THE AIRE CENTRE Advice on Individual Rights in Europe

Monitoring Report on the Implementation by the United Kingdom of

EU Directive 2011/36 on preventing and combating

trafficking in human beings

July 2012

Contents

Introduction 2

EU Directive 2011/36 5

Implementation in the UK 9

Concluding Observations 14

This Report has been produced as part of the AIRE Centre’s domestic violence and trafficking project funded

by the Esmée Fairbairn Foundation.

The AIRE Centre is a legal charity providing advice and assistance to individuals on their rights under

European Union law and the European Convention on Human Rights.

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Introduction

The European Union (‘EU’) has taken several steps over the past ten years towards combating

trafficking in human beings through the adoption of several legal instruments. Prior to the

adoption of Directive 2011/36/EU1 (discussed further below), EU trafficking legislation was

contained in three different instruments each of which dealt with a specific aspect of prevention

or protection. These instruments were also drafted in line with states’ obligations to put into

place criminal provisions to punish perpetrators and to prevent future acts of trafficking, and

much less on the need for the protection of victims.

The first instrument, Council Directive 2004/81/EC (‘the 2004 Directive’) requires Member

States to provide residence permits to third-country (non EU) trafficking victims who cooperate

with the Competent Authorities. The Directive also provides some other protective measures for

individuals until the residence permit decision is made, many of which now form part of

Directive 2011/36/EU. The rights in the 2004 Directive are nonetheless focussed around

cooperation with the authorities which is required of victims in order to gain access to a

residence permit. In addition, the UK Government has opted out of this Directive and therefore

its provisions do not apply in the UK.

The second main legislative instrument is Council Framework Decision 2001/220/JHA of 15

March 2001 on the Standing of Victims in Criminal Proceedings (‘the 2001 Framework

Decision’). This Framework Decision does not explicitly refer to trafficking victims, but instead

addresses victims of any crime covered by the national law of Member States. It sets out the

assistance and protection to be provided to victims of crime, including the procedure during

hearings and the provision of evidence, however as with the 2004 Directive, many of its

provisions have been incorporated into Directive 2011/36/EU. Council Framework Decisions

have now become obsolete following the entry into force of the Lisbon Treaty in December

2009. Under the previous procedures, Framework Decisions were a legislative tool that the

Council of Ministers of the European Union adopted unanimously on a proposal by the European

Commission or any EU member state and after consulting with the European Parliament.

1 Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its

victims, and replacing Council Framework Decision 2002/629/JHA, available at: http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF

3

Following the Lisbon Treaty, any legislative proposals must now take the form of either

Regulations or Directives.

The third main legislative instrument was Council Framework Decision 2002/629/JHA of 19

July 2002 on Combating Trafficking in Human Beings (‘the 2002 Framework Decisions’). This

focussed almost exclusively on the need for a criminal law framework and for the investigation

and prosecution of those responsible for trafficking individuals. Article 7 of this Framework

Decision alone addressed “protection of and assistance to victims” with three provisions that

concerned the treatment of human trafficking victims, again in the context of criminal

proceedings. On 15 April 2011, with the entry into force of Directive 2011/36/EU (‘the

Trafficking Directive’), the 2002 Framework Decision was repealed and replaced by that

Directive.

The adoption of a comprehensive Directive dealing with preventing and combating trafficking in

human beings and protecting its victims is a much welcome development particularly in light of

the enhanced legal status a Directive has in comparison to a Framework Decision - which

provides for virtually no judicial oversight and does not confer directly effective rights on

individuals. As a matter of general EU law, certain provisions of Directives can have direct

effect in national law if they are clear, precise, and unconditional, and if the deadline for

implementation has passed (Case 41/74 Van Duyn v Home Office). Provisions of Directives must

be incorporated into domestic law in any event, but if they have not, or have not been

incorporated properly, individuals may rely directly on those directly effective provisions before

domestic courts. Individuals can also bring actions for damages against the authorities for failing

to implement the provisions of a Directive that have direct effect (also known as Francovich

claims2).

The United Kingdom initially exercised its ability to opt-out of the Directive on the basis of its

view that the UK already complies with much of the provisions contained in the draft EU

Directive. However, it later applied to opt-in to the Directive and its request was accepted by the

2 Case C-6-90 Francovich v Italy ‘A Member State is required to make good loss and damage caused to individuals

by failure to transpose Directive 80/987/EEC.’

