Web Feature: Wednesday, June 4, 2014 Editor: Chris Meyer, Executive Editor Author: Hayley Evans, University of Notre Dame

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1 Web Feature: Wednesday, June 4, 2014 Editor: Chris Meyer, Executive Editor Author: Hayley Evans, University of Notre Dame

2 HUMAN TRAFFICKING IN THE REPUBLIC OF IRELAND: COMPREHENSIVE POLICY RECOMMENDATIONS Hayley Evans Introduction Human trafficking is a global phenomenon that is very much alive today. According to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, trafficking in persons is defined as: The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. i The latest estimate of human trafficking both for sexual and labor exploitation in the period from puts the number of victims at 20.9 million globally. ii Hundreds of thousands of victims are trafficked across the EU each year. iii The approximate dispersal of these victims in terms of exploitation type is as follows: iv Sixty- one percent victims of sexual exploitation, twenty- five percent victims of forced labor, fourteen percent victims of other types of trafficking, such as removal of organs, criminal activities, and selling of children. In 2010 alone, European Union Member States reported a total number of 9,528 identified and presumed victims of trafficking. v For the purposes of this policy paper, identified victim and presumed victim are heretofore defined as a person who has 1

3 been formally identified as a victim of trafficking in human beings according to the relevant formal authority in Member States and a person who has met the criteria of EU regulations and international Conventions but has not been formally identified by the relevant authorities (police) as a trafficking victim or who has declined to be formally or legally identified as trafficked, respectively. Governments around the world are assuming divergent approaches toward the eradication of human trafficking. Some governments, such as those of Sweden and Norway, focus on the demand to buy sex. These governments criminalize the purchase of sex, and decriminalize the sale of sex in an effort to punish those fuelling the crimes of sex trafficking and prostitution with their actions. vi Most others states, including Ireland, protect the actions of buying and selling sexual services as agreements between consenting adults. vii Due to this and other discrepancies in principle, it is vital for intergovernmental and supranational agencies like the European Union to take care to include not only prevention but also prosecution and protection in their protocols. viii Women and girls vulnerable to trafficking are those privy to extreme poverty, reduced earning capacity, and multiple forms of discrimination and abuse. ix In terms of recruitment, much of the way women and girls become involved in the industry are through deceptive means. In many cases, women are promised education and work, or are recruited through the assurance of marriage or long- term relationships. x For these reasons, it is crucial that the industry itself be targeted, not simply those who have succumbed to its influence. Additionally, in order to effectively combat the issue of human trafficking, it is vital to understand that trafficking and prostitution are inextricably linked, and should be understood in the context of global labor migration. xi 2

4 Consultation Process This document is the result of extensive archival research and historical analysis, and a consultation process with several experts in the areas of human trafficking, asylum seeking, and migration. I am grateful for the experience, expertise, and ideas shared with me by individuals and organizations that are currently doing excellent work in the field of human trafficking. The consulted organizations include: Immigrant Council of Ireland; Ruhama; Migrant Rights Centre Ireland; UCD Human Rights Network; European Migration Network of The Economic and Social Research Institute; Office of the Refugee Applications Commissioner. Human Trafficking in Ireland According to the 2013 United States State Department s Trafficking in Persons Report, the government of Ireland fully complies with the minimum standards for the elimination of trafficking. xii Compliance with these standards means that Ireland both prohibits and punishes a trafficking offence in ways commensurable with the given crime, and stringently enough to deter future instances of said crime. Ireland is a destination, source, and transit country for victims of sex trafficking and forced labor, and is included in an international web of human trade. Areas of origin for these victims of sex trafficking include Eastern Europe and Africa, while the relatively few labor trafficking victims originate in South America, Eastern Europe, Asia and Africa. xiii Also important to note is the increase in the number of Irish children subjected to sex trafficking 3

5 in Ireland. xiv Just last year, there were nineteen children in commercial sexual exploitation in Ireland. xv Historical Trajectory One of the standard ways in which to assess the historical trajectory of human trafficking in a given country is by use of the United States Department of State s Tier Placements. The United States Office to Combat and Monitor Trafficking in Persons assigns a placement on a scale of one to three to each country in the world, based on the following criteria: Tiers Tier 1 Tier 2 Tier 2 Watch List Tier 3 Criteria Countries whose governments fully comply with the Trafficking Victims Protection Act s (TVPA s) minimum standards Countries whose governments do not fully comply with the TVPA s minimum standards, but are making significant efforts to bring themselves into compliance with those standards Countries whose governments do not fully comply with the TVPA s minimum standards, but are making significant efforts to bring themselves into compliance with those standards, AND: a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or, c) the determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so xvi The State Department assigns placements in its annual Trafficking in Persons Report, allowing for a common forum in which to track changes over time in the state of human trafficking in the world. 4

