# EUR-Lex - 52014DC0635 - EN

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# 52014DC0635

**COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 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. /* COM/2014/0635 final */**

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1.           INTRODUCTION

Addressing trafficking
in human beings is about preventing and combating the crime as well as
protecting and assisting its victims. With the intention of contributing to
these objectives and strengthening the fight against irregular immigration, the
Council adopted Directive 2004/81/EC regulating the granting of a temporary
residence permit to third-country national victims of trafficking in human
beings or who have been
the subject of an action to facilitate illegal immigration, who cooperate with the authorities for the investigation and
prosecution of the alleged traffickers[1].

In the ten years following
the adoption of this Directive, relevant steps have been taken in EU policy
addressing trafficking in human beings. 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[2].

On 5 April 2011,
Directive 2011/36/EU on preventing and combating trafficking in human beings
and protecting its victims was adopted[3].
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[4]. Moreover,
in 2012 the Commission presented the EU Strategy
towards the eradication of trafficking in human beings 2012-2016[5], whose mid-term report
is presented in a package with this Communication.

In the first report on
the implementation of Directive 2004/81/EC in 2010[6], the Commission had
also mentioned some ongoing initiatives contributing to strengthening the
rights of victims of trafficking in human beings, which in the meantime have
been completed. These include the adoption of a Directive on the rights, support
and protection of victims of crime in 2012[7]
and the completion of the Common European Asylum System in June 2013, setting
common standards and providing for stronger co-operation to ensure fair
treatment for asylum seekers[8].

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[9].
Moreover, since 2010 eight Ad Hoc Queries on trafficking in human beings and a
focused study on “Identification of victims of trafficking in human beings in
international protection and forced return procedures” have been published by
the European Migration Network[10].

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[11].  According to the latest Eurostat Working Paper on trafficking in
human beings, in the 23 MS 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 MS
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.

2.           DEFINITIONS AND SCOPE OF
APPLICATION

Following the entry
into force of Directive 2011/36/EU, the relevant definition of
"trafficking in human beings" for the application of Directive
2004/81/EC is the one contained in Art. 2 of Directive 2011/36/EU.

All MS must apply
Directive 2004/81/EC to all third-country nationals concerned, including in
cases of irregular entry into their territory.

According to Art. 3(2),
MS can choose to apply the Directive also to those who have been subject to smuggling,
i.e. facilitation of unauthorised entry, transit and stay, as defined by
Directive 2002/90/EC. Ten MS[12]
have made use of this opportunity.

Art. 3(3) allows MS to
include children within the scope of the Directive. All except SK have done
so, whereas in LT children are included under specific conditions.

3.           VICTIM IDENTIFICATION AND
PROVISION OF INFORMATION

Early identification of
victims is crucial for the effective application of the Directive, allowing
victims to be promptly informed of their rights, to initiate a recovery process
and to reflect before deciding whether to cooperate with the authorities.

According to Art. 5,
victims have to be provided with the necessary information on the possibilities
offered by the Directive "when the competent authorities of the MS take
the view that a third-country national may fall into the scope of it".
The obligation to provide information is now also laid down in Art. 11(6) of
Directive 2011/36/EU, which explicitly refers to Directive 2004/81/EC.

The interpretation of
the moment in time as of which the authorities are obliged to provide
information is also clearer thanks to Art. 11(2) of Directive 2011/36/EU,
according to which MS must provide victims with assistance and support "as
soon as the competent authorities have a reasonable-grounds indication"
for believing that a person might be a victim.

Ten MS have specified the timing of the information provision in
legislation[13].
In the legislation of some MS[14]
it is unclear if information is provided also to presumed victims or only upon
official identification, or the start of the criminal proceedings. In some MS[15], legislations set forth additional
conditions, such as for instance obtaining useful information on the alleged
crime from the victim, or refer to the provision of information to the
third-country nationals 'who cooperate with the authorities', which might raise
concerns about the correct implementation of the Directive.

In RO the law does not
specify which authority should provide information, nor the content and format.
In AT information appears to be granted in practice but Art. 5 has not been
explicitly transposed in national legislation, except through general rules of
administrative law. In HR and PL there is no clear requirement in the law that
information refer to all the possibilities offered by the Directive.

