Temporary resident permits (TRPs): Considerations specific to victims of trafficking in persons

To enhance existing in-Canada mechanisms for protecting out-of-status foreign nationals who may be victims of trafficking in persons (VTIP), the Minister of Immigration, Refugees and Citizenship issued Ministerial Instructions (MIs) in 2007 regarding the issuance of temporary resident permits (TRPs) to victims of trafficking in persons (VTIP). IRCC has further developed guidance to be used in assessing TRP applications from these potential victims.

The objective of the MIs and the following guidance is to provide protection to vulnerable out-of-status foreign nationals who are victims of human trafficking, by regularizing their temporary status in Canada, when the officer is of the opinion that it is justified in the circumstances.

The issuance of VTIP TRPs falls under IRCC’s activities as part of the Government of Canada’s National Strategy to Combat Human Trafficking.

Defining trafficking in persons

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) is an internationally recognized framework, ratified by Canada in 2002, to prevent and combat trafficking in persons, protect and assist victims, prosecute offenders and facilitate international cooperation against such activity. It requires the criminalization of human trafficking in domestic legislation and recommends certain measures to protect and assist victims. Article 3 of the Trafficking Protocol defines trafficking in persons 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;

According to this definition, trafficking in persons involves 3 key elements:

a physical act: for example, recruitment, transportation, or harbouring of a person
accomplished through means: for example, threats, force, coercion or deception
for a specified purpose: exploitation of victims

Immigration and Refugee Protection Act (IRPA) trafficking in persons offence

Subsection 118(1) of the Immigration and Refugee Protection Act (IRPA) sets out the following trafficking in persons offence:

No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

The definition of “organize” includes recruitment, transportation and, after entry into Canada, receipt and harbouring (subsection A118(2)). It carries a maximum penalty of a $1 million fine and/or life imprisonment (section A120). Aggravating factors include bodily harm, death, endangerment of others’ life or safety, criminal organization involvement, profit, and humiliating or degrading treatment (section A121).

Note: This offence requires the crossing of international borders, does not require proof of exploitative purpose, and is under federal jurisdiction.

Criminal Code trafficking in persons offences

Subsection 279.01(1):

Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable…

Subsection 279.011(1):

This subsection is the same as subsection 279.01(1) above, but for victims under 18 years (note that if the accused successfully raises the mistake of age defence, conviction is still possible under section 279.01).

Issuing a VTIP TRP

The purpose of issuing a VTIP TRP is to respond to the vulnerable situation of victims of trafficking in persons by providing these individuals with a means of legalizing their temporary resident status in Canada, when appropriate.

Short-term TRP (up to 180 days)

When a foreign national first comes to the attention of IRCC, it is not always possible for an officer to make a conclusive finding that they are a victim of trafficking in persons due to numerous factors, such as

the complexity of the case
the trauma that a victim may have experienced or continues to experience
whether the victim has self-identified to IRCC and has not yet been in contact with the police, making it difficult to verify the facts
the victim may be too frightened to identify traffickers, or may be fearful of the consequences to their own well-being or the well-being of their loved ones potentially under threat
the individual may not be able to participate in an in-depth interview with the officer due to language barriers, fear, trauma, etc.
the victim is part of a group of individuals identified in a large-scale investigation or raid, and interviewing each individual may not be operationally feasible

For these reasons, officers may only be able to conduct a preliminary assessment that, based on the circumstances presented, the individual may be a victim of trafficking in persons.

Officers should adopt a 2-step decision-making process when assessing and considering whether to issue a short-term VTIP TRP for up to 180 days, which offers the victim a period of reflection.

The 2-step decision-making process is as follows:

Are there reasonable grounds to believe the individual is a victim of trafficking in persons?
Is the issuance of a VTIP TRP justified in the circumstances?

Step 1

The first step is to verify through a preliminary assessment of the circumstances that an individual may be a victim of trafficking in persons, which includes an assessment of credibility. The criteria that may be taken into account in this preliminary assessment are outlined in the MIs:

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
the individual’s freedom was restricted

Should the officer determine that there are reasonable grounds to believe that the foreign national is a victim of trafficking in persons, they should move to the second step of the decision-making process.

