Johanna Westeson - The ICHRP

competent authority “considers that [his or her] stay is necessary” either owing to the
personal situation of the trafficked person, or for his or her cooperation in the legal
process. For child victims, the residence permit shall be issued in accordance with the best
interests of the child.
Repatriation to the country of origin of a trafficking victim shall be conducted “with due
regard for the rights, safety and dignity of that person and for the status of any legal
proceedings related to the fact that the person is a victim, and shall preferably be
voluntary” (Art 16.2). This wording means that forced repatriation is allowed, though not
recommended, under the Convention. It is for the authorities in the host country to assess
the victim’s needs and, based on this assessment, determine whether a residence permit
should be issued. The Convention does not provide any guidance as to what principles this
assessment will be based on. The host country must conduct a risk assessment before
returning children (Art 16.7) but not in other cases. As pointed out by commentators, this
suggests that in practice contracting parties are not obliged to take on any legal or moral
responsibility for the safety and security for trafficked persons returned against their
will. 688 However, interestingly, the Explanatory Report mentions that the drafters
considered that it was “important to have in mind” European Court of Human Rights
jurisprudence on states responsibility to conduct a risk assessment in cases of extradition
and deportation as regards risk of torture upon return. 689 While not elaborating this further,
this comment suggests that even if there is no requirement for a full risk assessment, states
still cannot totally escape responsibility for the fate of the returned victim.
Finally, according to Art 26, states parties must ensure that there is no possibility of
imposing penalties on trafficking victims for illegal activities in which they have engaged.
This is relevant in particular with regard to persons trafficked for sexual purposes in
countries where sex work is illegal.
3. European Union
Human trafficking is mentioned explicitly in the Treaty of the European Union as one of
the crimes that will be prioritized in the police and judicial cooperation of the EU. In this
context, there is no mentioning of the rights of trafficked persons. 690
In 2004, the Council of the European Union adopted the Council Directive 2004/81/EC on
Residence Permit for Trafficking Victims. 691 The Directive defines the conditions for the
granting of temporary residence permits to third-country nationals who have been the
victims of human trafficking and who are willing to cooperate with the authorities in
fighting trafficking. It applies to trafficked persons who have entered the Union legally as
well as illegally (Art. 3.1). The Directive provides for a reflection period for the victim of
human trafficking, the duration of which will be determined according to national law, and
during which victims cannot be deported and will have access to emergency medical
treatment (Art. 6.1). The member states must make sure that during the reflection period
688 Gallagher, p. 180.
689 Cases mentioned are Soering v. United Kingdom (1989), Cruz Varas and Others v. Sweden (1991), and D.
v. United Kingdom (1997). Explanatory Report, para 203.
690 Article 29 of the Treaty of the European Union (as amended by the Amsterdam Treaty).
691 EU Council Directive 2004/81/EC 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 [2004] OJ L 261.
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