Human Trafficking in Scotland: European Law Interventions 13 December 2012 Glasgow 1

The AIRE Centre Mission: To promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Activities: Provide free legal advice to individuals and their advisers on their rights under EU law (mostly EU law on the free movement of persons). Take cases to the European Court of Human Rights (including cases on behalf of trafficking victims facing expulsion). 2

AIRE’s Trafficking Litigation Representation in the European Court of Human Rights M v United Kingdom – return to Uganda – friendly settlement L.R. v United Kingdom – return to Albania – friendly settlement O.G.O. v United Kingdom – return to Nigeria – still pending Third-Party Interventions in the European Court and English courts Rantsev v Cyprus and Russia – failure to investigate – judgment C.N. v UK – failure to investigate – judgment C.N. & V. v France – failure to prosecute – judgment V.F. v France – return to Nigeria – inadmissibility decision B.M. v France – return to Nigeria – still pending Kawogo v UK – failure to investigate – still pending AA(Iraq) v SSHD (Court of Appeal E&W) – victim-status identification and Dublin return - 3

Objectives of This Intervention 1.Improve your familiarity with the European law that applies for the protection of victims of trafficking in Scotland. 2.Provide background information, and particularly examples, to enable a discussion about how Scotland’s European legal obligations do, and will, enhance protection for victims of human trafficking in Scotland. 4

Layers of Anti-Trafficking Law (and Scotland as a small jurisdiction) Other international law Council of Europe law European Union law UK law (non- devolved) 5

Council of Europe Law 6 Council of Europe law European Convention on Human Rights, Article 4 – applicable through the Human Rights Act Council of Europe Convention on Action Against Trafficking in Human Beings – not directly applicable but English courts have been treating it as if it were

European Union Law 7 European Union law Charter of Fundamental Rights Directive 2011/36 (Directive 2004/81)

EU Charter of Fundamental Rights and Trafficking Article 1 Human dignity Human dignity is inviolable. It must be respected and protected. Article 3 Right to the integrity of the person 1.Everyone has the right to respect for his or her physical and mental integrity. Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. Other relevant provisions: prohibition on discrimination (Article 21); rights of the child (Article 24); social security and social assistance (Article 34); right to a fair trial (Article 47). 8

How Does the Charter Work (1)? Article 51 Field of application 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. So we can only assert the Charter against the UK when the UK is applying European Union law. 9

How Does the Charter Work (2)? Article 52 Scope and interpretation of rights and principles … 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. … 10

Example EU Directive 2003/9 provides for minimum standards in relation to reception conditions for asylum seekers in the European Union. Article 14 Modalities for material reception conditions 1. Where housing is provided in kind, it should take one or a combination of the following forms: (a) premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border; (b) accommodation centres which guarantee an adequate standard of living; (c) private houses, flats, hotels or other premises adapted for housing applicants. 2. Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured: (a)protection of their family life; (b) the possibility of communicating with relatives, legal advisers and representatives of the United Nations High Commissioner for Refugees (UNHCR) and non-governmental organisations (NGOs) recognised by Member States. Member States shall pay particular attention to the prevention of assault within the premises and accommodation centres referred to in paragraph 1(a) and (b). 11

EU Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims Article 288 TFEU A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. 12

Principles of Directives Transposition: The UK must transpose the Directive by 6 April 2013 and must report to the Commission to explain what it has done. Direct effect: From 6 April 2013, an individual can rely on the provisions of the Directive directly in any dealings with UK State authorities (including in courts and tribunals). UK judges must apply the Directive, including disregarding conflicting UK law. Damages: when the UK authorities deprive people of their rights under a directive, they may be liable for damages, in accordance with the Francovich case (Cases C-6&9/90). However, the UK courts have been reluctant to award damages in cases such as these, requiring that the victim of the breach shows that the breach was ‘sufficiently serious’. 13

Taking Cases to the Court of Justice of the EU under the Directive Two ways of getting cases to the Luxembourg Court under the Directive: 1.Reference by a national court. Under Art 267 TFEU, a national court can refer questions for a preliminary ruling to the CJEU if the answers are necessary to resolving a case. 2.Infringement proceedings. Under Art 258 TFEU, the Commission can take the UK to the CJEU (Commission v United Kingdom) for breaching a provision of the Directive. The Commission will only know about problems if we tell them! Usually, such cases can only go to the CJEU after the deadline for transposition, but it is possible to argue that the UK is in breach of the Directive during the transposition period. 14

Legal Interventions – 4 Models of How European Law Applies to the Protection of Victims in Scotland 1.Protection of Victims, Investigation and Prosecution of Traffickers 2.Residence Status of Victims 3.Social Support for Non-British Victims Without Residence Permits 4.Prosecution of Victims 15

1. Protection of Victims, Investigation and Prosecution of Traffickers – the direct model Rantsev v Cyprus and Russia (Article 4 ECHR) – three obligations towards trafficking victims: Have in place a legal and administrative framework to deter trafficking Protect people the authorities know or ought to know are, have been or are at risk of becoming trafficking victims Investigate suspected acts of human trafficking 16 See, e.g., C.N. v UK: “Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour.” Direct CoE obligations on matters falling within Scots law

Article 14 of the CoECAATHB Article 14 – Residence permit 1 Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: a the competent authority considers that their stay is necessary owing to their personal situation; b the competent authority considers that their stay is necessary for the purpose of their co- operation with the competent authorities in investigation or criminal proceedings. 2 The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions. 3 The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party. 4 If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1. 5 Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum. 17

2. Residence Status of Victims – the powerless model People on Scottish territory, but Scots law has no applicability. 18 Direct CoE obligation on matters falling within Westminster’s jurisdiction, but not binding in UK law Refusal to accept EU law obligation Art 13 CoE CAATHB creates an obligation to have a 30-day recovery- and-reflection period, and Art 14 sets out the circumstances in which residence permits should be granted. The UK has refused to be bound by EU Directive 2004/81, providing for residence permits for non-EEA national victims.

Social Support Article 12(1) CoECAATHB Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance; b access to emergency medical treatment; c translation and interpretation services, when appropriate; d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand; e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; f access to education for children. Article 11(5) Dir 2011/36 The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate. 19

3. Social Support for Non-British Victims without residence permits – the interference model 20 Article 12 CoECAATHB – unincorporated obligations Article 11(5) of Dir 2011/36 – enforceable obligation to minimum subsistence and appropriate, secure housing After 45 days, left to asylum support delivered by Westminster Are Scottish local authorities left providing minimum subsistence and security if Westminster does not? Asylum Seekers After 45 days, access to social assistance is regulated by Westminster regulations limit access to national social security benefits through right-to-reside test Westminster prevents Scotland providing housing to those without a RtR EEA Nationals /Others

Prosecution of Victims Article 26 CoECAATHB Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so. Article 8 Dir 2011/36 Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. 21

4. Prosecution of Victims – the influence model 22 Art 26 CoECAATHB – unincorporated, woolly obligation Art 26 CoECAATHB – binding (?), woolly obligation Sex trafficking cases: out- of-time appeals against criminal conviction for document offences allowed Drugs offences: Court of Appeal refuses to overturn conviction even where child victim is ID’d after the trial

Contact Details Adam Weiss 23