DISCUSSION NOTE:  COMPARISON OF CHAPTER 4 OF THE PREVENTION AND COMBATING OF TRAFFICKING IN PERSONS BILL, 2010 DEALING WITH THE STATUS OF FOREIGN VICTIMS OF TRAFFICKING WITH EXISTING IMMIGRATION AND REFUGEE LEGISLATION

1.	PURPOSE OF NOTE:
1. 1 The purpose of this note is to address concerns that have been raised regarding the provisions of Chapter 4 of the Prevention and Combating of Trafficking in Persons Bill, 2010 (the Bill), dealing with the status of foreign victims of trafficking, namely clause 21 (recovery and reflection period), clause 22 (temporary residence) and clause 23 (permanent residence).  The concerns relate to the possible abuse of these provisions by persons entering the Republic who falsely allege that they are victims of trafficking in order to remain the country and who will then be able to lay claim to the benefits and services proposed in the Bill which are intended to -
(a)	assist and protect genuine victims of trafficking;  and
(b)	facilitate police investigations and prosecutions in bringing perpetrators of trafficking to book.

1.2  The following practical questions have been raised:
(a)	Would a genuine victim of trafficking not wish to be repatriated to his or her country of origin at the first available opportunity after having been “rescued” from his or her trafficker and if that is the case is there any need for the victim to remain in the country?
(b)	If a victim of trafficking is required for police investigation or prosecution purposes, should the victim, in any event, not be returned to his or her country of origin and be brought back to the Republic when the need arises?
(c)	Is there not a danger in allowing persons to allege that they are victims of trafficking and would it not be more appropriate for police officials to present  persons as victims of trafficking to the relevant authorities who they come across in the course of their criminal investigations?   

1.3  The above concerns and questions have led to the further question being raised, namely to what extent do existing provisions on the Statute Book, with particular reference to the Immigration Act, 2002 (Act No. 13 of 2002)(the Immigration Act) and the Refugees Act, 1998 (Act No. 130 of 1998)(the Refugees Act), address the aims and objectives of clauses 21, 22 and 23 of the Bill and how could they possibly be applied to achieve the same aims and objectives without having to enact the three clauses in question, which, according to the Department of Home Affairs, are likely to lead to abuses that already exist in the application of the Immigration Act and the Refugees Act and which Government is trying to eradicate.   

2.	BACKGROUND:  UNITED NATIONS PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS

2.1	It is important to recognise at the outset that one of main objects of the Bill is to give effect to South Africa’s international obligations as a State Party to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Protocol).  

2.2	The following provisions of the Protocol are particularly relevant:
2.2.1	Article 6 deals with assistance to and protection of victims of trafficking in persons.  Article 6.3 provides that State Parties shall consider implementing measures for the physical, psychological and social recovery of victims of trafficking in persons, including in appropriate cases, in cooperation with non-governmental organisations, other relevant organisations and other elements of civil society, and in particular, the provision of appropriate housing, counselling and information, medical, psychological and material assistance and employment, educational and training opportunities.  Article 6.5 provides that “Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory.”.  South Africa is therefore under an obligation to assist and protect victims of trafficking within its territory and for this purpose, provisions must be put in place to allow such victims to legally remain in the country.
 
2.2.2	Article 7 provides that “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.”.  Article 7.2 further states that “In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors.”.  Although this article does not place an obligation on State Parties to adopt legislative or other appropriate measures that permit victims of trafficking to remain in their territories, they cannot from the outset decide not to adopt such measures.  State Parties will have to show that they have given serious consideration to the adoption of such measures and should be able to explain why none of the measures they have considered can be adopted.  Furthermore, article 7.2 aims to ensure that immigration laws are interpreted in a manner that takes into account the specific situation of a victim of trafficking prior to deciding whether or not he or she can remain in the country.  The United Nations Office on Drugs and Crime found that even though there is no obligation to legislate measures relating to the status of victims, several countries where measures have been adopted for the temporary or permanent residence of victims of trafficking such as Belgium, Italy, the Netherlands and the USA, such measures have had a positive effect on victims coming forward to testify against traffickers and on NGO’s encouraging victims to whom they provide services to report incidents to the government.

