The residence permit on personal grounds for trafficked persons, its importance and what the Council of Europe Convention on Action against Trafficking in Human Beings says on it
Most readers of this blog post might be very well familiar with the text of Article 14 (1) of the CoE Convention on Action against Trafficking in Human Beings on residence permits for trafficked persons. It is one of the provisions making the Convention a milestone in strengthening the rights of trafficked persons as this provision makes the issuing of a residence permit an obligation for States and adds the possibility to issue a permit based on the trafficked person’s personal situation.
States Parties fulfil the obligation under Article 14 (1) of the Convention when either granting a residence permit in case of co-operation with the competent authorities or granting a residence permit on the basis of the trafficked person’s personal situation. States Parties can adopt both requirements simultaneously and grant a residence permit in both situations. Residence permits for children should be granted, when legally necessary, based on the best interests of the child (Article 14 (2) of the Convention).
The Convention and its purposes have to be taken into consideration when looking at the different options Article 14 (1) offers to States. The Convention stresses that trafficking in human beings ‘constitutes a violation of human rights’ as stated in its Preamble meaning that trafficking in human beings triggers human rights obligations of States and leading to a violation when failing to protect the individual. The purposes of the Convention include the purpose to protect the human rights of victims, to design a comprehensive framework for the protection and assistance for victims and witnesses while guaranteeing gender equality and the purpose to ensure effective investigation and prosecution.
GRETA is monitoring the implementation of the Convention by its – at the moment – 48 States Parties. In doing so, GRETA stresses the importance of granting temporary residence permits to trafficked persons on the basis of their personal situation as there are several reasons why they may not be in a position to co-operate. As shown for instance in the framework of the project REST – Residence Status: Strengthening the protection of trafficked persons, amongst the reasons can be severe traumatization as a result of trafficking, reprisals victims may face from the traffickers, or lack of systemic efforts of prosecution. GRETA therefore invites the States Parties to the Convention to consider granting renewable residence permits to victims on the basis of their personal situation. GRETA points out that this type of residence ‘tallies with the human rights-based approach to combating Trafficking in Human Beings’.
Why does a human rights-based approach to combating trafficking require issuing residence permits on personal grounds?
In general, the human rights-based approach is a concept that is normatively based on international human rights standards and principles. In the context of human trafficking, this includes international human rights standards as well as the specific legal standards on countering the crime. Operationally, the human rights-based approach means that based on this legal framework, projects, programmes or initiatives against trafficking are developed that promote and protect human rights.
The human rights-based approach aims at empowering rights-holders, for instance trafficked persons, to claim their rights and should enable duty-bearers, usually States, to meet their obligations towards trafficked persons.
Part of the States’ obligation to protect human rights is to ensure that trafficked persons have access to rights such as assistance, protection, reparation and being protected from re-trafficking. Regularizing the stay of a trafficked person is an essential prerequisite for ensuring access to rights, such as assistance and remedies.
Article 12 (6) of the Convention requires States to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness. However, for victims oft trafficking who need a residence permit, this forms in practice a prerequisite for having access to assistance. Issuing residence permits depending on the victim’s cooperation with the authorities thus can undermine unconditional assistance. Linking a residence permit with the victim’s cooperation has been criticized by several authors, for instance by Viviana Waisman calling it ‘a fundamentally flawed principle’ to co-operate and testify first in order to have access to rights.
Ensuring access to a residence permit for trafficked persons is important as ‘it would be very difficult for them to obtain compensation if they were unable to remain in the country where the proceedings take place’, as pointed out by the Explanatory Report of the Convention. In connection with access to compensation, the length of residence permit might be the primary concern – however, challenges in receiving a residence permit in the first place forms an obstacle in being able to claim compensation.
The requirement of ‘co-operation’ and its differing application
Concerning the residence permit based on co-operation with the competent authorities in investigation or criminal proceedings, the Convention as such does not define the term ‘co-operation’ in more detail. Hence, State Parties apply this requirement differently. GRETA has aimed through its reports to clarify the content of this term and thereby of the obligation and has pointed out when legislation or application of State Parties goes beyond the meaning of ‘co-operation’. This would be the case when additional elements are added to the requirement of co-operation. For example, in the context of Slovenia, GRETA has pointed out that the condition of the victim’s testimony being ‘important in the opinion of the authority in charge of the criminal case’ would be an additional element going beyond the victim’s will to co-operate in the investigation.
Factors taken into account concerning the ‘personal situation’
A renewable residence permit not linked to co-operation should be granted when ‘the competent authority considers that their stay is necessary owing to their personal situation’. The explanation of ‘personal situation’ is arguably rather broad and covers, according to the Explanatory Report, ‘a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account’. Further factors listed in the legislation of various States Parties include the age of the person, family ties, work or studies or when the person’s return to the country of origin cannot reasonably be enforced because of the risk of re-victimisation or inadequate available health care.
The importance of monitoring the implementation in practice
Besides these questions of the legal framework on renewable residence permits, trafficked persons face administrative or practical challenges in accessing residence. Monitoring of the implementation of legislation in practice by GRETA as well as by independent national rapporteurs and civil society is essential to ensure that trafficked persons are issued with residence permits in a timely manner granting them access to their rights including compensation or long- term assistance.
Dr. Julia Planitzer is Second Vice-President of the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA).