THE AIRE CENTRE Advice on Individual Rights in Europe

Transcription

1 THE AIRE CENTRE Advice on Individual Rights in Europe Monitoring Report on the Implementation by the United Kingdom of EU Directive 2011/36 on preventing and combating trafficking in human beings July 2012 Contents Introduction 2 EU Directive 2011/36 5 Implementation in the UK 9 Concluding Observations 14 This Report has been produced as part of the AIRE Centre s domestic violence and trafficking project funded by the Esmée Fairbairn Foundation. The AIRE Centre is a legal charity providing advice and assistance to individuals on their rights under European Union law and the European Convention on Human Rights.

2 Introduction The European Union ( EU ) has taken several steps over the past ten years towards combating trafficking in human beings through the adoption of several legal instruments. Prior to the adoption of Directive 2011/36/EU 1 (discussed further below), EU trafficking legislation was contained in three different instruments each of which dealt with a specific aspect of prevention or protection. These instruments were also drafted in line with states obligations to put into place criminal provisions to punish perpetrators and to prevent future acts of trafficking, and much less on the need for the protection of victims. The first instrument, Council Directive 2004/81/EC ( the 2004 Directive ) requires Member States to provide residence permits to third-country (non EU) trafficking victims who cooperate with the Competent Authorities. The Directive also provides some other protective measures for individuals until the residence permit decision is made, many of which now form part of Directive 2011/36/EU. The rights in the 2004 Directive are nonetheless focussed around cooperation with the authorities which is required of victims in order to gain access to a residence permit. In addition, the UK Government has opted out of this Directive and therefore its provisions do not apply in the UK. The second main legislative instrument is Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings ( the 2001 Framework Decision ). This Framework Decision does not explicitly refer to trafficking victims, but instead addresses victims of any crime covered by the national law of Member States. It sets out the assistance and protection to be provided to victims of crime, including the procedure during hearings and the provision of evidence, however as with the 2004 Directive, many of its provisions have been incorporated into Directive 2011/36/EU. Council Framework Decisions have now become obsolete following the entry into force of the Lisbon Treaty in December Under the previous procedures, Framework Decisions were a legislative tool that the Council of Ministers of the European Union adopted unanimously on a proposal by the European Commission or any EU member state and after consulting with the European Parliament. 1 Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, available at: 2

3 Following the Lisbon Treaty, any legislative proposals must now take the form of either Regulations or Directives. The third main legislative instrument was Council Framework Decision 2002/629/JHA of 19 July 2002 on Combating Trafficking in Human Beings ( the 2002 Framework Decisions ). This focussed almost exclusively on the need for a criminal law framework and for the investigation and prosecution of those responsible for trafficking individuals. Article 7 of this Framework Decision alone addressed protection of and assistance to victims with three provisions that concerned the treatment of human trafficking victims, again in the context of criminal proceedings. On 15 April 2011, with the entry into force of Directive 2011/36/EU ( the Trafficking Directive ), the 2002 Framework Decision was repealed and replaced by that Directive. The adoption of a comprehensive Directive dealing with preventing and combating trafficking in human beings and protecting its victims is a much welcome development particularly in light of the enhanced legal status a Directive has in comparison to a Framework Decision - which provides for virtually no judicial oversight and does not confer directly effective rights on individuals. As a matter of general EU law, certain provisions of Directives can have direct effect in national law if they are clear, precise, and unconditional, and if the deadline for implementation has passed (Case 41/74 Van Duyn v Home Office). Provisions of Directives must be incorporated into domestic law in any event, but if they have not, or have not been incorporated properly, individuals may rely directly on those directly effective provisions before domestic courts. Individuals can also bring actions for damages against the authorities for failing to implement the provisions of a Directive that have direct effect (also known as Francovich claims 2 ). The United Kingdom initially exercised its ability to opt-out of the Directive on the basis of its view that the UK already complies with much of the provisions contained in the draft EU Directive. However, it later applied to opt-in to the Directive and its request was accepted by the 2 Case C-6-90 Francovich v Italy A Member State is required to make good loss and damage caused to individuals by failure to transpose Directive 80/987/EEC. 3