The relatively low
number of residence permits demonstrates the need to further improve the
identification of victims of trafficking, as has
been recognised in the EU Strategy towards the Eradication of Trafficking in
Human Beings. To date, at least 15 MS have set up National or Regional Referral
Mechanisms (NRM) for victims[16].
In addition, Art. 11 of Directive 2011/36/EU obliges MS to "take the
necessary measures to establish appropriate mechanisms aimed at the early
identification of, assistance to and support for victims"[17].

A minority of MS have
specified the information format in legislation[18]. In practice, most
countries provide information both orally and in writing[19]. Some[20] have stipulated in
legislation that information has to be provided in a language that the person
understands. Common practices include printed brochures[21], websites[22], and dedicated
hotlines[23].

Finally, in some MS the
same authority in charge of formal identification is also responsible for
providing information[24],
although this does not exclude the involvement of other authorities. In many
cases information is also provided by civil society organisations[25].

4.         REFLECTION
PERIOD

In order to be able to recover
and make an informed decision, victims must be granted a reflection period,
during which (and while awaiting a decision of the competent authority) they
are entitled to assistance measures and are protected from the enforcement of
expulsion orders.

All MS have transposed
Art. 6 into national law, with the exception of AT and IT. For those MS,
however, this period appears to be granted in practice or substituted by the
possibility of being immediately granted a residence permit irrespective of
cooperation with the authorities[26]. Most MS laws explicitly prohibit the
implementation of expulsion orders[27].

It follows from its
very nature and objectives that the reflection period cannot be made
conditional on the victim's intention to cooperate. This provision is
further reinforced by recital 18 of Directive 2011/36/EU, according to which at
least during the reflection period assistance and support have to be provided unconditionally,
including to victims who do not reside lawfully. It is only after completion of
the identification process or expiry of the reflection period that MS are no
longer obliged to provide support to a victim who "is not considered
eligible for a residence permit or does not otherwise have lawful residence in
that Member State, or if the victim has left the territory of that Member
State".

Neither the time when
the reflection period should start (upon detection or official identification
of victims) nor its duration are stipulated by the Directive[28], but it obliges MS to
determine these in national law. In practice, around half of the MS officially
grant the reflection period only upon formal identification[29]. Thirteen MS provide
for at least 30 days[30],
in some cases extendable for vulnerable categories or in view of the victim's
personal circumstances, while others opt directly for longer periods of 45[31], 60[32] or 90 days[33]. There is considerable
variation as to the maximum duration, which can range from one month with no anticipated
extensions[34]
to several months[35],
or may even be extended on a case-by-case basis[36], and as to the type of
residence status granted[37].

Finally, MS may decide
to terminate the reflection period if the person concerned has actively,
voluntarily and on her/his own initiative renewed contact with the
perpetrators, or for reasons of public policy or protection of national
security (Art. 6(4)). Most MS have transposed this provision.[38] In some cases[39], grounds for
termination go beyond the criteria laid down in the Directive and may be
excessively broad.

5.         TREATMENT BEFORE THE RESIDENCE PERMIT IS ISSUED

Art. 7 concerns the
treatment of victims during the reflection period and while awaiting the
decision of the competent authority. Its content is further specified by a
joint reading with Directive 2011/36/EU.

Firstly, Directive
2011/36/EU stresses that support and assistance during the reflection period
must be provided unconditionally to all victims, irrespective of their
residence status. However, upon expiry of the period or completion of the
identification process, Directive 2011/36/EU applies "without
prejudice to Directive 2004/81/EC or similar national rules" (Art.
11(3)). Therefore, if the victim is not considered eligible for a residence
permit or does not have lawful residence in that MS, or has left the territory
of that MS, the latter is not obliged to continue providing assistance and
support on the basis of Directive 2011/36/EU (recital 18).

Secondly, concerning
the content of support, assistance and protection given to victims, Arts. 11 to
16 of Directive 2011/36/EU reinforce what is provided by Directive 2004/81/EC.

5.1       Standards
of living ensuring subsistence

Prior to the issuance
of a residence permit, MS are obliged to grant victims who do not have
sufficient resources a standard of living ensuring subsistence, as well as
access to emergency medical treatment and attention to the special needs of the
most vulnerable, including psychological assistance where appropriate.