6 The Irish Tier Rankings from 2006 to 2013 barring 2007 are displayed in the following chart. 1 Ireland Tier Ranking By Year xvii Since 2010, Ireland has exhibited full observance of the TVPA s minimum standards. Prevalence of Human Trafficking The exact number of women and girls involved in human trafficking is difficult to measure, due to the secretive nature of the industry. Additionally, the statistics are skewed because some victims of human trafficking go unidentified, with many being placed in the asylum system. This lack of identification means they are not included in the tabulation of human trafficking numbers. Even so, it is clear that Ireland is included in an international crime web which extends across Eastern Europe, South America, and Africa. xviii The number of all identified and presumed trafficking victims reported to An Garda Síochána totaled: 102 from 2007 to 2008; xix sixty- six in 2009; seventy- eight in 2010; fifty- seven in 2011; xx and thirty- two in xxi 5

7 A typical profile of a trafficked woman is a young woman from an impoverished background who is either abducted or tricked into embarking on a journey to Ireland. The majority of women in the Irish sex trade are foreign. xxii The ages of the women and girls involved range from 18 (with some evidence that girls as young as 16 years are involved) to 58 years. The average age is estimated at 25. xxiii To better understand the incidence of specific types of trafficking, the prevalence of each kind of exploitation in the year 2010 is displayed below. Human TrafKicking Dispersal in Ireland 2010: 78 alleged victims 4% 24% 72% Sexual Exploitation Labour Exploitation Uncategorised xxiv As illustrated above, the largest demographic of victims of human trafficking in 2010 were those who were sexually exploited. These findings seem to be fairly consistent with those most recently published. In a press release on May 7, 2013, the Immigrant Council of Ireland reported, 75 percent of Irish human trafficking investigations involve sexual exploitation. xxv 6

8 In terms of the number of convictions for the crime of trafficking, they are extremely low. In 2011, there were nine convictions for human trafficking offences, four of those convictions being under the jurisdiction of the Criminal Law (Human Trafficking) Act Only one conviction took place in the previous reporting period. xxvi Furthermore, in 2012, law enforcement referred twenty- two trafficking suspects, including two labor trafficking suspects, to the Director of Public Prosecution, yet none of those suspects went to trial during the US State Department s Trafficking in Persons reporting period. xxvii Major Actors Seeking Reform Some of the major Irish actors seeking reform include: The Anti- Human Trafficking Unit in the Department of Justice and Equality; The Human Trafficking Investigation and Co- ordination Unit in An Garda Síochána; The Anti- Human Trafficking Team in the HSE; The Immigrant Council of Ireland; The Irish Legal Aid Board; Ruhama; The UCD Human Rights Network; The Irish Refugee Council; The International Organization for Migration (IOM) Dublin; Migrant Rights Centre Ireland. Although government funding for NGOs decreased during 2012, there were steps taken to improve government coordination with NGOs. The total amount of government funding for anti- trafficking measures increased during the year, but in some cases authorities failed to make prompt determinations of potential victims eligibility for services. xxviii Current Policies in Place 7

9 On the EU level, there are two European Union Directives concerning victims of human trafficking. Those pieces of legislation are: Council Directive 2004/81/EC from April 29, 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 xxix Council Directive 2011/36/EU from April 5, 2011: on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA xxx It is important to note that Ireland, in addition to Denmark and the United Kingdom, has not opted into Directive 2004/81/EC, and therefore has not changed its domestic laws in accordance with the Directive. xxxi At present in Ireland, the arrangements for accommodation involve provisions from The Reception and Integration Agency (RIA) of the Department of Justice and Equality and The Health Service Executive (HSE). xxxii These organizations provide identified and presumed victims of trafficking with the same accommodation and services provided to newly arrived asylum seekers, including an initial screening and health assessment in a Reception Centre in Dublin. Then they receive accommodation through the Direct Provision xxxiii and Dispersal policies specific to asylum seekers. As of May 2013, there are approximately 4,700 residents in thirty- four Direct Provision accommodation centers contracted to the RIA throughout Ireland. xxxiv The policy of Direct Provision means that accommodation is provided on a full board basis, 8

10 with asylum seekers and some victims of human trafficking receiving a weekly allowance of per adult and 9.60 per dependent child, paid by the Community Welfare Officers. xxxv This policy, including those specific payment numbers, has been in place since April xxxvi The Galway City Development Board performed a study concerning Direct Provision in According to this study, Direct Provision was found to be difficult for its residents, with lack of privacy and independent lifestyle identified as the main factors having an impact on wellbeing. xxxvii Additional problems include: Lack of meal variety and catering facilities; Long processing time for asylum applications; Leisure activities limited to hostels; Restricted outdoor activities; Lack of amenities; No access to education and training, including English classes; Lack of integration; Discrimination; Lack of trust in authorities; Few independent services; Limited knowledge concerning services provided; Limited transport facilities. Hostel residents also noted the following positive aspects of Direct Provision: 9