4 European Commission. The date of entry into force of the Directive for the United Kingdom was on 18 October , and it must be transposed into UK law by 6 April The form of implementation is particular to each member state. Some states pass a legislative decree that the Directive now forms part of national law (see, for example, France), other states such as the United Kingdom enact a piece of legislation which incorporates each provision of the Directive into national law. An example of this is the UK s implementation of Directive 2004/38/EC on the free movement of persons within the Union which the UK has implemented through the Immigration (European Economic Area) Regulations 2006, and recently amended by the Immigration (European Economic Area) Regulations During the transposition period, States must ensure that until the Directive is adopted into their national law, or until the two year period has passed, no measures should be adopted that seriously compromise the attainment of the result prescribed by the Directive (Case C-144/04 Mangold v Helm at 28). Failure to properly implement a directive s provisions can also give rise to enforcement action by the European Commission, as was recently initiated against Luxembourg for failure to properly implement the provisions of Directive 2004/81/EC. 5 3 Commission Decision of 14 October 2011, OJ L 101, , p.1. 4 Article 22 of Directive 2011/36/EU 5 Case C-209/08, Commission of the European Communities v Grand Duchy of Luxembourg, C OJ 171/28, 5 July 2008 (Legal Notice) 4

5 EU Directive 2011/36 The 2011 Directive sets minimum EU-wide standards for the protection of victims of human trafficking and for the prevention of the crime of trafficking. It is significant that human trafficking is explicitly prohibited by the EU Charter of Fundamental Rights (Article 5(3)), which, since the coming into force of the Lisbon Treaty in December 2009, now has equal status with the EU Treaties themselves; the Directive can therefore be seen as giving effect to fundamental rights principles protected at the highest level of the EU legal order. Paragraph 33 of the preamble to the Directive in fact makes specific reference to the EU Charter, stating This Directive respects fundamental rights and observes the principles recognised in particular by the Charter...this Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly. As set out in the introduction to this report, the Directive differs from the Council of Europe Trafficking Convention in several ways, most important of which is the status of the Directive as a legislative instrument in the national law of Member States. In addition to certain provisions of the Directive being capable of having direct effect, questions relating to the interpretation and scope of the Directive can be referred by national courts to the Court of Justice of the European Union for a preliminary ruling. 6 This is particularly important in the protection of victims of trafficking which has been one of the most problematic areas in the UK (see next section). Directive 2011/36/EU represents a significant shift towards emphasising the equal importance of protecting victims of trafficking with the implementation of criminal measures. Previously, as demonstrated by Directive 2004/81/EC and the Framework Decision, the EU law approach was to subordinate protection measures to investigating and prosecuting human traffickers for acts they have already committed. Key provisions contained in Directive 2011/36/EU Article 2(1) of the Directive places an obligation on Member States to ensure the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or 6 Article 267 of the Treaty on the Functioning of the European Union. 5

