Opinion of the Economic and Social Committee on the "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" (COM(2002) 71 final — 2002/0043 (CNS))
Date: 2002-05-29
Institutions: European Economic and Social Committee
Subjects: administrative formalities, illegal migration, residence permit, trafficking in human beings, victim

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Result of the vote

For: 39, against: 40, abstentions: 6.

Point 6.6.2

‘Comment 2: the EESC disagrees with the blanket obligation for promoters to bear the burden of proof, since this
category often includes SMEs which do not have the financial ability to conduct protracted legal disputes or to
provide the mandatory information set out in the annex. More specifically, it should be left up to judges to decide
who should bear the burden of proof, in line with the relevant circumstances.’

Result of the vote

For: 27, against: 48, abstentions: 8.

Opinion of the Economic and Social Committee on the ‘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’

(COM(2002) 71 final — 2002/0043 (CNS))

(2002/C 221/18)

On 20 February 2002 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 13 May 2002. The rapporteur was Mr Pariza
Castan˜ os.

At its 391st plenary session of 29 and 30 May 2002 (meeting of 29 May), the Economic and Social
Committee adopted the following opinion by 44 votes to two with no abstentions.

1. Summary of the proposal for a directive

1.1.
The aim of the draft directive is to step up the fight
against illegal immigration and trafficking in human beings
through cooperation with its victims. They are to be granted a
special
they cooperate in combating
these activities. Cooperation may take the form of providing
information, lodging a complaint, or giving evidence in a trial.

residence permit

if

1.3.
The draft directive considers victims of trafficking in
human beings to be those so defined in the UN Protocol
on trafficking, basically meaning the women and children
concerned. It deems the victims of action to facilitate illegal
immigration to be persons who have suffered harm, such as
having their lives endangered or being physically injured.

1.4.
Once the authorities have come into contact with
victims, they are to inform them of the possibility of obtaining
the residence permit, and grant a 30-day reflection period in
which they can decide on whether to cooperate. During this
period, they will receive assistance and care.

The residence permit granted to such persons will be
1.2.
valid for six months, and may be renewed if the conditions
under which it was initially granted continue.

The directive makes no provision for victim or witness
1.5.
protection, since this is already governed by European or
national legislation.

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2. General comments

The proposal for a directive encourages victims to
2.1.
cooperate in combating illegal
immigration. It defends the
victims of trafficking and smuggling of human beings by
offering them the opportunity of escaping from their plight
through cooperation with the authorities.

2.2.
The draft directive is a useful tool for combating illegal
immigration, and ties in with the range of legislative proposals
being drafted by the Commission to equip the EU with a
common policy on immigration and asylum. However, the
Committee would once again urge the Council to speed up its
work, since its attitude is deeply disappointing to European
citizens. One of the factors driving illegal immigration is the
lack of a common policy for managing migratory flows
through legal channels.

The Committee also wishes to point out that illegal
2.3.
lack of opportunities,
immigration is caused by poverty,
injustice and human rights violations. The way in which
the Member State authorities treat those affected by illegal
immigration must always be based on respect for human
rights and humanitarian values.

2.4.
It is not easy to secure the cooperation of victims, since
they are often threatened by criminal networks. They are also
frightened and suspicious of contact with the authorities. Their
cooperation must therefore be properly acknowledged and
rewarded. Victims who cooperate with the authorities must
receive all the necessary guarantees and legal support from the
outset.

The Economic and Social Committee hopes that two
2.5.
objectives will be met: the first is to obtain real cooperation
from victims, so that the criminal organisations trafficking and
smuggling human beings can be combated more effectively;
the second is for victims, in exchange for the risks they take in
cooperating, to be offered the best means of escaping from
networks on which they are dependent and which exploit
them. Their protection should be guaranteed by the authorities.

2.6. While the Committee welcomes the positive progress
represented by the draft directive, it would suggest a number
of changes to enhance its effectiveness.

injury. Only such individuals may benefit

2.6.2.
The draft directive uses the term ‘victims of action to
facilitate illegal immigration’ only in connection with those
who have suffered some harm, such as threats to their lives or
physical
from
cooperation with the authorities. The Committee believes that
if the main aim is to fight organised crime, cooperation should
also be sought from persons who have been in the hands of
such organisations without having been endangered or suffer-
ing physical injury.

2.6.3.
The directive should envisage dealing with groups of
victims. Victims often belong to a group sharing the same
situation. When an individual from a group contacts the
authorities and begins to cooperate, great discretion will
probably be needed so as not to alert the criminal network
involved. At an appropriate point in the process, however, the
other victims from the group should be given an opportunity
to cooperate with the authorities by lodging complaints against
the criminal network, and should be eligible for the legal
residence permit. In some cases, this could be of great value in
ensuring that police and court action is effective.

2.7.
The role of social associations is scarcely touched upon
in the proposal, although the Committee believes this could
be of huge significance. Provision should be made for a social
association providing assistance to a victim to encourage him
or her to enter into cooperation with the authorities, and to be
involved throughout the ensuing procedure, during both
cooperation with the judicial authorities and the process of
granting and renewing the residence permit. Social associations
could provide legal assistance to victims, together with what-
ever social support is required to complement public assistance
from the authorities.

