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European Union Agency for Fundamental Rights (FRA) MEMO / 24 June 2009

EU Agency for Fundamental Rights: Report on strengthening the role of the EU

in the fight against child trafficking In July 2007, the European Commission asked the European Union Agency for Fundamental Rights (FRA) to develop indicators to measure how the rights of the child are implemented, protected, respected and promoted in the EU Member States. The indicators were published by the Agency in March 2009 and are available from http://fra.europa.eu. In October 2007, the European Commission requested that the Agency started collecting data on the basis of these indicators. Following a consultation meeting with other international organisations and the European Commission in Vienna, in April 2008, it was agreed that the FRA’s first thematic study on the rights of the child would focus on child trafficking.

KEY RESULTS Many children fall victim to trafficking every year Trafficking in human beings is a major problem both in the EU and worldwide. Every year a substantial number of children fall victim to trafficking for sexual exploitation or other purposes. Estimates as to the full extent of the problem have been provided by some reputable sources, yet there are no studies or reliable statistics to provide a comprehensive picture. It is therefore impossible to make accurate statements regarding the actual levels of human and child trafficking at national, international and global levels. A clear definition of child trafficking is lacking in both the EU legal framework, and at Member State level. The definition of human trafficking provided by the Council Framework Decision on combating trafficking in human beings of 2002 only covers child trafficking for the purposes of labour exploitation or sexual exploitation, but fails to mention types of exploitation for other purposes, such as organ extraction or exploitative forms of adoption. Although

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intra-state trafficking is covered by the definition of human trafficking in international law (see Council of Europe Convention on Action against Trafficking in Human Beings from 2005), it is not covered by the definition of human trafficking in a number of EU Member States. The EU Agency for Fundamental Rights advocates that:

• the EU and the Member States should adopt a clear and comprehensive definition of trafficking, as contained in the Council of Europe’s Convention on Action against Trafficking in Human Beings.

Children disappearing from shelters most likely fall victim to trafficking

In 2008 400 of the 1320 minors that arrived in the Lampedusa immigration centre disappeared. According to Roberto Maroni, the Ministry of Interior, they might have been trafficked for organs. However, ‘Save the children’ states that there is no evidence that this is the case, but that the children may have fallen into the hands of criminal organisations, in particular sex traffickers1.

According to NGOs, the disappearance of children from shelters in the EU Member States is widespread, with their destinations largely unknown. However, this problem remains largely ignored, with a severe lack of monitoring as a result of insufficient data collection in at least 9 Member States. Only a few Member States have developed policies to tackle this issue. Specialised shelters for victims of child trafficking are not provided in most Member States. The children are sent to shelters for adult victims of trafficking, specialised shelters for unaccompanied minors or other facilities for vulnerable children. The EU Agency for Fundamental Rights advocates that:

• EU legislation should guarantee that victims of child trafficking are sheltered in suitable facilities which are tailored to their needs;

• EU legislation should oblige Member States to collect statistics on children leaving shelters or otherwise disappearing, and to make them available for public scrutiny;

• EU legislation should oblige Member States to enact a policy to tackle disappearances, including offering a long-term perspective to victims of child trafficking to stay in the country.

1 As reported in La Repubblica (24/02/2009) p 2., M. Reggio, “Traffico d’organi anche in Italia

Maroni lancia l’allarme minori”

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Good practice: offering a long term perspective to victims of child trafficking The Czech Republic allows unaccompanied minors to stay in the country until they reach the age of 18. Children who are studying may then apply for national residency status. Upon the condition of integration, a permanent residence permit may then be granted to them.

Extremely low number of child trafficking convictions There are generally very few final convictions in child trafficking cases. Convictions for child trafficking could only be detected in 4 Member States in the 2000-2007 period. Identification of victims is vital to prosecuting traffickers

In 2000 Dayo, 15 years old, was brought from Nigeria to the U.K. She looked after 3 children, did all the domestic tasks and was daily beaten. In 2003, when she finally contacted a help group, the trafficker tried to return her to Nigeria. She refused to get on to the plane and was therefore taken to the immigration services. The immigration officers did not believe anything she said and let the trafficker go and kept her in a centre. After 5 days they took her to the airport for deportation but she managed to contact an Asylum Aid group that prevented the deportation, claiming that she was an unaccompanied minor who was seeking asylum in the UK2.

The identification of victims of child trafficking is crucial to prosecuting traffickers and providing victims with protection and assistance. The EU Agency for Fundamental Rights advocates that:

• EU legislation should contain minimum standards for the identification of victims of child trafficking;

• the application of EU legislation combating trafficking in human beings needs to be regularly reviewed to ensure that it is effective and does not merely exist on paper. The European Commission should be entrusted with the task of drawing up a periodic report on the implementation of the relevant EU legislation, taking into account the views of the European Union Agency for Fundamental Rights, as well as the views of relevant non-governmental organisations.