Should the officer determine that the foreign national is not a victim of trafficking in persons, they should refuse the application. If the application is refused, an officer may consider other available options.

Step 2

If an officer determines that the individual may be a victim of trafficking in persons, the second step is for an officer to determine, at their discretion, whether a VTIP TRP is warranted given the circumstances. Officers are justified in issuing a short-term TRP for up to 180 days for any of the following purposes:

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
any other purpose that is relevant to facilitate the protection of vulnerable foreign nationals who are victims of human trafficking

In certain instances, the issuance of a short-term TRP may be necessary before proper consideration and a complete assessment can be made as to whether the foreign national meets the criteria of a victim of trafficking in persons, and whether a longer-term TRP is appropriate.

It is important to note that the issuance of an initial short-term TRP does not guarantee that the applicant will be issued a subsequent TRP.

If the person is suspected or determined to be a victim of trafficking in persons, officers may assist them in contacting organizations that provide assistance to trafficked persons, their foreign representative in Canada, non-governmental organizations (NGOs), and provincial and municipal agencies.

The person may wish to return to their country of habitual residence as soon as possible, and may require assistance in this regard. Referral to their embassy or representative (if specifically requested) or to the United Nations High Commissioner for Refugees (UNHCR) may be appropriate.

Following the issuance of a short-term TRP, if the applicant is from a visa-exempt country, their electronic travel authorization (eTA) should be cancelled in the Global Case Management System (GCMS). If the applicant is from a visa-required country, and their visa was issued as a result of fraud or misrepresentation, please refer to the following procedures to cancel their visa: Temporary residents: Cancellation of a temporary resident visa. The Immigration Program Guidance Branch (IPG) should be contacted if there are questions or concerns about cancelling travel documents.

If the person chooses to file a refugee claim, refer to In-Canada claims for refugee protection.

Longer-term or subsequent TRP

Upon the submission of an application for a subsequent VTIP TRP, an officer may issue a longer-term or subsequent TRP to an individual if they have determined that there are reasonable grounds to believe that the individual is a victim of trafficking in persons, and that a subsequent VTIP TRP should be issued.

To facilitate the decision-making process when assessing a subsequent VTIP TRP application, officers should adopt the following 2-step process.

Step 1

Establish whether there are reasonable grounds to believe that the suspected victim is a victim of trafficking in persons (refer to the criteria listed above). A more complete verification of the facts, established through an interview with the applicant and in consultation with law enforcement, may be needed where appropriate.

Again, should the officer determine that there are reasonable grounds to believe that the foreign national is a victim of trafficking in persons, they should move to the second step of the decision-making process.

Should the officer determine that the foreign national is not a victim of trafficking in persons, they should refuse the application. If the application is refused, an officer may consider other available options.

Step 2

Officers will need to determine, at their discretion, whether a longer-term VTIP TRP should be issued given the circumstances.

Officers will need to consider the following factors, as per the MIs, in arriving at a decision to issue a longer-term VTIP TRP:

whether it is reasonably safe and possible for the victim to return to and re-establish a life in their country of origin or last permanent residence
whether the victims are needed, and willing, to assist authorities in an investigation and/or in criminal proceedings of a trafficking offence
any other factor that in the opinion of the officer is justified, given the circumstances, in issuing a VTIP TRP

When assessing and determining whether a potential victim is in a vulnerable situation, it is important to take into consideration elements such as, but not limited to:

whether the individual continues to experience physical and/or mental trauma as a result of the trafficking, which may require consultation with a medical professional

If an officer is unable to confirm that an individual meets the definition of a victim of trafficking in persons based on the standard of proof, then a subsequent VTIP TRP should not be issued.

Officers should take into account apparent risks when considering the circumstances of the victim; however, the goal of the assessment is not to duplicate the pre-removal risk assessment (PRRA) process.

Note: Persons who have been trafficked to and inside Canada may have been kept in isolation from Canadian society, may be illiterate or unskilled, and may not have formed support networks that they want or are able to depend on to help them integrate into Canadian society. These circumstances should not weigh against affording them legal status.