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European Commission. The date of entry into force of the Directive for the United Kingdom was

on 18 October 20113, and it must be transposed into UK law by 6 April 2013

4.

The form of implementation is particular to each member state. Some states pass a legislative

decree that the Directive now forms part of national law (see, for example, France), other states

such as the United Kingdom enact a piece of legislation which incorporates each provision of the

Directive into national law. An example of this is the UK’s implementation of Directive

2004/38/EC on the free movement of persons within the Union which the UK has implemented

through the Immigration (European Economic Area) Regulations 2006, and recently amended by

the Immigration (European Economic Area) Regulations 2012.

During the transposition period, States must ensure that until the Directive is adopted into their

national law, or until the two year period has passed, no measures should be adopted that

“seriously compromise the attainment of the result prescribed by the Directive” (Case C-144/04

Mangold v Helm at 28). Failure to properly implement a directive’s provisions can also give rise

to enforcement action by the European Commission, as was recently initiated against

Luxembourg for failure to properly implement the provisions of Directive 2004/81/EC.5

3 Commission Decision of 14 October 2011, OJ L 101, 15.4.2011, p.1.

4 Article 22 of Directive 2011/36/EU

5 Case C-209/08, Commission of the European Communities v Grand Duchy of Luxembourg, C OJ 171/28, 5 July

2008 (Legal Notice)

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EU Directive 2011/36

The 2011 Directive sets minimum EU-wide standards for the protection of victims of human

trafficking and for the prevention of the crime of trafficking. It is significant that human

trafficking is explicitly prohibited by the EU Charter of Fundamental Rights (Article 5(3)),

which, since the coming into force of the Lisbon Treaty in December 2009, now has equal status

with the EU Treaties themselves; the Directive can therefore be seen as giving effect to

fundamental rights principles protected at the highest level of the EU legal order. Paragraph 33

of the preamble to the Directive in fact makes specific reference to the EU Charter, stating ‘This

Directive respects fundamental rights and observes the principles recognised in particular by the

Charter...this Directive seeks to ensure full respect for those rights and principles and must be

implemented accordingly’.

As set out in the introduction to this report, the Directive differs from the Council of Europe

Trafficking Convention in several ways, most important of which is the status of the Directive as

a legislative instrument in the national law of Member States. In addition to certain provisions of

the Directive being capable of having direct effect, questions relating to the interpretation and

scope of the Directive can be referred by national courts to the Court of Justice of the European

Union for a ‘preliminary ruling’.6 This is particularly important in the protection of victims of

trafficking which has been one of the most problematic areas in the UK (see next section).

Directive 2011/36/EU represents a significant shift towards emphasising the equal importance of

protecting victims of trafficking with the implementation of criminal measures. Previously, as

demonstrated by Directive 2004/81/EC and the Framework Decision, the EU law approach was

to subordinate protection measures to investigating and prosecuting human traffickers for acts

they have already committed.

Key provisions contained in Directive 2011/36/EU

Article 2(1) of the Directive places an obligation on Member States to ensure ‘the following

intentional acts are punishable:

The recruitment, transportation, transfer, harbouring or reception of persons, including the

exchange or transfer of control over those persons, by means of the threat or use of force or

6 Article 267 of the Treaty on the Functioning of the European Union.

6

other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a

position of vulnerability or of the giving or receiving of payments or benefits to achieve the

consent of a person having control over another person, for the purpose of exploitation’.

The Directive then goes on to define ‘a position of vulnerability’ as ‘a situation in which the

person concerned has no real or acceptable alternative but to submit to the abuse involved’

(Article 2(2)). The forms of exploitation which the Directive applies to have also been expanded

from the definition contained in Framework Decision 2002/629/JHA, to include forced begging

which should be treated as a form of forced labour7 and exploitation for criminal activities such

as drug trafficking or shop-lifting and other similar activities which ‘are subject to penalties and

imply financial gain’8. The definition also covers ‘trafficking in human beings for the purpose of

the removal of organs...as well as...other behaviour such as illegal adoption or forced

marriage’.9 In connection to this last point, Preamble (3) to the Directive explicitly recognises

‘the gender-specific phenomenon of trafficking and that women and men are often trafficked for

different purposes’ and for this reason ‘assistance and support measures should also be gender-

specific where appropriate’.