11 Strong social networks within various ethnic communities; Good psychological support; Good health services; Good social services. xxxviii The policy of Dispersal means that when asylum seekers make their application for asylum to the Office of the Refugee Applications Commissioner (ORAC), they are offered housing at a Reception Centre in Dublin for ten to fourteen days. After that time period, asylum seekers are then relocated to an accommodation centre or hostel outside of Dublin. xxxix These Direct Provision and Dispersal Policies for accommodation are both examples of outsourcing, and are primarily conducted by private actors. In fact, of the forty asylum accommodation centers in Ireland in 2011, only three were built specifically for asylum seekers. The other 37 are former hotels, hostels, guesthouses, convents, nursing homes, holiday or mobile home camps which were never intended as places of long term residence. xl One obvious principle of this outsourcing that comes into play is an economic one; private contractors have monetary incentives. As private entities, the issue with these contractors is the loss of remedy for breaches of human rights a scheme premised on a public/private divide. xli As Section 3 (1) of the European Convention on Human Rights Act 2003 states, Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions. xlii With the Direct Provision and Dispersal 10

12 policies being privately operated though, they do not fall under the jurisdiction of the aforementioned Irish ECHR Act Non- governmental organizations criticize one policy in particular, namely the way in which non- EU sex trafficking victims are treated like asylum- seeking refugees, which some argue renders their care and protection of rights inadequate. With the way the identification process is currently set up, the Garda National Immigration Bureau does not identify women who are in the asylum process as possible victims of trafficking nor does it grant them a Recovery and Reflection period and Temporary Residence Permit despite their cooperation with the Gardaí in the investigation and prosecution of the trafficking crime and the presence of clear trafficking indicators. xliii Because the State confers on asylum seekers temporary permission to stay in Ireland during the processing of their applications, the State believes that asylum- seeking victims of trafficking do not need an additional residency permit, as they already hold the most basic rights of asylum seekers. xliv Identification is carried and permits are only given to victims of trafficking when they are considered to need permission to be in the State. xlv In other words, the government holds that the Administrative Immigration Arrangements for the Protection of Victims of Human Trafficking are not applicable to asylum seekers because they are protected from deportation. They therefore already have valid permission to remain in the State, and need no further issuance of permission. Furthermore, according to anecdotal evidence from stakeholders including national and international authorities as well as civil society, victims of trafficking in human beings can for various reasons pass through different stages of the international protection procedure (e.g. interview, first instance decision, Dublin procedures, appeal) 11

13 without the authorities detecting they are a victim. xlvi At present, the Garda applies a two- stage model for identifying victims. These two stages are an assessment of the varying indicators that can be evaluated before interview, and a detailed interview with the individual. xlvii Victims who go unidentified and have no legal right to reside in the EU may be forced to return to their country of origin. xlviii Currently, the only Irish officials with the legal capacity to identify victims of human trafficking both from inside the EU and outside the EU are members of An Garda Síochána not below the rank of Superintendent. xlix As such, although members of the Garda have undergone training to teach them how to identify victims, it is only a subsidiary task in the whole spectrum of tasks and crimes they deal with every day. Given their role in policing immigration related offences and a remit excluding Irish and other EU nationals, the members of the GNIB may not be best placed to identify victims of trafficking within An Garda Síochána. Even though members of the Garda are well- trained with regard to victim identification, there has not been agreed any structure for this process, number of interviews, minimum criteria and time limits [and] the vast number of victims remain ineligible to the procedure of identification. l Members of An Garda Síochána, as members of a police force, undoubtedly look at the identification of trafficking victims through a more legal than humanitarian lens. In an attempt to uncover sufficient evidentiary support that a person is a victim of a crime, oftentimes more subtle indicators of trafficking that would not serve as tangible legal evidence such as show[ing] fear or anxiety be[ing] distrustful of the authorities believ[ing] that they must work against their will [and] hav[ing] false identity or travel 12

14 documents li are disregarded. As a result, victims such as those who say they have consented fall through the cracks in the identification process. Although understandable from a bureaucratic perspective, from an anthropological perspective it is a travesty to immediately rule out potential victims based on the principle that they have consented to their exploitation, as many are coerced into saying they acted in consent. As stated in Forced or Free the Issue of Consent and Compliance, For many, if not most women, their so- called choice is preceded by and conditioned on earlier traumatic abuse and an interplay of personal and economic factors. lii According to some NGOS, treatment of victims of human trafficking as asylum seekers becomes an issue in its application to Administrative Arrangements. The most recent form of Administrative Arrangements for the Protection of Victims of Human Trafficking having come into operation on June 7, 2008 is the set of arrangements applicable to a foreign national who is presumed to be a victim of human trafficking. Some such arrangements include granting a sixty- day recovery and reflection period, and temporary residence permission valid for six months. liii While these measures are commendable, asylum seekers reporting human trafficking, or presumed to be victims already, have valid permission to be in the state as a result of their asylum seeking status, and shall not require further immigration permission for the purpose of availing of a recovery and reflection period save where their permission expires. liv Thus, asylum- seeking victims of trafficking are precluded from receiving the designated protection for victims of trafficking outlined in the Administrative Arrangements. Compounding the difference in treatment between identified victims of human trafficking and those seeking asylum is the fact that the majority of trafficking victims from 13

