Opportunity for Government to bring Irish legislation into line with the Council of Europe Convention on Action on Trafficking of Human Beings
The Irish Human Rights Commission (IHRC) and the Immigrant Council of Ireland (ICI) today urged the Government to amend the Immigration, Residence and Protection Bill 2008 (2008 Bill) to provide victims of trafficking with greater protection.
The IHRC and the ICI are today holding a joint roundtable discussion on the legislative options to provide protection for victims of trafficking at the European Union Building, Dublin 2.
IHRC Chief Executive Éamonn MacAodha and ICI Chief Executive Denise Charlton said that both the IHRC and ICI had made submissions to the Government seeking to have the Bill amended to ensure the internationally recognised minimum standards for the protection of victims of trafficking are met.
While both the IHRC and ICI have welcomed the inclusion of provisions in the legislation to provide basic assistance to victims, both also pointed out that the level of assistance provided is not sufficient to meet international standards.
Mr MacAodha said "the IHRC welcomes the greater efforts being made by Government to tackle trafficking of human beings. However the provisions in the Immigration, Residence and Protection Bill (2008 Bill) fall short of what is required to meet the human rights standards set out in the Council of Europe Convention on Action Against Trafficking in Human Beings in relation to the protection of, and provision for, victims of trafficking"
Mr MacAodha continued: "Ireland has not yet ratified the Council of Europe Convention. The 2008 Bill provides an important opportunity for the Government to bring Irish legislation into line with the Council of Europe’s minimum standards which stipulate for the provision of health care including psychological support, as well as secure accommodation, material assistance, and legal advice specific to adults and children".
Ms Charlton said a significant number of women who were victims of trafficking – those who are trafficked from within the EU – might not be eligible for assistance measures provided for under the Immigration, Residence and Protection Bill.
"A simple amendment to the legislation would make clear that we are not excluding victims who are trafficked into Ireland from within the EU," Ms Charlton said.
The IHRC and the ICI have both expressed the view that granting residency permits to victims of trafficking should not be dependent on whether or not they co-operate with an investigation or prosecution.
Ms Charlton said "there may be cases where the Gardaí do not proceed with an investigation or a prosecution is not instigated or where the victim is just too traumatised to provide assistance and the humanitarian needs and personal circumstances of these people must be taken into consideration."
Both the IHRC and ICI urged the Government to ratify the Palermo Protocol, the Council of Europe Convention on Trafficking and the Optional Protocol to the UN UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (UN CRC Optional Protocol)
Ends/
For further information please contact:
Q4PR 01 4751444
Martin Mackin/Catherine Logan 087 814 5030 / 086 811 4785
Immigrant Council of Ireland
Ruth Evans 087 067 3676
Note to Editor
The Joint Roundtable discussion is organised by the Irish Human Rights Commission (IHRC) and the Immigrant Council of Ireland (ICI). Ms Marta Requena, Head of Gender Equality and Anti-Trafficking Division at the Council of Europe, is a keynote speaker at the event.
Ireland and the Council of Europe Convention on Action against Trafficking in Human Beings
Protection of Victims of Trafficking: What’s Next?
Legislative opportunities
Roundtable Discussion
April 9, 2008 at the European Union Building, Dawson St
Reaching Minimum Standards in Ireland
from a Human Rights Perspective
Presentation
by
Commissioner Suzanne Egan, Irish Human Rights Commission
Introduction
To put the issues to be discussed at today’s Roundtable in context in regard to Ireland, I think it is important to point out that human trafficking has been a steadily growing phenomenon in Ireland. While no-one is sure of the exact figures, its clear that while the problem was on the horizon at least since the 1990’s, over the past five or six years, there has been a steady rise in the volume of women and indeed children1 being trafficked into the country for the sex industry and for labour exploitation. For a number of years, the Dublin based Ruhama Women’s Project has been highlighting the rise of the practice in Ireland. The Immigrant Council has also been very active in highlighting this issue and must be very much complimented for taking a series of initiatives, by way of research and roundtables aimed at increasing awareness of the phenomenon and discussing ways by which it may be tackled from a legislative, policy and practical perspective. The fact that an Anti-Trafficking Unit has recently been established by the Department of Justice, together with the setting up of a High Level Interdepartmental group, to ensure a coordinated, comprehensive and holistic response to trafficking is a very welcome development, though again it regrettably emphasises further that the phenomenon is clearly increasing rather than diminishing.