It also appears that under Article 10(2) of the Directive, the UK may have to extend extra-

territorial jurisdiction in order to prosecute acts of human trafficking committed overseas where

the offence is committed against a British citizen or a person who has habitual residence in the

UK, or the offender has his / her habitual residence in the UK.

Article 11 sets out the assistance and support which must be provided to a victim of trafficking.

The duty to provide such support is initiated ‘as soon as the competent authorities have a

reasonable-grounds indication for believing that the person might have been subjected to any of

the offences referred to in Articles 2 and 3’ (Article 11(2)). The use of the words ‘reasonable-

grounds indication’ could be interpreted to mean that support will only be provided to victims

who choose to go through the formal identification process under the National Referral

Mechanism (NRM) and victims who are too afraid or traumatised to do so will fall outside of the

7 The exploitation of begging falls within the scope of the definition of trafficking only when all the elements of

forced labour or services occur (as defined in the 1930 ILO Convention No. 29 concerning Forced or Compulsory

Labour). ‘In the light of the relevant case-law, the validity of any possible consent to perform such labour or

services should be evaluated on a case by case basis. However, when a child is concerned, no possible consent

should ever be considered valid’ (Paragraph (11) of Preamble to Directive 2011/36/EU). 8 Paragraph (11) of Preamble to Directive 2011/36/EU

7

scope of the provision. Care must be taken to ensure that the implementation of Article 11 is not

dependent on an NRM referral.

Under the Directive, such support is not conditional on the victim’s willingness to cooperate in

the criminal investigation. The support envisaged by the Directive includes at a minimum

‘standards of living capable of ensuring victims’ subsistence through measures such as the

provision of appropriate and safe accommodation and material assistance, as well as necessary

medical treatment including psychological assistance, counselling and information and

translation and interpretation services where appropriate’ (Article 11(5)). The information

which must be provided to the victim includes information about the recovery and reflection

period and information about seeking asylum or other forms of international protection.

The obligation to provide assistance and support to child victims of trafficking is even more

extensive and is set out in Article 14 of the Directive. Under this provision States must undertake

‘an individual assessment of the special circumstances of each particular child victim, taking

due account of the child’s views, needs and concerns with a view to finding a durable solution

for the child’. The child must also, within a reasonable time, be provided with access to

education. In addition Article 14(2) requires the appointment of a guardian or representative for a

child victim of trafficking from the moment the child is identified as such by the authorities, and

where the holders of parental responsibility are precluded from ensuring the child’s best interest,

or where the child is unaccompanied (Article 16(3)). The appointment of such a representative is

currently discretionary.

Finally, the Directive requires Member States to establish a national rapporteur or an equivalent

mechanism ‘to carry out an assessment of trends in trafficking in human beings, the measuring

of the results of anti-trafficking actions, including the gathering of statistics, and reporting’

(Article 19).

The above provisions illustrate the way in which this Directive, once implemented will

strengthen the protection afforded to victims of trafficking in the UK. Currently the protection

provisions contained in the Directive are only contained in guidance in the UK and the

authorities are not required to provide such protection as a matter of domestic law. Consequently

9 Paragraph (11) of Preamble to Directive 2011/36/EU.

8

victims of trafficking who are not correctly identified or provided with adequate support or

assistance do not have automatic recourse to legal redress. Therefore full implementation of the

rights contained in Article 11 and Article 12 of the Directive (protection of victims of trafficking

in human beings in criminal investigation and proceedings) will at a minimum enable victims to

take any complaints to national courts, and in the event that these provisions are not correctly

implemented will allow victims to rely on the direct effect of the Directive in relation to these

Articles.

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Implementation

Current Anti-trafficking provisions in the UK

The UK’s current anti-trafficking actions include an Inter-Departmental Ministerial Group on

Human Trafficking (IDMG) which was established in 2005. This provides strategic oversight of

all trafficking issues and directs UK policy on human trafficking, but it does not have the

independence and scope of a national rapporteur mechanism and does not monitor and publish

reports on the UK’s progress as required by Article 19 of the Directive. Any analyses of issues

that arise from the UK’s anti-trafficking strategy are simply fed back into the group. The Home

Office has now confirmed, in a ministerial statement, that the IDMG will take on the role of the

national rapporteur required under the Directive:

Hansard

13 Mar 2012: Column 154W

Human Trafficking

Tom Blenkinsop: To ask the Secretary of State for the Home Department

whether she has made an assessment of the effect of appointing an independent

national rapporteur on human trafficking on levels of information about human

trafficking available to (a) the Government, (b) the UK Border Agency

and (c) police forces. [99097]

Damian Green: The Inter-Departmental Ministerial Group on Human

Trafficking will be the UK Government’s national rapporteur mechanism. It

will assess trends in human trafficking using data provided by the UK Human

Trafficking Centre as the central intelligence hub.