15 non- EU countries received services and pursued refugee status through Ireland s asylum process. lv According to Paul Cullen in his book Refugees and Asylum- Seekers in Ireland, The view of the Department of Justice is that Ireland is not a country of immigration, and it will do nothing that might encourage people that come from non- EU states. lvi Acknowledging that states have a legitimate interest and right to manage the influx of people onto their territory, this right is nonetheless limited by obligations towards victims of persecution. lvii Even so, within Ireland, asylum seekers possess no statutory or constitutional rights to social support, but rather, rely on ministerial circulars, wherein parliamentary scrutiny for the whole system of reception for asylum seekers is absent. lviii Policy Controversies Organizations like the Immigrant Council of Ireland argue that the system in place for asylum seeking victims of trafficking often non- EU victims is discriminatory, and consequently, contravenes Article Three of the Council of Europe Convention. lix Article Three is a non- discrimination principle, which states, The implementation of the provisions of this Convention by Parties, in particular the enjoyment of measures to protect and promote the rights of victims, shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. lx As Ireland ratified the aforementioned convention July 7, 2010, and it entered into force November 1, 2010, Ireland is obligated to comply with all treaty articles. Therein lies the problem in the discrepancy between treatment of EU and non- EU human trafficking victims. 14

16 One of the primary differences between treatment of the EU and non- EU trafficking victims is that non- EU trafficking victims must pursue asylum- seeker status. If a given person is in the process of asylum seeking, and is a potential or suspected victim of trafficking, the person will remain in the asylum process, and the RIA will provide the necessary accommodation supports. lxi If it appears that the trafficking offence may have occurred in a country other than Ireland, the GNIB has the capacity to remove the aforesaid person from Ireland. lxii Additionally, a non- resident of the EU who has been identified as a human trafficking victim but does not consent to assist in police investigation may remain in the State if they are legally entitled to do so, but where the person has no permission to remain in the State and does not wish to assist with a police investigation he/she can be removed from Ireland. lxiii Another difference is that non- EU trafficking victims are placed in mixed gender asylum centers, compounding mental health issues, exacerbating trafficking- related trauma, and leaving them open to further grooming and exploitation either by the men who had previously trafficked them, or miscellaneous men looking to buy sexual services. lxiv For example, in September 2011, there was news of a fourteen- year- old girl in a Mayo accommodation centre becoming pregnant by a man in the same hostel. lxv There is additional evidence that traffickers themselves have used the asylum system for residency and accommodation, while simultaneously trafficking the victims. lxvi This disparity in treatment between EU and non- EU victims is thus extremely relevant because even though non- EU victims have not paid the same taxes that EU victims have, they should still be supported in a special way, as dictated by not only EU standards, 15

17 but also universal standards such as those established by the Universal Declaration of Human Rights. Further, there are issues with the lengthy asylum process, and surrounding the delay in renewing six- month temporary residency permits. The recovery and reflection permit itself is not issued at the early stages of the victim s identification and treatment process, but rather it takes few to many months, leaving victims not only without a recovery permit, but also without access to work and social services. lxvii Additionally, victims of trafficking who are not afforded Administrative Arrangements can be in RIA asylum hostels for two to four years. lxviii This long- term accommodation hinders their recovery process. In regards to the six- month temporary residency permits and residence permission in general, the Department of Justice and Equality primarily grants two types of temporary residence stamps to victims of trafficking: a Stamp Three and a Stamp Four. Essentially, the higher the number on the stamp, the more rights afforded to a given person. Specifically, a Stamp Three is for persons who are not allowed to work. This sort of stamp is provided to visitors; retired people of independent means; ministers of religion and members of religious orders; spouses, civil partners and dependants of employment permit holders. lxix A Stamp Four, however, allows people to work without an employment permit or business permission to work. A Stamp Four is for spouses and civil partners of Irish nationals; family members of EEA citizens; Convention and Program refugees; parents of Irish citizen child granted leave to remain on that basis. lxx The way that the aforementioned stamps relate to the accommodation of human trafficking victims is as follows: INIS issues a Stamp Three to victims during the sixty- day 16