2.2.3	Article 8 addresses the repatriation of victims of trafficking in persons.  Article 8.2 provides that when a State Party returns a victim of trafficking to his or her country of origin, “such 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”.  Article 8.5 further provides that article 8 is without prejudice to any right afforded to victims of trafficking in persons by any domestic law of the country in which he or she finds himself or herself in.  The inclusion of article 8 in the Protocol is a clear indication that victims of trafficking should not be deported.  Repatriation is not the same as deportation.  Deportation has negative consequences for the deportee in that he or she can be declared to be an undesirable person or a prohibited person if he or she was found in possession of a fraudulent residence permit, passport or identification document.  The legal proceedings referred to in article 8.2 could include the process envisaged in the Bill to assess whether a person is a victim of trafficking, or the process to apply for temporary residence or possibly refugee status or the prosecution of a case of trafficking in which the victim is a witness.  The Bill further envisages that an investigation should be conducted into the circumstances of the victim in order to determine whether it will be safe to return that victim to his or her country of origin.

2.2.4	Article 14.1 specifically states that nothing in the Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 UN Convention Relating to the Status of Refugees (the 1951 Convention) and the 1967 UN Protocol relating to the Status of Refugees (the 1967 Protocol) and the principle of non-refoulement as contained therein.  The 1951 Convention is the centrepiece of international refugee protection today. The 1967 Protocol removed the geographic and temporal limits of the 1951 Convention.  It is important to note that the Refugees Amendment Act, 2008 (Act 33 of 2008), which is not yet in operation, inserts a new section 1A, dealing with interpretation and application of the Refugees Act.  It provides that this Act must be interpreted and applied in a manner that is consistent with the 1951 Convention and the 1967 Protocol, as well as the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the 1948 UN Universal Declaration of Human Rights and “any domestic law or other relevant convention or international agreement to which the Republic is or becomes a party”.  Articles 31 and 33 of the 1951 Convention are set out in the footnote.    

2.3	In addition to the Protocol itself, it is important to note that the United Nations High Commissioner on Refugees (UNHCR) has developed principles and guidelines on human rights and human trafficking which must be taken into account by State Parties to the Protocol.

2.3.1	One of the recommended principles of the UNHCR relates to the protection of and assistance to victims of trafficking and provides as follows: 
“7. Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.
8. States shall ensure that trafficked persons are protected from further exploitation and harm and have access to adequate physical and psychological care. Such protection and care shall not be made conditional upon the capacity or willingness of the trafficked person to cooperate in legal proceedings.
9. Legal and other assistance shall be provided to trafficked persons for the duration of any criminal, civil or other actions against suspected traffickers. States shall provide protection and temporary residence permits to victims and witnesses during legal proceedings.
11. Safe (and, to the extent possible, voluntary) return shall be guaranteed to trafficked persons by both the receiving State and the State of origin. Trafficked persons shall be offered legal alternatives to repatriation in cases where it is reasonable to conclude that such repatriation would pose a serious risk to their safety and/or to the safety of their families.”.

2.3.2	The Recommended Guidelines on Human Rights and Human Trafficking include several guidelines that States should consider when dealing with victims of trafficking in persons, the following of which are particularly relevant:
(a)	Guideline 1: Promotion and protection of human rights
Under this Guideline, States should consider ensuring that anti-trafficking laws, policies, programmes and interventions do not affect the right of all persons, including trafficked persons, to seek and enjoy asylum from persecution in accordance with international refugee law, in particular through the effective application of the principle of non-refoulement.
(b)	Guideline 4: Ensuring an adequate legal framework
Under this Guideline, States should consider —
*	ensuring that the protection of trafficked persons is built into anti-trafficking legislation, including protection from summary deportation or return where there are reasonable grounds to conclude that such deportation or return would represent a significant security risk to the trafficked person and/or her/his family;
*	providing legislative protection for trafficked persons who voluntarily agree to cooperate with law enforcement authorities, including protection of their right to remain lawfully within the country of destination for the duration of any legal proceedings.
(c)	Guideline 6: Protection and support for trafficked persons
Under this Guideline, States and, where applicable, intergovernmental and non-governmental organizations, should consider —
*	ensuring, in cooperation with non-governmental organizations, that safe and adequate shelter that meets the needs of trafficked persons is made available. (The provision of such shelter should not be made contingent on the willingness of the victims to give evidence in criminal proceedings. Trafficked persons should not be held in immigration detention centres, other detention facilities or vagrant houses);
*	ensuring the safe and, where possible, voluntary return of trafficked persons and exploring the option of residency in the country of destination or third country resettlement in specific circumstances (e.g. to prevent reprisals or in cases where re-trafficking is considered likely).
(d)	Guideline 9: Access to remedies
In terms of this Guideline States and, where applicable, intergovernmental and non-governmental organizations, should consider—
*	ensuring that victims of trafficking have an enforceable right to fair and adequate remedies, including the means for as full a rehabilitation as possible. (These remedies may be criminal, civil or administrative in nature);
*	providing information as well as legal and other assistance to enable trafficked persons to access remedies;
*	making arrangements to enable trafficked persons to remain safely in the country in which the remedy is being sought for the duration of any criminal, civil or administrative proceedings.

