REsidency STatus
Strengthening the protection of trafficked persons

(der gesamte Bericht als pdf) 

More targeted and systematic efforts are necessary to secure a durable solution for victims of trafficking in terms of long-term protection and access to socio-economic rights. Based on in-depth analysis of the project REST, its consortium encourages stakeholders to act on the following recommendations:

Identification of victims of trafficking

• Put the best interests of the trafficked person at the centre of all measures, and ensure that he/she is provided with the most appropriate protection to secure their rights as well as access to a durable solution, be it granting international protection or permanent residence in the country of destination or ensuring safe return and reintegration in the country of origin.
• Ensure that the rights of trafficked persons to be identified as such, to access to assistance, support and justice, are fully effective and without prejudice to their right to seek and enjoy asylum.
• Call on States to further reconcile their obligations under refugee and human rights law with those under anti-trafficking law to ensure sufficient and adequate protection of victims of trafficking seeking asylum, and fair decision-making concerning their asylum claims.
• Ensure that the person is informed about all possibilities, including that of having access to a recovery and reflection period, a temporary residence permit to facilitate cooperation with the authorities and/or for reasons related to their personal situation, as well as their prospects of being granted asylum or subsidiary protection, or of safe and dignified return to their home country.

Residence permit

• In compliance with Art. 14 of the CoE Anti-Trafficking Convention, allow victims of trafficking to apply for residence on the basis of their personal situation from the outset, without putting pressure on them to cooperate in the investigation and prosecution of traffickers, and ensure that applications are entirely disconnected from the prospects of success of the investigation and prosecution.
• Define clear criteria for granting residence permits to trafficked persons, both based on their personal situation and in exchange for their cooperation in the investigation and prosecution of traffickers. Ensure that the personal situation criteria allow an assessment of the highly complex and individual personal situations of trafficked persons. Ensure a consistent and comprehensible application of the criteria by providing the competent authorities with clear and viable guidelines, adequate training and sufficient resources.
• Establish an adequate timeframe for the processing of applications for residence permits for victims of trafficking and ensure that the competent authorities comply with it. At the very least, prevent trafficked persons from legal uncertainty concerning their right to residence
for the entire duration of legal proceedings against alleged traffickers.
• Remove bureaucratic obstacles to accessing residence permits, inter alia by: a) simplifying procedures for obtaining residence permits for trafficked persons;
b) ensuring that the possession of false or no identity documents does not constitute a barrier to access residence permits for trafficked persons;
c) not requiring identity documents for the first application and/or granting trafficked persons easy access to temporary identity documents.
• Prevent the secondary victimisation of trafficked persons, which may result, inter alia, from the repeated questioning of victims about their trafficking experiences.
• Acknowledge the right of victims of trafficking to appeal against the denial/non-renewal decision of their application for a residence permit. Provide for the possibility to have the administrative decision reviewed by a court. Ensure that the appeal has a suspensive effect on a possible decision to expel.
• Strengthen multi-agency involvement in the assessment of the personal situation and the vulnerability of victims of trafficking, and establish good communication between competent authorities and specialised organisations/institutions working with trafficked persons, from a multidisciplinary approach.
• When granting residence in exchange for cooperation:
• Apply a broad concept of cooperation and require a low cooperation threshold from victims of trafficking – including the provision of information that is only potentially useful for the investigation or prosecution of a crime. A credible report that they have been victims ofhuman trafficking submitted by the person or by a supporting NGO acting on behalf of the person should suffice.
• Guarantee that trafficked persons receive all the information they need to make informed decisions throughout criminal proceedings.
• Do not make access of trafficked persons to legal residence dependent on whether proceedings for THB or other related crimes are initiated or not.
• Increase the involvement of various agencies, including both public institutions and civil society organisations, in the determination process assessing the victim’s personal situation.
• Ensure the safety and well-being of victims of trafficking, and minimise the risks associated with cooperation when they take an informed decision to cooperate in the investigation and prosecution of the alleged perpetrators. Offer them (and their families) comprehensive protective victim-witness measures explicitly tailored to their highly vulnerable situation and special needs, to prevent retaliation and intimidation during criminal proceedings as well as after the trial. Such measures should include the possibility of urgent family reunification.