18 Recovery and Reflection Period during which time they have no access to work and social services and a Stamp Four to the victims during the six- month Temporary Residence Period. lxxi However, when victims of trafficking are in the asylum process, they are denied a Recovery and Reflection period and Temporary Residency Permits (Stamp Four), [because] [t]he Asylum Process supersedes Administrative Arrangements. lxxii This denial of a Stamp Four is not only unfortunate because of the tangible benefits it would provide to victims, but also because a Stamp Four is an acknowledgement of victim cooperation with authorities and a longer term investigation. Therefore, victims of trafficking in the asylum process can reside in Ireland for several years before attaining a Stamp Four, even though they are supposed to be allowed apply for a new stamp after three years, under Section Twenty- One of Administrative Arrangements. lxxiii The Principles Underpinning Our Strategy Although they are both marginalized persons, human trafficking victims and asylum seekers have entirely different needs as a result of their different pasts. For example, while a victim of human trafficking might require the provision of a single- gender accommodation centre in order to alleviate associations of the opposite sex with sexual abuse, an asylum seeker might not require such provisions. Likewise, while asylum seekers might have social or psychological needs such as the need for a sense of belonging and social capital, a victim of human trafficking might not have those same needs upon initial integration into society. Thus, I believe that human trafficking victims and asylum seekers must have separate avenues of treatment. With separate avenues of treatment created for each demographic, there will no longer be a difference in the treatment of victims of human 17

19 trafficking who have been properly identified and granted residency permits, and those denied identification and permissions because of their asylum- seeker status in the State. lxxiv Instead, all human trafficking victims will be treated the same, just as all asylum seekers are treated the same. These policy proposals are based on the core principles of early identification, NGO support, specialized care, and monitored treatment. Early Identification I understand that the identification of immigrant status in Ireland is not always clear- cut. When human trafficking victims and asylum seekers are both sent to the same reception center in Dublin, border guards and consular services are not always able to discern that a given person is a victim of trafficking in a timely fashion. If a person has been named an asylum seeker and is later identified as a trafficking victim, at that point it is too late to change avenues of treatment. Early victim identification will help alleviate this issue. NGO Support Input from NGOs would be invaluable to the reform of avenues of treatment for both victims of human trafficking and asylum seekers. Not only do those organizations directly interact with and care for such peoples, but they also have fewer monetary incentives and aims that are more social than political, allowing them to view a need for change through a less bureaucratic lens. Therefore, NGO involvement in the victim identification and intake process, and in the periodic monitoring of the accommodation system, would help to ensure the proper treatment of human trafficking victims, at no additional cost to the State. 18

20 Additionally, I propose a reinstitution of IOM Ireland s Train the Trainers Programme from 2009 and lxxv The program s primary objective was to enhance the capacity and professionalism of those trained, to replicate trainings within their own organizations and to set out the key steps to be taken, in the Irish context, should a victim of trafficking be encountered. lxxvi In training members of personnel likely to encounter victims of trafficking, victims will be identified in a more timely fashion. Specialized Care for Human Trafficking Victims Currently many human trafficking victims are being wrongly treated as asylum seekers, even though pursuit of refugee status is not their aim. Even though the Immigration, Residence and Protection Bill 2010 provides for a period of recovery and reflection of 60 days in the State for suspected victims of trafficking and also, in circumstances where the person trafficked wishes to assist the Garda Síochána or other relevant authorities in any investigation or prosecution in relation to the alleged trafficking, a further six months period of residence, renewable, to enable him or her to do so, lxxvii if the victim is already in the asylum process, he or she does not have access to the period of recovery and reflection. lxxviii Monitored Treatment In order to make a permanent change to the way in which human trafficking victims and asylum seekers are treated, progressive realization of the following recommendations particularly those to do with accommodation is necessary. Without a 19

21 mechanism by which to measure and ensure the proper changes are being made, management of treatment is impossible. Therefore, I propose the implementation of an altered system of shadow reporting, by which each asylum hostel will report to a coalition of the Reception and Integration Agency and relevant NGOs the monitoring body. In this fashion, shadow reporting will cement a coalition of issue- based groups around shared human rights concerns, frame lobbying and advocacy work, generate positive media coverage[,] break down the silos between litigation and political campaigning as routes to further human rights goals, [and] lend legitimacy to human rights critiques and human rights policy solutions. lxxix The monitoring body will set indicators and benchmarks to oversee compliance, and will periodically assess the progress being made in the area of accommodation. Especially with the accession of the EU to the ECHR, it is vital that Ireland work toward a progressive realization of that convention through internal implementation. The principle reason for altering the shadow reporting system is the European Convention of Human Right s principle of subsidiary, by which states should bring their domestic laws into line with the principles set out in the text, and the supervision of the Convention rests primarily with the national authorities of the states. Additionally, given Article Twenty- Nine of the Irish Constitution, which states that international treaty obligations are not a part of domestic law unless specifically legislated and ratified by the Oireachtas, the ECHR is not directly effective in domestic law. Although there has been a greater incorporation of the ECHR into Irish law given the European Convention on Human Rights Act 2003, the ultra- jurist nature of Ireland s political system still supersedes further effect of the Convention. 20