Despite its seriousness, the reality of trafficking still lacks visibility in this country, in the public consciousness and probably also in political circles. There are many reasons that can be put forward to explain this lack of visibility: Firstly, the lack of concrete information that is out there on the extent of the phenomenon. Second, the fact that the people most affected – exploited and vulnerable women and children – remain largely hidden from public view, at the mercy of the traffickers or criminal gangs who control them; Thirdly, the fact that such legal and practical responses as there have been to date from the State have prioritised law enforcement to the exclusion of other responses to the problem
In this paper today, I wish to focus on the latter issue, namely the adequacy of the State’s response to trafficking to date, particularly in the legislative domain. I will outline first the State’s current commitments in regard to trafficking under international law and the need for it to ratify in particular the COE Convention that Marta has just spoken about. I will next outline the current and indeed proposed legal framework for dealing with trafficking in Ireland. Finally, I will explain the Commission’s position that this is unfortunately inadequate to deal with the phenomenon and that there is an urgent need for the State to firmly grasp the human rights dimension to this issue by putting in place practical and concrete legislative measures to protect the victims of trafficking.
But first before I go into all of these substantive points, I should just outline the role of the Irish Human Rights Commission for those who may not be familiar with the remit of the organisation. Basically, the Commission has a statutory remit under the Human Rights Commission Act 2000 to ensure that the human rights of all people in Ireland are promoted and protected in law, policy and practice. The Commission is charged with ensuring that Ireland meets the standards of best international practice by reviewing the adequacy and effectiveness of law and policy in the State relating to the promotion and protection of human rights, and by making recommendations to the Government as it deems appropriate concerning the measures that should be taken to strengthen, protect and uphold human rights in Ireland. Trafficking in human persons is a priority area of concern for the Commission, as is evidenced by some of the recent work we have been doing in this area which I will highlight in this presentation.
International Obligations
An appropriate starting point for analysing the State’s commitment to combating trafficking is to take stock of its international commitments in this area. In this respect, it is significant that while Ireland has signed both the 2000 Palermo Protocol on Trafficking as well as the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, it has not ratified either instrument. A similar scenario prevails as regards the Council of Europe Convention on Action against Trafficking 2005. As Marta has just explained, these instruments form the nucleus of international law on trafficking. The Council of Europe Convention is the most comprehensive of all of these instruments, setting forth as it does a comprehensive definition of the crime, as well detailed obligations on States in regard to the 3 Ps: Prosecution, prevention and protection. It is naturally a cause for concern that ratification is still pending; and while it is likely that ratification will follow once legislative measures are in place, it is essential that those measures give full expression to the obligations set out in each of these Conventions, about which I will speak further below.
In terms of European Union Law, the State is obliged to implement the terms of the EU Council Framework Decision on Combating Trafficking in Human Beings 2002 which, as is well known, defines trafficking in very similar terms to the Palermo Protocol,2 but which emphasises prosecutorial measures over protective ones as the means to combat trafficking. Ireland has opted out of the 2004 EU Directive on Short Term Residence Permits which is designed to assist victims of trafficking who cooperate with national authorities in the prosecution of traffickers.3 This instrument offers minimal protection for victims since it applies only to third-country nationals and also because it ties protection to their willingness to cooperate with prosecuting the traffickers. 4
Outside of these very specific instruments, there are of course a raft of human rights instruments which have a bearing on the issue, which the State is legally obliged to implement under international law. These include, most notably, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 6 of which commits states to pursue "all appropriate measure, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women"; the UN Convention on the Rights of the Child (CRC) which obliges states in a variety of ways to combat the exploitation of children for labour or sexual purposes, and which specifically enjoins states to "combat the illicit transfer and non-return of children abroad" (Article 11) and to take measures with a view to preventing the abduction of, sale of or trafficking in children, regardless of the purpose thereof (Article 35). Crucially, Article 39 places emphasis on the establishment of appropriate measures to secure the recovery (physical and psychological) and reintegration of victims who have suffered exploitation or abuse.
