IDENTIFICATION OF VICTIMS OF TRAFFICKING IN HUMAN BEINGS IN INTERNATIONAL PROTECTION AND FORCED RETURN PROCEDURES

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1 IDENTIFICATION OF VICTIMS OF TRAFFICKING IN HUMAN BEINGS IN INTERNATIONAL PROTECTION AND FORCED RETURN PROCEDURES SPAIN 2013 N.I.P.O.:

2 The (EMN) is an initiative of the European Commission. The EMN has been established via Council Decision 2008/381/EC and is co-financed by the European Union. Its objective is to meet the information needs of EU institutions and of Member States authorities and institutions by providing up-to-date, objective, reliable and comparable information on migration and asylum, with a view to supporting policymaking in the European Union in these areas. The EMN also serves to provide the general public with such information. To that end, the EMN has a network of National Contact Points (NCPs). The Spanish NCP is composed by experts from the Ministry of Employment and Social Security, Ministry of the Interior, Ministry of Foreign Affairs and Cooperation, and Ministry of Justice and the General Prosecutor s Office. It is coordinated by the Deputy General Directorate for Legal Affairs of the General Secretariat for Immigration and Emigration. Contact Deputy General Directorate for Legal Affairs of the General Secretariat for Immigration and Emigration (Co-ordinator of the National Contact Point for the ) José Abascal, Madrid rem@meyss.es Internet: This document is available from: Internet:

3 Identification of Victims of Trafficking in Human Beings in International Protection and Forced Return Procedures Spain 2013 The aim of the study is to analyse the procedure of identification of the victims of trafficking and the subsequent mechanisms of guidance and referral, to assess their effectiveness to guarantee the rights recognized by law. Also, its purpose is to elaborate conclusions and practical recomendations to improve the coordination between Member States. This Report has been developed by the Spanish National Contact Point of the. December 2013

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5 INDEX TOP-LINE «FACTSHEET» (NATIONAL CONTRIBUTION) EXECUTIVE SUMMARY... 7 SYNTHESIS REPORT... 8 SECTION 1. Residence permits, protection statuses and national programmes available to victims of trafficking in Member States SECTION 2. Detection, identification and referral of victims in International Protection Procedures Legislative framework Detection and identification of victims Referral Detection and identification and referral in relation to Dublin procedures Future measures SECTION 3. Detection, identification and referral of victims in Forced Return Procedures Legislative framework Detection of victims Referral Future measures SECTION 4. Detection, identification and referral of victims by other related actors Detection and identification of victims in reception centres/detention facilities Referral of (potential) victims in reception centres/detention facilities Role of other actors (optional) SECTION 5. Training SECTION 6. Statistics SECTION 7. Conclusions ANNEX

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7 Top-line Factsheet (National Contribution) Executive Summary This study has been drawn up by the National Contact Point for Spain in the European Migration Network with competence in this area: the Ministry of the Interior and the Ministry of Employment and Social Security. Spain s proportion of irregular migrants is far greater than its applicants for international protection. Hence, most third-country nationals who are victims of trafficking are in Spain irregularly and have not applied for asylum. Because of this, the General Scheme for foreign nationals offers a comprehensive protection system for trafficking victims. Spanish legislation has focused on addressing the identification of trafficking victims directly through the Framework Protocol for Protection of Victims of Human Trafficking, which is applicable to the specific situations in which victims can find themselves (legal stay, return procedures, detention centres, application procedures for international protection, etc.). There is an established mechanism for referring potential victims to the Immigration Units of the National Police Force, which then investigate whether a crime has been committed and ascertain any applicable victim status, and to the Government representative or deputy representative, who must make the decision on whether to grant the recovery and reflection period. In recent years, important steps have been taken to coordinate and improve the detection and identification of potential victims. The prosecution of trafficking in human beings is one of the pillars of Spanish immigration policy. 7

8 Synthesis Report The prosecution of trafficking in human beings is one of the pillars of Spanish immigration policy. In October 2011, Spain adopted a Framework Protocol for Protection of Victims of Human Trafficking by agreement of the Ministries of Justice, the Interior, Employment and Social Security, Health, Social Services and Equality, and the General Council of the Judiciary. The Protocol establishes a mechanism for the detection, identification, assistance and protection of victims of trafficking that involves stakeholders. The Framework Protocol ensures the adequate coordination between the different actors in the detection of victims of trafficking (police authorities, employment services, social services, staff of detention facilities or those responsible for international protection, NGOs, etc.). Responsibility for the identification of trafficking victims lies with law enforcement agencies specialising in this area. When the statements made by an applicant for international protection or the evidence put forward in support of the application suggests that he or she is a victim of trafficking in human beings, the authority establishing international protection (in Spain, the Asylum and Refuge Office) sends this information to the General Commissariat for Alien Affairs and Borders, which then forwards it to the specialised regional units responsible for identifying victims of trafficking. This does not affect the processing of the application for international protection. Applications for international protection, including those filed by victims of trafficking, are examined on a case-by-case basis, taking into account all relevant factors and circumstances affecting the applicant. The individual evaluation of asylum claims is always carried out taking into account those aspects related to vulnerability and the special needs stemming from them. The police and asylum authorities exchange information for the benefit of the victim. With regard to the detection of potential victims, the majority do not report their situation: only 6% of reports are filed by victims while the remainder are ex officio proceedings initiated by the competent law enforcement authorities to combat trafficking. 8