Victims are not required to collaborate with law enforcement agencies or testify against their traffickers in order to receive a VTIP TRP. However, if a victim has been asked to participate as a witness in a criminal investigation and has agreed to assist Canadian law enforcement officials, either the Canada Border Services Agency (CBSA), the RCMP or the local law enforcement must provide formal documentation supporting their claim that the victim is participating as a witness and is required to remain in Canada. In these cases, a VTIP TRP may be warranted, and the officer can choose whether or not to interview the victim.

Should an officer receive a request for a TRP to be issued to a foreign national for the purpose of them participating as a witness in a criminal investigation, please consult with IPG and the Case Management Branch (CMB).

Should the officer determine that the issuance of a VTIP TRP is not warranted, they should refuse the application. They may also consider other available options.

Upon the submission of a subsequent TRP application and following a complete verification of the facts, a subsequent TRP may be issued for up to 3 years (section 63 of the Immigration and Refugee Protection Regulations [IRPR]) depending on the individual circumstances and the type of inadmissibility. This follows the expiry of an initial short-term TRP and is issued once the 180-day period of reflection is over. Upon the issuance of a subsequent TRP, medical coverage continues under the IFHP if the foreign national is not covered by provincial or private health insurance.

Note: To be eligible for the permit-holder class, the foreign national must have continuously resided in Canada as a valid TRP holder for a period of 5 years, in addition to other requirements. It is important to note that the issuance of a VTIP TRP is not intended to be a pathway to permanent residence, but to respond to the precarious situation of the temporary resident. Please refer to Temporary resident permits: applying for permanent residence.

Dependants

Dependants of victims of trafficking in persons who are in Canada without status are eligible for a VTIP TRP (for dependants) and an open work permit. Please refer to Coding and reporting for information on the issuance of TRPs, work permits and/or study permits to the dependants of a potential victim.

Work permits

A TRP valid for a minimum of 180 days makes the holder eligible to apply for a work permit. A TRP does not exempt the permit holder from the requirement to apply for a work permit if they wish to work in Canada. If the victim of trafficking in persons wants to apply for a work permit, the application should be processed by the local IRCC office at the same time as the VTIP TRP application and not be directed to the Case Processing Centre in Edmonton (CPC-E).

Any applications received at CPC-E and submitted by VTIP TRP holders should be referred to the local office that issued the VTIP TRP. They should not be processed by CPC-E.

VTIP TRP holders are also not eligible to apply for a temporary resident visa (TRV) from within Canada if their TRP is not authorized for re-entry.

Processing

IRCC’s involvement typically begins when a person self-identifies or is referred to IRCC by an NGO or law enforcement authority as a potential victim of trafficking in persons.

IRCC’s website and the call centre provide information on how to apply for this TRP and where to submit the application. The necessary documents can be found at Protection and assistance for victims of human trafficking. A consultation between IRCC and partner law enforcement agencies may occur when a person self-identifies as a victim or is referred by an NGO.

If the potential victim is referred by an NGO, and if CBSA or the RCMP have not already been consulted, consultations may occur provided the disclosure of information is permitted by the potential victim.

Note: The 1-year bar to access a TRP under subsection A24(4) does not prevent an officer from considering and issuing or refusing a TRP for a potential victim of trafficking in persons on their own initiative.

Interviewing

Officers must be sensitive to the personal situation of a suspected victim of trafficking in persons as they may be experiencing psychological and/or physical trauma. They may also require the assistance of an interpreter.

The objectives of conducting an interview are to

establish the facts of the case
verify that the individual is or was a victim of trafficking in persons, and establish credibility
use the facts to determine the best course of action for developing an immediate or long term response

For the purpose of assessing a VTIP TRP application, IRCC has the sole authority to determine if

there are reasonable grounds to believe that the applicant is a victim of trafficking in persons
a VTIP TRP is justified given the circumstances

If the victim is referred to IRCC by a law enforcement agency, that agency can assist with the preliminary assessment of the circumstances to verify whether an individual may be a victim of trafficking in persons. However, the final decision as to whether or not a TRP should be issued rests with IRCC.

In reaching a decision, officers should keep in mind that the objective of these guidelines is to respond to the vulnerable situation of victims of trafficking in persons by providing them with a means of regularizing their temporary resident status in Canada, when the officer is of the opinion that it is justified in the circumstances.

