Addendum to Submission to Oireachtas Select Committee on Justice, Equality,
Defence and Women’s Rights on the Immigration, Residence and Protection Bill
2008
Victims of human trafficking
April 2006
Further to its submission, Amnesty International Irish section (AI) would like to provide
further information to the Committee regarding provisions in the Immigration, Residence and
Protection Bill 2008 relating to victims of human trafficking.
Amnesty International Irish Section welcomes the publication of the Criminal Law (Human
Trafficking) Bill, 2007. Trafficking in human beings, including for sexual exploitation,
constitutes a modern form of slavery and is a violation of the dignity, integrity and
fundamental rights of the victim. A 2003 study by the International Organisation for
Migration concluded that Ireland is both a destination and a transit country for trafficking of
women and children, often for the purpose of sexual exploitation.1 It is essential that
comprehensive legislation be introduced in order to bring the Government into compliance
with its international legal obligations in this area.
Legislation on the criminalisation of trafficking is critical, but must be introduced as part of a
comprehensive legislative programme to tackle human trafficking within Ireland and beyond.
As such, criminal justice provisions must be matched by legal protections for the victims of
trafficking. This is in line with the Council of Europe Convention on Action against
Trafficking in Human Beings which requires State Parties to take measures to prevent
trafficking, prosecute those responsible for trafficking, and protect and respect the rights of
trafficked persons. Compliance of Irish legislative measures with international legal
obligations and best practice should be assessed with reference to the following:
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UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children (Palermo Protocol);
Council of Europe Convention on Action Against Trafficking in Human Beings;
EU Framework Decision on Combating Trafficking in Human Beings (for the
purpose of labour and sexual exploitation), 2002;
UN Convention on the Elimination of All Forms of Discrimination Against Women;
EU Framework Decision on Combating the Sexual Exploitation of Children and
Child Pornography;
Optional Protocol to the United Nations Convention on the Rights of the Child, on the
Sale of Children, Child Prostitution and Child Pornography;
Council Directive on the Residence Permit issued to third-country nationals who are
victims of trafficking in human beings or who have been subject of an action to
Conroy, Trafficking in Unaccompanied Minors in the European Union Member States – Ireland,
Report prepared for the International Organisation of Migration (2003). Such data is gathered under the
Child Trafficking and Pornography Act, 1998.
1
facilitate illegal immigration, who cooperate with the competent authorities.
(2004/81/EC).
Amnesty International welcomes the Government’s signature of the Council of Europe
Convention on Action against Trafficking in Human Beings in March 2007 and urges that the
the Bill fully reflect its provisions.
Temporary Residence
AI welcomes Section 124(1) of the Immigration, Residence and Protection Bill which
empowers the Minister to grant a victim of trafficking or a “suspected victim” a 45-day
“recovery and reflection” period in the State.
AI welcomes the fact that the Bill provides for a 6-month temporary residency permission for
victims of trafficking in Section 124(7). However, AI is concerned at the minimalist approach
taken in the Bill in making this residency dependent on the victim’s co-operation in the
criminal investigation and prosecution of the alleged traffickers and its limitation to the period
of such prosecution.
The Council of Europe Convention provides that such a residency permit be issued where
necessary according to the personal situation of the victim, or for the purpose of their
cooperation with the national authorities in investigation or criminal proceedings, or a
combination of both. Council Directive 2004/81/EC provides for the issuance of a residency
permit for 6 months, renewable thereafter While the period of the permit must have regard to
the purpose for which it was granted, there is no necessity that this cooperation extends so far
as the victim being a witness in any prosecution of the traffickers. The provision is intended
to alleviate some of the resistance on the part of victims to identify themselves to authorities
as victims for fear of deportation proceedings, therefore also depriving them of any of the
support services available to them.