9 If a victim of trafficking in human beings is detected into the removal procedure, this procedure is stopped and the Framework Protocol for Assistance to Victims of Trafficking is implemented. If detection takes place while the potential victim is being held at a Detention Centre, the Public Prosecutor and the management of the Centre are immediately informed and must make the necessary arrangements with the competent Immigration Units for identifying the victim under the provisions of the Protocol. The detection is also reported immediately to the Immigration Unit of the National Police Force that ordered the detention and to the General Commissariat for Alien Affairs and Borders in order to halt the removal while the victim is identified under the provisions of Article 59a of Organic Law 4/2000. Professionals providing services within the reception and assistance system for international protection applicants, whether at public migration centres or at specialised social entities, are in direct contact with and may detect potential victims of trafficking. For example, the most representative profiles in detection terms are lawyers, psychologists, social workers, mediators and technicians working on socio-occupational integration, medical staff, etc. Given the need to intervene in potential trafficking cases, migration facilities have set up mechanisms for the detection of trafficking victims among the resident population seeking international protection. Through the General Subdirectorate for Immigrant Integration (Subdirección General de Integración de los Inmigrantes, SGII), the Ministry of Employment and Social Security is drafting a protocol for detection and action with victims of trafficking that will apply in all public migration facilities and to subsidised NGO schemes. A standard set of indicators, outlined in the Protocol for Assistance to Victims of Trafficking of Human Beings, is used to assess whether an individual can be considered a victim. In order to be granted a residence authorisation, only the victim (or their legal representative) may apply for the procedure. When the victim is a minor, the necessary steps are taken to establish the identity, nationality and/or place of origin of the individual and, if unaccompanied, the means for locating his/her family and guaranteeing their representation are made available. Special attention must be paid to trafficked unaccompanied minors (UAM) because of their particular vulnerability, so reception measures tailored to the needs of the minor are taken until a permanent solution can be found. The durable solution about the 9

10 future of these individuals must be adopted as soon as possible and may consist in their return to and reintegration in their country of origin, the granting of international protection status, or the granting of a residence or work and residence authorisation as appropriate. 10

11 Section 1 Residence permits, protection statuses and national programmes available to victims of trafficking in Member States Q1. What residence permit(s) specifically for victims of trafficking in human beings are available in your Member State? (list them here) The protection of victims of trafficking in human beings is recognised under Organic Law 4/2000 of 11 January 2000 on the rights and freedoms of foreigners in Spain and their social integration, as amended in 2009, and its implementing regulations. The following authorisations are available for irregular migrants who have been the victims of trafficking: a) Temporary stay authorisation during the recovery and reflection period granted to foreigners in respect of which there are reasonable grounds to believe that they have been trafficked. Involves the suspension (or non-initiation) of disciplinary proceedings for irregular residence. b) Provisional work and residence authorisation: while the application is processed, if the authority issues a favourable report. c) Finally, work and residence authorisation due to exceptional circumstances for foreign victims of human trafficking, valid for 5 years. Q1a) Are they conditional on cooperation with the authorities? No. Temporary work and residence authorisation due to exceptional circumstances may be granted for cooperation in the investigation of the crime or due to the personal situation of the victim. Q1b) In which year was it/were they introduced? In 2009; before this time, temporary work and residence authorisations could be granted in exceptional circumstances based on a more general provision relating to the cooperation of foreigners in the investigation of organised illegal immigration networks. 11

12 Q2. Are international protection status(es) granted to third-country nationals for the reason of being a victim of trafficking in human beings in your Member State? Trafficking does not accord this status per se, although it may be granted in the event of concurrent circumstances evidencing persecution of the victim. Q2a) If yes, please name which statuses are granted here Q3. Does your Member State have a national referral mechanism? Yes. 12

