By Giacomo Manca, Migration Policy and Programme Officer at ECRE member Red Cross EU Office
The months leading up to the European Parliament (EP) elections will be key to complete the ongoing negotiations on the revised EU Anti-Trafficking directive. While the scope of these changes may seem limited compared to the broader reforms in EU legislation on asylum and migration, their impact could be significant for many of the most vulnerable migrants and asylum seekers who are particularly at risk of human trafficking.
A severe violation impacting migrants with insecure status the most
Trafficking in persons is a severe human rights violation affecting both adults and children. It consists of one person taking unfair advantage of another for personal gain, resulting in serious harm. Trafficking can entail the recruitment, transport, and harbouring of individuals by means of force, abduction, fraud or coercion. The purposes of exploitation are diverse, with sexual exploitation, forced labour and domestic servitude being the most common forms. Trafficking can occur inside one country or transnationally, and it affects both nationals and migrants. Yet, migrants and forcibly displaced people are particularly exposed to traffickers, especially when they do not have a regular status and have to resort to undeclared employment, where the risk of exploitation is substantial. The fear of ending up in immigration detention or in return procedures prevents many migrant victims from reporting exploitation to the authorities.
Every year, more than 7,000 victims of human trafficking are registered in the EU, although it is likely that this figure only represents the tip of the iceberg. There is no universally accepted method to count the actual numbers of people affected in the EU and estimations are difficult as many cases never reach the authorities. Research focused on sexual exploitation suggests that non-registered victims could be five to 20 times the detected cases.
A missed opportunity for a more rights-based approach?
The EU Anti-Trafficking directive provides common rules to EU Member States (MS) for supporting and protecting survivors of trafficking in human beings. It also establishes basic provisions for prevention and standards for the investigation and prosecution of traffickers. Despite an elaborate legislative framework at both European and national levels, European Commission (EC) reports indicate that trafficking in the EU is not declining, but rather evolving and adapting to circumstances. For instance, the COVID-19 pandemic accelerated the digitalisation of trafficking network modalities to recruit victims and sell services.
In 2022, the EC issued a proposal to amend the directive, which was promptly endorsed by the Council of the EU with minor changes. This proposal addresses some of the loopholes identified in regular progress reports: it includes clear indicators for EU MS to improve annual data collection on trafficking, which should help to monitor the magnitude of the phenomenon. It also calls for the establishment of national referral mechanisms in all EU MS to streamline the early identification and support of trafficking survivors.
While the proposed changes could improve understanding of the phenomenon magnitude, they fall short in reinforcing states’ obligations on victim protection – an area that has proven to require additional interventions. Unfortunately, the text does not strengthen humanitarian assistance to trafficked persons, nor the protection of their rights or the support they need to reintegrate into society.
Uphold a ‘do no harm’ principle in prevention and protection
As a preventive measure, the EC’s proposal aims at curbing trafficking by ’reducing the demand for trafficked services’ and calling for the criminalisation of people who purchase the services of trafficked persons. While the proposal only concerns users who are aware of buying a service from someone who has been trafficked, there is political pressure to expand the provision to criminalise people regardless of their awareness, focusing specifically on prosecuting the clients of sex workers. Such an approach could lead to policies that push sex work further underground, and potentially increase risks and harm for trafficked persons by making them more difficult to reach. When discussing these aspects of the revision, legislators must prioritise a ‘do no harm’ approach over other interests. Effective prevention policy also requires actions such as information campaigns, access to health care services for everyone regardless of status, access to safe reporting for undocumented persons at risk of exploitation, access to regularisation and increased pathways for regular migration.
The EP report on the proposal for the directive contributes to promoting a survivor-centred approach by strengthening the wording of some aspects of survivor protection. Firstly, it adds new emphasis on the non-prosecution of victims for criminal offences perpetrated when being trafficked, thus strengthening the existing provisions that are not sufficiently applied. Secondly, it makes steps towards more tangible support for the compensation of victims, that could be implemented automatically by setting up a specific victims’ fund. Thirdly, it affirms the need to ensure that assistance, support and protection for trafficking survivors are not made conditional on the person’s willingness to co-operate in the criminal justice proceedings – although it does not go far enough in securing clear access to residence permits for all victims, which is currently limited by such conditionality. Expanding access to regular residence status for all could have significantly improved perspectives for many trafficking survivors.
Connect asylum and victims’ protection frameworks and avoid the risk of re-traumatisation
The legal framework on anti-trafficking is deeply interconnected with asylum and migration law. In order to counter trafficking effectively, EU migration policies must offer dignified opportunities to third-country workers of all skill levels to reduce the high risk of trafficking faced by many migrants. In addition, anti-trafficking policies need to be embedded in the current reform of the asylum system. It is crucial that trafficked persons who apply for asylum receive support that is adapted to their individual circumstances and to the trauma that they may have experienced, considering both reception and procedural guarantees. Attention must be paid to ensure that the implementation of EU asylum law does not expose asylum applicants who have been trafficked to the risk of additional exploitation, or to reliving traumatic experiences. Therefore, “Dublin transfers” of asylum seekers should be suspended when there is a risk of bringing survivors to a country where they have been exploited or where their traffickers are still active: the regulation on asylum and migration management (currently under negotiation) and the Anti-Trafficking directive need to be harmonised in this direction.
Implement the directive with a survivor-centred approach
Following the negotiations between the EP and the Council, there is a chance that changes in the directive will remain very limited. Even in this case, the ongoing reform process should offer an opening for new guidelines for the implementation of existing rules and lead to better application of all provisions that ensure the empowerment of trafficking survivors. The EC should take the lead in proposing guidelines that put the rehabilitation and integration of trafficked persons at the centre – a right that only a regular residence permit can guarantee. True survivor-centred implementation of anti-trafficking rules should incorporate the views of people with lived experience of being trafficked. Trafficking survivors should be meaningfully involved in the preparation, implementation and review of anti-trafficking actions. Their genuine participation in this process can ensure that anti-trafficking policies both achieve their stated aims and contribute to survivors’ empowerment.