Residence permit for victims of human trafficking
Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.
This directive supplements a range of European level measures designed to combat trafficking in human beings, including Council Framework Decision 2002/629/JHA on combating trafficking in human beings and Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence.
The directive defines the conditions for granting residence permits of limited duration to non-European Union (EU) nationals who are victims of human trafficking or (optionally) the subject of an action relating to the smuggling of people and who cooperate in the fight against these crimes. The permit may be granted to non-EU nationals even if they have illegally entered the territory of an EU country. Its duration is linked to the length of the relevant national proceedings.
The directive applies to non-EU nationals who have reached the age of majority set out by the law of the EU country concerned. However, EU countries may decide to apply this directive to minors under the conditions laid down in their national law. Specific measures are laid down for unaccompanied minors, such as regarding access to education and legal representation.
Persons concerned must be informed of the possibilities offered under this directive by the competent authorities of the relevant EU country. To be able to take an informed decision on their cooperation with the investigating authorities, non-EU nationals are granted a reflection period that allows them to recover and to escape from under the influence of the perpetrators of the offences. During the reflection period, the non-EU national concerned:
- may not be made subject to any expulsion order;
- will have access to accommodation and to medical and, if appropriate, psychological treatment;
- will have access to translation and interpreting services, if necessary;
- will have access to free legal aid, if provided for in national law.
The competent authorities are responsible for assessing whether the:
- presence of the victim serves a useful purpose for the investigation;
- victim has shown a clear intention to cooperate;
- victim has severed all relations with those suspected of the given offences.
When the above three conditions are fulfilled, and subject to public policy and national security, a residence permit of limited duration will be issued.
The residence permit is valid for at least six months and may be renewed if the relevant conditions continue to be satisfied. It grants the holder access to the labour market, vocational training and education, under conditions determined in national legislation. The non-EU national concerned must also be given access to integration programmes designed to help him/her integrate in the host country or to prepare for his/her return to the country of origin. EU countries may make the issuing of the permit conditional upon participation in these programmes.
EU countries must give due consideration to the conditions faced by persons with special needs, such as pregnant women, the disabled and victims of rape or other forms of violence.
The residence permit will not be renewed if the conditions of this directive are no longer met or if the relevant proceedings have been terminated. Upon its expiry, ordinary aliens' law will apply.
The residence permit may be withdrawn for reasons relating to public policy and national security, abuse and fraud. It may also be withdrawn if the victim renews contacts with those suspected of committing the offences or ceases to cooperate or when the proceedings are discontinued.
At its special meeting in Tampere on 15 and 16 October 1999, the European Council expressed its determination to tackle illegal immigration at source, for example by targeting those who engage in trafficking of human beings and the economic exploitation of migrants.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 261 of 6.8.2004
Report from the Commission to the European Parliament and the Council of 15 October 2010 on the application of Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [COM(2010) 493 final – Not published in the Official Journal].
This report provides an overview of the application of Directive 2004/81/EC by those EU countries that are bound by it. All of these EU countries have communicated their transposition measures; however, some deficiencies exist in the correct application of the directive.
The number of victims of trafficking in human beings is manifestly much higher than the number of temporary residence permits issued on the basis of this directive per year. Consequently, the impact of the directive in protecting victims and dismantling traffickers’ networks seems to be insufficient.
EU countries should provide victims a better access to information on the opportunities provided by the directive. Furthermore, they should fully comply with the provisions concerning treatment of victims during the reflection period. These could help overcome the problem of victims being reluctant to rely on the provided mechanisms.
The Commission will consider amending the directive to improve the protection of victims and the fight against trafficking in human beings. Particular consideration will be given to:
- issuing temporary residence permits on the grounds of the vulnerable situation of the victim and not necessarily in exchange of cooperation with the competent authorities;
- specifying victims’ reflection period;
- improving the framework of victims’, and especially minors’, treatment;
- strengthening the provision of information to victims.