Compatibility between the residence permit scheme and international protection

• Call on States to further reconcile their obligations under refugee and human rights law with those under anti-trafficking law to ensure sufficient and adequate protection of victims of trafficking seeking asylum, as well as fair decision-making concerning their asylum claims.
• Ensure that both paths can be pursued in parallel.
• Ensure that persons are informed about all possibilities to obtain (temporary) residence and protection available in the country of residence, as well as safe mechanisms to return to their home countries.

International protection

• Call on States to ensure that trafficked persons have fair and effective access to asylum procedures, and that both victim protection standards and asylum procedural guarantees are systematically applied.
• Guarantee the right of trafficked persons to seek and enjoy refugee status where they meet the criteria of the 1951 Convention relating to the Status of Refugees. In doing so, ensure that due account is taken of how their trafficking experience contributes to informing a valid asylum claim, building on the UNHCR Guidelines no.7 (2006) and GRETA’s Guidance Note on international protection (2020).
• Ensure that, in the determination of international protection claims of a trafficked person or a person at risk of being trafficked, no requirement is made of submitting a formal complaint to the authorities about their trafficking or of cooperation with law enforcement. Such criteria are not included in the refugee definition and cannot be prerequisites for enjoying asylum.
• Strengthen efforts to guarantee early identification, the rights to information, assistance and protection of trafficking victims and potential victims amongst asylum seekers and refugees.
• All actors involved in the asylum procedures are encouraged to record data on the persons with indicators of THB, including the recording of information about effective referrals, conducted risk assessments and provided specialised assistance and protection, etc.
• Establish referral mechanisms between the NRM, where one is in use, and the asylum system to grant asylum seekers and refugees who are trafficked access to specialised support and assistance.
• Guarantee the provision of information on access to asylum for those trafficked persons supported and assisted by specialised organisations.
• Develop guidelines or procedures to ensure that the asylum system and the NRM for trafficked persons function in a coordinated and coherent manner to safeguard the rights of trafficked asylum seekers and refugees.
• Support and foster cooperation between NGOs assisting asylum seekers and refugees and anti-trafficking NGOs, to secure protection and support for trafficked persons, as well as to coordinate legal aid and assistance.
• Upon a reasonable suspicion that a person might have been trafficked or be at risk of being trafficked, inform the person about their rights, including the right to specialised support (e.g. health care, psychosocial support, legal aid and counselling), and effectively enable them to access these rights.
• Upon a reasonable suspicion that a person might have been trafficked or be at risk of being trafficked, ensure that procedural guarantees and reception conditions are tailored to their specific needs, regardless of where their trafficking occurred and their ability or willingness to cooperate with the authorities. This includes ensuring reception conditions that are safe and adequate to their needs, both as an asylum applicant and as a victim of trafficking.
• Where a person takes an informed decision to continue with the asylum process without accessing the NRM for trafficked persons, respect their choice.
• Ensure expert legal advice free of charge at the early stages of the identification and asylum procedure to assist trafficked asylum seekers in understanding the procedure, and providing relevant information about their trafficking experience and the risks they may face in case of return or transfer to the first country of entry into the European Union, where appropriate.
• Ensure expert legal advice free of charge at the early stages of the identification process concerning the victim’s rights as a victim of trafficking and, more generally, as a victim of crime.
• Treat cases involving vulnerable persons, such as a trafficked person or a person at risk of being trafficked, in the ordinary asylum procedure. Avoid the examination of claims by trafficked persons or persons at risk of being trafficked in border or accelerated procedures, to enable a correct and adequate assessment on the merits of their claims.
• Ensure that trafficked asylum seekers are not held in immigration detention or other forms of custody and ensure compliance with the non-punishment provision in European law.
• Asylum actors should consult specialised anti-trafficking actors during:
a) the identification of victims of trafficking;
b) the assessment of, and response to, their specific needs (including in terms of reception, protection and procedural guarantees);
c) the refugee status determination procedure, including concerning the situation and risks in the country of origin.
• Ensure systematic training of asylum officers on UNHCR Guidelines no.7 on trafficking in persons (2006) and on the GRETA Guidance Note on the entitlement of victims of trafficking,and persons at risk of being trafficked, to international protection (2020), as well as on assessing trafficking vulnerabilities, handling applications and interviewing trafficked persons. Such training should also include interviewing techniques to reduce/prevent re-victimisation.
• Monitor the impact of systematic training events, especially their implementation and the outcome of advocacy activities.
• Raise the awareness and appreciation of the asylum-determining authorities and the judiciary competent on international protection matters of the significance of the trafficking experience in asylum determination, as well as about the vulnerability of trafficked persons seeking asylum, and the impact of trauma on their ability to recall situations and events of profound physical and psychological suffering.
• Ensure that a thorough risk assessment is conducted before issuing a return decision, including a decision on a transfer under the Dublin III Regulation, to ensure compliance with non-refoulement obligations. Regardless of whether the person is in the asylum procedure or not, ensure that a risk assessment at least takes into account the following:
  • dangers to their life and health,
  •  risk of torture, inhuman or degrading treatment,
  •  risk of persecution (e.g. ostracism, social exclusion or discrimination to the extent that it would amount to persecution),
  • risk of reprisal or serious harm by traffickers and their associates (including issues related to the person’s trafficking experience and the presence of a debt),
  • risk of re-trafficking,
  • risk of detention and penalisation for status-related offences,
  • the capacity and willingness of the home country authorities to effectively protect the trafficked person and/or their family from possible intimidation, violence and harm,
  • the availability of, and effective access to, social assistance programmes, including safe accommodation, medical, legal and psychological aid, and the opportunities for employment and sustainable means of existence.
• Secure the possibility to claim asylum claims for victims of all forms of trafficking. Especially acknowledge trafficking for forced labour, domestic servitude, forced begging and forced criminality, which also jeopardise human dignity and may entail severe violations of human rights amounting to acts of persecution, where the State of origin is unable or unwilling to protect the victim.
• Incorporate/include the contribution and expertise of reputable and experienced NGOs in the asylum-determination process through the submission of evidence on matters such as the psychological and or mental health evaluation of the trafficking victim, the reasonableness of the victim’s fear, the severity of past persecution, the impact of trauma and the credibility of the victim, the conditions in the State of origin, including the State’s inability or unwillingness to provide effective protection.
• Guarantee the right of trafficked persons, and persons at risk of being trafficked, to seek and enjoy complementary protection where, although they are not entitled to refugee status, there is a risk of being exposed, in violation of the principle of non-refoulement, to torture, inhuman and degrading treatment or punishment or being trafficked. 

