Directive 2004/81/EC establishes a specific and autonomous regime for temporary residence permits of limited duration for third-country nationals (non-EU citizens) who are victims of human trafficking (even if they have entered the country illegally).
This residence permit is conditional upon cooperation with the authorities. However, some countries adopt more favourable provisions for victims in their national legislation and include the possibility of granting permits to victims based on their personal situation without requiring them to cooperate with the authorities.
The Directive obliges Member States to apply these rules to adults, but each Member State may decide whether to apply them to minors under its national legislation.
Before deciding whether to grant permission, States must offer the victim a ‘recovery and reflection phase’ during which:
- The victim can recover and decide whether they wish to cooperate.
- They cannot be expelled.
- They must receive basic treatment (adequate standard of living, access to medical care, etc.).
Third-country nationals who are victims of human trafficking are entitled to a reflection period, the purpose of which is to give them time to recover and free themselves from the influence of the perpetrators of the trafficking offence, so that they can make an informed decision on whether to cooperate with the police and judicial authorities.
This period does not create an automatic right of residence, but it protects the victim while they decide to cooperate. The victim may not be expelled from the country during the recovery and reflection period, which must in any case be at least 30 days. During the reflection period, the victim is entitled to receive, as a minimum, emergency medical treatment and specific services such as psychological assistance in the case of the most vulnerable victims. The recovery and reflection period entails a tolerated stay in the country for the specified period of time, and under no circumstances may the victim be returned to their country of origin while it is in force.
The reflection period may be terminated if the victim resumes contact with the perpetrator of the trafficking offence or for reasons related to public order and the protection of national security.
Victims who are third-country nationals have the right to have the competent authority examine, at the end of the reflection period, whether they are eligible for a residence permit; to this end, the competent authority shall take into account:
- whether the victim's presence is necessary for the investigation or judicial proceedings;
- whether the victim has shown a clear willingness to cooperate;
- whether the victim has severed all ties with the perpetrator(s) of the trafficking offence;
- whether the victim does not pose a threat to public order or security
- the personal situation of the victim, in those European countries that recognise this pathway to obtaining a residence permit for victims without requiring the victim’s cooperation with the authorities.
The permit must be valid for at least six months and may be renewed under the same conditions.
After the residence permit has been granted, victims who do not have sufficient financial resources continue to be entitled to a standard of living that guarantees at least their subsistence, as well as the right to access emergency medical treatment and, where appropriate, translation and interpretation services.
Specific attention must be paid to the needs of the most vulnerable persons, including psychological services. Security and protection needs must also be taken into account, in accordance with national law. Assistance may also include free legal aid, in accordance with national law.
The residence permit is established in general in this European regulation:
- has a minimum duration of 6 months
- is renewable
Renewal depends on:
- cooperation continuing, and
- the criminal proceedings remaining open
- the victim’s recovery process in cases where countries recognise the victim’s personal situation as the basis for granting a residence permit.
Taking this minimum framework, each EU Member State has legislated differently on access to residence permits.
The victim's residence permit may be withdrawn if they resume relations with the perpetrator or perpetrators of the trafficking offence to which they have been subjected, if the victim's cooperation is fraudulent or their complaint is fraudulent or unfounded, if the victim may pose a risk to public order and the protection of national security or ceases to cooperate, or if the authorities decide to discontinue the proceedings.
People who have been trafficked across international borders, in transit or in the country of destination, may apply for international protection as refugees as a result of this experience, provided they meet the following circumstances:
- There is a well-founded fear of persecution.
- The persecution is based on one of the following grounds: race, religion, nationality, political opinion and/or membership of a particular social group (the latter being common in cases of women victims of trafficking, minors, sexually exploited persons, etc.).
- The State of origin is unable or unwilling to provide effective protection.
This is particularly relevant in situations where:
- victims who have been trafficked abroad seek international protection as refugees in the State in which they currently find themselves;
- victims who have been trafficked within their own country and have fled abroad in search of international protection as refugees; and
- persons who, although they have never been victims of trafficking, fear becoming victims of trafficking in their country of origin and have fled abroad in search of international protection as refugees.
International protection is not conditional on any kind of police cooperation or reporting and aims to guarantee the principle of non-refoulement to the country of origin or residence due to the risk in cases of trafficking of: being subjected to torture, inhuman or degrading treatment, violence, ostracism and serious discrimination, or re-trafficking upon return.
A victim of trafficking:
- may be granted a residence permit in accordance with national law, taking into account at least the provisions of Directive 2004/81/EC,
- may apply for asylum,
- or both, in accordance with national law.