The Commission presented a communication on the application of Directive 2004/81 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.

The present Communication takes stock of the progress achieved and provides an updated overview of the main legal and practical issues relating to the application of Directive 2004/81/EC.

One of the challenges highlighted in the 2010 Commission report was the limited availability of comparable data. Since then, two new Eurostat Working Papers on trafficking in human beings have been published. Moreover, since 2010 eight Ad Hoc Queries and a focused study have been published in the subject.

The latest available figures show that, in the EU, 856 first residence permits were granted in 2013, 1 124 in 2012 and 1 194 in 2011 .

According to the latest Eurostat Working Paper on trafficking in human beings, in the 23 Member States that were able to provide data 2 171 non-EU citizens were identified/presumed victims of trafficking in 2012 and 2 002 were identified/presumed victims in 2011. 19 Member States provided data for 2011 and 2012 on the number of victims who were granted a reflection period, which amounted to 1 110 victims in 2012 and 1 011 victims in 2011.

Despite some progress in recent years, the availability of data concerning the application of this Directive has to be further improved .

The main recommendations are as follows:

Residence permits and cooperation with the authorities : available figures already show that the possibility of issuing permits to third-country nationals in exchange for cooperation with the authorities is under-utilised . A temporary residence permit, only valid for the duration of investigations or criminal proceedings, might not constitute an incentive strong enough for vulnerable individuals.

Some Member States are already providing unconditional residence permits to all victims or to some of them, due to their personal circumstances or vulnerability. However, in most cases these are exceptions to a scheme of permits granted upon cooperation, so victims do not know whether or not they will receive the permit.

Less strict criteria for conditionality upon cooperation and other more favourable conditions , such as the dissociation of a permit’s validity from the duration of the proceedings or a longer minimum duration, could also contribute to assisting victims’ recovery and thus fostering their cooperation.

Link to Directive 2011/36/EC : while Directive 2004/81/EC sets out specific rules concerning residence permits and treatment of third-country nationals cooperating with the authorities, Directive 2011/36/EU applies as a horizontal framework to both EU and non-EU citizens.

The latter reinforces some of the provisions contained in Directive 2004/81/EC, including a strengthened protection and assistance framework for children. Therefore, the two texts have to be read jointly.

Moreover, in 2012 the Commission presented the EU Strategy towards the eradication of trafficking in human beings 2012-2016 , whose mid-term report is presented in a package with this Communication.

Several provisions of Directive 2004/81/EC are closely linked with and will be strengthened by the application of Directive 2011/36/EU and the implementation of the EU Strategy towards the Eradication of Trafficking in Human Beings.

Therefore, the Commission will be able to fully evaluate the necessity and added-value of issuing application guidelines or amending Directive 2004/81/EC only after the analysis of Directive 2011/36/EU's transposition, which is expected in 2015 . The Commission will consider exploring ways for consolidating EU legislation on trafficking in human beings, including with regard to residence permits to victims that are third country nationals.

Transposition : the Commission intends to engage in bilateral exchanges with Member States with a view to achieving full and correct implementation of Directive 2004/81/EC as regards in particular:

early identification of victims and provision of information; a reflection period during which (and while waiting a decision of the competent authorities) victims are entitled to assistance measures and are protected from the enforcement of expulsion orders; the treatment of victims during the reflection period and while awaiting the decision of the competent authority to issue a residence permit (living conditions, safety and protection needs; translation, interpretation and free legal aid); issue, non-renewal and withdrawal of residence permits; the treatment after the residence permit is issued; the treatment of children.

This process will also contribute to implementing the actions identified by the Task Force Mediterranean , set up in October 2013 with the aim of preventing the loss of migrants’ lives at sea by, inter alia, stepping up the fight against migrant trafficking and smuggling.

Practical measures : apart from legislation, practical measures, such as strengthening identification processes, conducting individual risk assessments for all victims prior to and during their cooperation, or improving procedures for timely grant of the reflection periods and residence permits, have a significant impact on the effectiveness of the Directive’s application.