13 Section 2 Detection, identification and referral of victims in International Protection Procedures 2.1. Legislative framework Q4. Are there established mechanisms for detecting and identifying victims of trafficking in human beings in the procedure for international protection? Yes. Q4a) If yes, please state whether one of the scenarios below or a combination thereof applies in your (Member) State: a) Process for detection and identification of victims in the procedure for international protection is outlined in legislation (if yes, provide reference to the legislation) Article 140 of the Immigration Regulation (approved by Royal Decree 557/2011) provides for the adoption of a Framework Protocol for Protection of Victims of Human Trafficking that affords adequate protection to victims and coordination between the parties involved. b) Process for detection and identification in the procedure for international protection is outlined in soft law e.g. a protocol (if yes, provide the reference) Pursuant to Article 140 of the Immigration Regulation cited above, a Framework Protocol for Protection of Victims of Human Trafficking was adopted in October 2011, following the agreement of the Ministries of Justice, the Interior, Employment and Social Security (Immigration and Emigration) and Health, together with the Council and governing body of the Spanish judiciary. This Protocol establishes a mechanism for the detection, identification, assistance and protection of victims of trafficking in human beings that involves the stakeholders. c) Process is not outlined in official documents, but there is a working system or standard practice in place, which is understood and used by the actors concerned (if yes, provide a brief description) Q5. Are there different protocols and/or practices for children and adults? No. 13

14 Q5a) If yes, please briefly describe how these differ and why Q6. Are there different protocols and/or practices for men and women? No. Q6a) If yes, please briefly describe how these differ and why 2.2. Detection and identification of victims Q7. How are (potential) victims of trafficking in human beings detected in procedures for international protection? Q7a) Please state whether one of the scenarios below or a combination thereof is applicable to your (Member) State. For each, state Yes/No and (if yes) give a brief description of how this works: a) The competent authority proactively screens all applicants for indications of trafficking in human beings b) The competent authority proactively screens applicants with a particular profile for indications of trafficking in human beings (please provide information on the type of profile) c) Victims self-report d) Another actor in contact with the victim draws attention to the potential victimisation (if so, please refer to section 3.4 if (optionally) completed) e) Other (please specify) When the statements made by the applicant and the evidence put forward in support of his/ her application for international protection suggests that he/she may be a potential victim of trafficking in human beings, the authority that decides on the granting of international protection (the Asylum and Refuge Office in Spain) sends this information to the General Commissariat for Alien Affairs and Borders, which then forwards it to the police services responsible for identifying victims of trafficking in human beings. This does not affect the processing of the asylum application. This signals the start of the protection system described in the answer to Question 1. 14

15 Q7b) Is there a stage the applicant for international protection can no longer be screened (e.g. after the first negative decision)? If yes, please describe the circumstances Potential victims of trafficking in human beings can be detected at all stages of examination of the application for international protection and indeed afterwards (the conclusion of the international protection procedure does not dictate the conclusion of the process of identifying potential victims). Q8. If the competent authority detects that an applicant may be a victim of trafficking in human beings, what are the next steps in terms of assessment? Mechanisms are set up to determine whether the applicant is indeed a victim. Q8a) Does the Member State apply a standard set of indicators to assess whether the person is a (potential) victim? Yes. a) If yes, please give further details, provided the information is not considered of a sensitive nature. How have these been developed? Are they based, for example, on international standards? Officials of the Asylum and Refuge Office work with the indicators outlined in the Framework Protocol for Protection of Victims of Human Trafficking cited earlier (indicators linked to behavioural traces, related to the circumstances of transit and the journey, etc.). Q8b) Are other mechanisms used by the competent authority to assess whether a person detected as a (potential) victim should be identified as such (or referred on to formal identification procedures)? No. Interviews are generally used in all international protection procedures and can prove very useful in the case of victims of trafficking. a) If yes, what are these? b) If not, why not? The Framework Protocol on Human Trafficking ensures adequate coordination between the different actors involved in the detection of victims of trafficking in human beings (primarily, law enforcement entities but also social and employment services, officials at detention centres or asylum authorities, NGOs particularly those working in transit areas), 15

16 although responsibility for identification rests with the specialist police authorities enforcing the legislation in this area. Q8c) If, following detection, the third-country national concerned is not assessed as a (potential) victim, what happens? Can the third-country national seek an alternative assessment elsewhere? Following the preliminary detection of a potential victim of trafficking in human beings by the international protection authorities, responsibility for further assessment lies with the law enforcement authorities specialised in identifying and investigating trafficking in human beings. This does not affect the international protection procedure. All of the above is without prejudice to any legal remedies against administrative decisions. Q9. Have methods for the detection and/or identification of victims in international protection procedures been evaluated in your Member State? Yes. Q9a) If yes, how well are they considered to be working? Is there any evidence to suggest that (potential) victims are going undetected/unidentified? Considerable progress has been made in detection and identification. The Asylum and Refugee Office has introduced a communication protocol by which the National Police Force is informed of all potential cases, which has led to the identification of 58 cases since Nonetheless, there is always room for improvement in this matter. Q9b) If no, please provide any other evidence of the effectiveness (or otherwise) of detection/identification in international protection procedures 2.3. Referral Q10. If an applicant is identified as a (potential) victim, can s/he access tailored statutory assistance and support whilst remaining in the international protection procedure (i.e. without referral to other procedures)? Yes. Persons seeking international protection who are detected or identified as (potential) victims of trafficking are referred to specialised entities offering comprehensive care and legal services, tailored support, and other specialist services designed to address their specific needs. 16

