Beyond the Migration Lens: Rethinking International Legal Standards on the Detention and Deportation of Trafficking Victims

This article explores the extent to which the concept of due diligence could increase the stringency of current international legal standards relating to detention and deportation. It begins by critiquing these standards as permissive and harmful to trafficking victims, shaped primarily by the States’ border interests. For example, the standards allow for the detention of victims, under the guise of sovereign border control, perpetuating harm and vulnerability. To address this lack of stringency of the standards, the article examines the potential usage of due diligence ‐ a concept employed in academic scholarship, as well as by human rights courts and treaty bodies, to increase the strictness of applicable legal standards on States in respect of fulfilling their positive obligations ‐ as a tool to increase the stringency of the current detention and deportation legal standards. The article argues that, while due diligence may be an initially promising tool for increasing the stringency of international legal standards, its inherent flexibility ultimately reinforces international law’s permissive tendencies, granting States a margin of appreciation that upholds border control prerogatives. Hence, using the due diligence concept as a tool to increase stringency will come short in this context. To overcome these limitations, the article advocates for a discursive shift: trafficking victims should be reframed beyond the migration paradigm. By doing this, trafficking victims would no longer be subject to immigration-related standards primarily aimed at controlling border access. This reframing would prioritise trafficking victim protection over border control imperatives, offering a more effective framework for reducing harm.