22 February 2022 – European Day For Victims Of Crime
Access to residence is critical for the safety, stability, and future perspective of trafficked persons.[1] However laws or policies determining which trafficked persons are granted residence permits vary substantially between different EU countries and generally identified trafficked persons do not have much access to legal stay. This prevents many from claiming their rights, leaving them without protection.
Currently, the key provisions on temporary residence permits for victims of trafficking in Europe are foreseen in two EU Directives, namely the 2004 EU Residence Permit-Directive[2] and the 2011 Anti-Trafficking Directive[3], as well as the Council of Europe (CoE) Anti-Trafficking Convention[4]. Within the legal framework of the EU-Directive 2004/81/EC victims of trafficking receive support only in so far and as long as it is required by the needs of criminal prosecution, i.e. the residence permit therefore fully depends on victims’ cooperation with the authorities.
The 2004 Residence Permit Directive contradicts EU Member States obligations under the 2011 EU Anti-Trafficking Directive on access to assistance and support, which should enable trafficked persons to exercise their rights as victims of crime and to protect them from further exploitation and harm. Limiting residence permits on cooperation criteria is also at odds with EU States´ obligation to ensure access to justice for victims of crime, pursuant to the 2012 Victims´ Rights Directive, which applies to all victims of crime, irrespective of their residence status. The extent to which States now hold trafficked persons responsible for playing their role in the prosecution of perpetrators has led to the fact that many trafficked persons are currently not protected, including:
- Those who need time to be ready to cooperate and who face a diminished capacity to cope with or recover from the damaged suffered.
- Those who cannot participate in a criminal proceeding due to disabilities, severe traumatisation and or insufficient information, as well as severe risks.
- Those who are not able to participate in a criminal proceeding due to lack of systemic efforts of prosecution (culture of impunity)[5].
- Those who have cooperated with the authorities, but the criminal justice proceedings have ended and cases have been dismissed beyond their control
Positively, the CoE Anti-Trafficking Convention foresees renewable residence permits, not only in exchange for cooperation with the criminal justice system, but also on account of the personal situation of victims of trafficking. This personal situation includes ‘a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account’. This practice goes beyond the current standard of the EU legal framework and is currently implemented only in 16 EU countries.
Only a legal residence for victims can ensure a full completion of the States’ obligation to protect victims of trafficking. Residence functions as a form of restitution in itself. A systematic effort for trafficked persons’ safety, stability and future perspective demands the de-linking of residence from cooperation, as well as the promotion of trafficked persons’ social inclusion.
While the European Commission is now calling for a revision of the EU Trafficking Directive, we call for a revision of the EU 2004 Residence Permit Directive, to including a provision on the residence permit issued to trafficked persons based on their personal situation. This would not only ensure a true European human-rights based approach of the Anti-trafficking directive, but also keep the EU anti-trafficking directive fit for purpose.
La Strada International is a European NGO platform against human trafficking that works from a human rights perspective, comprising 30 anti-trafficking NGOs in 24 European countries. The Platform’s primary goal is empowering trafficked and exploited persons, improving their position through promoting their universal rights.
This statement is launched in the framework of the project REST – REsidency STatus: Strengthening the protection of trafficked persons.
[1] Findings of the project REST show the importance of a durable solution for trafficked persons. The Report can be found here: https://lefoe.at/wp-content/uploads/2021/05/REST-Final-Report.pdf
[2] EU Council Directive 2004/81/EC of 29 of April 2004, on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19 (hereinafter EU Dir 2004/81/EC).
[3] EU Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
[4] Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, ETS 197 (hereinafter CoE Anti-Trafficking Convention).
[5] As stated in the EU 3rd progress report (2020): „A culture of impunity prevails when those involved in the criminal business model and in the trafficking chain do not face consequences for their criminal acts. The impunity of perpetrators in the EU persists, and the numbers of prosecutions and convictions of traffickers remain low. “ , p.10.