Council Directive 2004/81/EC of 29 April 2004 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
Date: 2004-04-29
Institutions: Council of the European Union
Subjects: EU visa policy, access to education, administrative formalities, foreign national, health care, help for victims, illegal migration, job access, residence permit, trafficking in human beings

6.8.2004

EN

Official Journal of the European Union

L 261/19

COUNCIL DIRECTIVE 2004/81/EC

of 29 April 2004

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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular point 3 of Article 63 thereof,

Having regard to the proposal from the Commission, (1)

Having regard to the opinion of the European Parliament, (2)

Having regard to the opinion of the European Economic and
Social Committee, (3)

Having consulted the Committee of the Regions,

Whereas:

(1)

(2)

(3)

(4)

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

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

economic

and the

the growing concern about

An indication of
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 Traf-
ficking 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 15 Member States in December 2000.

This Directive is without prejudice to the protection
granted to refugees, to beneficiaries of subsidiary protec-
tion and persons seeking international protection under
international refugee law and without prejudice to other
human rights instruments.

(5)

This Directive is without prejudice to other provisions
on the protection of victims, witnesses or persons who

(1) OJ C 126 E, 28.5.2002, p. 393.
(2) Opinion delivered on 5 December 2002 (not yet published in the

Official Journal).

(3) OJ C 221, 17.9.2002, p. 80.

(6)

(7)

(8)

(9)

(10)

(11)

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.

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

Member States should give effect to the provision of this
Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic characteris-
tics,
religion or belief, political or other
opinions, membership of a national minority, fortune,
birth, disabilities, age or sexual orientation.

language,

At European level, Council Directive 2002/90/EC of 28
November 2002 defining the facilitation of unauthorised
entry, transit and residence (4) and Council Framework
Decision 2002/629/JHA of 19 July 2002 on combating
in human beings (5) were
trafficking
adopted to
strengthen the prevention and the fight against
the
above offences.

This Directive introduces a residence permit intended for
victims of trafficking in human beings or, if a Member
State decides to extend the scope of this Directive, to
third-country nationals who have been the subject of an
action to facilitate illegal immigration to whom the resi-
dence permit offers a sufficient incentive to cooperate
with the competent authorities while including certain
conditions to safeguard against abuse.

To this end, it is necessary to lay down the criteria for
issuing a residence permit, the conditions of stay and the
grounds for non-renewal and withdrawal. The right to
stay under this Directive is subject to conditions and is
of provisional nature.

third country nationals

The
concerned should 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 competent authorities, which may be
the police, prosecution and judicial authorities (in view
of the risks this may entail), so that they cooperate freely
and hence more effectively.

(4) OJ L 328, 5.12.2002, p. 17.
(5) OJ L 203, 1.8.2002, p. 1.

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(12) Given their vulnerability,

the third-country nationals
concerned should be granted the assistance provided by
this Directive. This assistance should allow them to
recover and escape the influence of the perpetrators of
the offences. The medical treatment to be provided to
the third-country nationals covered by this Directive also
includes, where appropriate, psychotherapeutical care.

(13) A decision on the issue of a residence permit for at least
six months or its renewal has to be taken by the compe-
tent authorities, who should consider if
the relevant
conditions are fulfilled.

(14)

This Directive should apply without prejudice to the
activities carried out by the competent authorities in all
phases of the relevant national proceedings, and in par-
ticular when investigating the offences concerned.

(15) Member States should consider authorising the stay on
other grounds, according to their national legislation, for
third-country nationals who may fall within the scope of
this Directive, but who do not, or no longer, fulfil the
conditions set by it, for the members of his/her family
or for persons treated as members of his/her family.

in accordance with the principle of
adopt measures,
subsidiarity as set out in Article 5 of the Treaty.
In
accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond
what is necessary in order to achieve that objective.

(21)

(22)

In accordance with Articles 1 and 2 of the Protocol on
the United Kingdom and Ireland,
the position of
annexed to the Treaty on the European Union and to
the Treaty establishing the European Community and
without prejudice to Article 4 of the said Protocol, these
Member States are not taking part in the adoption of
this Directive and are not bound by it or subject to its
application.

In accordance with Article 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on the
European Union and the Treaty establishing the Euro-
pean Community, Denmark does not take part in the
adoption of this Directive and is not bound by it or
subject to its application,

HAS ADOPTED THIS DIRECTIVE:

(16)

(17)

(18)

independence and not

To enable the third-country nationals concerned to gain
their
return to the criminal
network, the holders of the residence permit should be
authorised, under the conditions set by this Directive, to
have access to the labour market and pursue vocational
training and education.
the
holders of the residence permit to vocational training
and education, Member States should consider in par-
ticular the likely duration of stay.

