Ad-Hoc Query on EEA citizens as victims of trafficking. Requested by AT EMN NCP on 9 th April Compilation produced on 8 th May 2013

Transcription

1 Ad-Hoc Query on EEA citizens as victims of trafficking Requested by AT EMN NCP on 9 th April 2013 Compilation produced on 8 th May 2013 Responses from Austria, Bulgaria, Finland, France, Germany, Hungary, Latvia, Luxembourg, Malta, Netherlands, Poland, Spain, United Kingdom plus Norway (15 in Total) Disclaimer: The following responses have been provided primarily for the purpose of information exchange among EMN NCPs in the framework of the EMN. The contributing EMN NCPs have provided, to the best of their knowledge, information that is up-to-date, objective and reliable. Note, however, that the information provided does not necessarily represent the official policy of an EMN NCPs' Member State. 1. Background Information In Austria, the transposition of Directive 2004/81/EC has led to the introduction of a Residence Permit special protection for victims of trafficking or exploitation. According to Art. 7 of Directive 2004/38/EC, all Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or [ ] 1 of 5

2 (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) [ ]. Thus, EEA citizens who are victims of trafficking or exploitation but who do not meet the conditions of Article 7 of Directive 2004/38/EC do not have a right of residence for a period of longer than three months. In Austria, every second victim of trafficking is an EEA citizen who does not meet the conditions of Directive 2004/38/EC. This can lead to problems in the issuance of registration certificates. Contrary to the provisions of Directive 2004/38/EC, Directive 2004/81/EC does not require sufficient resources or a sickness insurance. Thus, understanding the practice of other Member States in this regard can be very helpful for Austria to address the challenge. 1. How does your Member State treat EEA citizens who are victims of trafficking or exploitation but who do not meet the conditions set out in Art. 7 of Directive 2004/38/EG (who are not workers or self-employed persons and have no sufficient resources)? 2. Does your Member State issue a registration certificate in such a case? 3. Does your national legislation contain specific exceptional provisions for this group of persons? 4. How many of these do occur per year in your Member State? 2. Responses Wider Dissemination? Austria No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further Bulgaria Yes 1. EEA citizens in the above mentioned case should be treated according to the art.25 of Law on Combating Trafficking in Human Beings, according to which persons who are victims of human trafficking and have agreed to cooperate in identifying the perpetrators of trafficking, are provided with special protection for the duration of the criminal proceedings, which include: authorizing the continued residence of foreign nationals and continued stay in the shelters. 2. No. 3. No, concerning the Law on Entering, Residing and Leaving the Republic of Bulgaria by EU Citizens and Their Families where Directive 2004/38/EC is transposed. 4. There is not registered such case according to the national legislation. Finland Yes 1. and 2. Primarily EEA-citizen has to register his/ her right of residence with the local police authority. If the legal requirements for registration are not fulfilled (Aliens Act 159 ), secondarily a victim of human trafficking can be granted a residence permit, which is primarily meant for so called third country nationals (Aliens Act 52 a ) which is a residence permit corresponding to the regulations of the Council 2 of 5

3 Directive 2004/81/EC)." The idea behind using this procedure is that EEA citizen can not be treated worse than a third country national. Proof of adequate means of support is not a prerequisite for the granting of a residence permit to a victim of human trafficking, so this is an easier way of granting a residence permit than what it would be for a EU citizen to register his/her stay. 3. No national legislation exists for this group of persons. 4.So far Finland has granted one (1) residence permit meant for a victim of human trafficking (Aliens Act 52 a ) to an EEA citizen. In 2010 there was one case and in 2012 one case with indications of human trafficking. The first case mentioned was an asylum applicant who received a negative decision and the second case was a residence permit applicant, who received a positive decision based on Alien s Act 52a 2. France Yes French legislation does not provide any particular treatment or specific exceptional provisions for EEA citizens who are victims of trafficking or exploitation. Provisions applicable to this group of persons correspond to the general measures developed in French legislation on the protection and information of victims of trafficking in human beings regardless of their nationality. In France, there is no statistical data on the number of EEA citizens recognized as victims of trafficking in human beings. Germany Yes 1. In order to claim their right to freedom of movement, the persons concerned must - as a matter of principle - fulfil the general requirements (e.g. ensuring their means of subsistence). In addition, the loss of the right to entry and residence is being determined in accordance with the general valid provisions. This means a comprehensive examination which takes into account the characteristics of the individual case (period of residence, family relationships etc.). 2. A certificate on the right to freedom of movement will generally no longer be issued. The persons concerned will not be given such a specific certificate. 3. No. 4. Completed police investigation procedures in 2011 revealed that 560 persons (87.5%) who were victims of trafficking in human beings for sexual exploitation came from Europe (2010: 520 persons = 82.5%). Victims of trafficking in human beings for the exploitation of labour were in 2011 according to current figures 32 persons (2010: 41 persons) the majority of which came from Poland (14) and Romania (10). Source: Bundeskriminalamt [Federal Criminal Police Office] under > Bundeslagebild Menschenhandel 2011 [Federal Situation Report regarding trafficking in human beings 2011]. Hungary Yes In Hungary there are only few cases where trafficking in human beings has been identified. Special residence conditions of victims of trafficking or exploitation are only mentioned in migration legislation concerning third-country nationals, Act I of 2007 on the entry and residence of persons with right to free movement and residence does not set out specific provisions for victims of trafficking. Yet as for proving sufficient resources set out by Directive 2004/38/EC the provisions of Act CXXXV of 2005 on Crime Victim Support and State Compensation can be invoked as it also applies to Union citizens based on the 3 of 5