The IDMG also has oversight of the functioning of the National Referral Mechanism (NRM)

which was set up in April 2009 to formalise the identification of victims of trafficking and to

facilitate their referral to support services. Between 1st April 2009 and 30

th June 2011 there were

1664 referrals to the NRM of which:

1192 (or 72%) were female

1226 (or 74%) were adults

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575 (or 47%) were adults trafficked for the purposes of sexual exploitation

438 were child referrals

The five most referred nationalities (Vietnam, Nigeria, China, UK and Romania)

accounted for 293 (67%) of all child referrals

(Statistics are from the UK’s report to the European Commission)

There is no information on how many of the 1664 referrals were positively and conclusively

identified as victims of trafficking and the NRM has not been without its problems and

criticisms. In the recent UNHCR Trafficking in Persons Report for the UK10

it was noted that

‘NGOs criticized a narrow focus of the NRM on victims’ immigration status, reporting

that as a result, EU nationals were more likely to receive a “positive grounds conclusion”

or otherwise be officially recognized as trafficking victims by UK authorities’ (at page 3)

Furthermore,

‘NGOs continued to report that UK authorities focused on the credibility of a potential

victim too early in the identification process, noting that most victims who have only

recently escaped control of their traffickers do not always reveal the truth about their

experiences when first questioned; this continued to result in victims’ detention and

imprisonment, including forced repatriations of trafficking victims, putting them at great

risk of hardship or retribution upon their return’.

The report also noted that according to anti-trafficking experts, many victims were not referred

through the NRM as the victims did not see the benefits of referral and were fearful of retribution

from trafficker or from the consequences of being brought to the attention of the authorities

when their immigration status was uncertain. There is also an ongoing problem with trafficking

victims who have escaped from a situation of exploitation and who have delayed referral to the

NRM being subsequently found to be ‘historical’ victims of trafficking and therefore no longer

in need of support and protection. Residence documentation is also routinely denied to

trafficking victims on the same basis.

The police have also come under criticism for not investigating claims of trafficking by victims

promptly and effectively, rendering the victims without retribution or compensation. In the case

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of O.O.O. and others v The Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB)

the victims were trafficked into this country from Nigeria when they were 11 to 15 years old.

They were forced to work as unpaid servants for families in North London and subjected to

serious physical and emotional abuse. By the time they escaped their abusers and approached

the police for help they were young adults. One of the victims sought help while she was still in

servitude in 2004. The other victims did so in 2007 after they had escaped servitude however the

police failed to investigate their claims.

The Court held, following the European Court of Human Rights’ judgment in Rantsev v Cyprus

and Russia (Application No. 25965/04) that:

The police are under a duty to carry out an effective investigation of an

allegation of a breach of Article 4 once a credible account of an alleged

infringement had been brought to its attention.

The trigger for the duty would not depend upon an actual complaint from a

victim or near relative of a victim.

The investigation, once triggered, would have to be undertaken promptly.

In failing to investigate, the court found the Metropolitan Police Service to have breached the

victims’ rights under Articles 3 and 4 of the European Convention of Human Rights. Correct

implementation of the Directive would lead to certainty about the extent of the obligations

placed on various authorities and would provide victims of trafficking with a mechanism for the

enforcement of these obligations.

Implementation of the Directive

Initially, when exercising its opt-out of the Directive, the Home Office had argued that the opt-

out was appropriate as the (at that stage proposed) Directive’s provisions did not add value to the

UK’s anti-trafficking efforts. The Home Office made no particular reference to the support

measures contained in the Directive but stated that:

10

This report was published on 19 June 2012 and is available at:

12

‘opting in now would also require us to make mandatory the provisions which are

currently discretionary in UK law. These steps would reduce the scope for professional

discretion and flexibility and might divert already limited resources’11

.