In authorising access of

of

participation

The
nationals
the
concerned to programmes and schemes, already existing
or to be introduced, should contribute to their recovery
of a normal social life.

third-country

If the third-country nationals concerned submit an appli-
cation for another kind of residence permit, Member
States take a decision on the basis of ordinary national
aliens'
law. When examining such an application,
Member States should consider the fact that the third-
country nationals concerned have been granted the resi-
dence permit issued under this Directive.

(19) Member States should provide the Commission, with
respect to the implementation of this Directive, with the
information which has been identified in the framework
of the activities developed with regard to the collection
and treatment of statistical data concerning matters
falling within the area of Justice and Home Affairs.

(20)

Since the objective of introducing a residence permit for
the third-country nationals concerned who cooperate in
the fight against trafficking in human beings cannot be
sufficiently achieved by the Member States and can
therefore, by reason of the scale of the action, be better
achieved at the Community level, the Community may

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to define the conditions for
linked to the
granting residence permits of limited duration,
length of the relevant national proceedings, to third-country
nationals who cooperate in the fight against
trafficking in
human beings or against action to facilitate illegal immigration.

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;

(b) ‘action to facilitate illegal immigration’ covers cases such as
those referred to in Articles 1 and 2 of Directive
2002/90/EC;

(c) ‘trafficking in human beings’ covers cases such as those
referred to in Articles 1, 2 and 3 of Framework Decision
2002/629/JHA;

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

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(e) ‘residence permit’ means any authorisation issued by a
Member State, allowing a third-country national who fulfils
the conditions set by this Directive to stay legally on its
territory.

(f) ‘unaccompanied minors’ means

third-country nationals
below the age of eighteen, who arrive on the territory of
the Member State unaccompanied by an adult responsible
for them whether by law or custom, and for as long as
they are not effectively taken into the care of such a
person, or minors who are left unaccompanied after they
have entered the territory of the Member State.

Article 3

Scope

1. Member States shall apply this Directive to the third-
country nationals who are, or have been victims of offences
related to the trafficking in human beings, even if they have
illegally entered the territory of the Member States.

2. Member States may apply this Directive to the third-
country nationals who have been the subject of an action to
facilitate illegal immigration.

3.
This Directive shall apply to the third-country nationals
concerned having reached the age of majority set out by the
law of the Member State concerned.

By way of derogation, Member States may decide to apply this
Directive to minors under the conditions laid down in their
national law.

Article 6

Reflection period

shall

ensure

1. Member States
third-country
nationals concerned are granted a reflection period allowing
them to recover and escape the influence of the perpetrators of
the offences so that they can take an informed decision as to
whether to cooperate with the competent authorities.

that

the

The duration and starting point of the period referred to in the
first subparagraph shall be determined according to national
law.

2.
During the reflection period and while awaiting the deci-
sion of the competent authorities, the third-country nationals
concerned shall have access to the treatment referred to in
Article 7 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 Member State may at any time terminate the reflec-
tion period if the competent authorities have established that
the person concerned has actively, voluntarily and on his/her
own initiative renewed contact with the perpetrators of the
offences referred to in Article 2(b) and (c) or for reasons
relating to public policy and to the protection of national
security.

Article 4

More favourable provisions

Article 7

This Directive shall not prevent Member States from adopting
or maintaining more favourable provisions for the persons
covered by this Directive.

Treatment granted before the issue of

the residence

permit

CHAPTER II

PROCEDURE FOR ISSUING THE RESIDENCE PERMIT

the

that

shall

ensure

1. Member States
third-country
nationals concerned who do not have sufficient resources are
granted standards of living capable of ensuring their subsistence
and access to emergency medical treatment. They shall attend
to the special needs of the most vulnerable, including, where
appropriate and if provided by national
law, psychological
assistance.

Article 5

Information

given

to

the
concerned

third-country

nationals

2. Member States shall take due account of the safety and
protection needs of
the third-country nationals concerned
when applying this Directive, in accordance with national law.

When the competent authorities of the Member States take the
view that a third-country national may fall into the scope of
this Directive, they shall inform the person concerned of the
possibilities offered under this Directive.

3. Member States shall provide the third-country nationals
concerned, where appropriate, with translation and interpreting
services.

Member States may decide that such information may also be
provided by a non-governmental organisation or an association
specifically appointed by the Member State concerned.

4. Member States may provide the third-country nationals
concerned with free legal aid,
if established and under the
conditions set by national law.

