Human Trafficking, EU Law and the European Convention on Human Rights 2 July 2012 Edinburgh The AIRE Centre Mission: To promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Activities: Provide free legal advice to individuals and their advisers on their rights under EU law (mostly EU law on the free movement of persons). Take cases to the European Court of Human Rights (including cases on behalf of trafficking victims facing expulsion). 1 2 Objectives of This Session 1. Improve your ability to identify trafficking victims rights under EU free movement law and the new EU directive on trafficking. 2. Improve your ability to apply European Court of Human Rights case law pertaining to trafficking. Topics We Will Cover 1. Residence rights and benefits under EU law the basics 2. The EU Trafficking Directive (Directive 2011/36/EU) 3. European Court of Human Rights case law pertaining to trafficking 3 4 Who Are EEA Nationals? Nationals of these countries: TOPIC 1: Residence Rights and Benefits under EU Law: The Basics Austria, Belgium, Bulgaria,, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden The UK is not included! A8 countries are underlined A2 countries are hyphen-underlined 5 6 1
Basic Residence Rights A2 Nationals Exemptions A2 nationals are not allowed to workunless they have authorisation or are exempt (although they can be selfemployed). Always check to see if they are exempt. Before 1 May 2011, A8 nationals had to register their work. Permanent residence (normally after five years, earlier in some circumstances) Right to reside for more than three months as a worker, self-employed person, self-sufficient person, student or family member Right to reside for three months 7 Some Bulgarians and Romanians are exempt from the worker authorisation requirement. These include (among others): Workers who have already performed at least 12 months of authorised work Some EEA family members Permanent residents Spouses and civil partners of British Citizens and persons settled in the UK Persons who have leave to remain in the UK under the Immigration Act 1971 and whose leave is not subject to conditions restricting employment Dual nationals of Bulgaria or Romania and the UK or another EEA Member State 8 Family Members: Spouses, Civil Partners, Children and Dependants As long as the EEA national is exercising Treaty rights in the UK, the following family members have a right to live and work here: Spouses and civil partners, including those of the same sex Direct descendants under age 21, including stepchildren and step-grandchildren Other direct descendants who are dependent on the EEA national or the spouse/civil partner (e.g. children, grandchildren) Dependent direct relatives in the ascending line (e.g. parents), including relatives of the spouse/partner Access to Social Assistance Benefits The Benefits: Housing Benefit Council Tax Benefit Income-based Jobseeker s Allowance Income-related Employment and Support Allowance State Pension Credit Working Tax Credit Child Benefit and Child Tax Credit 9 10 The Habitual Residence Test Actual habitual residence Right to reside Not a person from abroad The problem will almost always be the rightto-reside test. Nine Ways to Get an EEA Trafficking Victim Social Assistance Benefits NB: Many of these will not work for many victims, particularly those who are unable to work or seek work. 11 12 2
1. Recovery and Reflection Period You can refer EEA nationals (like anyone else) into the National Referral Mechanism. EEA nationals are entitled to the recovery and reflection period (minimum 30 days, usually 45) just like any other victim. This doesn t actually get them into the benefits system, but does provide support for a limited period while you figure out how to help them obtain access to social assistance. The AIRE Centre can help victims to apply for residence permits. 2. Apply for a Residence Permit EEA victims are eligible for discretionary leave to remain just like any non-eea trafficking victim. While they have discretionary leave they can: Access all benefits, housing and anything else a British Citizen would get Work (relevant to A2 nationals) 13 14 3. Sign on as a Jobseeker EEA national jobseekers who are actually habitually resident and who are actively seeking work and have genuine chances of being engaged are eligible for: Income-based Jobseeker s Allowance Housing Benefit Council Tax Benefit However, they cannot get housing or homelessness assistance. A2 nationals cannot sign on as jobseekers unless they are exempt from the worker authorisation requirement. 4. Work An EEA worker, even working part-time (as little as ten hours per week), is eligible for all of the benefits that a British Citizen would get. 5. Get into Self-Employment Self-employed EEA nationals are eligible for benefits. A2 nationals cannot work unless they are exempt or have authorisation. However, they can be self-employed without any restrictions. 15 16 6. Demonstrate Retained Worker or Self-Employed Status This can be done in a number of ways, but only if the person was a worker or self-employed to start: Show that you were working but are temporarily unable to work due to illness or accident. Sign on as a jobseeker, after having been made involuntarily unemployed.