2.4	It is evident that countries or State Parties are urged to follow a human-rights based approach when dealing with trafficking in persons and the above-mentioned principles and guidelines are further proof that the international community considers the protection of victims of trafficking as a very important aspect in this approach.  Legislation should therefore also reflect this approach.  Failure to adopt such an approach will certainly give rise to severe criticism, from our NGO’s as well as from abroad.

3.	CHAPTER 4 OF THE BILL  VIS-A-VIS THE RELEVANT PROVISIONS OF THE IMMIGRATION ACT AND THE REFUGEES ACT
As indicated above, Chapter 4 of the Bill deals with the status of foreign victims of trafficking and consists of clauses 21 (recovery and reflection period), 22 (temporary residence) and 23 (permanent residence). (The Bill as amended by the Portfolio Committee to date is used as a basis document).  Each of these clauses and their objectives will first be discussed, followed by a discussion of provisions in the Immigration Act and the Refugees Act to determine whether these provisions could possibly be used or applied to achieve the aims and objectives of the particular clause.

3.1	Clause 21:	Recovery and reflection period
3.1.1	(a)	In terms of clause 21, the Director-General: Home Affairs (DHA) must allow a foreigner who has been issued with a letter of recognition (as being recognised as a victim of trafficking), to remain in the Republic for a recovery and reflection period not exceeding 90 days.  
(b)	If a foreigner is, after a period of 30 days since he or she has been granted a recovery and reflection period, unwilling or unable to co-operate with law enforcement and prosecuting authorities, the Director-General: Social Development (DSD), must conduct an investigation into the circumstances of the victim to determine if it is safe to return the victim.  The DSD may request the DHA for an extension of the recovery and reflection period to six months, to complete its investigation.
(c)	If a foreigner is still unwilling or unable to co-operate with law enforcement and prosecuting authorities upon expiration of the recovery and reflection period, the information obtained by the DSD must be provided to the DHA, which must be taken into account when deciding whether to repatriate the victim.
(d)	Clause 21 further provides that the granting of a recovery and reflection period does not depend on the willingness of the victim to co-operate with law enforcement and prosecuting authorities and does not prevent or prejudice the competent authority from conducting any relevant investigation.
(e)	During deliberations on the Bill, it was decided that a previous stand alone clause (originally clause 29), dealing with the prohibition of summary deportation of a victim of trafficking, should form part of this clause.  Clause 21(6) therefore provides that a victim of trafficking, or a child who is suspected of being a victim of trafficking and who is in the process of being assessed as to whether he or she is a victim of trafficking, or an adult person who is suspected of being a victim of trafficking and who is in the process of being assessed as to whether he or she is a victim of trafficking, may not be deported.
(f)	The purpose of a recovery and reflection period is to afford a foreign victim of trafficking an opportunity to recover from the trauma of being trafficked and to reflect on his or her future, including whether to co-operate with the authorities or not.  Victims of trafficking who are rescued by the police often refuse to assist with the police investigation because of fear of reprisals.  They are often terribly traumatised and will likely not trust anyone, including the police.  However, allowing victims of trafficking to remain in the country and to feel and be safe, is important because it is during this period, after receiving counselling and other services, that most victims change their minds and agree to cooperate with the authorities.  The successful prosecution of traffickers is most likely through the evidence of victims of trafficking since the offence of trafficking invariably takes place clandestinely.  The immediate deportation of victims of trafficking denies them essential services such as health care and counselling.  It also deprives the authorities of the opportunity to obtain information from them in order to investigate and prosecute traffickers.  Victims of trafficking should also not be returned to their countries of origin if it is unsafe for them to return.  The Bill provides for a process to determine whether a person is a victim of trafficking and if it is found that a person is a victim of trafficking, that person is issued with a letter of recognition as such.  The Bill will have to ensure that this process is of such a nature that it is not open to abuse which can lead to a situation where persons claim to be victims of trafficking for purposes of getting into the country and remaining here and making use of the protection and services available to victims of trafficking as envisaged in the Bill.
(g)	It may be mentioned that a recovery and reflection period is a recognised mechanism in anti-trafficking legislation and  numerous other jurisdictions have similar provisions in their legislation.  The Netherlands provides for a 3-month “reflection delay” period in regulation B9 of 2000. (Discussion Paper page 160).  Belgium provides for a “reflection delay” period of 45 days in terms of a circular on the issuing of documents to migrant victims of trafficking dated 7 July 1994. (Discussion Paper page 162).  The USA provides that a federal law enforcement officer may grant “continued presence” to a victim of trafficking but it does not state for how long.  Australia provides for a Bridging F visa (BVF) of 45 days in terms of its People Trafficking Visa Framework.  Mauritius allows a victim of trafficking to remain in Mauritius for a period of 42 days, in terms of section 6 of the Combating of Trafficking in Persons Act, 2 of 2009.  Zambia provides in section 33 of its Anti-Human Trafficking Act, 11 of 2008, that a victim may be allowed to remain in that country for a period of 60 days.  As indicated above, it has become an established practice to allow foreign victims of trafficking such a recovery and reflection period.