17 The care programmes for victims of trafficking are managed by organisations and entities with proven experience in this area and are funded mainly by public calls for government aid (from the Ministry of Health, Social Services and Equality and the Ministry of Employment and Social Security) and, where appropriate, autonomous communities. The services designed to meet the comprehensive support needs of trafficking victims that can be funded by public grants are: Specialist legal advice and interpretation. 24-hour telephone support. Information. Access to adequate and safe accommodation. Social care and coverage of basic needs. Medical and psychological care. Training and support for job searching. In healthcare, applicants for international protection and victims of trafficking in human beings have access to the basic common portfolio of health services of the National Health System and to medical or any other type of care required to meet their specific needs during the period for which their temporary stay in Spain is authorised. Q10a) If yes, please briefly describe how the assistance is provided (e.g. state programme, access to general state welfare services, government-funded assistance provided by NGOs, etc.) The technical staff of facilities providing care for applicants for international protection or any other intervention programme may refer asylum seekers to resources that specialise in the care of victims of trafficking in human beings as soon as evidence emerges to suggest that they could be potential victims. The organisations and entities specialising in victims of trafficking in human beings care for individuals regardless of whether they have been identified as victims of human trafficking by the competent authorities. Q10b) If yes, describe under what conditions the assistance can be provided (without referral to other procedures) specifically, does the (potential) victim have to be formally identified by a competent authority (e.g. law enforcement) in order to access the assistance? (Yes/No) if yes, state which authorities are competent 17

18 The technical staff of facilities providing care for applicants for international protection or any other intervention programme may refer asylum seekers to resources that specialise in the care of victims of trafficking in human beings as soon as evidence emerges suggesting that they could be potential victims. The organisations and agencies specialising in victims of trafficking in human beings care for individuals regardless of whether they have been identified as victims of human trafficking by the competent authorities. Q10c) What mechanisms are in place to facilitate this type of referral (to assistance, whilst remaining in international protection procedures)? Are there any agreements in place? Does it form part of a National Referral Mechanism? Individuals are referred to specialised resources by directly contacting the organisations and entities with specific care programmes for this group. There is a National Referral Mechanism coordinated by the Ministry of Health, Social Services and Equality, which has drawn up a guide to resources for the care of victims of trafficking for sexual exploitationl, 1 attached as Annex IV to the Framework Protocol for Protection of Victims of Human Trafficking of 28 October Q10d) Are there any obstacles to this type of referral? The main obstacles in the victim referral process relate to material response capacity in: Specific programmes and resources for satisfying the needs of victims of trafficking for labour exploitation. Shelter for victims of trafficking for sexual exploitation with dependent children. Q11. If an applicant is identified as a (potential) victim and there is the possibility to change to (or participate in parallel in) procedures as foreseen under Directive 2004/81/EC or national equivalent measures how does this work in practice? The international protection procedure will continue to apply so long as the victim status does not prevent the adoption of a final decision on the international protection application,

19 without prejudice to any other specific procedures concerning the applicant s status of trafficking victim that may be performed simultaneously through the protection system laid down in Organic Law 4/2000. Q11a) Does the applicant have to withdraw from the procedure for international protection in order to do so? No. a) If yes, can s/he re-open the procedure for international protection if s/ he is not granted a residence permit under Directive 2004/81/EC? Yes/No, please elaborate the process b) If no, please elaborate how does this work in practice? Does the victim have to be formally identified by a different competent authority? (Yes/ No) if yes, state which authority The police authorities are responsible for identification and may, in the case of asylum seekers, determine this on the basis of a previous detection of potential victims by the asylum authorities as a result of information supplied as part of the international protection procedure. Q11b) How is referral to the procedure as foreseen under Directive 2004/81/EC organised? Please highlight which one option, or a combination thereof, is applicable in your Member State: a) The victim is given information on his/her rights and possibilities, but has to initiate the procedure on his/her own (where applicable with the help of his/her legal representative). Yes. b) The competent authority contacts the authorities responsible for issuing a reflection period or residence permit. (If yes, please elaborate). Yes. c) There is a national referral/cooperation mechanism that helps him/her. (If yes, please elaborate). Yes. Q11d) Can the applicant s dossier/evidence gathered to date in the procedure for international protection (e.g. personal interview) be transferred to and used in the new procedure for a reflection period or residence permit as foreseen under Directive 2004/81/EC? Yes/No/in some cases (please elaborate) The competent authorities share information in the interests of the victim while ensuring confidentiality and data protection. The files are nonetheless kept separated in their respective procedures. 19