* Undertake vocational training (must be related to previous employment unless made involuntarily unemployed).* 7. Show Permanent Residence Worth pursuing for any EEA national who has lived in the UK for five years or who has become permanently incapacitated. 8. Show You are a Family Member Family members include spouses, civil partners, children under 21, older children who are dependent, dependent relatives in the ascending line. If you are working with someone who has another relative in the UK, there may be a way of applying to be recognised as an other family member. * This only applies to workers, not self-employed persons. 17 18 3
9. Show that You are the Primary Carer of the Child-in-Education of a Worker This rule is not contained anywhere in domestic law. It comes from the Court of Justice of the EU interpretation of the Treaties. When dealing with the benefits authorities, call it the Teixeiraand Ibrahimrule. The rule might also apply if the primary carer is the person who worked. It won t work in the case of A8 nationals who never registered. An EEA national has worked in the UK at the same time that her/his child was in education so the child can stay in the UK to finish her/his education and her/his primary carer can stay and get benefits. 19 Benefits to Which the Right-to-Reside Test Does Not Apply Disability Living Allowance Carer s Allowance Attendance Allowance These have a presence test. However, they are very specific benefits that may not apply to trafficking victims. 20 Immigration Problems EEA victims of trafficking are most likely to face immigration problems if they have not been identified as victims. You should be particularly vigilant if you come across an EEA national in one of these situations. Three problems EEA trafficking victims may face: 1. Expulsion on public policy, public security or public health grounds. 2. Expulsion because not exercising Treaty rights. 3. Voluntary return by a local authority. TOPIC 2: The EU Trafficking Directive 21 22 What is a Directive in EU Law? A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. Principles Related to Directives Transposition Direct effect: clear, unconditional and deadline for transposition has passed Teleological interpretation References to the Court of Justice of the EU: Article 267 of the Treaty on the Functioning of the EU 23 24 4
Let s look at the Directive together Points to pay attention to: Which provisions of the Directive will require changes in order to be transposed properly in the UK? Which provisions will need to be transposed specifically in Scots law? What will you do to make sure those provisions are being transposed in Scotland? TOPIC 3: The Case Law of the European Court of Human Rights 25 26 Failure to have criminal law provisions adequate to prosecute people who trafficked a child for forced domestic labour from Togo to Paris. Foundational Case Law Suspected trafficking for sexual exploitation by use of an artiste visa. Three positive obligations found under Article 4 of the Convention Three positive obligations under Article 4: Legislative/Administrative Framework Protection Investigation Other violations found Article 2 procedural violation (failure of Russia and to cooperate) Article 5 (Cypriot authorities complicity in the detention of the victim in the traffickers flat) Siliadinv France (2005) 27 28 Key Quotations Building on the Court s Case Law Para 320: It is insufficient for the Cypriot authorities to argue that there is no evidence that MsRantsevadid not consent to leaving with M.A.: as the AIRE Centre pointed out (see paragraph 269 above), victims of trafficking often suffer severe physical and psychological consequences which render them too traumatisedto present themselves as victims. Para 282: There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes slavery, servitude or forced and compulsory labour. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. The Russian Government s objection of incompatibilityrationemateriaeis accordingly dismissed. 29 Kawogov United Kingdom (pending) C.N. v United Kingdom (pending) Siliadinv France (2005) Expulsion of trafficking victims Failure to investigate acts of trafficking M v United Kingdom (settled) L.R. v United Kingdom (settled) O.G.O. v United Kingdom (pending) 30 5
Looking Back at the Case Studies Ms AM Czech citizen trafficked for sexual exploitation. Ms EW woman trafficked for domestic labour. Which of these apply: EU law on free movement of persons The Directive (which articles?) Case Law of the European Court of Human Rights (which cases?) Thahn cannabis cultivation. Alice Latvian disabled pensioner. 31 What AIRE Can Do Provide free legal advice on the rights of EEA nationals who are victims of trafficking. Provide free legal advice on other EU law issues related to trafficking. Work with you to take a case to the European Court of Human Rights. 32 Contact sstvincent@airecentre.org aweiss@airecentre.org www.airecentre.org 33 6