3.1.2	Immigration Act:  
3.1.2.1	Sections 10 to 24 of the Immigration Act deal with temporary residence.  Section 10 deals with temporary residence permits.  Section 10(1) provides that “upon admission, a foreigner, who is not the holder of a permanent residence permit, may enter and sojourn in the Republic only if in possession of a temporary residence permit issued by the Director-General”.  Section 10(2) provides that “one of the temporary residence permits contemplated in sections 11 to 23 may be issued to a foreigner”.  (Section 11 deals with visitors’ permits, section 12 has been repealed, section 13 deals with study permits, section 14 with treaty permits, section 15 with business permits, section 16 with crew permits, section 17 with medical treatment permits, section 18 with relatives permits, section 19 with work permits, section 20 with retired persons’ permits, section 21 with corporate permits, section 22 with exchange permits and section 23 with asylum transit permits which is, among others, relevant for this discussion.  Section 10(5) provides that the Director-General may for good cause attach reasonable individual terms and conditions as may be prescribed to a temporary residence permit and section 10(7) provides that the Director-General may, on application in the prescribed manner extend the period for which a permit was issued.
   
3.1.2.2	Section 23 — Asylum transit permit 
(a)	Section 23 of the Immigration Act provides that the DHA may issue an asylum transit permit to a person who at a port of entry claims to be an asylum seeker, which permit is valid for 14 days.  If the permit expires before the holder reports to a Refugee Reception Officer to apply for asylum, the holder becomes an illegal foreigner and is dealt with in accordance with the Immigration Act. 
(b)	This provision will, however, not assist foreign victims of trafficking because it is unlikely that these persons will claim upfront to be victims of trafficking at a port of entry or be spotted by immigration officers or police officials at a port of entry as they will invariably be accompanied by their traffickers and will be too scared to do so.  Many victims are also smuggled through ports of entry and are not noticed by the relevant  authorities.  Many genuine victims of trafficking moreover only discover their plight once they are well inside the country and the real purpose for which they have been brought into the country becomes apparent later and not when they arrive at the port of entry.

3.1.2.3	Section 30 – Undesirable persons
Section 30(1)(a) provides, among others, that the Director-General may declare anyone “who is or is likely to become a public charge” to be an undesirable person and who, after such declaration, does not qualify for a visa, admission into the Republic, a temporary or a permanent residence permit.  This is mentioned due to the fact that a victim of trafficking will invariably be or become a public charge and stands the risk of being declared an undesirable person. 