22 I hope that these and the following recommendations will help to resolve the discrepancy between the needs of victims, and the services and avenues of treatment currently being provided. As the High Commissioner for Human Rights stated, a human rights based approach, such as the one I wish to pursue, requires us to consider, at each and every stage, the impact that a law, policy, practice or measure may have on persons who have been trafficked and persons who are vulnerable to being trafficked. lxxx I. Asylum Reform There should be a radical restructuring of the asylum and human trafficking systems in order to treat the cause of discrimination rather than the symptoms. As defined in the 1951 Convention and Protocol relating to the Status of Refugees, a refugee is a person with a well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion lxxxi and is outside the country of their nationality. As previously mentioned in this document, a victim of trafficking in persons is one subject to the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. lxxxii Clearly, the two types of people are dissimilar, and 21

23 so too should their treatment be. In order to achieve the restructuring of the two processes, the Department of Justice and Equality should engage with UN Human Rights Monitoring bodies, and then incorporate suggestions into Irish Law, perhaps as an additional Criminal Law (Human Trafficking) Amendment. As of now, the current asylum process is incompatible with some of the requirements stipulated in the UN Convention on the Rights of the Child. Article Twenty- Seven specifies, States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. lxxxiii According to a report regarding children in the current asylum accommodation provisions, Direct Provision is an example of a government policy which has bred discrimination and indifference to social exclusion, enforced poverty, and neglect. The harm suffered by children living in government run or supported accommodation has become banal and those having to carry out the work have become blind to its inhumanity. lxxxiv When approaching the changes to be made in the legislative realm of human trafficking, relevant government agencies should consult with judicial and legislative bodies, national human rights institutions and relevant sectors of civil society in the development, adoption, implementation and review of anti- trafficking legislation, policies and programmes. lxxxv This sort of human rights based approach will ensure the institution of the most advantageous policies possible for the victims. Therefore, I recommend that the two avenues of treatment human trafficking victims and asylum seekers be as delineated as possible. The specificities of these differentiations will be laid out in the following seven recommendations. 22

24 II. Victim Identification Intake interviews should work to discern between asylum seekers and human trafficking victims, and there should be a more proactive approach to victim identification in general. Identification of the victims of human trafficking is of the utmost importance when it comes to properly caring for them in terms of rehabilitation, integration, and repatriation. Presently the Garda National Immigration Bureau does not identify women who are in the asylum process as possible victims of trafficking nor does it grant them a Recovery and Reflection period and Temporary Residence Permit despite their cooperation with the Gardaí in the investigation and prosecution of the trafficking crime and the presence of clear trafficking indicators. lxxxvi In order to remedy this situation, identification procedures should be carried out in relation to all individuals who may be victims of trafficking, including asylum seekers. lxxxvii This way, authorities will more promptly determine eligibility for services for potential victims of trafficking. Training Program The increased involvement of NGOs in the victim identification process would be invaluable, as many of these organizations spend the majority of their time working with both directly and indirectly these very victims. Thus, I propose a training program founded on collaboration between inter alia NGOs, labor inspectors, the ORAC, border guards, police officers, and consular services. With such a training program, the 23

25 identification capability of all migrant services will be heightened, lessening the incidence of error in classification and treatment of immigrants to Ireland. NGO involvement in the victim identification and intake process, and in the periodic monitoring of the accommodation system would help to ensure the proper treatment of human trafficking victims, at no additional cost to the State. Although aware that there are already some collaborative efforts between NGOs and government agencies in place, I propose that this partnership be deepened. Additionally, I propose a reinstitution of IOM Ireland s Train the Trainers Programme from 2009 and lxxxviii The program s primary objective was to enhance the capacity and professionalism of those trained, to replicate trainings within their own organizations and to set out the key steps to be taken, in the Irish context, should a victim of trafficking be encountered. lxxxix By training members of personnel likely to encounter victims of trafficking, the state can identify victims more quickly. Currently, the European Asylum Support Office is developing specific training modules and manuals to ensure that asylum officials are aware of how to detect and refer victims. xc Ad Hoc Classification of Immigrants A policy in which immigrant status can be changed ad hoc would allow victims who have been wrongly placed in the asylum seeking process to change avenues of treatment. An unidentified victim in the asylum process would be changed to an identified human trafficking victim in the eyes of the law, or vice versa immediately upon identification. This policy would incur no extra costs to the Exchequer; it would just mean that the given person would begin to undergo a different avenue of domestic treatment. 24