In order to combat human trafficking more effectively, the Commission can facilitate further exchange of information and good practices in the framework of existing structures and involving Member States, civil society, EU agencies and international organisations to address trafficking in human beings more effectively.

COM(2014)0635
EUR-Lex

This Commission report to the European Parliament and the Council concerns the application of Directive 2004/81 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.

Background : on 29 April 2004, the Council adopted Directive 2004/81/EC which applies to all Member States except Denmark, Ireland and the UK. The report was prepared in accordance with Article 16 of the Directive and is based on a study on the implementation of the Directive.

Monitoring and state of transposition : Member States were required to complete transposition by 6 August 2006 . The Commission assisted in this process by organising meetings with national experts. Following the expiry of the transposition deadline, infringement procedures were initiated against 14 Member States. Subsequently, in accordance with Article 226 of the Treaty, the Commission sent eight reasoned opinions. Decisions to bring cases before the European Court of Justice were taken for two Member States: one was withdrawn and a judgment was given for one.

According to the report, all Member States bound by the Directive have communicated their transposition measures. As regards the scope of application, all Member States apply the Directive to third-country nationals who are, or have been victims of offences related to trafficking in human beings, even if they have illegally entered their territory.

Statistics and figures : only a limited number of Member States were able to provide data on the number of residence permits granted as a result of transposition of this Directive, and even fewer of them informed the Commission about the number of reflection periods.

The available data on residence permits for victims of trafficking show that the impact of the Directive varies considerably. In certain Member States, the number of permits was significant (BE, IT, NL, FR, DE), in some cases exceeding 100 per year. In others, the figures were considerably smaller, in most cases between 1-20 per year (CZ, FI, HU, PL, SE). In other Member States, no residence permit was granted on this basis or no information was provided (BG, EE, ES, LV, LT, RO, SI, SK). It must be noted that the available data may not be fully comparable, since some Member States are able to grant humanitarian residence permits whose issue is not restricted to victims of trafficking or is not dependent on their cooperation with the competent authorities. With a view to obtaining more complete and reliable statistics on the application of this Directive, the Commission will examine technical options for the collection of data on residence permits granted under the norms transposing this Directive.

Main conclusions : even though the available figures cannot in themselves allow for a full assessment of the effectiveness of this Directive, its impact does appear to be insufficient in the light of the overall data on victims of trafficking in the EU. While the identified victims in some Member States number several hundred or even upwards of two thousand per year, the number of residence permits based on this Directive is rarely higher than twenty per year. Even if a proportion of victims would not qualify under this Directive (e.g. because they are not third-country nationals), the difference between identified victims and those who made use of the specific residence permits is remarkable. This may indicate that the potential of the Directive in dismantling networks of traffickers while protecting the rights of victims is not being put to full use.

Although some of the deficiencies indicated in this report are not manifestly serious, there are some which may prevent the Directive being applied correctly. Moreover, as indicated by Member States, some victims may be reluctant to rely on the mechanisms . However, it may also be assumed that giving victims more effective access to information on the opportunities that are available would raise the Directive's profile and help it to work better. Improving the supply of information would need increased efforts by the competent authorities of the Member States and non-governmental organisations and associations. Another way of getting victims to take full advantage of the scheme would be if the provisions of the Directive relating to how victims are treated in the course of the reflection period or for the residence permit were fully complied with. The statistics also show that making it possible to grant temporary residence permits to victims who for various reasons do not cooperate with the competent authorities may significantly increase the number of victims who benefit from the legal stay in the Member States.