20 Q12. If an applicant is identified as a victim and there is the possibility to change to obtain a residence permit (other than that described in Q11) or international protection status on grounds of being a victim of trafficking in human beings, how does this work in practice? Organic Law 4/2000 applies and the police and immigration authorities intervene. Q12a) Can the applicant (where relevant, with the support of his/her legal representative) decide whether or not s/he wishes to apply for the residence permit/international protection on these grounds? Yes. Q12b) If yes, please name the title of the residence permit/protection status and the conditions under which (potential) victims of trafficking in human beings can apply for it Work and residence authorisation due to exceptional circumstances. Q12c) Does the (potential) victim have to be formally identified by a competent authority (e.g. law enforcement) in order to apply for the residence permit/ protection status? Yes. If yes, state which authorities are competent. The police authorities. Q12d) When can the application procedure be started? Please highlight which one option, or a combination thereof, is applicable in your Member State: a) When a first instance decision has been made as to whether the applicant can be granted asylum b) When a first instance decision has been made both in regard of whether the applicant can be granted asylum and, if not, whether s/he can be granted subsidiary protection c) When the third-country national has received a (final) negative decision on his/her application for asylum d) When the third-country national has received a (final) negative decision on his/her applications for (other types of) international protection e) When the foreign national files the application 20

21 Q12e) How is referral to the procedure for the residence permit/international protection on grounds of being a victim of trafficking in human beings organised? Please highlight which one option, or a combination thereof, is applicable in your Member State: a) The victim is given information on his/her rights and possibilities, but has to initiate the procedures on his/her own (where applicable with the help of his/her legal representative). Yes. b) The competent authority starts up the procedure for the other form of protection. (If yes, please elaborate) c) There is a national referral/cooperation mechanism that helps him/her. (If yes, please elaborate) Q12f) Can the applicant s dossier/evidence gathered to date in the procedure for international protection (e.g. personal interview) be transferred to and used in the new procedure? Yes. Q13. Have systems of referral of (potential) victims of trafficking in human beings from international protection procedures to other procedures been evaluated in your Member State? Yes. Q13a) If yes, how well are they considered to be working? As explained in the answer to Question 9, the steps taken towards coordination have led to the identification of 58 cases of trafficking. Nonetheless, there is still room for improvement. Q13b) If no, please provide any other evidence of the effectiveness (or otherwise) of referral here) 2.4. Detection and identification and referral in relation to Dublin procedures Q14. If, in accordance with Council Regulation 343/2003, the competent authority decides that another Member State is responsible for examining the application for international protection (i.e. Dublin procedures apply) and the 21

22 applicant is detected as a (potential) victim of trafficking in human beings, does this trigger Article 3(2) and/or Article 15 of the Regulation i.e. can the Dublin transfer be suspended? Answer: If yes, please answer the following questions: Q14a) If yes, how are (potential) victims subject to Dublin transfers detected? Please specify which applies: a) The competent authority proactively screens all applicants subject to Dublin transfer for indications of trafficking in human beings b) The competent authority proactively screens applicants subject to Dublin transfer with a particular profile (please provide information on the type of profile) c) There is no systematic screening, but victims can self-report/other actors can draw attention to the potential victimisation (cf. section 3.4 if (optionally) completed) d) Other (please specify) The asylum and subsidiary protection procedure, and thus, the application of the Dublin Regulation, followed in Spain is under the responsibility of an administrative body called «Asylum and Refuge Office». Whenever this body handles a procedure, should the responsible officer detect any clue that the person concerned may be a victim of trafficking in human beings, he informs the police -, namely, the Commissioner General of Foreigners and Immigration, as well as the Provincial Brigade of Foreigners and Borders (UCRIF), of the address of the potential victim. Q14b) If a (potential) victim is detected, what are the next steps in terms of assessment and identification? Is there a specific level of evidence needed to suspend a Dublin II transfer? The same protocol as described for applicants for international protection is applied (preliminary detection by the asylum authorities, based primarily on information supplied by the applicant during the interview, and referral to the police authorities responsible for further assessment and identification of victims of trafficking in human beings). Police officers of UCRIF units have specific training in this area and this makes them specialized agents in the detection of victims of trafficking in human beings. They start the 22