6 other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The Directive then goes on to define a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved (Article 2(2)). The forms of exploitation which the Directive applies to have also been expanded from the definition contained in Framework Decision 2002/629/JHA, to include forced begging which should be treated as a form of forced labour 7 and exploitation for criminal activities such as drug trafficking or shop-lifting and other similar activities which are subject to penalties and imply financial gain 8. The definition also covers trafficking in human beings for the purpose of the removal of organs...as well as...other behaviour such as illegal adoption or forced marriage. 9 In connection to this last point, Preamble (3) to the Directive explicitly recognises the gender-specific phenomenon of trafficking and that women and men are often trafficked for different purposes and for this reason assistance and support measures should also be genderspecific where appropriate. It also appears that under Article 10(2) of the Directive, the UK may have to extend extraterritorial jurisdiction in order to prosecute acts of human trafficking committed overseas where the offence is committed against a British citizen or a person who has habitual residence in the UK, or the offender has his / her habitual residence in the UK. Article 11 sets out the assistance and support which must be provided to a victim of trafficking. The duty to provide such support is initiated as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3 (Article 11(2)). The use of the words reasonablegrounds indication could be interpreted to mean that support will only be provided to victims who choose to go through the formal identification process under the National Referral Mechanism (NRM) and victims who are too afraid or traumatised to do so will fall outside of the 7 The exploitation of begging falls within the scope of the definition of trafficking only when all the elements of forced labour or services occur (as defined in the 1930 ILO Convention No. 29 concerning Forced or Compulsory Labour). In the light of the relevant case-law, the validity of any possible consent to perform such labour or services should be evaluated on a case by case basis. However, when a child is concerned, no possible consent should ever be considered valid (Paragraph (11) of Preamble to Directive 2011/36/EU). 8 Paragraph (11) of Preamble to Directive 2011/36/EU 6

7 scope of the provision. Care must be taken to ensure that the implementation of Article 11 is not dependent on an NRM referral. Under the Directive, such support is not conditional on the victim s willingness to cooperate in the criminal investigation. The support envisaged by the Directive includes at a minimum standards of living capable of ensuring victims subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information and translation and interpretation services where appropriate (Article 11(5)). The information which must be provided to the victim includes information about the recovery and reflection period and information about seeking asylum or other forms of international protection. The obligation to provide assistance and support to child victims of trafficking is even more extensive and is set out in Article 14 of the Directive. Under this provision States must undertake an individual assessment of the special circumstances of each particular child victim, taking due account of the child s views, needs and concerns with a view to finding a durable solution for the child. The child must also, within a reasonable time, be provided with access to education. In addition Article 14(2) requires the appointment of a guardian or representative for a child victim of trafficking from the moment the child is identified as such by the authorities, and where the holders of parental responsibility are precluded from ensuring the child s best interest, or where the child is unaccompanied (Article 16(3)). The appointment of such a representative is currently discretionary. Finally, the Directive requires Member States to establish a national rapporteur or an equivalent mechanism to carry out an assessment of trends in trafficking in human beings, the measuring of the results of anti-trafficking actions, including the gathering of statistics, and reporting (Article 19). The above provisions illustrate the way in which this Directive, once implemented will strengthen the protection afforded to victims of trafficking in the UK. Currently the protection provisions contained in the Directive are only contained in guidance in the UK and the authorities are not required to provide such protection as a matter of domestic law. Consequently 9 Paragraph (11) of Preamble to Directive 2011/36/EU. 7

8 victims of trafficking who are not correctly identified or provided with adequate support or assistance do not have automatic recourse to legal redress. Therefore full implementation of the rights contained in Article 11 and Article 12 of the Directive (protection of victims of trafficking in human beings in criminal investigation and proceedings) will at a minimum enable victims to take any complaints to national courts, and in the event that these provisions are not correctly implemented will allow victims to rely on the direct effect of the Directive in relation to these Articles. 8