Accommodation appears
to be provided in practice in most MS, mostly through specific facilities[40]. However, in HU it is unclear whether the obligation upon the victims to
submit a certificate, provided to them by national authorities upon
application, already entails a degree of cooperation before assistance and
accommodation can be granted, and in BG and RO, the
duration of accommodation in shelters is fixed at 10 days, which is less than
the duration of the reflection period, and can be extended by  request of the victims
or the judicial authorities.

Medical treatment,
often going beyond emergency care[41]
that is prescribed by Art. 7(1), appears to be provided by all MS. In practice
most MS seem to attend to the special needs of the most vulnerable, including
psychological support and counselling services, although several[42] have not explicitly
transposed this requirement into national law.

Most MS also provide
some forms of financial support for all or most vulnerable victims.[43]

5.2       Safety and
protection needs

Adequate risk and needs
assessment is crucial to guaranteeing the safety of victims and effective
cooperation with authorities (Art. 7(2)). Most MS have introduced explicit
legislation, protocols or guidelines on safety and protection needs[44] and/or perform a risk and needs assessment in
practice.[45]

The obligation to
conduct an individual assessment of the victim's personal circumstances and
risks, provided for by Directive 2011/36/EU (Art. 12(3) and (4)), further
reinforces victim protection.

5.3       Translation,
interpretation and free legal aid

Art. 7(3) obliges MS to
provide translation and interpretation services to third-country nationals
concerned, but only where appropriate. In CZ it is
unclear whether interpretation is provided for free and if it is also before
the criminal proceedings. In BG the law appears to guarantee interpretation and
translation only during the criminal proceedings.

Overall, most MS
foresee translation or interpretation  but practical implementation varies
considerably and access for victims, in particular outside the criminal
proceedings, might be problematic.

The optional provision
of free legal aid under Art. 7(4) has been transposed in most MS[46]. Art. 12 of Directive
2011/36/EU reinforces this requirement by making provision for legal
counselling free of charge and, where appropriate, legal representation, if the
victim does not have appropriate financial resources.

6.         RESIDENCE
PERMIT: ISSUE, NON-RENEWAL AND WITHDRAWL

To issue a residence
permit MS must cumulatively consider the opportunity presented by prolonging
the third-country national's stay on the national territory for the investigations
or judicial proceedings, as well as whether he or she is willing to cooperate
with the competent authorities and has severed all relations with the presumed
perpetrators. These conditions apply without prejudice to reasons of public
policy and protection of national security[47].

In a few MS[48] legal
proceedings against the alleged offender must have started before the victim can
be issued with a residence permit. Cooperation with the authorities is also
variously interpreted, ranging from having to provide information to filing
official complaints or testifying in court. However, Art. 12 of Directive
2011/36/EU has further reinforced victim protection by setting out explicit
measures for those involved in criminal investigations and proceedings, in addition
to the guarantees provided by Directive 2012/29/EU on the rights of victims of
crime.

Some
MS either do not make permits conditional upon cooperation[49]
or allow exceptions to this requirement based on the victims' personal
circumstances[50]. On the contrary, others[51] have introduced
additional conditions to those specified in the Directive to issue a residence
permit, for instance proof of accommodation or payment of a fee. The provision
of additional requirements giving wide-ranging discretion to the authorities,
especially when no exceptions are allowed, might unjustifiably prevent access
to permits and therefore raise concerns as to the correct implementation of the
Directive.

The Directive sets a minimum
duration of six months for the permit. This requirement is not met in the
legislation of BG, EE, HR, HU, NL[52].
Three MS[53]
grant directly by law a one-year permit, whereas others[54] set it on a
case-by-case basis, based on the length of the proceedings or individual
circumstances.

Art. 8 mandates MS to
renew a permit if the conditions under Art. 8(2) continue to apply. However, such renewability is not clearly set in law in PL and it
appears to be optional in LT. In some MS the permit
can lead to permanent residence under certain conditions[55].

Finally, Art. 14 states
that permits may be withdrawn at any time, if the conditions for issuing
them are no longer fulfilled. A minority of MS[56] have adopted more
extensive grounds for withdrawal, such as for instance reasons of public health,
which often apply to all residence permits. In some cases these might exceed
the scope of the Directive.