23 different protocols and plans for the protection of victims of trafficking in human beings taking all necessary steps to identify potential victims. In order to carry out the identification, they apply the indicators set out in Annexes to the Framework Protocol for the Protection of Victims of Human Trafficking approved on 28 October 2011 by the Ministries of Justice, the Interior, Employment and Social Security, Health, Social Services and Equality, and by the Attorney General and the General Council of the Judicial Power, as well as an interview guideline for victims of trafficking which is also annexed to the Protocol. Q15. If being a victim of trafficking in human beings does not trigger Article 3(2) or Article 15 in your Member State can Dublin II transfers be suspended anyway? Yes/No/in some cases. Please elaborate on your answer Any repatriation procedure or transfer of the potential victim is immediately suspended until the identification process is finished. The potential victim is offered the opportunity to benefit from a recovery and reflection period, and subject to the victim s acceptance, the procedure is decided upon by the executive authority. If that authority grants the period of recovery and reflection, a minimum period of 30 days is established to allow the victim to consider whether he/she will cooperate with the authorities. Appropriate rights are granted and the victim can access them by means of formalized documents (health, psychological and legal assistance, accommodation in a specialized center, security as protected witness, voluntary return, etc.) as well as the temporary residence authorization which may eventually become permanent if the victim cooperates with police authorities or just on the grounds of being a victim of trafficking. This decision is made on an individual basis, taking into account all relevant factors, including the vulnerability of the person. Q16. Are third-country nationals subject to Dublin procedures informed of possibilities offered under Directive 2004/81/EC or national equivalent measures, or other residence possibilities? Information contained in Directive 2004/81/EC is reproduced in our national legislation in art. 59.bis, of the Organic Law 4/2000 of 11 January on the rights and freedoms of foreigners in Spain and their social integration. When any repatriation procedure involves the foreigner s arrest, legal assistance is guaranteed, and a lawyer will provide guidance as regards applicable protecting rights. All of this regardless of the fact that the officer of 23

24 the Asylum and Refugee Office who carries out an interview with the person concerned might detect evidence that this is a victim of trafficking, in which case the above described procedure will be initiated Future measures Q17. Are any future measures anticipated in relation to improving or facilitating the detection and identification of victims of trafficking in human beings in procedures for international protection? Yes. Q17a) If yes, please briefly describe the anticipated measures here: what type of mechanisms to be covered, actors involved, etc. The regulation implementing the asylum law, currently at the drafting stage, contains provisions for applicants with special needs, which include victims of trafficking, for the purpose of according applicants the necessary rights in the international protection procedure. Q17b) If no, are there any obstacles to the introduction of measures? 24

25 Section 3 Detection, identification and referral of victims in Forced Return Procedures 3.1. Legislative framework Q18. Are there established mechanisms for detecting and identifying victims of trafficking in human beings in forced return procedures? Yes, the Framework Protocol for Protection of Victims of Human Trafficking adopted on 28 October 2011 sets out guidelines for the detection, identification, assistance and protection of victims of trafficking in human beings and encourages coordination among the institutions involved in these processes while also defining the mechanisms of relations between the authorities and those with responsibilities in this area. Further, it outlines the processes of communication and cooperation with organisations and entities that have proven experience in assisting victims of trafficking, particularly those providing comprehensive assistance and participating in government schemes for the welfare and protection of such victims. Q18a) If yes, please state whether one of the scenarios below or a combination thereof applies in your (Member) State: a) Process for detection and identification in forced return procedures is outlined in legislation (if yes, provide the reference) Organic Law 4/2000 of 11 January 2000 on the rights and freedoms of foreigners in Spain (Ley Orgánica 4/2000) and its implementing regulations approved by Royal Decree 557/2011 of 20 April. b) Process for detection and identification in forced return procedures is outlined in soft law e.g. a protocol (if yes, provide the reference) The process is outlined in immigration regulations and in the following documents: a) Police Plan to tackle Trafficking in Human Beings for Sexual Exploitation. b) Framework Protocol for Protection of Victims of Human Trafficking. c) Comprehensive Plan to tackle Trafficking in Human Beings for Sexual Exploitation. d) Communications Protocol relating to Victims of Human Trafficking. e) Code of Practice for the Investigation of Human Trafficking. 25

26 c) Process is not outlined in official documents, but there is a working system or standard practice in place, which is understood and used by the actors concerned (if yes, provide a brief description) Other procedures are adopted by different actors involved in the struggle against trafficking in human beings, such as NGOs, social services, other public authorities, etc. Q19. Are there different protocols and/or practices for children and adults? Yes, they are outlined in the Framework Protocol for Protection of Victims of Human Trafficking. Q19a) If yes, please briefly describe how these differ and why Minors are not subject to forced return procedures (expulsion, return); the entity responsible for proceedings against minors is the Juvenile Prosecution Service, which always takes into account the best interests of the minors and may repatriate the latter provided that comprehensive safeguards are in place for him/her (legal, social, psychological, etc.) if this is in the best interests of the minors. There are also specific aspects relating to age determination evidence. Q20. Are there different protocols and/or practices for men and women? No, only police experience and practice are taken into account when it comes to the treatment of victims; it is preferable for victims to be dealt with by officers of the same sex and this is given particular importance in the case of women. The above is outlined in the Framework Protocol for Protection of Victims of Human Trafficking. Q20a) If yes, please briefly describe how these differ and why 3.2. Detection of victims Q21. How are (potential) victims of trafficking in human beings detected, amongst rejected applicants, in forced return procedures? Once the application for international protection is rejected, but during enforcement there are statements or indicators suggesting that the individual may be a victim of human 26

27 trafficking, he or she is transferred to the specialist units of the National Police Force for reassessment of circumstances in relation to trafficking in human beings. Q21a) Please state whether one of the scenarios below or a combination thereof is applicable to your (Member) State. For each, state Yes/No and (if yes) give a brief description of how this works: a) The competent authority proactively screens all applicants for indications of trafficking in human beings Yes, the various circumstances that may affect victims in each of the procedures undertaken are observed. b) The competent authority proactively screens all rejected applicants with a particular profile for indications of trafficking in human beings (please provide information on the type of profile) Yes, police experience has shown that there are certain profiles: From Eastern European countries: Between the ages of 18 and 30, although minors have also been detected. The majority come from small towns or villages; only a minority of victims come from capital cities. Most victims have family responsibilities they need to meet: children, family, a sick relative, etc. Some of the victims do not know Spanish, which makes it very difficult to get close to them. They live in apartments provided by the trafficking network, from which they are taken to the place of exploitation. They normally move around as a group. From African countries: Between the ages of 18 and 24, although minors have also been detected. Low educational level and job training. They do not usually speak Spanish but many have a good general command of English. They live in overcrowded apartments belonging to the network. The majority are located in city suburbs. 27

28 Most victims have family responsibilities in their country of origin. Most victims do not have information on safe sex practices. Over time, they obtain access to this information and usually put it into practice. From Asian countries: The victims live in overcrowded, deplorable living and working conditions in the textile and hospitality industries. They acquire debts of e 5,000 to e 20,000. From Latin American countries: Between the ages of 20 and 45. Most victims have family responsibilities in their country of origin. They have 3 children on average. The victims typically live in boarding houses and subsequently in overcrowded shared apartments sometimes provided by the network itself. They have a low or very low educational level and few to no qualifications. They acquire debts of e2,000 to e4,000. Specific indications relating to victims of labour exploitation: The victims are in bonded labour and, hence, are under pressure to conform or demonstrate their commitment. Injury caused by hard or dangerous work (scars, chronic problems, back pain, hearing loss, visual loss, respiratory problems, cardiovascular problems and even limb amputation). Several sources indicate that trafficked minors are mainly into forced begging and, to a lesser extent, sexual exploitation. Specific indications relating to trafficked children: Emotional problems: depression, anxiety, isolation, excessive daydreaming, regressive behaviour, lack of emotional control, recurrent and varied phobias, psychosomatic problems or emotional lability, extreme feelings of guilt or shame. Behavioural problems: aggression, running away, criminal behaviour, excessive drinking and drug use, self-destructive behaviour or suicide attempts. 28

29 Indicators of sexual behaviour: sexual behaviour inappropriate for the child s age (compulsive masturbation, oral-genital fondling, sexually seductive behaviour, sexual aggression towards smaller children or peers), sexual knowledge and statements inappropriate for the child s age. Problems in cognitive development: speech delays, attention problems, school failure, withdrawal, impaired performance, non-organic growth delays, frequent accidents, slow psychomotricity or hyperactivity. Physical indicators: difficulty walking or sitting, injuries, strains, bruised sexual organs, irritation of the anogenital area, infections in genitalia and urinary tract, venereal disease, presence of sperm, pregnancy, evident defecation difficulties, enuresis or encopresis. Growth-related health problems caused by malnutrition: very short stature for the child s age, dental malformation or decay, underdeveloped reproductive systems in adolescents. c) Victims self-report Most victims do not report their situation: only 6% of reports are filed by victims while the remainder are ex officio proceedings initiated by the competent law enforcement authorities to combat trafficking. d) Another actor in contact with the victim draws attention to the potential victimisation (if so, please refer to section 3.4 if (optionally) completed) See sections 3 and 4. e) Other (please specify) Q22. If the competent authority detects that a rejected applicant may be a victim of trafficking in human beings, what are the next steps in terms of assessment? If a victim of trafficking in human beings is detected into the removal procedure, this procedure is stopped and the Framework Protocol for Assistance to Victims of Trafficking is implemented. Q22a) Does the Member State apply a standard set of indicators to assess whether the person is a (potential) victim? Yes, these are outlined in the Protocol for Assistance to Victims of Trafficking. 29