Ireland is also party, of course, to the European Convention on Human Rights, and the Convention has been incorporated, albeit weakly, into the domestic law of the State. Likewise, the State’s ratification of the 1951 Refugee Convention and its 1966 Protocol ultimately led to the belated enactment of the Refugee Act 1996 (as amended). Each of these instruments contain measures of great relevance to victims who have been trafficked into Ireland from abroad and who fear re-victimisation or other forms of inhuman or degrading treatment if returned to the country of origin.
Finally, it is important to note that similar rights are protected under the International Covenant on Civil and Political Rights to which the State is also party. The State is due shortly to present the government’s third periodic report to the Human Rights Committee in July about its progress in implementing the International Covenant on Civil and Political Rights. The reporting process provides an important opportunity for the Commission and other groups to highlight on the international stage the need for Ireland to put in place firm measures of protection for trafficking victims – an opportunity which we have taken in the form of our recent submission to the Human Right Committee on Ireland’s Report.
Current Legislative Framework
There can be little doubt that the current legislative framework for dealing with trafficking in Ireland is completely inadequate. A statute in 2000 (the Illegal Immigrants (Trafficking) Act) created an offence of trafficking of illegal immigrants into the State with significant penalties on conviction. However, the Act in no way defined the concept of "trafficking". It certainly did not tie prosecution to transportation for the purposes of exploitation (though this is not ruled out). Moreover, the offence applied only in regard to trafficking across the border of the State. Certain measures of protection exist in regard to children. Specifically, the Child Trafficking and Pornography Act 1998 is aimed at protecting children from being trafficked from one country to the next. It makes it a serious offence to use Ireland as a transit point for this activity. Finally, the Employment Permit Act 2003 touches on the matter tangentially by making it an offence to hire an illegal immigrant in the State. This legislation has been drawn on in practice by the police to target lap-dancing clubs, in particular.
Prompted no doubt by increased incidents of trafficking into the State in recent years, and also by the fact that trafficking has been placed further up the international policy-making agenda, the government introduced heads of a new bill to tackle the issue of trafficking more directly in May 2007. Given the fact that up to now, trafficking, as we have seen, has been dealt with legislatively in a very piecemeal and largely ineffective manner, this was an opportunity for the State to put in place a truly holistic package of measures to combat the crime, on the one hand, and protect its victims on the other. Unfortunately, while the Criminal Law (Human Trafficking) Bill (which was recently passed in the Senate) goes some way in the direction of filling certain gaps of these gaps, it by no means addresses all of them.
What does the Trafficking Bill do?
The Trafficking Bill criminalises a variety of activities including trafficking in adults and children and the sale and exploitation of children. It imposes substantial penalties for the commission of these crimes and seeks to ensure their effective enforcement and prosecution through a variety of measures.
In defining the crime of "trafficking" specifically, the Bill adheres closely to the definition set forth in the Palermo Protocol and the Council of Europe Convention. It emphasises the element of "exploitation" as an essential ingredient of the crime and recognises that "traffickers" manifest themselves in several different guises. It also embraces the possibility that trafficking can occur wholly within the borders of the State, recognising that this is not an exclusively trans-national phenomenon.
Provision is also made for the privacy of proceedings in connection with the prosecution of a trafficker which will involve protecting the identity of complainants.
Broadly speaking, these measures are welcome developments. The Commission said as much in its observations on the Scheme of the Bill, while at the same time, drawing attention to precise issues too detailed to go into in this short presentation. However, it is immediately apparent that the proposed measures are simply not sufficient to tackle the problem of trafficking in a truly meaningful way. The emphasis in this Bill is overwhelmingly prosecutorial. In general terms, there can be little doubt but that the trafficked person is virtually invisible in this legislation; his or her needs are submerged in favour of an overarching emphasis on crime control.
At the time that the Trafficking Bill was being introduced by the Minister for Justice in 2007, calls for more detailed measures for the protection of victims were assuaged by the promise that more detailed measures aimed at protecting the victims of trafficking would be dealt with in the forthcoming Immigration and Residence Protection Bill. As most of you know, that Bill was recently introduced and is currently being debated in the Oireachtas. The Human Rights Commission recently published detailed observations on the provisions of the Bill, along with many other groups, including of course the Immigrant Council.
