Select Committee on European Scrutiny Twenty-Second Report





Draft Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who co-operate with the competent authorities.

Legal base:Article 63(3) EC; consultation; unanimity of participating Member States
Document originated:11 February 2002
Forwarded to the Council:12 February 2002
Deposited in Parliament:28 February 2002
Department:Home Office
Basis of consideration:EM of 8 March 2002
Previous Committee Report:None
To be discussed in Council:No date set
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested


  15.1  This draft Directive is set in a context of increasing illegal immigration and trafficking in human beings. It draws on the legislation and practice in Member States, on responses to a questionnaire sent by the Commission to Member States in 2000, and on discussions in the European crime prevention forum held at the end of October 2001. Advanced warning of the proposal was given in the Commission's Communication, On a Common policy on illegal immigration, which we cleared in February, with a report to the House.[35]

  15.2  As the legal base falls within Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to the free movement of persons), the UK has three months from the formal publication of the proposal in which to decide whether to opt in to the measure (in accordance with the provisions in the Protocol on the position of the United Kingdom and Ireland now annexed to the EC Treaty and the Treaty of European Union).

The document

  15.3  The draft Directive proposes the introduction of a short-term residence permit for victims of illegal immigration activities or trafficking who are prepared to co-operate in investigations and criminal procedure against their exploiters. It is designed to counteract the difficulty of getting evidence against such exploiters, whose victims are reluctant to come forward both because of their insecure status as illegal immigrants and because of their fear of retaliation.

  15.4  The possibility of such a permit would be offered to non-EU nationals (usually adults, but, in some circumstances, minors) who had suffered harm directly caused by action to facilitate illegal immigration or trafficking in human beings, and who broke off all relations with the suspected criminals. (The proposal makes clear that it does not cover all those caught up in illegal immigration — as opposed to those who have been trafficked — but only those who can reasonably be regarded as "victims", by having suffered physical injury, for example.)

  15.5  There would be a 30-day reflection period during which the victims could decide whether or not to continue to co-operate with the authorities, and a slightly longer period for the authorities to decide whether the victims' presence would be useful, and whether they have genuinely broken off relations with the suspects. During the reflection period, victims would be allowed access to any necessary aid, including housing, medical and psychological care and social assistance.

  15.6  If the authorities decided in favour of the victims, they would be issued with a residence permit for six months. The permit would give access to employment, education and vocational training. Permits could be withdrawn at any time if the victims were found not to have genuinely co-operated.

  15.7  The permit could be renewed, but would not be if the proceedings against the suspects were concluded, or if the conditions under which it was issued no longer pertained (if, for example, the presence of the victim was no longer considered necessary). At this point, normal immigration legislation would be applicable, but Member States would be required to take account of victims' co-operation when considering their applications.

  15.8  The draft Directive makes it clear that it is not a witness or victim protection measure, since witness and victim protection are matters of national or European Union law.

The Government's view

  15.9  The Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) tells us that the Government endorses the importance of bringing to justice those who cause harm to others through illegal immigration or people trafficking. She cites the recent White Paper, Secure Border, Safe Haven: Integration with Diversity[36]. This spells out the Government's approach, which is to offer victims particular support and to consider, in the light of individual circumstances, whether to allow them to stay in the UK. If the decision is that they should be returned, special assistance will be provided.

  15.10  The Minister comments:

"The Government considers that routinely granting leave to remain in the United Kingdom to victims who co-operate with the authorities would be open to abuse and thereby represent an unacceptable weakening of our immigration controls. The Government's current practice is to grant leave to remain on an exceptional basis outside the Immigration Rules where the circumstances of individual cases merit it. These circumstances include the presence of compassionate factors as well as to permit the victim's continued presence to assist in a criminal investigation or prosecution. The Government firmly believes this flexible approach continues to be the right one for the United Kingdom. To develop this approach the Government intends developing a best practice 'toolkit' to help those, chiefly police and immigration officers, who deal with illegal immigrants and trafficking victims to distinguish victims in genuine need and to provide them with the support and help they need. It will be a comprehensive summary of best practice based on what works."

  15.11  With regard to the draft Directive, the Minister tells us:

"The Government does not consider that the Commission has fully justified the case for action at Community level. The Commission's argument is that disparities in the provision already made individually by Member States for victims 'have the undesirable effect of diverting the activity of criminal organisations to those countries where the risks [to that activity] are lowest'. Before acknowledging the force of this justification the Government would prefer to see evidence adduced in its support."

  15.12  There could be financial implications if the UK were to opt in to the measure. These would arise from the assistance offered during the reflection period and the costs of education and vocational training following the issue of a short-term residence permit. Some changes would also need to made to the Immigration Rules.

  15.13  The Minister has no information at this stage about the Council timetable for the adoption of the measure.


  15.14  We agree with the Minister that it would be useful to have some evidence about the effect of disparities in the provision made by Member States for victims of action facilitating illegal immigration and trafficking in human beings. We would also like to know more about the experience of those Member States (Belgium, Italy, the Netherlands and Spain) which have introduced residence permits of the kind proposed in the draft Directive.

  15.15  In particular, we are concerned about the risk to victims who decide to co-operate, especially if the authorities eventually decide that their presence would not be useful and do not issue them with short-term residence permits. We wonder how many victims would be prepared to run this risk, even with the incentive of six months residence. We ask the Minister to provide us with any available information about the take-up of short-term residence permits, the safety of those offering to co-operate, and the number of successful prosecutions of exploiters in those Member States that have introduced these procedures.

  15.16  We would also be interested in information about the success of the Government's approach to this question. Once the 'toolkit' has been produced, we would like to receive a copy.

  15.17  Finally, we ask to be informed of the Government's decision about whether or not it will participate in this measure. We shall keep the document under scrutiny until we hear from the Minister on these matters.

35  (22998) 14239/01; see HC 152-xviii (2001-02), paragraph 11 (6 February 2002). Back

36  Cm 5387. Back

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