December 14, 2001

M Jean Louis De Brouwer

Head of Unit

Immigration and Asylum

DG Justice and Home Affairs

European Commission LX 46

Rue de la Loi 200

B 1049

Bruxelles

Dear Mr De Brouwer

Short Term Permit to Stay Granted to Victims of Trafficking or Smuggling who cooperate in the fight against smugglers or traffickers – Discussion paper

I am writing in response to the Commission’s discussion paper on permits to stay and the particular issues that the discussion paper raises for children. Save the Children works globally to promote the rights of the child and at EU level to influence EU policy and legislation to ensure children’s rights are protected. We have substantial experience on the issue of child trafficking and recently published an extensive study on the situation of children trafficked from Albania. Other Save the Children work includes “Separated Children – How they come to Europe and Why they travel” and a study of the situation of children trafficked into Greece. Both initiatives were funded by DG Justice and Home Affairs (under Odysseus and Daphne).

At this stage the Commission’s discussion paper raises a number of questions. Save the Children would therefore welcome the opportunity to have a face to face dialogue with those in your services involved in drafting the Directive. We have been involved in a number of useful meetings on other asylum Directives particularly on the issue of unaccompanied children.

In summary it is most likely to be in the best interests of the child to be granted a permit of stay without having to testify against traffickers. On the other hand if a child wishes to testify, then they should be encouraged to do so with the necessary safeguards. We would recommend the inclusion of a specific detailed clause on children (to include both those who arrive accompanied and those who arrive unaccompanied). Exclusion of children from the proposal may mean that traffickers are more likely to target children since these would be less likely to participate in collaborating with the authorities in criminal proceedings if they are excluded from short-term permit benefit.

Save the Children notes that the Commission’s proposal in the Directive “Proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, or as persons who otherwise need international protection” (Brussels 12 September 2001, COM (2001) 510 final 2002/0207 (CNS)) proposes to introduce complementary protection in situations where children have experienced child specific forms of human rights violations, including trafficking. We welcome this, at present it is unclear to us how the two initiatives relate to each other.

Legal situation of Children trafficked

In Save the Children’s experience, children trafficked arrive in the EU on false papers and are therefore prevented from seeking police protection since are illegal and will simply be deported back to the sending country where they will either be re-trafficked or often face reprisals from families or imprisoned.

The cases below are typical;-

“E.B. was 14 years only when her father sold her to a man from Fier for 145 US D. For four years she has worked on the streets of Milan day and night….She was arrested by the police and returned to Albania by ferry. She wants to see her family but is fearful of her father and the trafficker who might find her again.”

“I was in prison for two months and the Greek police treated us very badly. If we knocked on the cell door to go to the toilet, they would come and beat us up.”

A Commission proposal to try and deal with the situation that these children find themselves in is therefore to be welcomed in principle. Children who are trafficked have no legal status and are therefore in a very vulnerable situation.

However, as the discussion paper states, the inclusion of children raises complex issues. As a general principle, we believe that the starting point must be consideration of what is in the best interests of the child.

The Commission discussion paper rightly identifies that the child may suffer from retaliation. In our experience children are very reluctant to testify as not only they may suffer from retaliation, but their families in the sending country also suffer from retaliation:-

“Some families do not report cases of trafficking because they are too frightened of what the traffickers might do. I know one family who was terrorised by traffickers into letting their daughter go. He said he would burn their house down.”

The following considerations need to be taken into account by the Commission when preparing a Directive:-

a) Reference to the Child’s best interests and the UN Convention on the Rights of the Child

Save the Children recommends that a new Directive makes reference to the relevant Articles of the UN Convention on the Rights of the Child, in particular Article 3 best interests, Article 12 the right of the Child to participate in decisions which affect them (according to their age and maturity) and Article 34 sexual exploitation and trafficking.

b) Granting and Renewability of permits

In our experience it is difficult for children to access the judicial system and to receive fair treatment. We would recommend a reference to the need for guardians or advisers to assist the child if the child chooses to testify.

We have concerns about what safeguards will be put in place to protect the child from deportation or victimisation if a permit is not granted or return is not in the best interests of the child. Will humanitarian grounds criteria for stay be invoked for example. It is our experience that trafficked children often received very unsympathetic treatment from the police. Children who come to the attention of the Greek police are either deported immediately or detained and sometimes placed in adult jails prior to departure.

“The Greek police treat us very badly. I was caught with 30 people near the Greek border.”

In order for this proposal to be effective, there will need to be a presumption of innocence in the way certain police forces and authorities treat children if children are not to be further traumatised.

c) Witness Protection Schemes

We have a very real concern that without proper witness protection schemes, the child’s safety cannot be guaranteed. Even if EU member states had appropriate witness protection schemes, protection in non EU countries of return can be very difficult to ensure.

d) Assistance and Protection

We think it is essential that child victims are given assistance and care which is not conditioned by their contact with the trafficking network. Whilst many children wish to cease contact with the network, in practice traffickers make this very difficult:-

“Regular beatings, torture, and rape are common and threats are also made against their families…The girls’ passports are usually confiscated and they are given very little freedom, which makes it difficult for welfare officers to intervene…they are frightened to be seen talking to others and also fearful that work might get back to their families about what they are doing….Sometimes it is the client who helps the girl and takes them to shelters or the police.”

The victims should be assisted to get away from the networks and the utmost must be done to protect the children and their families. Psychological support is also needed to help facilitate reintegration into society.

e) Short term permit to stay and detention

Save the Children believes that in line with Article 37 of the UN Convention on the Rights of the Child, detention of a child should be avoided except in the most exceptional cases and unaccompanied children should never be detained.

We would welcome the opportunity of a meeting to discuss our concerns.

Yours sincerely

Diana Sutton - European officer