In the Commission’s view, the current proposals as regards protection of victims in this Bill are far from ideal.
What measures of protection does the Immigration, Residence and Protection Bill 2008 provide for victims of trafficking?
Section 124(1) grants a victim of trafficking or a "suspected victim" 45 days of "recovery and reflection" in the State. The Bill states that the purpose of this time of reflection is to give the suspected victim time to recover from, and escape the influence of, the alleged perpetrators of the trafficking, and to make an informed decision on whether or not he or she is going to assist the Garda Síochána or other authorities in the investigation of the alleged trafficking.
Section 124(7) provides that the Minister for Justice can grant the victim permission to remain in the State for 6 months so that he or she can assist the Garda Síochána in their investigation. This temporary residence permit can, however, be revoked where, among other grounds, the victim no longer wishes to assist the Garda Síochána, or the Minister is satisfied that it is in the interests of public security, public policy or public order to revoke the residence permit. Upon revocation of a temporary residence permit, the person is regarded as unlawfully in the State, is under an obligation to remove herself from the State, and is liable to be removed without notice.
On the positive side, the fact that this Bill makes specific provisions for victims of trafficking is to be welcomed; all the more so in that these provisions are being dealt with in civil legislation independent of the prosecutorial measures necessary to deal with trafficking.
Nonetheless, there are still serious grounds for concern with respect to the scope and the adequacy of the measures actually being proposed.
First, the fact that protection of victims of trafficking is being dealt with in legislation that deals exclusively with immigrants and asylum seekers is problematic. Trafficking, as we know is not a purely trans-national phenomenon. It can take place within the borders of a State, to nationals of the State. Therefore, the Commission has recommended that the Bill be amended to state specifically that the provisions in relation to victims of trafficking relate to all victims of trafficking. Furthermore, to emphasise this point, we have recommended that the section on victims of trafficking should be placed in a separate chapter of the 2008 Bill to clearly delineate that these provisions apply to a specific category of persons and not only to foreign nationals.
Second, the Commission is especially concerned about the adequacy of the protection measures being proposed in the current Bill. We are convinced that these need to be significantly extended to reflect the international standards set forth earlier by Marta and in other international conventions that I have mentioned previously. In particular, we believe that the following provisions must be included in the 2008 Bill to bring Ireland’s law into compliance with those international standards:
In particular, provision should be made for the health care needs of victims including sexual health care and psychological support;
Provision should be made for material assistance to victims in the immediate term including access to secure housing and economic assistance;
Provision should be made for ensuring the victims access to adequate information in relation to their legal situation, in particular, victims should be informed, through the medium of a translator where required, of their options for remaining in the State;
Provision should be made for free legal advice to be provided to victims, particularly for the purpose of seeking compensation and legal redress in respect of their ordeal;
Child-specific provisions should be made dealing with particular issues for children including access to education and access to suitable, safe accommodation;
Provision should be made for repatriation schemes that seek to avoid re-victimisation. Repatriation should be voluntary where possible and should never take place where there is a doubt as to the safety of the trafficked person or the risk of re-victimisation.
The IHRC also believes that the issuance of a 6 month temporary permission to remain in the State should not be dependent on the victim’s co-operation in the criminal prosecution of the alleged traffickers. Permission to remain should also be allowed for 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.
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.
Finally, in our observations we have urged the Government to ratify the Palermo Protocol, the Council of Europe Convention on Trafficking and the UN CRC Optional Protocol without delay. In the interim, we recommend that the necessary modifications to Irish law should be made, building on this first important initiative in the 2008 Bill.
The Need for a Human Rights Centred Approach
At this point I wish to outline the reasons why prevention and protection of victims needs to be given equal weighting by the State to that of prosecution in combating the crime of trafficking.
