overstretched system, especially with the flood of health migrants he believes will follow. These concerns are by no means unique to the UK, and are echoed in other countries trying to decide how and whether to provide care to migrants using public funding.

Yet others argue that it not only makes public health sense to provide healthcare to all migrants – it helps control infectious diseases and decreases expensive emergency care through earlier diagnosis – it is a matter of human rights. The UK is a state party (see 5.2) to the treaties that include the right to health (see 10), which obligates the UK to make health services accessible to all, without discrimination, and especially to the most vulnerable and marginalized sections of the population. Asylum seekers are one of the groups least able to pay for their healthcare, while most vulnerable to suffering; most take enormous risks in migrating from their country of origin, where they face war, poverty, or persecution. Complicating matters, many of those who are not accepted as refugees are unable to return to their country of origin due to continued conflict or a refusal by that country to readmit them. They are effectively stuck, and should not be denied care.

Even if a country chooses to restrict immigration, there should be a clear separation between immigration law and the provision of health services. As the number of migrants steadily rises worldwide, with anti-immigrant sentiment following not far behind, governments should carefully reconsider their discriminatory health policies toward migrants, and incorporate the right to health.

See also:

Report: Access to health care for migrants and asylum seekers – Hesperian

For an interesting debate, read Responses to Peter Hall’s editorial “Failed asylum seekers and health care” – BMJ, 2006

Editorial: Care for vulnerable migrants in the UK – Lancet, Apr 2009

Exclusion Proposals for Overseas Visitors – UNHCR, Aug 2004

UN Refugee Agency Statistics Reports – UNHCR

Reports on Asylum Seekers, Refugees, and IDPs – Refugee Council USA, upd. Apr 2009

US Immigration Detention Legislation – Human Rights First

US May Be Mishandling Asylum Seekers, Panel Says – NY Times, Feb 2007