7.         TREATMENT
AFTER THE RESIDENCE PERMIT IS ISSUED

Under Art. 9, after
the residence permit has been issued, victims without sufficient resources must
be granted at least the same treatment as provided by Art. 7.

Furthermore, for the
duration of the residence permit, victims should have access to the labour
market, vocational training and education under rules set by national law (Art.
11).

Access to the labour
market, vocational training and education seems to be provided in the great
majority of MS, although in some cases access to the labour market might be
problematic[57].

Art. 12 grants victims
access to programmes for the recovery of a normal social life, including for instance
improvement of professional skills.  In the MS that have implemented targeted
programmes for victims[58],
stakeholders involved are generally positive about them. In HR participation in
the assistance and protection programme for victims of trafficking is a
condition for the issuance and renewal of the permit.

8.         CHILDREN

MS applying the
Directive to children must take their best interests into account, ensure that procedures are appropriate and provide them with access
to education on the same grounds as nationals, possibly with restriction to the
public system (Art. 10). All MS provide access to education.

Some MS adopted
specific provisions on the principle of the best interests of the child[59], others considered
that this was already in force in national law, including through the
ratification of the UN Convention on the Rights of the Child, and thus did not
require further legislative action. However, the latter option might not always
sufficiently clarify the extent of applicability of the Convention with regard
to the specific provisions of the Directive[60].
In any case, all MS are bound by the respect for the principle of the best
interests of the child when implementing EU law.[61]

Art. 10(c) focuses
on unaccompanied children and obliges MS to ensure
legal representation in accordance with national law as well as to establish
their identity, nationality and unaccompanied status, and to locate their
families as soon as possible. Not all MS have explicitly introduced these
requirements into national law[62].
In September 2012, the Commission adopted a mid-term report on the
implementation of the Action Plan on Unaccompanied Minors 2010-2014[63], endorsing the view
that children's best interests prevail over their migratory status, and which
was welcomed by a European Parliament resolution in September 2013[64].

Among the concerns
raised about the practical application of Art. 10 are proper identification,
the establishment of appropriate procedures taking into account the best
interests of the child, in particular for unaccompanied children, as well as
children running away from or absconding from care facilities. On the other
hand, good practices concerning specific procedures to safeguard children
participating in criminal proceedings have been put in place (e.g. FI, IT).

Some MS apply more
favourable conditions to children, such as longer
reflection periods[65],
unconditional residence permits[66]
or dedicated accommodation shelters[67].

Finally, Arts. 13 to 16
of Directive 2011/36/EU specifically target child victims, addressing
assistance, support and protection. Their implementation will impact positively
on the situation of third-country national children and the way Directive
2004/81/EC is applied to them.

9.       CONCLUSIONS

Despite some progress
in recent years, the availability of data concerning the application of this
Directive has to be further improved. However, 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, who need time to recover from a traumatic experience
before considering whether to embark on formal cooperation with law enforcement
and judicial authorities. Some MS 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. In addition, it is unclear how often they are actually
granted and on what basis the assessment of vulnerability and personal
circumstances is carried out. 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.

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. As a result of these
instruments, national legislation is being or will soon be altered. 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.

In the meantime, the
Commission intends to engage in bilateral exchanges with MS with a view to
achieving full and correct implementation of Directive 2004/81/EC. 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.

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

[1] OJ L 261, 06/08/2004

[2] Like the previous report, this communication is based on a study
carried out for the Commission. All Member

States (MS) bound by the Directive have been given the opportunity
to review the relevant factual information contained in this report. IE, DK and
UK do not take part in the Directive. In this report ‘MS’ means the MS bound by
the Directive.

[3] OJ L 101, 15/4/2011

[4] This report does not analyse provisions of national legislation
implementing Directive 2011/36/EU but highlights the most relevant instances in
which Directive 2011/36/EU impacts the application of Directive

2004/81/EC. The Commission will report on Directive 2011/36/EU's
transposition in 2015.

[5] COM(2012)286

[6] COM(2010)493

[7] OJ  L 315, 14/11/2012

[8] See http://europa.eu/rapid/press-release_MEMO-13-532_en.htm

[9] The first Eurostat Working Paper was published in 2013 http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-RA          13-005/EN/KS-RA-13-005-EN.PDF.
The second one is being published at the same time as the present Communication

[10] All ad hoc queries as well as the mentioned study, which was
published in 2013, are available here:

http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/index_en.htm

[11] Source: Eurostat database ((migr_resoth), last
update 26 September 2014. Figures for AT are not yet available.