The heart of the crime of trafficking is the savage violation of the victim’s human rights. The most obvious perpetrator is the trafficker. But also, violations take place where, as can well happen, agents of the state of origin collude in the crime or fail to give adequate protection to victims against the predatory tactics of the traffickers. But a State of destination or transit can also compound and contribute to the human rights violations being perpetrated by the traffickers. By failing to put in place clear measures of protection for victims, that State also fails to adequately protect the human rights of the victim. The victim thus suffers multiple violations of her human rights.
The UN High Commissioner for Human Rights’ Recommended Principles and Guidelines on Human Rights and Human Trafficking provide, as the very first principle that:
"The 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."5
The Guidelines explain that the rationale for placing human rights centre-stage is because violations of human rights are both a cause and a consequence of trafficking in persons.
The types of measures envisaged here are already made clear in the international instruments I quoted already which Ireland has signed, but not yet ratified:
The Chapter of the COE Convention outlined by Marta sets out the most progressive measures in any international instrument on trafficking in regard to the protection of victims, and is based on the UN High Commissioner’s Guidelines. 6
As she pointed out, the Convention offers a choice to States of adopting "legislative or other measures". There can be little doubt however that legislative protection offers the firmest guarantees to a trafficking victim, puts protection on an institutional footing and reflects more faithfully the ideal of placing human rights centre-stage in the fight against trafficking. The Commission therefore believes that the Bill currently before the Dail presents a perfect opportunity for the State to put in place these kinds of protection measures.
Conclusion
In conclusion, it is imperative that in framing its response to the crime of trafficking, the State must fully recognise the fact that trafficking is not just an issue of law enforcement, but also, that it is ultimately a human rights issue. While the measures that have been proposed in the Trafficking Bill and the Immigration and Residence Bill are a start, they cannot be regarded as an adequate response to the phenomenon. Prevention and protection are also key instruments in the fight against this most atrocious violation of human rights. Trafficking must be recognised as fundamentally an issue of human rights before any meaningful progress can be made in the fight against it. The proposed legislative framework is unclear in scope and will not give victims of trafficking any formal rights – to safe houses, to security, to witness protection programmes, to counselling and psychological support services, to access to education for their children, to social welfare and other appropriate services, to assistance with repatriation that is sensitive to their situation, to assistance with integration if that is their choice.
If, however, the appeal to humanitarian instincts or even to human rights principles fails to persuade our legislators as they debate the Bill currently before the Dail, then perhaps the more utilitarian basis for placing protection and assistance centre-stage, found in the 2007 US TIP Report, ultimately will:
"By placing the needs of victims front and center, victims of this heinous crime are assured of the protection they so desperately need. Once given those assurances, many victims step forward voluntarily and without pressure to become powerful and confident witnesses, telling their stories in court and achieving justice not only for the State that wants to eradicate these slave-like practices, but on a personal level as well. Cooperation of victims cannot be bought or forced, but through the consistent provision of assistance that is not tied to performance in court, victims assured of their rights regain the confidence to speak out for themselves. When this balance is struck, everyone wins – the State, the victim, and society – as a victim finds his or her voice and an exploiter is rendered speechless as justice is handed down".7
1 P. Conroy, Trafficking in Unaccompanied Minors in Ireland (IOM, 2003).2 The EU provision, however – does not link the phenomenon exclusively to transnational crime. Accordingly, the EU requires that all trafficking should be criminalized, including the trafficking of individuals by internal criminal gangs or by individuals.
3 The Directive provides for victims of trafficking who do agree to cooperate with the authorities to be issued with a short-term residence permit in a State for a period of 6 months, during which states are obliged to provide them with "assistance and care". It obliges States to ensure that victims have suitable accommodation, emergency medical and psychological treatment and necessary support in the form of social welfare and means of subsistence. Free legal aid, translation and interpretation services are also to be provided. During the life of the permit, victims would also be allowed to work or to undertake training.
4 See Irish Human Rights Commission, Observations on the Scheme of the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill 2007, pp. 39-40 (www.ihrc.ie) 21st May 2007 [hereinafter IHRC Observations].5 Principle 2 provides that "States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficker persons.
Principle 3 provides that "Anti-trafficking measures shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, ad of migrants, internally displaced persons, refugees and asylum-seekers".
6 7 US State Department TIP Report, June 2007, p. 37.