Call for exception from Dublin II procedures for victims of trafficking
30 April 2008
Joint submission with AIRE Centre, Asylum Aid, ECPAT UK and Poppy Project
We, the undersigned nongovernmental organizations, concerned about the rights of persons trafficked into the United Kingdom, are writing to express our firm opposition to the application of the “Dublin II” regulation in cases of human trafficking.
We are concerned that this regulation creates a new and resource-intensive bureaucracy that is unnecessary, inefficient, and fails to appreciate the circumstances of victims of trafficking, leaving them vulnerable to further exploitation.
While the Dublin II regulation is intended to curb ‘asylum shopping’ in the EU, it fails to take into account forced transfer across borders, and the fact that while in the territory of each state though which s/he travels, a trafficked person is a victim of crime(s), not an individual in pursuit of multiple asylum claims. In fact not one of the stated aims of the regulation speaks to protection of human rights or attempts to identify and provide protections for trafficked persons.
It is unfortunate that the recommendations issued by the United Nations High Commissioner for Refugees, as well concerns raised by civil society organisations, have not been taken into account. According to UNHCR report “The Dublin II Regulation: A UNHCR Discussion Paper,” estimates based on partial data, on average 15% of the asylum claims filed in the EU in 2005 were subject to determination of responsibility under Dublin II. Based on data collected by the POPPY project on referrals made between March 2003 and March 2008, 69% of referrals were non-EU nationals. 608 of 883 women (with known countries of origin) referred had been trafficked into the UK from outside the EU. Data indicates that, of women accepted onto the project who reported their routes, 57% would be eligible for removal to another EU member state under the Dublin II regulation, of those 11% could be returned to Greece . These women report on average having been trafficked through between one and nine other countries before arriving in the UK; many having travelled though two or more EU countries.
As is highlighted by the European Council on Refugees and Exiles (ECRE) in their March 2006 report; faults of geography will mean that a disproportionate burden will be placed on some countries with regard to taking back or taking control of asylum claims lodged in the UK. They indicated countries on the eastern fringes of the EU as being particularly vulnerable, and this will also be the case when victims of trafficking are transferred.
It is widely recognised that trafficking routes develop and flourish in certain locations due to ease of movement across borders, a lack of procedures for identifying victims, less stringent penalties and greater in-country demand. It is both irresponsible and illegal for the UK to adopt a policy of routinely returning trafficking victims to these countries; as it results in implicit government cooperation in continuing to move persons across borders against their will to countries where they have been and will continue to be victims of persecution and crime, and whose governments have already failed to offer protection. For many victims of trafficking, the knowledge that they face a considerable risk of being returned home or to a Dublin II-determined responsible country will be sufficient reason to try to avoid detection in the UK. It will put already-traumatised persons back in the hands of traffickers and others wishing to exploit their fear and vulnerability within these borders and may inadvertently increase irregular movements across borders.
Protection of vulnerable groups, such as trafficked persons, has been recognised at the domestic and international levels, protection of trafficked women having received particular attention. In response to the European Parliament report on the harmonisation of forms of protection complementing refugee status in the European Union (A4-0450/98), the Committee on Women’s Rights stated that “women who have been or have a legitimate fear of becoming the victims of gender-specific persecution must, as members of a social group, be recognised as refugees within the meaning of the Geneva Convention…[and] when the categories of persons in need of protection are defined, account should be taken, where the rights of women are concerned, of the internationally recognised grounds for acceptance, viz. sexual violence and exploitation and especially trafficking in women.” The ECRE have recently stated that the ‘regulation’s humanitarian clause should not be limited to uniting families. It should also allow Member States to prevent the transfer of vulnerable persons such as torture victims, or those with health problems that may require specialised treatment.’ This is also particularly true for child victims of trafficking, as has been highlighted by ECPAT UK.
Allow us to also remind you that signature of the Council of Europe Convention on Action Against the Trafficking of Human Beings forbids the UK from acting in a way which defeats the objectives of the Convention. Applying Dublin II to trafficking cases conflicts with article 12 on Assistance to victims, by failing to take ‘due account of the victim’s safety and protection needs’ as well as Article 16 on Repatriation and return of victims which must be done with ‘due regard for the rights, safety and dignity of that person…and shall preferably be voluntary.’ Article 27 also allows for a victim to make a complaint to the competent authority in each territory where s/he was a victim of an offense. To this end it is the obligation of the UK government to assist victims in lodging these complaints, not in expediting their return to these territories.
At this time, many States do not regularly choose to exercise the sovereignty and humanitarian clauses to address human rights concerns. Despite that assertion that each case can be appealed should it infringe on the individual’s human rights this is an insufficient remedy as often applicants are not even aware of their rights to appeal a transfer, which in addition to violating their rights, leaves Member States dangerously open to prosecution for failing to meet their obligations under international law to protect vulnerable groups.
The only remedy available in the UK at this time is the lengthy and complicated appeal process through the Asylum and Immigration Tribunal. Before the AIT the individual may rebut the presumption of safety in the country where the request to take back or take control has been lodged, but s/he may be required to do so in an accelerated procedure with only limited safeguards and with the burden of proof lying exclusively with him/her. This is in blatant contravention of the UK’s obligation to provide an effective remedy before a court or tribunal.
It is of particular concern that these persons are not transferred to Member States who do not permit challenges to removal on protection grounds, or those who refuse to acknowledge fears of persecution by non-state parties. The reliance of certain Member States on ‘accountability theory’ for determining a risk under ECHR Article 3 is materially incompatible with the experience of human trafficking. With regard to the responsibility of the UK in these circumstances, returning victims of trafficking to these States may undermine the obligation not to chain-refoule asylum seekers.
What we are calling for is an exception for victims of trafficking. Far from opening a potential area of abuse or undermining the Regulation, an exception for trafficked persons is an acknowledgment of particular vulnerability and of the government’s obligation to offer protection. Failing to protect these victimised women, men, and children cannot be justified on the basis of blanket enforcement of a narrow piece of legislation which makes the erroneous assumption that persons will be respected and protected equally throughout all EU territories. This is a human rights obligation and a fundamental pillar of the EU’s objective of progressively establishing an area of freedom, security and justice to those who seek protection in the community and it is our hope that the UK can assert it’s commitment to that mission by protecting this vulnerable group of persons.
We look forward to hearing from you.
AIRE Centre (Advice on Individual Rights in Europe)
ATLeP (Anti-Trafficking Legal Project)
ECPAT UK (End Child Prostitution Pornography and Trafficking)
to the hell abnormal Dublin II regulation