Future developments : the fight against trafficking in human beings is a top priority in the area of freedom, security and justice. Several important initiatives, also affecting immigration policy, have been taken to step up the action against this type of crime. The Commission Communication of 10 June 2009, adopted with a view to the Stockholm Programme, stressed that there must be zero tolerance of trafficking in human beings and adequate resources should be invested in order, inter alia, to simplify the conditions for issuing residence permits to victims. It was made clear that all competences of the Union should be used in the most optimal way in order to reach a well coordinated and consolidated EU policy. The Commission was called on to propose further steps to protect and assist victims through an array of measures.

The rights of minors received particular attention in this context. It was indicated in the Stockholm Programme that children in particularly vulnerable situations will receive special attention, notably in the context of immigration policy (unaccompanied minors, victims of trafficking, etc.). According to the Action Plan on Unaccompanied Minors, the EU and Member States should reinforce action regarding child victims of trafficking in human beings by assistance which should at least include the measures provided for by Directive 2004/81.

The Commission has already taken action to respond to these calls. On 29 March 2010, it presented a legislative proposal which will strengthen protection of and support for victims. In addition, a new integrated strategy on fighting trafficking in human beings and on measures to protect and assist victims is scheduled for 2011. Moreover, the 2008 and 2009 Commission proposals amending the Reception Conditions and the Qualification Directives specify that victims of trafficking must be considered as vulnerable persons whose special needs must be appropriately addressed. The Commission intends to examine additional measures that could be taken to strengthen immigration legislation on fighting trafficking in human beings and to protect and assist victims.

In this context, the Commission may consider the need for amendments to the Directive , including the possibility of issuing a temporary residence permit based on the vulnerable situation of the victim and not necessarily in exchange for cooperation with competent authorities. Other amendments might include:

having a specified length of reflection periods for victims; strengthening the framework of treatment, in particular for minors; and reinforcement of the obligation to inform victims of their rights.

The Commission will examine all cases where problems of application of this Directive have arisen. This may imply contacting Member States and/or launching the necessary procedural steps for non-compliance, where appropriate, in accordance with Article 258.

COM(2010)0493
EUR-Lex

PURPOSE: To define the conditions for granting residence permits of limited duration to third country nationals willing to co-operate in the fight against human trafficking or actions which facilitate illegal immigration.

LEGISLATIVE ACT: Council Directive 2004/81/EC 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 immigrations, who co-operate with the competent authorities.

CONTENT: This Council Directive has come about in order to define the conditions for granting residence permits of limited duration to those who are willing to co-operate in the fight against human trafficking. It does not apply to the United Kingdome and Ireland, nor does it apply to Denmark. It has come about in response to the Tampere European Council, which called on the Member States to concentrate on detecting and dismantling criminal networks engaging in the trafficking of human beings and who exploit migrants for economic purposes. The Directive strengthens and complements Council Directive, 2002/90, defining the facilitation of unauthorised entry, transit and residence and Council Framework Decision 2002/629 on combating trafficking in human beings.

The provisions of the Directive are to act as an incentive to victims of human trafficking by offering them a temporary residence permit in return for information on those involved in illegal immigration. This Directive lays down the criteria for issuing a residence permit, the condition of stay and the grounds for non-renewal and withdrawal. Thus, the right to stay is subject to conditions and is provisional in nature. The provisions set out in the Directive are as follows:

- For the sake of consistency and clarity the subsequent terms have been defined: third-country nationals, action to facilitate illegal immigration, trafficking in human beings, measure to enforce an expulsion order, residence permit and unaccompanied minor.

- The Directive covers all third-country nationals, regardless of whether they have entered the territory illegally, who are victims of human trafficking, who have been the subject of an action to facilitate illegal immigration or who have reached the age of majority according to the Member State concerned.

- Member States should inform those falling under the scope of this Directive of the possibility to co-operate and offer them a reflection period allowing them the chance to recover and escape the influence of the criminal gangs. The length and duration of the reflection period shall be determined by national law. Whilst the reflection period does not give them the right to residence it does allow for access to medical treatment (including psychological assistance) as well a safe and protected environment in which to live. The reflection period can be terminated at any point where the competent authorities have established that a person has renewed contact with the perpetrators of the offences.