9 Implementation Current Anti-trafficking provisions in the UK The UK s current anti-trafficking actions include an Inter-Departmental Ministerial Group on Human Trafficking (IDMG) which was established in This provides strategic oversight of all trafficking issues and directs UK policy on human trafficking, but it does not have the independence and scope of a national rapporteur mechanism and does not monitor and publish reports on the UK s progress as required by Article 19 of the Directive. Any analyses of issues that arise from the UK s anti-trafficking strategy are simply fed back into the group. The Home Office has now confirmed, in a ministerial statement, that the IDMG will take on the role of the national rapporteur required under the Directive: Hansard 13 Mar 2012: Column 154W Human Trafficking Tom Blenkinsop: To ask the Secretary of State for the Home Department whether she has made an assessment of the effect of appointing an independent national rapporteur on human trafficking on levels of information about human trafficking available to (a) the Government, (b) the UK Border Agency and (c) police forces. [99097] Damian Green: The Inter-Departmental Ministerial Group on Human Trafficking will be the UK Government s national rapporteur mechanism. It will assess trends in human trafficking using data provided by the UK Human Trafficking Centre as the central intelligence hub. The IDMG also has oversight of the functioning of the National Referral Mechanism (NRM) which was set up in April 2009 to formalise the identification of victims of trafficking and to facilitate their referral to support services. Between 1 st April 2009 and 30 th June 2011 there were 1664 referrals to the NRM of which: 1192 (or 72%) were female 1226 (or 74%) were adults 9

10 575 (or 47%) were adults trafficked for the purposes of sexual exploitation 438 were child referrals The five most referred nationalities (Vietnam, Nigeria, China, UK and Romania) accounted for 293 (67%) of all child referrals (Statistics are from the UK s report to the European Commission) There is no information on how many of the 1664 referrals were positively and conclusively identified as victims of trafficking and the NRM has not been without its problems and criticisms. In the recent UNHCR Trafficking in Persons Report for the UK 10 it was noted that NGOs criticized a narrow focus of the NRM on victims immigration status, reporting that as a result, EU nationals were more likely to receive a positive grounds conclusion or otherwise be officially recognized as trafficking victims by UK authorities (at page 3) Furthermore, NGOs continued to report that UK authorities focused on the credibility of a potential victim too early in the identification process, noting that most victims who have only recently escaped control of their traffickers do not always reveal the truth about their experiences when first questioned; this continued to result in victims detention and imprisonment, including forced repatriations of trafficking victims, putting them at great risk of hardship or retribution upon their return. The report also noted that according to anti-trafficking experts, many victims were not referred through the NRM as the victims did not see the benefits of referral and were fearful of retribution from trafficker or from the consequences of being brought to the attention of the authorities when their immigration status was uncertain. There is also an ongoing problem with trafficking victims who have escaped from a situation of exploitation and who have delayed referral to the NRM being subsequently found to be historical victims of trafficking and therefore no longer in need of support and protection. Residence documentation is also routinely denied to trafficking victims on the same basis. The police have also come under criticism for not investigating claims of trafficking by victims promptly and effectively, rendering the victims without retribution or compensation. In the case 10

11 of O.O.O. and others v The Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB) the victims were trafficked into this country from Nigeria when they were 11 to 15 years old. They were forced to work as unpaid servants for families in North London and subjected to serious physical and emotional abuse. By the time they escaped their abusers and approached the police for help they were young adults. One of the victims sought help while she was still in servitude in The other victims did so in 2007 after they had escaped servitude however the police failed to investigate their claims. The Court held, following the European Court of Human Rights judgment in Rantsev v Cyprus and Russia (Application No /04) that: The police are under a duty to carry out an effective investigation of an allegation of a breach of Article 4 once a credible account of an alleged infringement had been brought to its attention. The trigger for the duty would not depend upon an actual complaint from a victim or near relative of a victim. The investigation, once triggered, would have to be undertaken promptly. In failing to investigate, the court found the Metropolitan Police Service to have breached the victims rights under Articles 3 and 4 of the European Convention of Human Rights. Correct implementation of the Directive would lead to certainty about the extent of the obligations placed on various authorities and would provide victims of trafficking with a mechanism for the enforcement of these obligations. Implementation of the Directive Initially, when exercising its opt-out of the Directive, the Home Office had argued that the optout was appropriate as the (at that stage proposed) Directive s provisions did not add value to the UK s anti-trafficking efforts. The Home Office made no particular reference to the support measures contained in the Directive but stated that: 10 This report was published on 19 June 2012 and is available at: 11