3.1.2.4	Section 31 – Exemptions
Section 31(2) provides, among others,  that, “[U]pon application, the Minister may under terms and conditions determined by him or her –
(b)	grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision:  Provided that the Minister may –
(i)	exclude one or more identified foreigners from such categories;  and
(ii)	for good cause, withdraw such rights from a foreigner or a category of foreigners;
(c)	for good cause, waive any prescribed requirement or form;  and
(d)	for good cause, withdraw an exemption granted by him or her in terms of this section.”.
This provision has, in the past, been applied for purposes of allowing persons to stay in the country in order to give evidence in criminal matters.  A copy of a certificate of exemption issued in terms of this provision in a particular case is attached for information as Annexure A.  While this provision might be able to be applied for purposes of victims of trafficking attending court proceedings and giving evidence rather than enacting provisions dealing with a recovery and reflection period and/or temporary residence permits, experience has shown that this is a cumbersome and time-consuming exercise and exemptions are not necessarily granted in all cases as is apparent from a letter made available by the NPA to us which is attached as Annexure B.  The NPA also indicated that obtaining these exemptions is particularly difficult as is evident from the e mail which is attached as Annexure C.  The NPA is therefore of the view that the provisions in the Bill under discussion (clauses 21 and 22) are necessary.
 
3.1.2.5	Section 32 — Illegal foreigners
(a)	Section 32(1) of the Immigration Act provides that “[A]ny illegal foreigner shall depart, unless authorised by the Director-General in the prescribed manner to remain in the Republic, pending his or her application for a status.”.  Section 32(2) states that any “illegal foreigner shall be deported.”.  
(b)	According to the definitions in section 1 of the Immigration Act, “depart” means “exiting the Republic from a port of entry in compliance with this Act” and “deport” means “the action or procedure aimed at causing an illegal foreigner to leave the Republic in terms of this Act.”.  “Depart” is a voluntary process whilst “deport” is the act of being removed from the Republic.  “Status” means “the status of a person as determined by the relevant permanent or temporary residence permit granted to a person in terms of this Act.”.
(c)	Section 32(1) will not come to the aid of foreign victims of trafficking as these victims may decide not to remain in the country.  Even if they decide to remain in the country, they will most likely not be able to comply with the requirements for temporary residence or permanent residence.

3.1.2.6	Section 34 — Deportation and detention of illegal foreigners
(a)	Section 34(1) of the Immigration Act provides that an illegal foreigner may be arrested without the need for a warrant and shall, irrespective of whether that foreigner is arrested, be deported and may, pending the deportation, be detained in a manner and place as determined by the DHA.  As indicated in paragraph 2.3.2(c) above, the detention of victims of trafficking in “immigration detention centres, other detention facilities or vagrant houses” is frowned upon and will certainly give rise to criticism both locally and internationally. 
(b)	It is clear from the wording of section 34 that a victim of trafficking who is illegally in the country could be deported immediately,  thereby depriving the victim of medical care and counselling, and also depriving the authorities the opportunity of investigating and obtaining evidence to prosecute his or her trafficker.  Article 6, paragraph 2(b) of the Protocol requires State Parties to ensure that victims of trafficking are able to present their views and concerns at appropriate stages of criminal proceedings against offenders.  This may require the deferral of deportations until victims have been given such opportunity.  Hence, the immediate deportation of a victim of trafficking is against the spirit of the Protocol which has a strong focus on victim assistance and protection.

3.1.3	Refugees Act:  

3.1.3.1	Section 2 — General prohibition of refusal of entry, expulsion, extradition or return in certain circumstances
Section 2 of the Refugees Act states that no person may be refused entry into the Republic or expelled, extradited or returned to any other country if as a result of such a refusal, expulsion, extradition or return, that person is compelled to return or remain in a country where he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group or his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in part or the whole of that country.  “Social group” includes, among others, a group of persons of particular gender, sexual orientation, disability, class or caste.

3.1.3.2	Section 3 - Refugee status
In similar vein to section 2, section 3 of the Refugees Act provides that a person only “qualifies for refugee status for the purposes of this Act if that person—
(a)	owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or
(b)	owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or
(c)	is a dependant of a person contemplated in paragraph (a) or (b)”.
Unless the Refugees Act provides that trafficking in persons is a ground for applying for refugee status, a victim of trafficking will not be protected under section 2 or 3 of the Refugees Act. 