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Article 8

Issue and renewal of the residence permit

1.
After the expiry of the reflection period, or earlier if the
competent authorities are of the view that the third-country
national concerned has already fulfilled the criterion set out in
subparagraph (b), Member States shall consider:

(a) the opportunity presented by prolonging his/her stay on its
territory for the investigations or the judicial proceedings,
and

(b) whether he/she has shown a clear intention to cooperate

and

(c) whether he/she has

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

2.
For the issue of the residence permit and without preju-
dice to the reasons relating to public policy and to the protec-
tion of national security,
the conditions
referred to in paragraph 1 shall be required.

the fulfilment of

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) In the case of third-country nationals who are unaccompa-
nied minors, Member States shall take the necessary steps
to establish their identity, nationality and the fact that they
are unaccompanied. They shall make every effort to locate
their families as quickly as possible and take the necessary
steps immediately to ensure legal representation, including
representation in criminal proceedings,
in
accordance with national law.

if necessary,

Article 11

Work, vocational training and education

3. Without prejudice to the provisions on withdrawal
referred to in Article 14, the residence permit shall be valid for
at least six months. It shall be renewed if the conditions set out
in paragraph 2 of this Article continue to be satisfied.

1. Member States shall define the rules under which holders
of the residence permit shall be authorised to have access to
the labour market, to vocational training and education.

CHAPTER III

Such access shall be limited to the duration of the residence
permit.

TREATMENT OF HOLDERS OF THE RESIDENCE PERMIT

Article 9

Treatment granted after the issue of the residence permit

1. Member States shall ensure that holders of a residence
permit who do not have sufficient resources are granted at least
the same treatment provided for in Article 7.

2. Member States shall provide necessary medical or other
assistance to the third-country nationals concerned, who do
not have sufficient resources and have special needs, such as
pregnant women, the disabled or victims of sexual violence or
other forms of violence and, if Member States have recourse to
the option provided for in Article 3(3), minors.

Article 10

Minors

2.
The conditions and the procedures for authorising access
to the labour market, to vocational training and education shall
be determined, under the national legislation, by the competent
authorities.

Article 12

Programmes or schemes for the third-country nationals
concerned

1.
The third-country nationals concerned shall be granted
access to existing programmes or schemes, provided by the
Member States or by non-governmental organisations or asso-
ciations which have specific agreements with the Member
States, aimed at their recovery of a normal social life, including,
where appropriate, courses designed to improve their profes-
sional skills, or preparation of their assisted return to their
country of origin.

Member States may provide specific programmes or schemes
for the third-country nationals concerned.

If Member States have recourse to the option provided for in
Article 3(3), the following provisions shall apply:

(a) Member States shall take due account of the best interests
of the child when applying this Directive. They shall ensure
that the procedure is appropriate to the age and maturity

2. Where a Member State decides to introduce and imple-
ment the programmes or schemes referred to in paragraph 1, it
may make the issue of the residence permit or its renewal
conditional upon the participation in the said programmes or
schemes.

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CHAPTER IV

NON-RENEWAL AND WITHDRAWAL

Article 13

Non-renewal

1.
The residence permit issued on the basis of this Directive
shall not be renewed if the conditions of Article 8(2) cease to
be satisfied or if a decision adopted by the competent authori-
ties has terminated the relevant proceedings.

2. When the residence permit issued on the basis of this
Directive expires ordinary aliens' law shall apply.

Article 14

Withdrawal

The residence permit may be withdrawn at any time if the
conditions for the issue are no longer satisfied. In particular,
the residence permit may be withdrawn in the following cases:

(a) if the holder has actively, voluntarily and in his/her own
initiative renewed contacts with those suspected of commit-
ting the offences referred to in Article 2(b) and (c); or

(b) if the competent authority believes that the victim's coop-
eration is fraudulent or that his/her complaint is fraudulent
or wrongful; or

(c) for reasons relating to public policy and to the protection

of national security; or

(d) when the victim ceases to cooperate; or

(e) when the competent authorities decide to discontinue the

proceedings.

CHAPTER V

FINAL PROVISIONS

Article 15

Safeguard clause

This Directive shall apply without prejudice to specific national
rules concerning the protection of victims and witnesses.

Article 16

Report

No later than 6 August 2008,

the Commission shall
1.
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 prepara-
tion 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 17

Transposal

The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 6 August 2006. 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 on the occasion of their official publication.
The methods of making such reference shall be laid down by
Member States.

Article 18

Entry into force

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Union.

Article 19

Addressees

This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.

Done at Luxembourg, 29 April 2004.

For the Council

The President

M. McDOWELL