2.7.1.
Since the criminal networks involved in trafficking,
smuggling and exploiting people are often international,
international networks of social associations have a vital
role to play in assisting victims. Such associations must be
supported by the national and European authorities.

The proposal for a directive refers to the victims of
2.8.
action to facilitate illegal immigration and trafficking in human
beings, but does not give a detailed explanation of what cases
trafficking involves. It does however stipulate that ‘“Trafficking
in human beings” means the offences defined in Articles 1, 2
and 3 of the Council Framework Decision’ on which a political
agreement was reached at the Council meeting of 27 and
28 September 2001 (1). Article 1 of the Framework Decision
states that
trafficking in human beings for both sexual
exploitation and labour exploitation is covered, and refers to
‘practices similar to slavery or servitude’.

2.6.1.
The proposed residence permit to be granted to
cooperative victims is of short duration. A six-month permit
is not enough. Permits should be for one year, and renewable:
this is an attractive and fair offer which will induce victims to
opt for the cooperation which is asked of them.

(1) Article 2.c).

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2.9.
Consequently, the victims of labour exploitation are
also protected by the draft directive, and may obtain residence
in exchange for cooperation with the authorities, in extreme
cases. However,
in the Committee’s view, the meaning of
labour exploitation should be made clearer. The Committee
believes that this should not be confused with ‘illegal employ-
ment’: there may be many cases in which employers take on
workers with irregular status because they have no other
choice, without this going hand-in-hand with exploitative
work conditions. Labour exploitation occurs when the working
conditions are considerably out of balance as compared to
generally accepted working conditions, infringing established
legislation and labour standards. Simple exceeding of the usual
conditions is not enough.

Police forces should have special services for dealing
2.10.
with the victims of these crimes, in order to increase trust and
cooperation on the part of victims. Experience with services of
this kind in some Member States has been very promising.

3. Specific comments

3.1. Article 8.1

In connection with the reflection period of 30 days granted to
victims to whom cooperation with the authorities is offered, it
should be borne in mind that such cooperation may be
proposed by a social association. For this reason, the Com-
mittee proposes that Article 8.1 be amended. In such cases,
the victim or victims must also be granted the reflection
period, with the accompanying assistance and care measures,
as soon as the association proposes cooperation with the
authorities (i.e. even before the victims have contacted the
authorities).

3.3.2.
In Article 10.1(c), in the light of the point 3.2 above,
the authorities should adopt a flexible approach, with constant
concern for the interests of the victim who is providing
cooperation. The current wording of the article may restrict
victims’ safeguards.

3.3.3.
The authorities should at all times act in such a way
that the rights and safety of the victim prevail over all other
considerations.

3.4. Article 10.3

The Committee considers that this and other points referring
to the six-month permit should be amended to specify a one-
year temporary permit. Two channels for renewal should be
provided: continuation of the initial conditions of cooperation
with the judicial authorities, or fulfilment of the requirements
for renewal of an ordinary residence permit (in any of the
forms in which such permits are granted: for self-employment,
employment, etc.).

3.5. Article 10.4

Family members accompanying a victim should also be
granted residence. The Committee therefore considers the
wording of this point, under which permits on humanitarian
grounds are at the discretion of the Member States, to be
inappropriate.

3.6. Article 14.a)

3.2. Article 8.4

The requirement for the individual to have severed links with
the authors of the offences should be interpreted in a flexible
way, since the break will
frequently be gradual. Support
for victims must however be provided from the moment
cooperation begins.

Victims who are minors must always enjoy the most favourable
conditions, in keeping with international treaties. Protection
of minors prevails over all other considerations. This point
should grant social associations broad scope to define the
conditions under which minors cooperate with the authorities.
Cooperation, however, can only be explicit where minors have
the necessary maturity.

3.3. Article 10.1

3.7. Article 14.b)

3.3.1.
In [the Spanish version of] Article 10.1(a), the word
‘necesidad’ should be replaced by ‘utilidad’ [translator’s note:
this is intended to bring the Spanish version into line with the
English and other language versions].

The Committee supports the stipulation that Member States
shall ensure that minors have access to the educational system
under the same conditions as nationals. In consequence, the
second sentence of the point, allowing Member States to limit
educational access to the public system, should be deleted.

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3.8. Article 14.c)

3.10. Article 16.1

In the case of unaccompanied minors, the first requirement
must be to place them under the guardianship of the public
authorities.. Aspects concerning their legal representation and
cooperation should be dealt with subsequently.

In accordance with the comments made in point 3.4 above,
this article should allow resident permits to be renewed on
grounds other than those on which they were originally
granted. More specifically, they should be renewed when the
conditions for renewal of
residence permits under each
Member State’s legislation are met.

3.9. Article 15

3.11. Article 16.2

It should be made clear that for all victims, return to the
country of origin is always a voluntary option. Where minors
are involved, it must be ensured that they possess the maturity
necessary to formulate their wishes.

Member States should adopt a positive attitude to granting
permits to victims following completion of the cooperation
process. Consequently, the Committee believes that ordinary
aliens law, as specified in the point, should also apply to
permit renewal, without the need to apply for a new permit.

Brussels, 29 May 2002.

The President

of the Economic and Social Committee

Göke FRERICHS