Thursday 23 October 2014

All smoke and no fire in the EU strategy towards the eradication of trafficking in human beings


Dr Matilde Ventrella, Senior Lecturer in Law, University of Wolverhampton (UK)

 1.       Introduction
On October 17th, the European Commission published the mid-term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings (THB) and a Communication on the application of Directive 2004/81 on the residence permit issued to third country nationals who are victims of human trafficking or the subject of an action to facilitate illegal immigration and who cooperate with competent authorities.  In this analysis, I will first examine the mid-term report, I will then examine the Communication on the application of Directive 2004/81 and I will draw my final considerations.

2.       The mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

The Report focuses on the policies and laws that the EU is implementing and on the progress made from 2012 to the third quarter of 2014. 
The Commission’s report states that the first step to take in order to address THB is implementing Directive 2011/36/EU on the criminal law aspects of the issue. This Directive, for the first time, recognises THB as a gender specific phenomenon and that women and men are often victimised for different purposes (paragraph 3).  The Directive requires Member States to investigate and prosecute perpetrators (Article 9) and to give adequate protection to victims.   The mid-term Report emphasises that 25 Member States have communicated the transposition of the Directive in full and it states that Member States shall take full responsibility to eradicate this serious criminal activity.  Their priority should be identifying victims and giving them adequate protection.  The Commission has clearly explained how victims should be identified by publishing the “Guidelines for the Identification of Victims of THB”.  The Guidelines stated that the early identification of victims is crucial as it enables investigative and police authorities to better investigate THB and prosecute the perpetrators.  For this purpose, consular services and border guards should offer regular training to their officers to enable them to identify victims and potential victims.  The Guidelines also stressed that consular services and border guards should consider cooperation agreements to facilitate the identification of victims.  The Guidelines emphasised that cooperation should be developed with organisations such as Non-Governmental Organisations and special attention should be given to child victims of THB. 

Also, the mid-term Report explained that adequate protection to victims could be given by demand reduction and awareness-raising programmes.  Particular attention should be focused on combating violence against women and gender inequalities as these are root causes of THB.  The Commission has launched a study on the gender dimension of THB which should be published in the second half of 2015.
Since THB is a serious form of organised crime, the Commission called for cooperation and partnership between EU Member States.  The Commission encouraged ‘Member States’ operation in the field of internal security’, the support from Europol to Member States’ action and the adoption of ‘annual operational action plans on each priority area identified by the Council’.  The Council has identified THB as one of the priority of the EU Serious and Organised Crime Policy Cycle.

The report also pays particular attention to civil society.  In the Commission’s view, it is essential to involve civil society and for this purpose, it launched in 2013 the EU Civil Society Platform against THB in Member States and selected non-EU countries.  The Civil Society Partnership meets every 2 years, bringing together over 100 civil society organisations specialised in THB in Member States and four non Member States (Albania, Morocco, Turkey and Ukraine). 
Finally, the Commission called for more cooperation between EU Member States and non-European countries in order to identify all forms of THB.  The Commission referred to an action oriented paper (AOP) adopted by the Council in 2009.  The AOP emphasised the importance of dialogue with third countries to fight against THB and it supported ‘international effort in this field advocating at various UN fora the prevention of THB, THB victim protection and assistance’... ‘international cooperation and coordination on THB’.  The AOP also highlighted that EU agencies such as Eurojust, Europol, Frontex and FRA should be consulted when the EU takes action to cooperate with non-EU countries to fight against THB.  

The Justice and Home Affairs (JHA) agencies (CEPOL, Eurojust, Europol, the European Asylum Support office (EASO), the European Institute for Gender Equality (EIGE), FRA and Frontex) have annexed to the Commission mid-term Report, a joint action report carried out in between October 2012 and September 2014.  The Annex stated that these agencies should work together ‘in a more coherent and comprehensive manner, taking synergies and avoiding duplication of effort’.  However, the Annex did not explain clearly how they have to undertake their tasks.  The Report explained that JHA agencies shall have the aim of dismantling criminal groups in cooperation but there is not any concrete proposal.  In other terms, the Annex simply explained that all the JHA agencies have done, was organising meetings, trainings and conferences but no concrete actions against criminal organisations have been undertaken.
 JHA agencies were established for different purposes.  Consequently, I believe their tasks should be clearly differentiated.   Example: the European Asylum Support office (EASO) should not have the same tasks as Europol because the EASO was set up to improve the implementation of a Common European Asylum System, whilst Europol was established to support Member States’ investigation of cross-border crime.  The Annex did not explain how these agencies should fulfil their objectives and how they should ensure coordination while avoiding overlapping.    I believe that the JHA agencies should have pushed for reforms.  The Annex should have explained whether it is desirable to reform Europol’s scope, in order to strengthen cooperation with non European countries as THB is a cross-border crime committed in the EU and outside the EU.  It has been reported that migrants smuggled by sea are exposed to THB during their trips and when they reach their countries of destination.  This is because they cannot repay the price of their journey.  Therefore, they are threatened by their smugglers and eventually they become victims of THB (see reports by the UN, the IOM and the Global Initiative).  Furthermore, recent research undertaken by Italian journalists has found out that people smuggled by sea are often victims of traffic of organs since, when they cannot repay the price for their journey, they are left with no choice than selling their kidneys and corneas to smugglers.  What role should JHA agencies play in detecting these dangerous criminals within and outside the EU?  The Commission’s mid-term Report and the JHA agencies’ Annex, are full of good intentions and fine words but they are inconclusive, as there are no concrete proposals.
The extent of THB remains unknown, in particular the number of victims of smuggling who eventually become victims of THB and traffic of organs.  However, the Commission mid-term report published, for the first time, statistical data on victims and traffickers for the years 2010 to 2012.  These data are based on the Statistical Working Paper published by Eurostat.  The working paper provided data based on the total of victims or ‘presumed victims’ identified by the Member States.  Presumed victims are those people who have met the criteria to be identified as victims on the basis of Directive 2011/36/EU but who have not been formally identified by relevant authorities or who have refused to be identified as such.  According to the data, it is estimated that over the years 2010-2012, 30.146 victims or presumed victims were registered in the 28 Member States.  80% of registered victims were female, 45% of victims were of the age of 25 or older, 36% of registered victims were aged 18-24 years old, 17% of victims were in between 12-17 years old and 2% of all victims accounted children aged 0-11 years old.  However, THB concerning EU citizens prevails in the statistics and only victims from five non EU countries were identified (Nigeria, China, Brazil, Russia and Algeria).  Victims who are hiding within Member States or who have been smuggled by sea and eventually have become victims of THB, have not been identified.  The number of these people remains unknown.  The Commission’s report stated that it is a priority to identify victims but only by reinforcing investigations within the EU and outside the EU, victims can be seriously identified.  Understanding the links of criminals can facilitate the identification of victims coming from many African countries.  Nevertheless, no steps have been taken in this direction. 