Application of the Dublin III Regulation to victims of trafficking

• Ensure that trafficked asylum seekers in Dublin procedures are not discriminated against in their access to support, and in the scope of protection of their rights as victims, solely because they fall within the realm of applicability of the Dublin III regulation.
• Call on States to exercise their sovereignty clause, in accordance with Article 17 of the Dublin III Regulation, and examine the asylum application claim lodged by a trafficked person, even if such examination is not its responsibility under the Dublin criteria.
• Carry out a risk and vulnerability assessment during the Dublin procedures.
• Establish communication channels between those engaged in transfer of individuals in accordance with the Dublin III Regulation and specialised NGOs, to ensure clear coordination in cases of removal of a trafficked person and adequate reception in the country of return, as well as monitoring of the assistance provided to the individual.
• Gather the data on victims of trafficking transferred under the Dublin III Regulation to monitor the protection of their rights in accordance with European law on trafficking and asylum, and document violations of their rights. Advocate for the non-application of the Dublin III Regulation to victims of trafficking. 

Access to socio-economic rights and social inclusion

• Grant victims of trafficking direct access to the labour market, without imposing restrictions regarding occupation, sector of activity and territorial scope, as a measure towards the social inclusion and the full recovery of victims.
• Develop policies on the inclusion of victims of trafficking in the labour market.
• Establish accelerated procedures, and facilitate preferential access to family reunification, for victims of trafficking.
• Where trafficked persons can apply for other residence permits within the framework of the regular law on aliens, exempt them – at least for the initial application – from general conditions, such as minimum income.

WEBDESIGN Christof Schlegel / PROGRAMMIERUNG a+o / FOTOS Mafalda Rakoš