Following its subsequent decision to opt-in to the Directive, the UK reviewed its position and in

its report to the European Commission set out its view that in order to implement the

requirements of the Directive the UK would need to:

Widen one existing offence of trafficking for forced labour;

Amend existing trafficking offences to confer extra-territorial jurisdiction over

UK nationals who commit trafficking offences anywhere in the world;

Make mandatory some measures which are currently good practice (for example,

appointing special representatives to support child witnesses during police

investigations and criminal trials);

Set out the rights of victims to assistance and support

(UK’s report to the European Commission)

While the above changes to national law would be a welcome progression in the prevention of

trafficking and the protection of victims, a review also needs to be carried out of the effectiveness

of the current provisions in force in the UK. For example, the UK asserts compliance with

Article 3 of the Directive (which provides that ‘Member States shall take necessary measures to

ensure that the instigation of, aiding, abetting or attempt to commit an offence referred to in

Article 2 is punishable’) and Article 4 which sets out the penalties for committing such offences.

While the UK in theory complies with both provisions through the legislation currently in force,

sections 57-60 of the Sexual Offences Act 2003 and section 4 of the Asylum and Immigration

(Treatment of Claimants) Act 2004, this may not actually be the case in practice. Evidence of

this can be found in the above case of O.O.O. and in complaints several victims of human

trafficking have made to the European Court of Human Rights about the UK authorities’ failure

to carry out proper investigations and prosecutions of traffickers / exploiters under Article 4 of

the European Convention on Human Rights. Two such cases have been communicated to the UK

Government, C.N. v the United Kingdom (Application No. 4239/08) and Kawogo v the United

11

Home Office Statement, 31 August 2012, available at: http://www.homeoffice.gov.uk/media-

centre/news/trafficking-directive

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Kingdom (Application No. 56921/09), indicating that the ECtHR considers the issues in these

cases necessary of further scrutiny.

The UK Government has not yet confirmed how transposition of the Trafficking Directive will

be undertaken. There is currently a Trafficking Bill (Human Trafficking (Further Provisions and

Support for Victims) Bill [HL] 2010-12) making its way through Parliament which was initiated

by Lord McColl of Dulwich before the UK took the decision to opt-in to the Directive. This Bill

seeks to make provision ‘about human trafficking offences, measures to prevent and combat

human trafficking and the provision of support for victims of human trafficking’12

. Although the

bill predates UK’s opt-in to the Directive, many of the provisions of the Bill correspond with

those requiring implementation. For example, the Bill contains a proposal for a legal advocate or

a guardian for child victims of trafficking to see them through all their interactions with the

State. There is also provision for compensation for victims of trafficking and more importantly

for the necessary form of leave to remain in the UK to be granted so that the victim of trafficking

can make a compensation claim. The Bill also sets out the establishment of a national body to

‘Parliament on the performance of this Act in the United Kingdom and on related matters’ and to

‘provide relevant information to the European Union to prevent and monitor human trafficking’.

12

Human Trafficking (Further Provisions and Support for Victims) Bill [HL] 2010-12, available at:

http://www.publications.parliament.uk/pa/bills/lbill/2010-2011/0058/11058.pdf

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Concluding Observations

Although the introduction of the Trafficking Bill in Parliament is a positive step forward in

relation to the protection of victims of trafficking in the UK, the progress of the Bill needs to be

carefully followed. The Bill does not transpose the Directive in its entirety, and the correct and

complete implementation of Directive 2011/36/EU will require further modification to UK

legislation. NGOs and other experts in this field can assist by advocating for the modifications

needed and by alerting the European Commission to any problems with transposition.

In particular, any legislation must deal with the continuing problems identified under the current

system, including the status of victims who have delayed referral to the NRM. In addition there

must be a clear distinction in the legislation of the protection to be afforded to victims, and the

victim’s previous immigration status. At present, many of the persisting problems are as a direct

result of a precarious immigration status or lack of residence documentation and the

identification process is also immigration led, particularly in cases where the victim has sought

asylum in the UK as in those cases, the competent authority responsible for the identification of

the victim is the UK Border Agency which also makes a decision on the asylum claim.

The AIRE Centre will continue to monitor the implementation of this Directive by the UK

authorities and will be publishing an update to this report in six months time.