26 Dedicated Garda Unit In order to increase the number of identified victims, the creation of a Garda Unit dedicated solely to the cause is necessary. Although there are currently three dedicated units the Human Trafficking Investigation and Co- ordination Unit in the Garda National Immigration Bureau (GNIB); the Anti- Human Trafficking Team in the Health Service Executive (HSE); and a specialized Human Trafficking legal team in the Legal Aid Board (LAB) there is little to no proactive policing and searching for victims. The units in place now primarily function to assist the victims that have already been identified. The Dedicated Garda Unit would be comprised of ten full- time Gardaí whose primary responsibility would be the location and identification of victims of human trafficking. Currently, the majority of people identified as trafficking victims have no documents, and so are investigated to a greater extent. Thus, these undocumented peoples are quickly recognized and acknowledged to be victims. This leaves those victims with documents unidentified. With the new active, Dedicated Unit in place however, more victims would be identified through a more rigorous investigation process. The Garda members would investigate suspicious websites, massage parlors, escort services, lap dancing clubs, and other related trafficking spheres. In addition, the Garda members would collaborate with both labor inspectors and Internet providers. With regard to the labor inspectors, the Dedicated Garda Unit would work to identify newer forms of trafficking like begging and forced criminal activities. In relation to the Internet providers, the Dedicated Garda Unit would work in the same way that they do with the Internet Service Providers Association of Ireland in combating child pornography. For child 25

27 pornography, if the material is hosted in the Irish jurisdiction and likely to be illegal under the 1998 Child Trafficking and Pornography Act then the report is forwarded to the relevant Irish Internet Service Provider to ensure the material is removed and to the An Garda Síochána for investigation if required. xci To critics who argue that the sex trade is too secretive for police forces to infiltrate, I would respond in the same way as a UN Global Initiative to Fight Human Trafficking paper on the Swedish example responds, if sex buyers can find women on the internet, then the police should be able to do the same thing with the right priorities and adequate resources. xcii III. Administrative Arrangements Administrative Arrangements should be provided to all victims of trafficking, even those who have already begun the asylum- seeking process before being identified. General Provision Although hopefully mitigated by the institution of the policy Ad Hoc Classification of Immigrants, if there are trafficking victims still with the same trajectory of treatment as asylum seekers, the Reception and Integration Agency should provide Administrative Arrangements to them as well. The Administrative Arrangements, as explained earlier, are the set of arrangements applicable to a foreign national who is presumed to be a victim of human trafficking. Some such arrangements include the granting of a sixty- day recovery and reflection period, and temporary residence permission valid for six months. 26

28 The provision of Administrative Arrangements, including the health screening and processing for social welfare purposes, is invaluable to trafficking victims. Thus, instead of the current state of affairs, which precludes trafficking victims already in the asylum- seeking process from Administrative Arrangements and instead leaves them in the asylum process with RIA accommodation, I propose that all victims be given these Administrative Arrangements. The Oireachtas already considered such a proposition in the 2008 and 2010 Immigration, Residence and Protection Bill, specifically in Section 139. xciii Section 139 was a step forward in terms of rights- based protection of victims. However, the Administrative Immigration Arrangements that eventually came to pass in 2011 did not follow through on all of the constructive arrangements suggested in Recovery and Reflection Period Further, the receipt of the recovery and reflection period for victims of trafficking is far too complicated an ordeal. Not only is the number of people with access to a recovery and reflection period very low in general, but also those victims of human trafficking who are in the asylum process do not receive this period of time at all. Thus, I would suggest that the process by which one receives a recovery and reflection period be simpler. There should be a lower threshold for reasonable grounds for victim identification, followed by five days at most before a victim is notified whether or not they are to receive a period of recovery and reflection, as suggested by Ireland s National Referral Mechanism s Working Group. xciv In the Belgian system for example, [i]dentification by the police is not a prerequisite for acquiring a reflection period; the specialized NGOs providing CAA [categorical accommodation and assistance] can request a reflection period without 27

29 contacting authorities. This is a unique feature of the Belgian system. During this period victims are entitled to social protection and can stay in the shelters of one of three specialized NGOs. xcv Legal Aid Additionally, I recommend that all identified and presumed victims even those in the asylum- seeking process be informed of the existence of these Administrative Arrangements. Within the framework of Administrative Arrangements themselves, I suggest that legal aid such as that provided by the Legal Aid Board be made more easily accessible. Eligibility for Services Finally, although currently eligibility for services is provided on the basis of criminal proceedings, I would urge that the practice cease. Eligibility is presently based on the contents of Article 14 (1) (b) of the Council of Europe Convention on Action Against Trafficking in Human Beings, which states the competent authority considers that their [the victim s] stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings. xcvi As of now, Ireland has not ratified the second part of the Convention, which would allow victims protection owing to their personal situation. xcvii Furthermore, currently those in the asylum system seeking the status as victims of trafficking but not yet legally classified as potential victims, are not eligible for the services provided to trafficking victims, despite their compliance with authorities. xcviii 28

