Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities
Date: 2002-02-11
Institutions: European Commission
Subjects: access to education, administrative formalities, health care, illegal migration, job access, residence permit, trafficking in human beings, victim

28.5.2002

EN

Official Journal of the European Communities

C 126 E/393

Proposal for a Council Directive on the short-term residence permit issued to victims of action to
facilitate illegal immigration or trafficking in human beings who cooperate with the competent
authorities

(2002/C 126 E/17)

COM(2002) 71 final — 2002/0043(CNS)

(Submitted by the Commission on 11 February 2002)

THE COUNCIL OF THE EUROPEAN UNION,

facilitating illegal
beings (1).

immigration and trafficking in human

Having regard to the Treaty establishing the European
Community, and in particular Article 63(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1) The framing of a common immigration policy, including
the definition of the conditions of entry and residence for
foreigners and measures to combat illegal immigration, is
a constituent element of the European Union's objective
of creating an area of freedom, security and justice.

(2) At its special meeting in Tampere on 15 and 16 October
1999, the European Council expressed its determination
to tackle illegal
immigration at source, for example by
targeting those who engage in trafficking of human
It
beings and the economic exploitation of migrants.
called on the Member States to concentrate their efforts
on detecting and dismantling criminal networks while
protecting the rights of victims.

(3) An indication of

the growing concern about

this
phenomenon at international level was the adoption by
the United Nations General Assembly of a Convention
against Transnational Organised Crime, supplemented by
a Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children, and a Protocol
Against the Smuggling of Migrants by Land, Sea and Air.
These were signed by the Community and the fifteen
Member States in December 2000.

(4) At European Community level, several instruments are in
the process of being adopted to define the offences of

(5) This Directive introduces a residence permit intended for
the victims of these offences, which offers a sufficient
incentive to them to cooperate with the competent auth-
orities while including certain conditions to safeguard
against abuse.

(6) To this end,

it

is necessary to define the short-term
residence permit, to lay down the criteria for issuing it,
for
the
non-renewal and withdrawal.

conditions of

residence

and the

grounds

(7) Victims must be informed of the possibility of obtaining
this residence permit and be given a period in which to
reflect on their position. This should help put them in a
position to reach a well-informed decision as to whether
or not to cooperate with the police and judicial auth-
orities (in view of the risks this may entail), so that they
cooperate freely and hence more effectively. Given the
extreme vulnerability of victims'
situation they must
have access to the assistance and care they require.

(8) Confronted with a victim who clearly intends

to
cooperate and whose presence the judicial authority
regards as useful
the competent
administrative authority will issue a short-term residence
permit for six months, renewable for six-month periods.

to the proceedings,

(9) To enable victims to gain their independence and not
return to the criminal network,
the residence permit
shall allow the holder to have access to the labour
market and pursue vocational
training and education.
For the same reasons, the Member States may make the
issue of the permit conditional on victims' participation in
programmes aimed at integrating them or preparing them
for assisted return.

(10) This Directive is without prejudice to other provisions on
the protection of victims, witnesses or persons who are
particularly vulnerable. Nor does it detract
from the
prerogatives of the Member States as regards the right
of residence granted on humanitarian or other grounds.

(1) Council Directive . . . [on defining the facilitation of unauthorised
entry,
[JHA(2000)22]; Council
Framework Decision of [. . .] [on combating trafficking in human
beings], OJ L . . . [COM(2000) 854, 22 January 2000].

and stay], OJ L . . .

transit

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(11) This Directive respects fundamental rights and complies
with the principles recognised for example by the Charter
of Fundamental Rights of the European Union.

(c)

‘trafficking in human beings’ means the offences defined in
Articles 1, 2 and 3 of the Council Framework Decision of
[. . .] [on combating trafficking in human beings];

(12) The objective of

Indeed,

introducing a short-term residence
permit for victims who lodge a complaint or cooperate
in the fight against traffickers or smugglers cannot be
the
achieved adequately by Member States.
criminal organisations operate by definition on an inter-
national scale. In order to fight against this phenomenon,
an increasing number of Member States have introduced
residence permits for those cooperating with the judicial
authorities, with positive results. It would, however, be
wrong if disparities between measures in different States
were to lead to a shift in the activities of international
networks to those Member States where they faced fewer
difficulties and risks. As the objectives pursued, in view of
the extent of the action, can be better achieved at the
Community level, the Community can take measures in
accordance with the subsidiarity principle as laid down in
Article 5 of the Treaty. In accordance with the propor-
tionality principle, as laid down in the same Article, the
Directive does not go beyond what is necessary to achieve
these goals,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to introduce a short-term
residence permit for third-country nationals who are victims
of offences constituted by the action to facilitate illegal immi-
gration or by trafficking in human beings (hereafter referred to
as ‘victims’) who cooperate in the fight against the perpetrators
of these offences.

