Observations by the United Nations High Commissioner for Refugees (UNHCR) and the United Nations High Commissioner for Human Rights (UNHCHR) on the Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who co-operate with the competent authorities

 

Introduction

 

1. The aforementioned organisations wish, at the outset, to express their support for the work of the European Union against trafficking in human beings and related exploitation.[1] The numerous steps taken by the EU to date in combating trafficking and smuggling are welcomed, including the recent proposal put to the Council by the European Commission encouraging ratification on behalf of the Community of the UN Convention Against Transnational Organised Crime and its Supplementary Protocols (Palermo Protocols).[2] UNHCR and UNHCHR have advocated for accession to and full implementation of these instruments and note with satisfaction that the Convention entered into force on 29 September 2003, to be followed by the entry into force of the Trafficking Protocol on 25 December 2003.

 

2. It is understood that the text of a proposed Council Directive is being discussed under the Italian Presidency with a view to adoption by the end of the year. The proposed Council Directive has the potential to give substance to the provisions of the Palermo Protocols, in particular those which relate to the protection of victims. The following observations are made from the viewpoint of organisations with different but complementary mandates in this area as a contribution to this discussion.

 

General Observations

 

3.     By way of general observation, it is understood that the proposed Council Directive is primarily geared towards the facilitation of criminal prosecution of the perpetrators of smuggling and trafficking related offences. At the same time, however, it is important that due weight is given to the human rights of the victims. In the view of the aforementioned organisations the granting of a longer term or a permanent residence permit would provide more predictable perspectives for the victims of trafficking and smuggling. This would in turn better underpin their security, having provided testimony or having participated as witnesses in criminal procedures[3]. Consideration of such longer term options, based on an assessment of the individual needs and circumstances of the victims, could strengthen the impact of the proposed Directive.

 

4.     It is further noted that in the case of asylum-seekers and refugees found amongst those affected by trafficking and smuggling full consideration must be given to their claims for international protection. It is incumbent on States to ensure appropriate access to asylum procedures in keeping with the intention of the Saving Clauses of the Palermo Protocols.[4] Persons with specific protection needs falling within the realm of the international refugee protection regime should be granted the appropriate status accordingly and this should not be considered interchangeable with other forms of protection which may be available to victims of trafficking and smuggling generally. Consequently, it is recommended that the principle of non-refoulement be clearly reflected in the appropriate parts of the Directive; Article 10 dealing with the ‘Issue and renewal of the residence permit’; Article 16 on ‘Non renewal’; and Article 17 on ‘Withdrawal’.

 

Specific Observations

 

Article 1, Purpose and Article 2, Definitions

 

5. It is important to maintain a clear legal distinction between victims of trafficking and those who are victims of smuggling (“action to facilitate illegal immigration’) in order to build consensus around established international definitions of the respective terms. The Directive would benefit from drawing directly upon the definitions of trafficking and smuggling contained in the Palermo Protocols. It is clear from the definitions provided by these instruments that trafficking activities constitute an abuse of the human rights of the individual concerned (thus the use of the term ‘victim’ throughout the text of the Trafficking Protocol). In contrast, smuggling is characterised more as an act violating immigration norms, namely the crossing of a border, without complying with the necessary requirements for legal entry into a State where this involves the procurement, in order to obtain directly or indirectly, a financial or other material benefit. These definitions are not intended to suggest a discriminatory approach in terms of the protection and assistance provided to such persons but rather to highlight the importance of recognising and responding appropriately to the specific needs which may arise as a result of trafficking as opposed to smuggling.

 

Article 3, Scope

 

6. The limitation of the Directive to third country nationals having reached the age of majority set out by the law of the Member State concerned raises important questions about the treatment of minors who find themselves affected by trafficking or smuggling. The specific needs of young victims demand carefully tailored responses premised on the principle of the best interests of the child. The Directive in its current form does not fully address its applicability to child victims and the additional safeguards that would be required in that event. From the perspective of the aforementioned organisations, it would be preferable that the Directive explicitly extends to victims who are minors and that specific text be introduced to address the particular needs of minors, building upon the current text of Article 14.

 

Article 4, Safeguard

 

7. Being a victim of human trafficking will not necessarily suffice per se to establish a valid claim for refugee status. The same can be said for those caught up in smuggling operations. There may, however, be cases where such persons are in need of international protection, having already been recognised as refugees elsewhere before their entry to the EU or as a result of a well-founded fear of persecution arising from the circumstances of their irregular movement into the EU by means of trafficking or smuggling or other distinct reasons prevailing in their countries of origin. It is important that the Directive safeguards the right of such persons to international protection. This would be best achieved by means of a clearly stated Article in the body of the Directive. It is therefore hoped that the safeguard clause of Article 4 of the Council Directive, reflecting the intention of the Saving Clause of the Palermo Protocols, albeit with different language, is retained in the body of the text.

 

Article 7, Right to Information

 

8. Article 7 provides that a Member State will inform the person concerned about the possibilities offered under this Directive. Member States may decide that such information may also be provided by NGOs. Given the current reality vis-à-vis the important role played by NGOs in responding to the needs of victims it would be appropriate for the language of the Directive to acknowledge this more explicitly and to contemplate a stronger participatory role for NGOs throughout the process, allowing them to contribute to the development of policy as well as to the design and delivery of assistance services.

 

Article 8, Reflection period

 

9. The duration of the reflection period requires further discussion. A major determining factor in this regard should be the actual needs and interests of the individual concerned and this will require a degree of flexibility. The individual’s need for psycho-social support, for instance, should be borne in mind in calculating the appropriate reflection period.

 

10. The power of the Member States to terminate the reflection period at any time if the person has renewed contact with the perpetrators of the offences appears to be overly inflexible. There is a risk that this could work to the disadvantage of victims who are pursued by the perpetrators and as such have no reasonable possibility to definitively sever relations. This and other similar risks should be fully taken into account and reflected throughout the Directive.

Article 9, Assistance and Care

 

11. It is understood that witness and victim protection is not the aim of the proposed Directive. However, considering the vulnerable situation that victims of trafficking and those who have been smuggled may find themselves in, and the consequent risks they assume by acting as witnesses in criminal procedures, shortcomings in existing EU measures for victim and witness protection are a cause for general concern.[5] It is therefore hoped that the Directive can incorporate appropriate language on the importance of the principle of victim and witness protection and the necessary details of how this it to be achieved.

 

Article 10, Issue and renewal of the residence permit

 

12. Given the vague nature and potential misinterpretation of the term “useful” the aforementioned organisations recommend that its meaning be clarified to give due consideration to human rights concerns and humanitarian considerations. In addition it is suggested that the possibility for Member States to contemplate family reunification and extension of the permit on humanitarian grounds should be retained.

 

Article 11, Format of residence permit

 

13. For reasons of enhanced security it is suggested that the permit be issued in such a manner as to preclude identification of the individual as a victim of trafficking or having been the subject of smuggling.

 

Article 12, Work, training, education

 

14. Access to the labour market, vocational training and education is an important factor in ensuring the stability and longer term interests of victims and should therefore not be a discretionary option for Member States.

 

Conclusion

 

15. UNHCR and UNHCHR appreciate the complexity of the issue at hand and recognise the challenges presented in finalising the text of this Directive. We welcome the opportunity to share our observations at this stage in the process and offer our specific expertise to the drafters in a spirit of constructive dialogue.

 

Geneva, 17 October 2003.