For information on dealing with trafficked children, consult ENF 21 – Recovering Missing, Abducted and Exploited Children (PDF, 281 KB). Officers should be mindful of the rights of the child, and should contact provincial services for assistance.

For more detailed information regarding the interview, see Interview guidelines.

Where an application is processed

Due to the urgent nature of these cases, local IRCC offices must process these applications as expeditiously as possible. These victims may be in Canada without status and may also lack travel and identity documents. These applications must not be directed to CPC-E.

Applications for subsequent VTIP TRPs must also be processed at a local IRCC office. Complete applications and the associated fees must be included.

Public policy – Fees

A public policy is in effect to exempt the payment of application fees for the initial short-term VTIP TRP and open work permit, when issued for 180 days. Subsequent TRPs or initial TRPs issued for a duration other than 180 days and associated open work permits are not fee exempt.

Cost recovery

The fees for a TRP and work permit must be collected when they are not covered by the public policy.

The open work permit privilege fee does not apply to work permits issued with a TRP under paragraph R208(b) and should not be charged.

Repatriation

In certain instances, the individual may want to return to their country of citizenship or legal permanent residence. If the person is in the enforcement stream, CBSA is responsible for sending the person home; therefore, IRCC officers should contact the local CBSA office.

If not in the enforcement stream, a referral should be made to the UNHCR or the victim’s foreign representative and/or embassy (if specifically requested).

Enforcement

Enforcement cases involving potential victims of trafficking should be referred to IPG for guidance. This includes potential victims who have an active warrant.

Other measures available

Foreign nationals who are victims of trafficking in persons may avail themselves of a number of other legislative and administrative measures in order to remain in Canada temporarily or permanently. These include refugee protection claims, applications for permanent residence under humanitarian and compassionate (H&C) considerations, and pre-removal risk assessments. The individual should be made aware of these options by the officer responsible for processing their case.

Collection of biometrics

Victims of trafficking in persons applying for a TRP are not specifically exempt from the requirement to give biometrics, or from paying the biometrics fee. Victims can and should have their biometrics collected at the local office when they are issued their TRP, open work permit and IFHP coverage.

Delegated officers have the discretion to consider the use of the impossible or not feasible exemption under section R12.8 to grant an exemption. For example, a victim of trafficking in persons identified through a raid may fit within the impossible or not feasible biometrics exemption for the issuance of the initial VTIP TRP. However, if a subsequent TRP is issued, biometrics should be collected at that time.

Background information

Methods used by traffickers

Traffickers use a variety of methods to control their victims, which include but are not limited to

confiscation of their identification documents (including passports and travel documents)
monitoring and surveillance
restraint
sexual assault
violence or threats of violence against them or their family members

Human trafficking may occur across or within borders, often involves extensive organized criminal networks, and violates the basic human rights of its victims.

Victims of trafficking in persons may enter Canada illegally or legally. For example, victims may

be smuggled into Canada in a clandestine manner
enter legitimately, with an approved electronic travel authorization (eTA) or temporary resident visa (TRV)
enter legally but let their status expire

Traffickers may use deception or false documents to fraudulently obtain visas or assist victims to be admitted at a port of entry. Victims of trafficking in persons may or may not be aware that they have entered Canada illegally. In certain cases, persons who enter Canada as legitimate visitors are subsequently exploited by traffickers.

Identifying victims of trafficking in persons who are in transit can be difficult. Exploitation may not yet have occurred, and potential victims would be unaware of the traffickers’ true intent. At this stage, victims may view traffickers as assisting, rather than exploiting them.

Impact of trafficking on victims

Trafficking in persons results in a number of direct and indirect harmful consequences to its victims. Victims of trafficking in persons may be physically and/or sexually assaulted, confined, restrained and/or subjected to psychological abuse. Fear for their own personal safety, and for the safety of their loved ones, can cause additional emotional trauma and stress. Victims of trafficking in persons may also experience shame, low self-esteem and a sense of powerlessness. Many victims of trafficking in persons suffer from post-traumatic stress disorder, and they may fear or mistrust authorities.

Smuggling versus trafficking

Trafficking in persons is often confused with migrant smuggling; however, it is important to be able to distinguish between the two.