[12] AT, BE, CZ, EL, EE, LU, MT, PT, RO, SE. In BE only persons subject to 'serious types of smuggling' are
included, as defined in national law, whereas in EL the smuggling must be
conducted by a criminal organization

[13] BE, BG, CZ, EL, IT, LT, LU, MT, NL, PT

[14] E.g. AT, EL, RO, SI

[15] CZ, LV, MT

[16]  BE, BG, CY, CZ, DE, HR, HU, LV, LT, MT, NL, PL, PT, RO, SK

[17] In September 2013 the Commission adopted "Guidelines for the
identification of victims of trafficking in human beings" offering
practical support to consular services and border guards. See http://ec.europa.eu/antitrafficking/EU+Policy/Guidelines_identification_victims

[18] BE, CY, CZ, ES, LV, PL

[19] AT, MT, PT, SK and SI provide it orally

[20] BG, CY, CZ, DE, FR, PL, PT, ES

[21] E.g. BE, CZ, SK, ES, SE

[22] E.g. FI

[23] E.g. PL, HU, EL, PT, MT

[24] AT, FR, HR, EE, ES, LT, LV, LU, NL, PL, PT, RO, SE, SI

[25] In at least 16 MS (AT, CZ, DE, FI, HR, HU,
IT, LT, LU, LV, MT, NL, PL, PT, SI, SK) there are
agreements with NGOs and associations that include provision of information. In
most MS NGOs participate in the identification process in different ways

[26] In AT a reflection period of 30 days has been introduced by the
Federal Ministry of the Interior but only by

internal decree

[27] This is not the case in BG. In some MS, protection from expulsion
while victims await the decision of the

authority on the residence permit
might be problematic

[28] It should be noted that a reflection period duration of at least 30
days is prescribed by Art. 13.1 of the Council of Europe Convention on Action
against Trafficking in Human Beings (CETS 197), which entered into force on 1
February 2008.  To date, all MS except three (CZ, HR and EE) have ratified the
Convention. EE signed but did not ratify

[29] BG, CZ, FI, DE, EL, ES, HR, HU, LV, LU, PL, PT, RO, SK, SE

[30] BG, CY, CZ, EE, EL, FI, FR, HU, LT, LV, PT, ES, SE

[31] BE

[32] HR, MT

[33] LU, NL, PL, RO, SI, SK and DE (three months)

[34] E.g. CZ, FR, HU, LV

[35] E.g. a three-month standard duration plus a two-month extension in
EL, mostly for children

[36] E.g. AT, CY, SE

[37] In some MS more favourable conditions are
granted to children as regards the duration or extension of the reflection
period, or the status granted during it. See infra, Chapter 8

[38] BE, CY, CZ, DE, EE, EL, ES, FI, FR, HR, HU, LT, LU, LV, MT, NL, PL,
RO, SE, SI, SK

[39] E.g. FI, NL, SI

[40] AT, BG, BE, CY, CZ, DE, EE, EL, ES, FI, HR, HU, IT, LT, LV, MT, NL,
PL, PT, RO, SE, SK

[41] AT, BE, CY, CZ, EL, ES, FI, HR, LT, NL, PT, RO, SE,
SK

[42] BE, BG, CZ, EL, FR, NL, HU, LT, LU, LV, PL, SI

[43]  E.g. AT, BE, CY, CZ, DE, FI, EL, HR, HU, LT, LU, MT, NL, PL, RO, SI,
SK, SE. In IT it is not laid down in law but can be
granted in practice. In PL victims can apply for social benefit after having
been formally identified and then granted permission to stay on the territory
for a reflection period

[44] AT, BE, BG, EL, ES, FI, FR, HR, LV, MT, PT,
SK

[45] AT, BE, CY, EE, ES, FI, EL, LV, LU, MT, NL, SE already undertake or
plan to undertake risk assessments.  CZ, EE, ES, FI, EL, LU, LV, MT, NL, and SK
already undertake or plan to undertake needs assessments.