- Following the reflection period, the authorities may wish to consider prolonging the residence permits for up to six months in cases where they consider the person’s stay could offer further useful opportunities for the investigation of judicial proceedings, in cases where he/she has shown a clear intention to cooperate and in cases where they have severed all relation with those suspected of enacting criminal activities.

- Minors can fall under the scope of the Directive, in which case the Member States must take the best interests of the child into account. Minors should have access to the education system under the same conditions as nationals. Member States will be responsible for establishing the identity of the minors, their nationality and if they are unaccompanied or not.

- Those co-operating with the authorities will be granted access to work, vocational training and education during the period of their residence permit.

- When the residence permit expires ordinary aliens’ law applies.

- The residence permit may be withdrawn at any time if the holder has actively, voluntarily and on their own initiative renewed contact with those suspected of committing the offences, if the authorities decide that the victim’s co-operation is fraudulent or wrongful, for reasons relating to national security, when the victim ceases to co-operate or when the competent authorities decide to discontinue the proceedings.

TRANSPOSITION: 6 August 2006.

ENTRY INTO FORCE: 6 August 2004

Directive 2004/81
OJ L 261 06.08.2004, p. 0019-0023

T5-0135/2004
OJ C 102 28.04.2004, p. 0029-0135 E

T5-0135/2004

A5-0099/2004

A5-0099/2004

The Council, at its meeting held on 6 November 2003, reached political agreement amending the text of the Commission’s initial proposal on certain important points. Because of these substantial amendments, the Council decided to consult the Parliament again, in accordance with Article 67 of the EC Treaty.

The terms of the new text by Council strengthen the European Union’s legislative framework for combating illegal immigration by granting a residence permit of limited duration to the victims of action to facilitate illegal immigration and of trafficking in human beings. The granting of the residence permit, to which a certain number of benefits is attached, is subject to conditions designed to encourage such people to cooperate with the competent authorities against those suspected of committing the crimes in question.

This is a very important legal instrument in the fight against trafficking in human beings and illegal immigration, which will be beneficial both to the victims and to the Member States' competent authorities. Victims, should they decide to cooperate with the competent authorities, will receive an appropriate assistance and be issued a residence permit allowing them to stay legally on the territory of the Member State concerned during the relevant proceedings.

The formal adoption of this Directive will take place after the two outstanding Parliamentary reservations have been withdrawn.

14432/2003

The Council, at its meeting held on 6 November 2003, reached political agreement amending the text of the Commission’s initial proposal on certain important points. Because of these substantial amendments, the Council decided to consult the Parliament again, in accordance with Article 67 of the EC Treaty.

The terms of the new text by Council strengthen the European Union’s legislative framework for combating illegal immigration by granting a residence permit of limited duration to the victims of action to facilitate illegal immigration and of trafficking in human beings. The granting of the residence permit, to which a certain number of benefits is attached, is subject to conditions designed to encourage such people to cooperate with the competent authorities against those suspected of committing the crimes in question.

This is a very important legal instrument in the fight against trafficking in human beings and illegal immigration, which will be beneficial both to the victims and to the Member States' competent authorities. Victims, should they decide to cooperate with the competent authorities, will receive an appropriate assistance and be issued a residence permit allowing them to stay legally on the territory of the Member State concerned during the relevant proceedings.

The formal adoption of this Directive will take place after the two outstanding Parliamentary reservations have been withdrawn.

14432/2003

T5-0591/2002
OJ C 027 30.01.2004, p. 0028-0140 E

Debate in Parliament

T5-0591/2002

A5-0397/2002

A5-0397/2002

2455

CES0690/2002
OJ C 221 17.09.2002, p. 0080

COM(2002)0071
EUR-Lex
OJ C 126 28.05.2002, p. 0393 E

COM(2002)0071
EUR-Lex