30 a) If yes, please give further details, provided the information is not considered of a sensitive nature. How have these been developed? Are they based, for example, on international standards? See Section 3 Q22b) Are other mechanisms used by the competent authority to assess whether a person detected as a (potential) victim should be identified as such (or referred on to formal identification procedures)? No. a) If yes, what are these? b) If no, why not? The mechanisms outlined in Section 3 are used and considered sufficient. Q22c) What happens if, following the assessment, the competent authority decides that the third-country national concerned is not a (potential) victim? Can the third-country national seek an alternative assessment elsewhere? If it is decided that is not a potential victim, the standard procedures applicable to his/ her administrative status in Spain will be followed. The intervention of all actors involved in combating human trafficking (police, administrative and judicial authorities, the Public Prosecutor, private entities, NGOs) is needed; however, only the government authority can decide on the administrative status of foreign nationals in national territory. Victims always have the option of appealing against the decision of the governing authority. Q23. Have methods for the detection and/or identification of victims in forced return procedures been evaluated in your Member State? Yes, as set out in the Framework Protocol for Protection of Victims of Human Trafficking. Q23a) If yes, how well are they considered to be working? Is there any evidence to suggest that (potential) victims are going undetected/unidentified? Provide evidence The identification protocols are fairly effective, although it can be assumed that they do not lead to the detection of 100% of victims. Q23b) If no, please provide any other evidence of the effectiveness (or otherwise) of detection/identification in forced return procedures here 30

31 3.3. Referral Q24. If a rejected applicant is identified as a (potential) victim and there is the possibility to open up a procedure as foreseen under Directive 2004/81/EC, how does this work in practice? The arrangements provided for in Organic Law 4/2000 and described in the answer to Question 1 are applied. Q24a) Can the rejected applicant (where relevant, with the support of his/her legal representative) decide whether or not s/he wishes to access the provisions of Directive 2004/81/EC or national equivalent measures? Yes. Q24b) How is referral to the procedure foreseen under Directive 2004/81/EC organised? Please highlight which one option, or a combination thereof, is applicable in your Member State: a) The (potential) victim is given information on his/her rights and possibilities, but has to initiate alternative procedures on his/her own (where applicable with the help of his/her legal representative) Yes, he/she is informed of the precepts of the Spanish legislation; however, to obtain a residence authorisation, it has to be the victim (or his/her legal representative) who applies for the procedure, once the recovery and reflection procedure outlined in the answer to Question 1 has been issued. b) The authorities competent for implementing the forced return procedure contact the authorities responsible for issuing a reflection period or residence permit. (If yes, please elaborate) It is the same authority. c) There is a national referral/cooperation mechanism that helps him/her. (If yes, please elaborate) There is a Framework Protocol for Protection of Victims of Human Trafficking that applies to the victim s referral to child protection services, social services and NGOs. 31

32 Q24c) Can the applicant s dossier/evidence gathered to date by the law enforcement authorities be transferred to and used in the new procedure for a reflection period or residence permit as foreseen under Directive 2004/81/EC? Yes. since the competent authorities in the procedure for applying the reflection period are the enforcement authorities (National Police Force). Q25. Have systems of referral of (potential) victims from forced return procedures to other procedures been evaluated in your Member State? Yes. Q25a) If yes, how well are they considered to be working? The procedures to which these victims are referred are witness protection procedures if they cooperate with the authorities, or protection based on their personal situation if they do not cooperate; both procedures are standardised with positive results. Q25b) If no, please provide any other evidence of the effectiveness (or otherwise) of such referral mechanisms 3.4. Future measures Q26. Are any future measures anticipated in relation to improving or facilitating the detection and identification of victims of trafficking in human beings in procedures for forced return? Yes. Q26a) If yes, please briefly describe the anticipated measures here: what type of mechanisms to be covered, actors involved, etc. One of the core measures is the training towards the specialization of the main actors in the fight against trafficking (National Police Training Plan), and coordination and collaboration among the different actors. Q26b) If no, are there any obstacles to the introduction of measures? 32

33 Section 4 Detection, identification and referral of victims by other related actors 4.1. Detection and identification of victims in reception centres/detention facilities Q27. How are (potential) victims of trafficking in human beings detected in the following situations: a) Whilst residing in reception centres for applicants of international protection (where these exist in Member States)? b) Whilst detained in detention facilities for irregular migrants awaiting return (where these exist in Member States)? If detection takes place while the potential victim is being held at a Detention Centre, the Public Prosecutor and the management of the Centre are immediately informed and must make the necessary arrangements with the competent Immigration Units for identifying the victim under the provisions of the Protocol. The detection is also reported immediately to the Immigration Unit of the National Police Force that ordered the internment and to the General Commissariat for Alien Affairs and Borders in order to halt the removal while the victim is identified under the provisions of Article 59a of Organic Law 4/2000. Q27a) Please state whether one of the scenarios below or a combination thereof is applicable to your (Member) State: a) All residents/detainees are screened for indications of trafficking in human beings Yes. b) All residents/detainees with a particular profile for indications of trafficking in human beings Yes. c) Victims self-report Sometimes. d) Another actor in contact with the victim draws attention to the potential victimisation (if so, please refer to section 3.4 if [optionally] completed) There are many professionals in direct contact with potential victims who reside or have resided in detention centres that can warn their victimisation. See the answer to Question 34 (Section 4.3). 33