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Time to deliver on commitments to protect people on the move from human trafficking and exploitation

Human Rights Comment
Strasbourg 12/09/2019
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©271 EAK MOTO/shutterstock.com

©271 EAK MOTO/shutterstock.com

Few human rights violations are so universally condemned by Council of Europe member states as the exploitation of the most vulnerable. As a result, year on year, the fight against trafficking in human beings or the eradication of what some call modern slavery is gaining in prominence on their agendas. They are right in doing so, as these acts are a clear assault on human dignity. While anyone can fall victim to exploitation and human trafficking, certain groups are particularly vulnerable. One such group is made up of people on the move. This group contains refugees and asylum seekers, but also migrants living in Council of Europe member states as, for example, seasonal labourers or domestic workers. It also prominently features those migrating to, or staying in, Council of Europe member states irregularly. Furthermore, this group may consist of people moving to such member states from outside Europe. However, it also includes citizens of one member state moving to another.

In 2015, both my predecessor as Commissioner, Nils Muižnieks, and the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) warned that migrants arriving in Europe frequently faced barriers in accessing assistance, making them an easy prey for traffickers and exploiters in the countries where they seek asylum or in transit countries. Four years later, this warning is more relevant than ever. Some actions taken by member states to combat smuggling and prevent irregular migration may be making it more difficult to fight human trafficking and to identify and protect its victims. Therefore, as improving protection against human trafficking remains crucial, now is the time to ensure that the often-pronounced commitments are delivered for people on the move specifically.

Council of Europe toolkit for tackling exploitation and human trafficking of migrants

The Council of Europe’s legal toolbox for dealing with various forms of exploitation is extensive. Article 4 of the European Convention on Human Rights (ECHR) provides that no one shall be held in slavery or servitude, and that no one shall be required to perform forced or compulsory labour. In a number of key judgments, such as Rantsev v. Cyprus and Russia and Chowdury and others v. Greece, as well as several others, the Court has clarified member states’ obligations with regard to migrants who fall victim to human trafficking or forced labour. Under the ECHR, member states have, among others, a positive obligation to put in place an appropriate legislative and administrative framework to tackle these violations, to take operational measures when they have credible information that a person is, or is at real and immediate risk of, becoming a victim of these actions, and to investigate such cases and prosecute the perpetrators.

Furthermore, the Council of Europe Convention on Action against Trafficking in Human Beings  (Anti-Trafficking Convention) imposes obligations on states parties to prevent trafficking, protect its victims, and prosecute and punish perpetrators. The Convention has been ratified by all Council of Europe member states, except for Russia, with non-member state Belarus also being a party to it. Some of the Convention’s provisions deal specifically with the situation of migrants. For example, it provides for the non-removal of a possible victim until the identification process as a victim is complete. It also deals with the provision of residence permits to victims, and ensuring that counselling and information is available in a language they understand, among many other issues particularly relevant to migrants who become victims of trafficking. GRETA, both through its country monitoring work and in its general reports, provides member states with recommendations as to their effective implementation.

Work by other Council of Europe bodies also provides useful guidance. For example, the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, also known as the Lanzarote Convention, contains a set of protective and criminal law measures that would also be applicable to child migrants subject to sexual exploitation or abuse. In 2015, a special report by the Lanzarote Committee highlighted the urgency of action to protect children affected by the refugee crisis from such violations. Protecting children from trafficking and sexual exploitation is also a key element of the Council of Europe Action Plan on Protecting Refugee and Migrant Children (2017-2019). In addition, the Parliamentary Assembly of the Council of Europe recently adopted a set of recommendations to member states in this area.

These various standards provide member states with a framework for action in all its aspects, whether as countries of origin, transit or destination of victims of trafficking.

The Commissioner’s work

As Commissioner for Human Rights, I try to help ensure that member states effectively meet these obligations. In Albania, for example, I discussed with the authorities their efforts to step up the prevention and detection of trafficking within their border control practices, especially with regard to their own nationals leaving for other Council of Europe member states. I also called for measures to ensure victims can access free legal aid. In Greece, I urged the authorities to resolutely fight against labour exploitation and to fully implement the above-mentioned Chowdury case.

In Hungary, I visited a centre where unaccompanied migrant and asylum seeking children under the age of 14 were accommodated. Whilst noting commendable efforts made to reduce the disappearance of such children, and thus their vulnerability to trafficking, I noted the need, identified by GRETA, for further action, including by training staff, legal guardians and foster families. In my report, I also highlighted the need to protect all children from sexual violence and exploitation, in particular by following the Lanzarote Committee’s recommendation not to detain them in transit zones.