Article 2

Definitions

For the purposes of this Directive:

(a)

‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty, including stateless persons;

(d) ‘measure to enforce an expulsion order’ means any measure
taken by a Member State to enforce the decision of an
administrative authority ordering the expulsion of a third-
country national;

(e)

‘short-term residence permit’ means any permit or author-
isation issued by a Member State in accordance with its
legislation, allowing a victim to reside in its territory in
order to cooperate with the competent authorities.

Article 3

Scope

This Directive shall apply to victims, as referred to in

1.
Article 1, having reached the age of majority.

2. Member States may decide to apply the provisions of this
Directive to minors who fulfil certain conditions laid down in
their national law.

Article 4

Safeguard

This Directive shall be without prejudice to the protection
extended to refugees, to beneficiaries of subsidiary protection
and persons
inter-
national refugee law and without prejudice to other human
rights instruments.

seeking international protection under

Article 5

Non-discrimination

Member States shall apply this Directive without discrimination
on the grounds of sex, race, colour, ethnic or social origin,
genetic characteristics, language, religion or belief, political or
other opinion, membership of a national minority, wealth,
birth, disability, age or sexual orientation.

Article 6

More favourable provisions

(b) ‘action to facilitate illegal immigration’ means the offences
defined in Articles 1 and 2 of the Council Directive . . . [on
defining the facilitation of unauthorised entry, transit and
stay];

The provisions of this Directive shall not affect any laws, regu-
lations or administrative provisions laid down by a Member
State which would be more favourable to the persons covered
by this Directive.

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CHAPTER II

Article 10

PROCEDURE FOR ISSUING THE SHORT-TERM RESIDENCE
PERMIT

Article 7

Information given to the victims

Persons who are identified by the competent authorities as
victims within the meaning of Article 1 shall immediately be
informed of
short-term
residence permit provided for by this Directive.

the possibility of obtaining the

information shall be provided by

The
authorities
responsible for the investigation or prosecution, an association
or a non-governmental organisation.

the

Article 8

Reflection period

1.
Victims shall be granted a reflection period of 30 days to
take the decision to cooperate with the competent authorities.
This period starts from the moment they sever relations with
those suspected of committing the offences referred to in
Article 2(b) and (c).

2.
During this period and while awaiting the decision of the
authority responsible for the investigation or prosecution in
accordance with Article 10(1), they shall have access to the
assistance and care referred to in Article 9 and it shall not
be possible to enforce any expulsion order against them.

The reflection period shall not create any entitlement to

3.
residence under this Directive.

4.
The State may at any time terminate the reflection period
if the person has renewed contact with the authors of the
offences referred to in Article 2 points (b) and (c) or for
reasons
relating to the protection of public order and
national security.

Article 9

Assistance and care

1. Without prejudice to the application of measures relating
to the protection of victims and witnesses, Member States shall
ensure that victims have access to suitable accommodation,
emergency medical and psychological treatment and medical
care that cannot be postponed, and to the necessary support
in the form of social welfare and means of subsistence if they
do not have sufficient resources. They shall attend to the
special needs of the most vulnerable.

Issue and renewal of the residence permit

1.
The authority responsible for the investigation or pros-
ecution shall decide on the following matters, at the latest ten
days after the expiry of the 30-day reflection period:

(a) whether the presence of the victim is useful;

(b) whether

the victim has
substantiated,

intention to
shown a clear
cooperate
an initial,
for
material declaration to the authorities responsible for the
investigation or prosecution, or the lodging of a complaint,
or any other act provided for by the Member State's legis-
lation;

example, by

(c) whether the victim has severed all relations with those
suspected of acts that might be included among the
offences referred to in Article 2.

2.

The short-term residence permit shall be issued if:

(a) the authority responsible for the investigation or pros-
in
favourably on the

criteria

listed

ecution rules
paragraph 1;

(b) there are no objections on the grounds of the protection of

public order and national security.

3.
The short-term residence permit shall be valid for six
months. It shall be renewed for periods of six months if the
conditions set out in paragraph 2 continue to be satisfied.

4. When Member States grant a short-term permit
to a
person identified as a victim of one of the offences referred
to under article 2(b) and (c) with members of his/her family or
persons treated as members of his/her family, they shall take
this element into account when examining the possibility of
granting them a residence permit on humanitarian grounds.