2 “I was a victim of child traffickers”, in: BBC news (17/05/2004) http://news.bbc.co.uk

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Good practices for identifying victims of child trafficking Early identification of victims, which facilitates easy entry into the assistance system, is a top priority for the Finnish Border Guard in combating child trafficking. For this reason, the Finnish Immigration Service has prepared instructions for authorities involved in asylum processes (including the police, the Finnish Border Guard and the Finnish Immigration Service), through which the authorities are informed of how to identify victims of human trafficking and unaccompanied minors who are at risk of becoming victims of trafficking, upon arrival in the country. The instructions also include recommendations on how authorities can co-operate effectively in the process of victim identification and prevention of trafficking. They also underline sensitivity when dealing with under-aged asylum seekers who are at risk of becoming victims of human trafficking. In co-operation with NGOs, the Government of the Czech Republic has formalised its victim screening process with Victim Screening and Identification Procedures, by issuing a pamphlet with a list of 12 basic questions to police officers which may help them identifying victims of trafficking in human beings. Detailed questions are often essential for law enforcement to discover a human trafficking case. In the Netherlands, the Aanwijzing Mensenhandel (Instruction Trafficking in Human Beings) provides that police and prosecution officers are only to deal with cases of trafficking in human beings and to have direct contact with possible victims, if they hold a specific certificate.

Protection of child victims of trafficking needs to be a priority

Regina, 16/17 years old, a Nigerian national, was arrested on 29 February 2008 at the River Docks, while she was on a boat leaving the UK for France. According to her statement, she was brought to the UK by a man, installed in a flat where she was raped and forced into prostitution. When arrested by the police, she handed over an identity card, which she later admitted was not hers and was subsequently taken into custody. Although a social worker from the ‘Poppy Project’ alleged that Regina was a victim of a sex trafficking organisation, the girl was prosecuted for an immigration offence. Despite the evidence suggesting that she was probably under aged, there was no inquiry into her age. She was tried on March 2008 as an adult (not in the Youth Court) and sentenced to 8 months imprisonment (less 16 days spent on remand). She remained in custody until bailed on 26 June3.

According to international law, the interests of children must always be a primary consideration at the heart of all law. However this is still not the case for child trafficking. This ’principle of best interests of the child’ is, amongst others, enshrined in Article 24 of the Charter of Fundamental Rights of the EU. Member States have important interests in combating crime and regulating immigration. However, these policy goals should not be allowed to overshadow the best interests of victims of child trafficking.

3 United Kingdom / Court of Appeal / Judgment (2008) EWCA Crim *2835.

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In half of the Member States, no formal policy on non-punishment exists. This means that in these countries, victims of child trafficking could be prosecuted for border offences or other offences such as illegal prostitution, in spite of being victims themselves. In these countries there is a higher risk that victims of child trafficking might not develop a relationship of trust with state authorities, which would no longer leave them dependent on their traffickers. In the vast majority of EU Member States, the detention of victims of child trafficking pending deportation is not explicitly prohibited by law. The EU Agency for Fundamental Rights advocates that:

• EU legislation should strictly prioritise the best interests of the child as a core general principle of EU law. The best interests of the child must be respected, protected and promoted as a priority.

• EU legislation should ensure that a child who is believed to be a victim of trafficking should not be detained as a matter of principle.

• EU legislation should include a formal policy of non-punishment of victims of child trafficking to ensure that they can develop a relationship of trust with state authorities, in order to escape their dependency on their traffickers.

• Socio-economic rights (health care, housing, education) of victims of child trafficking need to be ensured by EU legislation.

Good practice: prohibition of detention In three Member States (Italy, Hungary and Slovenia), detention pending deportation of minors is prohibited by law. In Hungary by virtue of the Third Country Nationals Act, detention pending deportation cannot be imposed against underage nationals of a third country, whether they are victims of child trafficking or not. In Italy as general rule, the Italian legal system does not allow the deportation of foreign children below the age of 18, unless the minor constitutes a danger for public safety or State security, in which case he/she may be deported for this special reason. In Slovenia ‘residence under stricter police supervision (i.e. confinement of free movement to the premises of a Centre in accordance with the Centre's house rules) for an unaccompanied third country national minor cannot be ordered (due to his/her status as a minor)’. In Finland, while there is no general legal prohibition to detain children, the basic principle is that a child who is believed to be a victim of trafficking is not detained under any circumstances.

The report is available from: http://fra.europa.eu For further questions please contact Mrs Waltraud HELLER at the FRA Media Team: E-mail: media@fra.europa.eu Tel.: +43 1 58030-642