I have also repeatedly noted the impact of the bigger picture of European migration policy on the fight against all forms of exploitation. This, in my view, is currently one of the biggest challenges in ensuring that the protection of victims of exploitation and human trafficking is fully realised.

The impact of migration policies on victims of trafficking

Examples of migration policies impacting on the rights of victims of human trafficking are numerous. During my above-mentioned visit to Greece, it became clear how delays in asylum procedures affected the access to protection of all those in need of it. But deficiencies in the asylum procedure have particularly delayed the timely identification of victims of human trafficking. Furthermore, where reception conditions are inadequate, this creates additional risks for exploitation, in particular of women and children. In its second evaluation report on Italy, for example, GRETA found that, despite various areas of progress, new legislation excluding asylum seekers from access to reception centres focused on social inclusion risked leaving possible victims of trafficking without assistance.

Measures to discourage people from staying irregularly in member states, and to return them, while legitimate in themselves, may risk losing sight of the most vulnerable.  This is illustrated, for example, by the recent concerns that numerous victims of trafficking may have ended up in immigration detention in the United Kingdom. Preventing this requires not only the early and effective identification of victims, but also safeguarding victims from punishment for immigration-related offences. In this context, the UN Recommended Principles and Guidelines on human rights and human trafficking also usefully stress among others that states should ensure that trafficked persons are not prosecuted for violations of immigration laws as a direct consequence of their situation as trafficked persons or are not, in any circumstances, held in immigration detention or other forms of custody.

Protecting victims at Europe’s external borders

The current situation at the external borders of Europe is particularly complex, with different interests overlapping and competing. Part of this rightly focuses on identifying and taking criminal action against perpetrators of human trafficking. Member states’ focus also lies on the tackling of smuggling, that is, providing assistance to the irregular crossing of borders for financial gain. Furthermore, the overall framework of action is mainly concerned with preventing irregular migration in all its forms. Whilst each of these goals is legitimate, the protection of those on the move is too often neglected in their implementation.

My recent Recommendation on the situation in the Mediterranean shows how lack of access to Europe is failing victims of trafficking. It is by now well-known that many who eventually end up at sea have been subjected to serious abuse. Among them there are those that are trafficked specifically for the purpose of labour or sexual exploitation in Europe. Others fall prey to exploitation along their migration route to Europe. The images of migrants being sold in slave markets in Libya caused a particular shockwave, in Europe and beyond. Nevertheless, many remain trapped in such conditions, without any way out. Those who do escape risk drowning, and, when rescued, these extremely vulnerable victims are often left at sea for days, even weeks, without a safe port. Those helping them are increasingly criminalised and accused of collaboration in smuggling of migrants or, with cruel irony, of trafficking in human beings.

A human rights based approach to border management, which provides protection to (potential) victims of trafficking will depend, to a large extent, on constructive co-operation and sharing responsibility, both between Council of Europe member states themselves, and with non-European countries of origin and transit, including preventive work. Currently, however, both effective responsibility sharing between member states, and transparency about and accountability for the impact of external co-operation activities on the human rights of (potential) victims of trafficking remain elusive.

Furthermore, an approach that seeks to prevent human trafficking cannot ignore the fact that the increasing closing of safe and legal routes to Europe, including refugee resettlement and family reunification, is itself providing the ground on which this abhorrent practice can flourish. In this regard, member states should especially take heed of the Anti-Trafficking Convention’s connection between enabling legal migration and the prevention of human trafficking.

Time to deliver on commitments

It is essential that Council of Europe member states now deliver on their commitments to fight human trafficking and protect victims, especially people on the move. In this context, they should:

  • redouble their efforts to address all forms of trafficking in human beings and exploitation of refugees, asylum seekers and migrants, by fully meeting their obligations under the ECHR and the Anti-Trafficking Convention, including by swiftly implementing recommendations made by GRETA
  • review closely how their internal and external migration policies are impacting on the prevention of trafficking, as well as the identification and protection of victims, and their access to assistance
  • expand safe and legal migration routes as a measure to prevent human trafficking
  • prioritise early identification of victims or potential victims among asylum seekers upon arrival
  • ensure adequate reception conditions for asylum seekers to reduce vulnerability to exploitation, and specifically prioritise the safe reception of unaccompanied refugee and migrant children, including through setting up and maintaining effective guardianship systems
  • make sure that victims receive appropriate assistance, including by guaranteeing access to  legal aid and by ensuring that their (lack of) legal status does not in any way prevent or discourage them from lodging complaints against perpetrators.

Dunja Mijatović

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