Temporary or permanent residence permits for victims

Background

This tool introduces article 7 of the Trafficking in Persons Protocol. The article concerns the status of victims of trafficking in persons in receiving States. This con- cerns the adoption of measures that can permit victims of trafficking in persons to remain, in appropriate cases, in a State temporarily or even permanently. The tool offers the examples of States that have adopted such measures as well as the exam- ple of a Council of the European Union Directive concerning residence permits for trafficked persons. These measures can have a strong effect on victims coming for- ward to testify against traffickers. They also facilitate the work of non-governmen- tal organizations encouraging victims to whom they provide services to report incidents to the Government.

Provisions of the Trafficking in Persons Protocol

Article 7 of the Trafficking in Persons Protocol addresses the question of the sta- tus of victims as follows:

1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.

2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassion- ate factors.

There is no obligation on the part of States parties to the Convention to legis- late measures relating to the status of victims. However, in several States where measures have been adopted for the temporary or permanent residence of vic- tims of trafficking, these measures have had a strongly positive effect on victims coming forward to testify against traffickers, and on non-governmental organiza- tions encouraging victims to whom they provide services to report incidents to the Government.

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chapter 7 Immigration status of victims and their repatriation and resettlement

Examples of good practices

The Netherlands

In the Netherlands, the B9 procedure is introduced to suspected victims of traf- ficking. The police use a list of indicators—absence of identification papers, restric- tion of freedom etc.—to identify potential victims of trafficking. Under this procedure, victims are given the possibility of staying in the Netherlands with a temporary residence permit if the victim decides to testify. The temporary resi- dence permit will be valid during the investigation period and until the end of the trial. After that, the victim can apply for a permanent resident permit on humanitarian grounds. It is the responsibility of the police to introduce any per- son they suspect of being a trafficking victim to the B9 procedure. For more infor- mation about the B9 procedure, see the country report on the Netherlands contained in the European Commission document at:

http://www.nswp.org/pdf/HIPPOKRATES.PDF

Italy

In Italy, article 18 of the Immigration Law provides a temporary residence permit to trafficked persons to give them the opportunity to escape from the violence and from the influence of the criminal organization and to participate in an assis- tance and social integration programme. The temporary residence permit allows access to assistance services, education or employment.

The residence permit is valid for six months and can be renewed for one year, or for a longer period, if required.

Italy grants protection to victims independently of their readiness to testify. This approach focuses upon the victim’s need for protection, rather than on the vic- tim’s contribution to the State’s prosecution efforts. From a human rights per- spective, this approach, which also includes the right of trafficked persons to work and to reintegrate into society, is the most effective response.

See http://www.antislavery.org/homepage/resources/humantraffic/italy.pdf and http://www.enawa.org/NGO/Blinn_Final_Report.pdf

United Kingdom

In the United Kingdom, when victims of trafficking are unwilling or unable to return to their State of origin, the Immigration Service can assess their immi- gration status. Existing regulations allow the temporary regularization of the immigration status of a victim of trafficking. If a victim expresses a fear of returning to his/her State of origin, the Immigration Service considers the over- all situation in the State concerned and whether the particular experiences of the individuals concerned are likely to mean that they face an increased risk. Where a victim has provided material assistance to a police investigation of a serious crime and is required as a witness on criminal proceedings, there are existing arrangements for the police to apply to the Immigration Service for regularization of stay.

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Examples of good practices (continued)

United States

Under the Trafficking Victims Protection Act of 2000, the T visa was established to allow victims of severe forms of trafficking to become temporary residents of the United States. The Act recognizes that returning victims to their State of ori- gin is often not in the best interests of victims and that victims need the oppor- tunity to rebuild their lives without facing the threat of deportation. Recipients of a T visa, after three years, may be eligible for permanent residence status if:

• They are persons of good moral character

• They have complied with any reasonable request for assistance in the inves- tigation during the three-year period and

• They will suffer extreme hardship if they are removed from the United States The T visa signifies a shift in the immigration law policy, which previously treated victims of trafficking as illegal aliens subject to deportation. The visas allow the victim to remain in the United States to assist federal authorities in the investi- gation and prosecution of human trafficking cases. When it is determined that the victim may suffer “extreme hardship involving unusual and severe harm” if returned to their home State, the victim is allowed to stay in the United States. This process is designed both to successfully prosecute the traffickers and to pro- vide maximum protection to victims.

See http://www.acf.hhs.gov/trafficking/about/TVPA_2000.pdf

Council of the European Union Directive on the residence permit

The purpose of this Directive is to strengthen the European Union’s legislative framework for combating human trafficking and illegal immigration by granting residence permits of limited duration to victims of human trafficking.

After the expiry of the reflection period (see tool 7.1), where a Government con- siders that a trafficked person does fulfil the necessary criteria, a residence per- mit of limited duration can be issued, linked to the length of investigations or judicial proceedings. Article 8 states that the victim, in order to obtain the per- mit, has to show a clear intention to cooperate with the competent authorities and she or he has to sever all relations with those suspected of the crime of human trafficking and/or actions to facilitate illegal immigration. Residence per- mit holders shall be authorized to access the labour market, vocational training and education according to the conditions and procedures set out by national Governments.

The full text of the Directive can be found at:

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