3.1.4	Conclusion
(a)	It appears that neither the Immigration Act nor the Refugees Act provides a workable solution for victims of trafficking in allowing them to remain in South Africa for a recovery and reflection period and for protection from immediate deportation.  These Acts also do not provide any guidance on how suspected victims of trafficking should be dealt with.  Once a victim of trafficking is apprehended, he or she might be treated as an illegal foreigner and may not receive the services and protection contemplated by the Bill.  If a victim is returned to his or her home country, it is very unlikely that he or she will be prepared to return to South Africa to testify in a case of trafficking in persons.  Should clause 21 be deleted, the aim and objectives of a recovery and reflection period as set out above would be lost, to the detriment of the administration of justice.  We would also be subjected to criticism both locally and internationally on the grounds that we are not giving effect to our international obligations.  
(b)	Because victims of trafficking are so often terribly traumatised and fear for their lives and are initially unwilling to cooperate with the authorities, the recovery and reflection period is intended to allow them time to get the benefit of counselling and rehabilitation services and also to be informed of the processes ahead and to be given the assurance that they will be assisted and protected.  It has been suggested that  clause 21 possibly does not make it clear enough what the purpose of this recovery and reflection period is.  It is suggested that this clause be amended as indicated in the shaded portion below.         
“Recovery and reflection period

[17]19 21.	(1)	Despite the provisions of the Immigration Act, the Director-General: Home Affairs must, in the prescribed manner and subject to the prescribed conditions, allow a foreigner who has been [certified to be a victim of trafficking in terms of section 13(7)] issued with a letter of recognition, regardless of his or her status, to remain in the Republic for a non-renewable recovery and reflection period not exceeding 90 days / 6 months for the purpose of accessing the programmes referred to in section 26 with the view to enabling the foreigner to make informed decisions regarding his or her cooperation with law enforcement and prosecuting authorities in the investigation and prosecution of a case of trafficking in persons as referred to in section 22(1)(b). 
(2)	If a foreigner referred to in subsection (1), after a period of 30 days since he or she has been granted a recovery and reflection period, is unwilling or unable to co-operate with law enforcement and prosecuting authorities in the investigation of and the prosecution of a trafficker, an investigation into his or her circumstances must be conducted by the Director-General: Social Development in order to determine whether it is safe to return him or her to his or her country of origin or the country from where he or she has been trafficked.
(3)	If a foreigner referred to in subsection (2) is still unwilling or unable to co-operate with law enforcement and prosecuting authorities in the investigation of and the prosecution of a trafficker upon expiration of the recovery and reflection period, the information obtained as a result of an investigation referred to in subsection (2) must be provided to the Director-General: Home Affairs to be taken into account when deciding whether to repatriate the foreigner.
(4)	If the Director-General: Social Development is unable to complete an investigation referred to in subsection (2) before the expiration of the recovery and reflection period, he or she must, in the prescribed manner, request the Director-General: Home Affairs to extend, in the prescribed manner, that period to six/nine months.
(5)	The granting of a non-renewable recovery and reflection period referred to in subsection (1) does not—
(a)	depend upon the willingness of a victim of trafficking to co-operate with law enforcement and prosecuting authorities in the investigation of and the prosecution of a case of trafficking in persons; and
(b)	prevent or prejudice the competent authority from conducting any relevant investigation, provided that due regard is given to the emotional state of the victim.
Summary deportation of victim of trafficking prohibited
	[29] 31 33.	(6)	Subject to section 30 31, the summary deportation of —
(a)	a victim of trafficking;
(b)	a child who is suspected of being a victim of trafficking who has been referred to a designated child protection organisation for an investigation in terms of section 110 of the Children’s Act or a children’s court order in terms of section 155 of the Children’s Act; or
(c)	an adult person who is suspected of being a victim of trafficking and is in the process of being assessed in terms of section 14(7) or (9) 16(7)
is prohibited.”.

3.2	Clause 22:	Temporary residence
3.2.1	(a)	Clause 22(1) provides that despite the provisions of section 11(1) of the Immigration Act, a visitor’s permit may be issued to a victim of trafficking who is present in the Republic and has agreed to co-operate with law enforcement and prosecuting authorities in the investigation and prosecution of a case of trafficking in persons.  
(b)	Clause 22(2) further provides that despite the provisions of section 11(1) of the Immigration Act, a visitor’s permit may be renewed by the Director-General: Home Affairs for the duration of the investigation and prosecution of a case of trafficking in persons.  
(c)	In terms of clause 22(3), a visitor’s permit may be issued to a victim of trafficking regardless of that victim’s status or whether a recovery and reflection period has been granted or has expired.
(d)	In terms of clause 22(4), the holder of a visitor’s permit may conduct work or study in the Republic.