30 Although assistance not contingent on cooperation is provided to victims during the recovery and reflection period in theory, in actuality very few victims are granted such [recovery and reflection] permit due to the existing policy not to formally identify and issue recovery permit to victims who are considered legally resident for this deliberation, which in practice excludes EU nationals, holders of student permits, asylum seekers, Irish citizens and other categories. xcix Furthermore, the condition of cooperation with authorities in order to receive a Temporary Residence Permit and other forms of assistance fails to take into account those with special needs. c Without taking the capabilities of victims of trafficking with special needs under special consideration, the policy in Ireland fails to comply with Article Eleven, Paragraph Seven of EU Directive 2011/36/EU, which states Member States shall attend to victims with special needs, where those needs derive, in particular, from whether they are pregnant, their health, a disability, a mental or psychological disorder they have, or a serious form of psychological, physical or sexual violence they have suffered. ci Not all victims with special needs will necessarily be capable of the degree of compliance necessary to attain a recovery and reflection period, which is an injustice to those victims. This practice of limitation of services based on the compliance with authorities is a coercion of the victims into entering the criminal justice system. Often, victims are emotionally traumatized, fearful and distrustful of authority, and unable to speak English. Their protection and assistance from the GNIB and HSE should not be contingent upon helping the Garda. Thus, I urge that victims would all have access to available services, regardless of whether or not they have been considered helpful to the authorities. Then, after the victims have undergone at least some period of recovery and reflection, preferably 29

31 the entire sixty days, they should be allowed to make an informed decision about whether or not to assist authority. Acceleration of the Residency Process Regarding the acceleration of the temporary residency process in particular the renewal of the six- month temporary residency permits I would suggest that the Office of the Refugee Applications Commissioner, the legal representative, or whichever agency is handling a particular case, be allowed to contact the GNIB two weeks prior to the expiry of a residence permit, in order to ascertain whether or not the GNIB is still pursuing investigations in that particular case. In allowing this contact two weeks earlier than the date of expiry, the process by which people are able to renew their permits will be expedited. Furthermore, this mechanism will also mitigate the current impediments to the long- term residency process. With gaps in the record of short- term residency caused by administrative delays in renewal, it often takes longer than necessary for a given person to reach the five years of temporary residency needed to apply for long- term residency. Thus, if the GNIB could solve the issue of residency permit renewal in a timely fashion, it would be far simpler for the Minister of Justice to simply sign off on residency renewals at the exact date that old residency permits expire. Communication Finally, communication and cooperation between the victim, the Garda, and whichever NGOs are involved in the particular case is essential to the victim s recovery. Oftentimes victims are left in the dark with regard to their residency status, exacerbating 30

32 the trauma they have already undergone by way of whatever situation forced them into the temporary residency process in the first place. Status updates every so often will thus mitigate victim uncertainty. IV. Accommodation: Categorical Shelters The current policy of Direct Provision in accommodating asylum seekers should be abolished in favor of using categorical shelters already in place. When implemented in 2000, Fianna Fáil only intended the principle of Direct Provision to be employed on an individual basis of six months. cii In fact though, the average amount of time spent in the Direct Provision accommodations due to lengthy delays is about three years. ciii This and other shortcomings of Direct Provision are outlined in the following subsection. Direct Provision The weekly allowance to those undergoing the asylum seeking process has not increased since In 2007, NGOs sought an increase in the social welfare payments to asylum seekers, but the allowance of per adult and 9.60 per child was not, and still has not, been changed. According to Member of the European Parliament, Proinsias De Rossa, the government s refusal to increase the payment was shameful, and it is the children who will suffer most. civ Other areas in which the current policy of Direct Provision is inadequate are the times during which meals are served, the quality of the food, and general conditions of the 31

33 hostels. Furthermore, children are not allowed to play in corridors unless under parental supervision. cv To contextualize the problem, on June 25, 2013, there was a protest of about fifty asylum seekers at an asylum- seeker centre in North Cork. Some of the issues the protesters voiced were: A lack of play facilities Baby food close to expiry being served Crammed accommodations Insufficient toilet facilities cvi Thus, as previously mentioned, there is much disapproval for the current Irish system of asylum accommodation, Direct Provision. In fact, a recent report on the experience of Somali refugees in Ireland claims, life for asylum seekers living in Direct Provision centers in Ireland has come to mirror that found in refugee camps in the developing world. cvii The report cites the mental, emotional, and physical effects of living in Direct Provision, as well as the stress placed on asylum seekers as they attempt to prove their legitimate need for asylum. cviii I believe that the system of Direct Provision for asylum seekers and human trafficking victims placed in the asylum process is entirely inappropriate and unacceptable. The system has devolved from the initial vision of implementation, whereby asylum seekers were only meant to live in such quarters for six months. I thus propose a separate policy surrounding accommodations, such that existing systems of categorical shelters are used. There a precedent for the implementation of this sort of policy all over Europe, 32

34 whereby victims are housed in private accommodations, shelters for women, and safe houses. Accommodation: General Scheme Our proposal for victim accommodation is as follows: Figure 1: Flow Chart of Victim Accommodation As seen in the chart above, initial accommodations for victims of human trafficking will be single- sex, save for male children being allowed to live with their mothers. As mentioned previously, mixed- gender accommodation for victims of human trafficking especially sex trafficking exacerbates trauma and prolongs the recovery process. 33