Migrant smuggling

Occurs with the consent of the smuggled person.
Smuggled persons are generally free to go once they arrive in the country of final destination, where they usually have no further contact with the smuggler.

Trafficking in persons

Involves the use of threats, force, fraud or other forms of coercion.
Victims of human trafficking are not at liberty in their final destination. They are exploited for the labour or services they can provide.

Similarities between the two

Both migrant smuggling and human trafficking may present similarities and are often only distinguished after further investigation. Smuggled persons may become victims of human trafficking at any point in the smuggling process. Some may consent, for example, to being smuggled across a border, but find on arrival in the country of destination that debt bondage, or other forms of coercion, have been imposed. If this occurs, they become victims of human trafficking, regardless of whether they consented to being smuggled in the first place.

National Strategy to Combat Human Trafficking

In September 2019, the Government of Canada announced the National Strategy to Combat Human Trafficking. Led by Public Safety Canada, the National Strategy sets out a comprehensive way forward to address human trafficking, bringing together all federal efforts in Canada and abroad under one strategic plan. The National Strategy is an important tool to support IRCC, through dedicated funding, to enhance its capacity to detect and respond to suspected human trafficking cases through the immigration system.

Interview guidelines

These interview guidelines and suggestions have been developed by the International Organization for Migration. While the intention is to be as facilitative as possible, it is at the discretion of the officer administering the interview to allow representatives to sit in on the interview with the suspected victim.

Duty of the interviewer

inform the victim that the purpose of the interview is to assist the person
treat the victim-witness sensitively, with empathy and with full respect of their human rights
adhere to the “Do no harm” principle
create optimum conditions to minimize the stress of the interview
put no undue pressure on the victim to make a statement
provide the victim with a fair opportunity to tell the story
be sensitive to any gender issues, such as the victim and interviewer being the same gender

Interview style

Courteous, respectful, sensitive and aware of the issues.

avoid an authoritarian approach
avoid over-familiarity, through eye contact or body language
ask simple questions
be encouraging
listen actively
allow free speech and avoid interruption
be aware that some questions may seek to recall painful events
the victim may need to take a break at any time

The critical concepts to be detected in the interview are those of exploitation and loss of or limitations on liberty.

Typical interview questions might include, but are not limited to the following.

Recruitment and documentation

How did you get to Canada?
Did anyone help you enter Canada?
What did you think you were coming to Canada to do?
How did you obtain the documentation used to enter Canada (if person entered Canada with documentation)?

Employment and coercion

What did you come to Canada to do?
What sort of work did you actually perform, once you arrived in Canada?
Were you paid for your services? How much?
Did your employer(s) say that you owed them anything? What for?
Did you have to pay any of your earnings toward a debt?
Were you allowed to keep any/all of your earnings?
Do you believe that you still owe your employers anything?

Working conditions (exploitation)

Did you and your employer have a written document setting out your respective entitlements and obligations? Do you have it?
How many hours a day did you work?
Were you allowed any time off?
Were you permitted time off if you were sick?

Restriction on liberty and the use of force

Were you allowed to communicate with family members?
Did you live and work at the same place? If so, were you permitted to leave the premises as you wished?
Did anyone accompany you if you did leave?
Were threats made to you, your family members or others close to you?
What happened to your identification documents after you arrived?
Were you able to leave your job and seek another one, if you so wished?
What did you believe would happen if you attempted to leave?

Trafficking provisions under IRPA and the Criminal Code

Sections A118, A120 and A121 establish a specific human trafficking offence and provide for stiff penalties for trafficking persons into Canada.

Sections 279.01, 279.02, 279.03 and 279.04 of the Criminal Code set out human trafficking offence and punishments.

Several other Criminal Code offences have also been used to address human trafficking cases, including

kidnapping, subsections 279(1) and (1.1)
forcible confinement, subsection 279(2)
extortion, subsection 346(1)
intimidation, section 423
assault, section 265 to section 268
causing death or bodily harm by criminal negligence, section 220 and section 221
homicide, section 222 to section 228
sexual assault, section 271 to section 273
uttering threats, subsection 264.1(1)
conspiracy, section 465
child abduction (non-parental), section 280 and section 281
child pornography, section 163.1
organized crime provisions, section 467.1 to section 467.13