The Expert Group on Trafficking in Human Beings, established by the EU Commission in
2003, has advised that “Those trafficked persons who do not wish to testify as witnesses – or
are not required as witnesses, because they possess no relevant information or because the
perpetrators cannot be taken into custody in the destination country – require equally adequate
protection and assistance as victim-witnesses.”2
The personal circumstances of the victim, which may influence the necessity of a temporary
residence permit, may include the victim’s safety, state of health, and family situation. In the
case of child victims of trafficking, the issuance of a temporary permit is determined on the
basis of the best interests of the child, over and above the criteria for adult victims.
Article 16 of the Council of Europe Convention on Trafficking provides that repatriation
should ultimately be possible in appropriate cases, though preferably with the co-operation of
the victim. In all cases, however, the decision to repatriate should only be made with due
regard to the rights, safety and dignity of the victim. In particular, Article 16(5) of the Council
of Europe Convention on Trafficking requires that repatriation schemes should seek to avoid
re-victimisation. The Palermo Protocol also recommends that States consider adopting
measures with a view to permitting victims the right to remain in the relevant State, either
temporarily or permanently, having special regard to humanitarian and compassionate factors.
Under the Palermo Protocol repatriation, should not occur where there is any doubt as to the
safety of the trafficked person or the risk of re-victimisation.
2
European Commission, Report of the Experts Group on Trafficking in Human Beings, Brussels, 22
December 2004, 105
Permission to remain should therefore also be extended in the Bill to humanitarian reasons
having regard to the personal situation of the victim, in accordance with Article 14 of the
Council of Europe Convention on Trafficking. Special consideration should be given to
providing leave to remain for child victims of trafficking. While conscious that a risk of
retrafficking may be grounds for asylum, it should also be provided in this section that where
it is established that a victim of trafficking is at a serious risk of being re-trafficked in light of
his or her personal circumstances and the inadequacies of the legal system in his or her
country of origin, such a person should be permitted to remain in the State and should not be
subject to repatriation.
In addition, the Bill should expressly state that provisions relating to victims of trafficking
refer to all victims of trafficking, and not just to foreign nationals as provided in the Bill. AI
also supports the view of the Irish Human Rights Commission that the Section on victims of
trafficking should be placed in a separate chapter of the Bill to clearly delineate that these
provisions apply to a specific category of persons and not only to foreign nationals.
Victim support
Amnesty International is concerned at the proposal in the Screening Regulatory Impact
Analysis accompanying the Bill that “the protection of and provision of services for victims
of trafficking will be dealt with administratively”. Protection for the victims of trafficking is
an essential element of both the government’s international obligations and its responses to
trafficking. This is reflected in the United Nations Recommended Principles and Guidelines
on Human Rights and Trafficking in human beings whereby “[t]he human rights of trafficked
persons shall be at the centre of all efforts to prevent and combat trafficking and to protect,
assist and provide redress to victims.”3 Victim protection measures must not be tacked on as a
policy statement, but should be given full statutory basis reflecting their importance. The
Council of Europe Convention and Palermo Protocol outline provisions directed at assistance
for and protection of victims of trafficking, and those reasonably believed to be trafficked.
While the National Action Plan under preparation is expected to address victim protection and
support measures, these must be underpinned with a statutory basis. At a minimum, as
provided in the Council of Europe Convention, such provisions must cover the following:
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safe and secure housing;
medical, psychological and material assistance;
interpretation and translation services;
counselling and information, in particular as regards their legal rights, in a language
that the victims of trafficking in persons can understand;
employment, educational and training opportunities.
Such assistance for victims must be provided to victims regardless of their willingness to act
as a witness in any proceedings against those responsible for their trafficking. In addition,
victims of trafficking should also be informed of their right to seek compensation from the
perpetrator, and should be able to avail of such mechanisms under national law. The
European Commission Expert Group has also recommended that involvement of the victim in
civil procedure to obtain compensation may be a ground for extending the period of a
temporary residency permit.4
ENDS//
For further information, please contact Fiona Crowley, Research & Legal Manager,
Amnesty International (Irish section), 48 Fleet Street, Dublin 2 (tel: 01 – 8638300; email:
fcrowley@amnesty.ie).
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Principles, Paragraph 1.
at 107