Article 11

Format of the residence permit

The short-term residence permit may be issued in the form of a
sticker or a separate document. It shall be issued according to
the rules and standard format laid down in Council Regulation
No . . . [laying down a uniform format for residence permits
for third-country nationals] (1). Under the heading ‘Type of
permit’ Member States
‘Short-term
shall enter
residence permit’.

the words

CHAPTER III

CONDITIONS OF RESIDENCE

Article 12

Work, training and education

The Member States shall authorise the holders of a short-term
residence permit to have access to the labour market, voca-
tional training and education.

2. Member States shall provide victims with free legal aid
and translation and interpreting services.

(1) OJ L . . . [COM(2001) 157].

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Article 13

Medical and psychological care

1. Member States shall ensure that holders of a short-term
in
residence permit have access to primary medical care,
addition to the assistance and care referred to in Article 9.

2. Member States shall meet the special needs of victims,
such as pregnant women, the disabled or victims of rape or
other forms of sexual violence and,
if Member States take
advantage of the option provided in Article 3(2), minors.

Article 14

Victims who are minors

If Member States take advantage of the option provided in
Article 3(2), the following provisions shall apply:

(a) Member States shall take due account of the best interests
of the child when applying the provisions of this Directive.
They shall ensure that the procedure is appropriate to the
age and maturity of the child. In particular, if they consider
that it is in the best interest of the child, they may extend
the reflection period.

(b) Member States shall ensure that minors have access to the
educational system under the same conditions as nationals.
Member States may stipulate that such access must be
limited to the public education system.

(c) Besides,

in the case of victims who are unaccompanied
minors, Member States shall take the necessary steps to
establish their identity and the fact that they are unaccom-
panied. They shall make every effort to locate their families
as quickly as possible and take the necessary steps
immediately to ensure legal representation, including repre-
sentation in criminal proceedings, if necessary.

Article 15

Rehabilitation programmes for victims

Member States may make the issue of short-term residence
permits conditional upon the victims' participation in a
integration in the host
programme aimed either at
country and, where appropriate, vocational training, or their
assisted return to the country of origin or another country
willing to accept them.

their

CHAPTER IV

NON-RENEWAL AND WITHDRAWAL

Article 16

Non-renewal

1.
The short-term residence permit shall not be renewed if
the conditions of Article 10(2) cease to be satisfied, if a judicial

decision has terminated the proceedings or,
beneficiary
the
part
not
programme referred to in Article 15.

does

take

in

if relevant, the
rehabilitation

2. When the short-term residence permit expires ordinary
aliens law shall apply.
If victims submit an application for
another type of residence permit, Member States shall take
account
their
cooperation when
of
applications.

considering

their

Article 17

Withdrawal

The short-term residence permit may be withdrawn at any
time:

(a)

if the holder has renewed contacts with those suspected of
committing the offences in question, or

(b) if the judicial authority considering the case believes that
is fraudulent or

the victim's cooperation or complaint
wrongful, or

(c)

for reasons relating to the protection of public order and
national security.

CHAPTER V

FINAL PROVISIONS

Article 18

Penalties

Member States shall determine the system of penalties applying
to violations of the national provisions enacted pursuant to this
Directive and shall take all necessary measures to ensure the
implementation of these provisions. The penalties envisaged
must be effective, proportionate and deterrent. Member States
shall communicate these provisions to the Commission at the
latest by the date specified in Article 21. Any later amendment
affecting these provisions shall be communicated without
delay.

Article 19

Exchange of information

Every year the Member States shall communicate up-to-date
information to the Commission on the following:

(a) the number of short-term residence permits issued,

the

proceedings initiated and their outcome;

(b) the rehabilitation programmes referred to in Article 15,
together with an assessment of their effectiveness in reha-
bilitating victims.

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Article 20

Report

1.
No later than 30 June 2007, the Commission shall report
to the European Parliament and the Council on the application
of
this Directive in the Member States and propose any
amendments that are necessary. The Member States shall
send the Commission any information relevant to the prep-
aration of this report.

2.
After presenting the report referred to in paragraph 1, the
Commission shall report to the European Parliament and the
Council at least every three years on the application of this
Directive in the Member States.

Article 21

Transposal

The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this

Directive no later than 30 June 2003. They shall immediately
inform the Commission accordingly.

When the Member States adopt these measures,
they shall
contain a reference to this Directive or shall be accompanied
by such a reference when they are officially published. The
precise nature of such a reference shall be decided by the
Member States.

Article 22

Entry into force

This Directive shall enter into force on the twentieth day
following its publication in the Official Journal of the European
Communities.

Article 23

Addressees

This Directive is addressed to the Member States.