4 principle of equal treatment and as a result financial help could be provided for an EU citizen victim of trafficking, as well. Consequently sufficient resources could be provided this way even by EU citizen victims. As for deciding when such a person means unreasonable burden it is the competence of the immigration authority to decide on this taking into account all the relevant circumstances. Latvia Yes 1. Registration certificate could be issued to EU/EEA citizen in case if she/he has sufficient financial resources. However, in the cases of human trafficking the existence of sufficient financial resources could be evaluated more flexibly and registration certificate issued. 2. There have not been any applications from EU/EEA citizens in such cases. If there would be and the presence of a person would be necessary for investigation, a registration certificate would be issued even in case of lack of sufficient resources. 3. No 4. There have not been any cases where citizens of other EU countries would be involved. Luxembourg Yes 1.EEA nationals are considered by the Law of 29 August 2008 on freedom of movement and immigration as assimilated to EU nationals. Article 2 (3) of the law of 8 May 2009 on assistance, protection and security of victims of human trafficking establishes that the victim who is a EU national or EEA national and benefits from financial assistance must fulfill the condition established by article 6 (1) 2 of the law of 29 August 2008 on free moment of persons and immigration (article that transposed the same condition established in article 7 (b) of the Directive 2008/38/EC).. These disposition targets «inactive» persons who will like to stay and live in Luxembourg for a period longer than three months and require them to dispose of sufficient resources so they will not become a burden for the social assistance system. 2. A registration certificate will be issued in accordance with article 8 of the Law of 29 August No. 4. Luxembourg has not been confronted with any case of EEA national victim of human trafficking since the entering into force of the two laws mentioned above. Malta No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further Netherlands No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further Poland No This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further Spain Yes 1. The Fourth Final Provision of the Royal Decree 240/2007, paragraph 2, establishes that the general regulations contained in the Organic Law 4/2000, of 11 January, on the rights and freedoms of aliens in Spain and their social integration, as well as the regulations in force on the matter, will apply to the cases within the scope of the present Royal Decree, with a subsidiary character and provided that they are more favourable than -and are not in conflict with- the provisions of the Treaties establishing the European Communities, as well as of the laws derived from such Treaties. Therefore, the article 59bis on victims of trafficking in human beings of the aforementioned Organic Law 4/2000 will apply to them (the victims). This article, among other provisions, provides that the competent authorities may 4 of 5

5 declare the victim to be exempt from administrative responsibility and facilitate him/her, if so wished, with assisted return to the country of departure or may grant him/her a residence and work permit on the grounds of exceptional circumstances, when this is considered necessary in view of the subject s cooperation for the purposes of the investigation or the criminal proceedings, in view of the subject s personal situation, as well as providing him/her with assistance for his/her social integration, pursuant to the provisions contained in this Organic Law. Furthermore, until a decision is taken regarding the granting or otherwise of a residence and work permit on the grounds of exceptional circumstances, a provisional residence and work permit may be issued under the terms to be established in the enacting regulations. 2. Yes, as mentioned in the answer to question one. 3. Yes, as mentioned in the answer to question one, these exceptional circumstances for victims of trafficking in human beings are referred to in the Organic Law 4/2000, of 11 January, on the rights and freedoms of aliens in Spain and their social integration (article 59bis) and also referred to in the Royal Decree 557/2011 of Aliens Act Implementing Regulation (from article 140 to 146). 4. During 2012, about 30.4 % of the victims were citizens of an EEA Member State. United Kingdom Yes The presumption is EEA nationals can either remain in the UK exercising treaty rights or return home safely. We still issue residence permits to EEA nationals on the basis of cooperation with a police investigation or due to personal circumstances to ensure that they are not disadvantaged in comparison with non-eea nationals, but given the range of rights they already enjoy such grant are the exception rather than the norm. Approximately 27% of potential victims of trafficking referred to the National Referral Mechanism were EEA nationals. Norway Yes 1 and 3. The Norwegian immigration regulations provide for three different permits for VoTs: (i) Reflection period, (ii) Temporary residence permit and (iii) Residence permit for witnesses in cases concerning human trafficking (cf. Immigration act section 38 second paragraph; and Immigration regulations section 8-3 and 8-4). The Reflection period is a six-months residence permit for persons identified as possible victims of human trafficking (criteria: reasons to believe the person is a victim of human trafficking/prepared to receive assistance and protection). This is a low-threshold offer. EEA citizens are covered by these regulations, even if they do not meet the conditions in Art. 7 of Directive 2004/38/EG (which is regarded as part of the EEA Agreement). 2. A residence card is issued to persons who have a residence permit in Norway. In general this is not relevant for EU/EEA nationals, but a residence card is nevertheless issued if the person has a residence permit issued to VoTs as described above VoTs in 2012 were citizens of EEA Member States, out of the 57 who either received a Reflection period (29), a Temporary residence permit (22) or a Residence permit for witnesses (6). Source: The Norwegian Directorate of Immigration (UDI) ************************ 5 of 5