12 opting in now would also require us to make mandatory the provisions which are currently discretionary in UK law. These steps would reduce the scope for professional discretion and flexibility and might divert already limited resources 11. Following its subsequent decision to opt-in to the Directive, the UK reviewed its position and in its report to the European Commission set out its view that in order to implement the requirements of the Directive the UK would need to: Widen one existing offence of trafficking for forced labour; Amend existing trafficking offences to confer extra-territorial jurisdiction over UK nationals who commit trafficking offences anywhere in the world; Make mandatory some measures which are currently good practice (for example, appointing special representatives to support child witnesses during police investigations and criminal trials); Set out the rights of victims to assistance and support (UK s report to the European Commission) While the above changes to national law would be a welcome progression in the prevention of trafficking and the protection of victims, a review also needs to be carried out of the effectiveness of the current provisions in force in the UK. For example, the UK asserts compliance with Article 3 of the Directive (which provides that Member States shall take necessary measures to ensure that the instigation of, aiding, abetting or attempt to commit an offence referred to in Article 2 is punishable ) and Article 4 which sets out the penalties for committing such offences. While the UK in theory complies with both provisions through the legislation currently in force, sections of the Sexual Offences Act 2003 and section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004, this may not actually be the case in practice. Evidence of this can be found in the above case of O.O.O. and in complaints several victims of human trafficking have made to the European Court of Human Rights about the UK authorities failure to carry out proper investigations and prosecutions of traffickers / exploiters under Article 4 of the European Convention on Human Rights. Two such cases have been communicated to the UK Government, C.N. v the United Kingdom (Application No. 4239/08) and Kawogo v the United 11 Home Office Statement, 31 August 2012, available at: 12

13 Kingdom (Application No /09), indicating that the ECtHR considers the issues in these cases necessary of further scrutiny. The UK Government has not yet confirmed how transposition of the Trafficking Directive will be undertaken. There is currently a Trafficking Bill (Human Trafficking (Further Provisions and Support for Victims) Bill [HL] ) making its way through Parliament which was initiated by Lord McColl of Dulwich before the UK took the decision to opt-in to the Directive. This Bill seeks to make provision about human trafficking offences, measures to prevent and combat human trafficking and the provision of support for victims of human trafficking 12. Although the bill predates UK s opt-in to the Directive, many of the provisions of the Bill correspond with those requiring implementation. For example, the Bill contains a proposal for a legal advocate or a guardian for child victims of trafficking to see them through all their interactions with the State. There is also provision for compensation for victims of trafficking and more importantly for the necessary form of leave to remain in the UK to be granted so that the victim of trafficking can make a compensation claim. The Bill also sets out the establishment of a national body to Parliament on the performance of this Act in the United Kingdom and on related matters and to provide relevant information to the European Union to prevent and monitor human trafficking. 12 Human Trafficking (Further Provisions and Support for Victims) Bill [HL] , available at: 13

14 Concluding Observations Although the introduction of the Trafficking Bill in Parliament is a positive step forward in relation to the protection of victims of trafficking in the UK, the progress of the Bill needs to be carefully followed. The Bill does not transpose the Directive in its entirety, and the correct and complete implementation of Directive 2011/36/EU will require further modification to UK legislation. NGOs and other experts in this field can assist by advocating for the modifications needed and by alerting the European Commission to any problems with transposition. In particular, any legislation must deal with the continuing problems identified under the current system, including the status of victims who have delayed referral to the NRM. In addition there must be a clear distinction in the legislation of the protection to be afforded to victims, and the victim s previous immigration status. At present, many of the persisting problems are as a direct result of a precarious immigration status or lack of residence documentation and the identification process is also immigration led, particularly in cases where the victim has sought asylum in the UK as in those cases, the competent authority responsible for the identification of the victim is the UK Border Agency which also makes a decision on the asylum claim. The AIRE Centre will continue to monitor the implementation of this Directive by the UK authorities and will be publishing an update to this report in six months time. 14