3.2.2	Immigration Act:  

3.2.2.1	Section 11 — Visitor’s permit
(a)	Section 11(1) of the Immigration Act provides for temporary residence of foreigners in South Africa in the form of a visitor’s permit to a foreigner who—
•	complies with section 10A of the Immigration Act (Section 10A states that a foreigner must have a valid visa, unless he or she has a permit in terms of sections 13 to 22 and 25 to 27 of the Act (study permit, treaty permit, business permit, medical treatment permit, etc)); and 
•	provides the financial or other guarantees as prescribed in respect of his or her departure.  
(b)	Section 11(1) further provides that a visitor’s permit is valid for three months and may upon application be renewed for a further period not exceeding three months.  If the DHA is satisfied that the foreigner has sufficient prescribed financial resources and is engaged in the Republic in an academic sabbatical or voluntary or charitable activity, research or any other prescribed activity, a visitor’s permit may be issued which is valid for three years.
(c)	Regulation 9 of the Immigration Regulations sets out the prescribed financial or other means as proof of sufficient financial means and a deposit or valid return air ticket or both the deposit and air ticket.  The applicant must also submit a statement or documentation confirming the purpose and duration of the visit.  For an application for the extension of the period of three months, further documents relating to the marital status of the applicant, particulars of children, a police clearance certificate and a medical report, are required.  
(d)	In terms of section 11(2) of the Immigration Act, the holder of a visitor’s permit may not conduct work, unless authorised by the DHA in the prescribed manner and subject to the prescribed conditions and requirements.  Special financial and other guarantees may be prescribed in respect of the issuance of a visitor’s permit to certain prescribed classes of foreigners.

3.2.2.2	Conclusion
(a)	Foreign victims of trafficking often enter the country without a valid visa or other permit and are unlikely to be able to provide the financial or other guarantees as provided for in the Immigration Act.  They would therefore not be able to comply with the requirements of section 11 (1).
(b)	The purpose of clause 22 is to provide for the issuing of a visitor’s permit to a victim of trafficking but only to a person who has agreed to cooperate with the law enforcement and prosecuting authorities and only for the duration of the police investigation or ensuing court proceedings.  See also paragraph 3.1.2.4 above which is equally relevant in relation to temporary residence.  
(c)	It will be noted that clause 22 as introduced into Parliament, also made provision for a visitor’s permit to be issued to a victim of trafficking “if it is not safe to return him or her to his or her country of origin or the country from where he or she has been trafficked” (the original subclause (4)).  The Portfolio Committee has suggested that these provisions be deleted on the basis that persons who cannot go back to their countries of origin should apply for refugee status in terms of the Refugees Act.  
(d)	Clause 22 of the Bill at present reads as follows but it is also suggested that it be amended further as indicated in the shaded portions:
“(1)	Despite the provisions of section 11(1) of the Immigration Act, a visitor’s permit may, on the written request of the Provincial Commissioner of the South African Police Service or the Director of Public Prosecutions having jurisdiction,  be issued to a victim of trafficking— 
(a)	who—
(i)(a)	is present in the Republic; and 
(ii)(b)	has agreed to co-operate with law enforcement and prosecuting authorities in the investigation of and the prosecution of a case of trafficking in persons.; [or] or
(b)	if an investigation referred to in section 17 21(2) indicates that it is not safe to return him or her to his or her country of origin or the country from where he or she has been trafficked.; or
(c)	in respect of whom a children’s court order has expired or is about to expire, if the Director-General: Home Affairs is of the view that it is in the best interests of that victim to remain in the Republic.
(2)	Despite the provisions of section 11(1) of the Immigration Act, a visitor’s permit may, on the written request of the Provincial Commissioner of the South African Police Service or the Director of Public Prosecutions having jurisdiction, be renewed by the Director-General: Home Affairs for the duration of the investigation of and the prosecution of a case of trafficking in persons, as the case may be. 
(3)	A visitor’s permit referred to in subsection (1) may be issued to a victim of trafficking regardless of—
(a)	his or her status; or
(b)	whether a recovery and reflection period as provided for in section 17 21 was granted or has expired.
(4)	For purposes of this Act, the Director-General: Home Affairs may, on humanitarian grounds, extend a visitor’s permit referred to in subsection (1). [, taking into account the likelihood that the holder of that permit may be harmed, killed or trafficked again if he or she is returned to his or her country of origin or the country from where he or she has been trafficked.]
(5)	Despite the provisions of section 11(2) of the Immigration Act, the holder of a visitor’s permit [that has been extended in terms of subsection (4)] may conduct work or study in the Republic.”.