[46] BE, BG, CZ, DE, EL, ES, FI, FR, HR, LT, LU, LV, MT, NL, PL, PT, RO,
SE and SI have explicitly transposed this article covering the period both
before and after the issue of the residence permit. In other cases there are
specific legal provisions on the availability of legal counselling after the
residence permit but not before (HU), even though it can be provided in
practice (EE). In CY and LV free legal aid is provided once the person is
formally recognised as a victim

[47] AT, BE, CY, DE, EE, FI, FR, LU, MT, SE, SI explicitly provide the
possibility of refusal for such reasons. In others, this is a general principle
applying to the issue of residence permits

[48] AT, CY, EE, FR, SK. It is unclear whether this
is also the case in HU

[49] AT, ES, FI, HR, IT, PT.
In FI such permits are issued on a continuous basis giving full entitlement to
family

reunification. In
HR the victim has to agree to participate in an assistance and protection
programme.

[50] BE, EL, FR, LU, HU, NL and SE. BE and EL
grant unconditional permits to minors. In HU these permits are granted to
stateless persons, and in SE to aliens (including victims of trafficking) at
risk of being traumatised or socially rejected if returned to their country of
origin, within the asylum procedure. FR grants temporary residence permits to
victims “for reasons relating to private or family life” in some cases only, at
the discretion of the prefectural authority. In other countries, like DE,
general rules on residence conditions allow granting permits on humanitarian
grounds, which might include victims of trafficking, under specific conditions.
It should also be borne in mind that, according to the Council of Europe
Convention n. 197 ‘(e)ach Party shall issue a renewable residence permit to
victims, in one or other of the two following situations or in both: a) the
competent authority considers that their stay is necessary owing to their
personal situation; b) the competent authority considers that their stay is
necessary for the purpose of their cooperation with the competent authorities
in investigation or criminal proceedings’ (Art. 14.1). See infra,
footnote 28

[51] E.g. BG, CZ. Some countries require identity proof for the issue of
the permit but allow for exceptions (e.g. BE, BG, EL, ES, LT, NL, PL)

[52] In HU the permit is valid up to six months and in NL up to
one year

[53] AT, EL, PT. In practice, duration is usually one year also in NL
and in FR, where a circular has extended the 6 months duration set by the law

[54] E.g. CY, DE, NL

[55] AT, BE, CZ, DE, ES, FI, LU, NL, PL. Victims can apply for a residence permit of unlimited duration after
one (PL), three (AT) or four (FI) years of residence. In BE victims can apply
for permanent residence, if the trial led to conviction or upon decision of the
competent judicial authority. The same applies in NL, in addition to the
possibility to apply for permanent residence if the judicial case takes longer
than three years, if the return to the country of origin entails risks for the
victim, or concerns about family unity, etc. In CZ permanent residence may be
applied for at the end of the trial

[56] BG, FI, HR, HU, LT, PL, SE, SI

[57] E.g. in  MT access to the labour market appears to be formally
conditional upon obtaining the approval of the competent authority. In SK it is
granted on terms unequal to nationals and in LU it is permitted only for
salaried activities

[58] E.g. AT, CZ, ES, FI, HR, IT, LV, NL, PL and SK

[59] BE, CY, EE, ES, FI, MT, PT, RO, SE

[60] See also UN Committee on the Rights of the Child, General Comment
n. 5 (2003)

[61] Article 24 of the Charter of Fundamental Rights of the EU

[62] In BG, FR, LU and MT legislation does not explicitly mention the
establishment of identity, nationality, unaccompanied status and/or the need to
locate families as soon as possible. In FI and PL legislation in some cases
only refers to unaccompanied minors seeking international protection. Legal
representation is not clearly demonstrated in BG

[63] COM(2010)213

[64]             http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-0387+0+DOC+XML+V0//EN

[65] BE, BG, CY, EL, ES, FI, HR, PL, PT, SE

[66] E.g. BE, EL. In PL, a minor under 15 can be exempted from the
obligation to cooperate. In FR, minors are not subject to return procedures
(specific procedures are in place for minors older than 16 and accessing the
labour market). See also footnote 50 for MS providing unconditional permits in
general

[67] E.g. BE, BG, ES, EL, HR, IT, NL, RO