3.       Analysis of the Communication from the Commission on the application of Directive 2004/81

The Commission analysed how Directive 2004/81 has been implemented by Member States.  The Directive states that victims of THB and victims of smuggling of migrants may be granted a residence permit if they decide to cooperate with law enforcement authorities to contribute to detect criminals.    However, in the case of smuggling, EU Member States retain the discretion to apply the Directive.   The issue of a residence permit is limited to cases where the victims are willing to cooperate with police. However, Member States have the option to grant a residence permit to all victims, even if they are not willing to cooperate. The lack of an obligation to grant a residence permit in cases of non-cooperation is inconsistent with Directive 2011/36, which requires Member States to give THB victims support and assistance even if they are not cooperating with the police.
The Commission stated that it is very important to identify victims ’for the effective application of the Directive’ and inform them of their rights ‘to initiate a recovery process and to reflect  before deciding whether to cooperate with the authorities’.   However,  the Commission has reported that, in the legislation of Member States, it is unclear whether the information is provided to officially identify victims or also to presumed victims.  I think presumed victims should be given the information as it could be a way to give them the opportunity to escape from the traffickers and start a programme of recovery.  
The Commission has also reported that Member States are issuing low numbers of residence permits in exchange for cooperation and, only in exceptional circumstances, the residence permit is issued beyond the willingness of victims to cooperate.   When I interviewed police officers and members of the civil society in Rimini (Italy), I found out that THB can be seriously defeated if victims and presumed victims are granted an unconditional residence permit.  This is because such a residence permit is reassuring and it puts victims and presumed victims in the position to report the criminals without any constraints.  In addition, an unconditional residence permit will interrupt the vicious circle victims become trapped in, when the investigations are concluded and their residence permit expires.  They become vulnerable and again easy targets for traffickers.  Conversely, victims with an unconditional residence permit will integrate in the new society and will not be vulnerable to trafficking anymore.  By adopting this method, police authorities in Rimini have defeated THB and police authorities in Siracusa (Italy) have detected some criminal organisations smuggling people from Egypt to Italy. Police authorities in Siracusa explained that the whole phenomenon of smuggling of migrants by sea cannot be defeated by isolated actions of national police as it requires investigations outside the EU and they would welcome more involvement of JHA agencies.
 The Commission is very concerned about the rare use of the issue of an unconditional residence permit and intends to engage in bilateral exchanges with Member States in order to improve the correct application of the Directive.  It also intends to implement the Task Force Mediterranean established in 2013 with the aim to prevent the death of migrants at sea.  This is very welcome as it seems that finally, the strong connections between THB and smuggling of migrants by sea have been fully recognised.  However, even the Communication on the Task Force Mediterranean is disappointing because it is not clear what concrete action and external cooperation agencies such as Europol and Eurojust can take in the fight against these two crimes.  It promoted cooperation with third countries and a global approach on immigration but no reforms have been proposed. 

4.       Conclusions  

The Commission reports have depicted a situation within Member States which will not contribute to defeat or at least reduce THB.  Furthermore, in the Communication on Directive 2004/81, the Commission has reported how Member States are neglecting to issue residence permit to victims of THB.  The Commission has shown its intention to ensure the situation improves and one hopes progress will be made in the issue of residence permits.
It is also believed that agencies such as Europol should be given relevant investigative powers within the EU and outside the EU.   I am aware that a reform as such requires the consent of Member States as it can be adopted on the basis of Article 87 of the Treaty on the Functioning of the European Union (TFEU).  However, Member States only seem focused on protecting their borders as if the fight against THB would not contribute to protect their borders by reducing irregular migration!  Italy has communicated that the Mare Nostrum Operation will be suspended and other Member States are not making efforts to prevent this suspension by cooperating with Italian authorities in rescuing and hosting migrants at sea.  Not only there is no willingness to cooperate in investigations and grant residence permits to victims, but Member States do not even want to rescue migrants at sea from drowning.  If this situation will continue, victims of THB will increase as will the number of victims of the connected crime of smuggling of migrants by sea.

 Barnard & Peers: chapter 26

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