3.3	Clause 23:	Permanent residence
3.3.1	Clause 23 provides for the granting of permanent residence to a victim of trafficking in terms of section 27 of the Immigration Act, if, after five years’ continuous residence in the Republic, the DHA is of the view that the victim of trafficking may be harmed, killed or trafficked again if he or she is returned to his or her country of origin or the country from where he or she was trafficked.  The Portfolio Committee has, however, indicated that this clause should be deleted.  The Committee is of the view that a victim of trafficking who cannot be returned to his or her  country of origin, should  apply for refugee status.

3.3.2	Refugees Act:  
3.3.2.1	Section 3 — Refugee status 
(a)	Section 3 of the Refugees Act provides that a person qualifies for refugee status if that person—
•	owing to a well-founded fear of persecution because of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside his or her country;
•	owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in a part or the whole of his or her country, is compelled to leave and seek refuge elsewhere; or
•	is a dependant of a person seeking refuge. 
(b)	It is clear from the wording of section 3 of the Refugees Act that a victim of trafficking does not qualify for refugee status merely because he or she has been trafficked.  In order for a victim of trafficking who cannot return to his or her country of origin to qualify for refugee status, section 3 will have to be amended to include trafficking in persons as a ground for refugee status.

3.3.2.2	Section 5 — Cessation of refugee status
(a)	Section 5 of the Refugees Act provides that a person ceases to qualify for refugee status if—
•	he or she voluntarily reavails him-or herself of the protection of the country of his or her nationality; or
•	having lost his or her nationality, has by some voluntary and formal act, reacquired it; or
•	he or she becomes a citizen of South Africa or acquires the nationality of another country and enjoys the protection of that other country; or
•	he or she voluntarily re-establishes him-or herself in the country which he or she left; or
•	the circumstances in connection with which that person has been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee.
(b)	If trafficking in persons is made a ground for refugee status, it would appear as if a victim of trafficking would loose such status, if that victim voluntarily returns to his or her home country or if the circumstances which led to his or her application for refugee status no longer apply and it is safe for him or her to return to his or her country of origin.  

3.3.2.3	Section 27 — Protection and general rights of refugees
(a)	Section 27 provides that a refugee—
•	is entitled to a formal written recognition of refugee status;
•	enjoys full legal protection, including the rights set out in Chapter 2 of the Constitution and the right to remain in South Africa in accordance with the Refugees Act;
•	is entitled to apply for permanent residence after five years’ continuous residence in South Africa;
•	is entitled to an identity document referred to in section 30 of the Refugees Act; (An identity document in terms of section 30 must contain an identity number of the holder, the names and surname, the gender, date of birth and country where the holder was born, the country of which the holder is a citizen, if any, and a recent photograph and fingerprints or other prints of the holder).
•	is entitled to a South African travel document on application;
•	is entitled to seek employment;
•	is entitled to the same basic health services and basic primary education which the inhabitants of South Africa receive.
(b)	The holder of refugee status has more rights than a person with a visitor’s permit as is indicated above.  A victim of trafficking with refugee status will, for example, be able to work and get a basic primary education if necessary.  

3.3.2.4	Conclusion
The Department supports the Portfolio Committee’s suggestion that this clause be deleted.  There is an established process in terms of the Refugees Act whereby a victim of trafficking can apply for refugee status.  Refugees also have more benefits.  If the circumstances in the refugee’s country change, the refugee might be compelled to return, otherwise he or she may apply for permanent residence.  It is therefore suggested that section 3 of the Refugees Act be amended to provide for trafficking in persons as a ground for refugee status.  A draft amendment is set out below for consideration.  A problem that is foreseen is the long period of time it takes presently to process applications for refugee status and the Bill could possibly provide for a mechanism to fast track the process where the applicant is a victim of trafficking.
	“Refugee status

3.	Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act if that person –
(a)	owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it;  or
(b)	owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere;  or
(c)	is a dependant of a person contemplated in paragraph (a) or (b);  or
(d)	is a victim of trafficking as provided for in the Prevention and Combating of Trafficking in Persons Act, 2011, and who may be harmed or killed if he or she were to be returned to his or her country of origin or to the country from where he or she was trafficked.”.

3.4	In conclusion, it would seem as if the current provisions in the Immigration Act and Refugees Act are not adequate to give effect to the aim and objects of clauses 21 and 22 of the Bill as set out above.  It would also seem as if an amendment of section 3 of the Refugees Act is necessary if clause 23 is to be deleted.