[T]he establishment of binding mechanisms to harmonize the assistance of trafficked persons with investigative and crime prosecution efforts.36
The EEG’s recommendations also emphasised the need to:
[E]stablish a governmental co-ordination structure consisting of a National Governmental Coordinator and a cross-sector and multidisciplinary Round Table to develop, coordinate, monitor and evaluate national action plans and policies.37
The EEG also stressed that “Member States and the EU should ensure adequate and sustainable funding of civil society actors, in particular NGOs providing assistance to trafficked persons and advocating and defending their human rights”.38 Adequate funding of civil society organisations is crucial in order to guarantee protection and services for trafficked persons.
In 2010, the EEG issued an opinion, the Proposal for a European Strategy and Priority Actions on combating and preventing trafficking in human beings (THB) and protecting the rights of trafficked and exploited persons.39 In calling for an EU Strategy, the EEG once again noted that:
National Referral Mechanisms should be based on a human rights-centred and gender-, age-and culture-sensitive approach, with the awareness that the full practical implementation of such an approach also enhances the effectiveness of the law enforcement agencies’ and judiciary’s efforts in fighting trafficking and exploitation.40
To support the transposition and implementation of the Trafficking Directive, in 2012 the EU launched the EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016.41 The Strategy has five priorities, including identifying, protecting, and assisting victims of trafficking. The establishment of National and Transnational Referral Mechanisms is a key action to be implemented. According to the Strategy, Member States should “ensure that formal, functional national referral mechanisms are established”, which engage all relevant public authorities and civil society involved in procedures to better identify, refer, protect, and assist victims.42
Ideally, monitoring and evaluation should be an integral and on-going part of the functioning of an NRM at the national level. As early as 1996, EU Member States affirmed their commitment, in The Hague Ministerial Declaration,43 to maximise their co-operation in the fight against trafficking and to provide or to explore the possibilities for the appointment of National Rapporteurs. The EU Trafficking Directive requires the establishment of National Rapporteurs, or equivalent mechanisms, whose tasks should include the carrying out of assessments of trends, the gathering of statistics, the measuring of results of anti-trafficking actions, and reporting.44 Finally, the informal network of National Rapporteurs or equivalent mechanisms, set up following Council Conclusions in 2009,45 has now become more active across the EU, and meets biannually to exchange experiences and best practices.
In October of 2012, the Council of the European Union adopted Council Conclusions46 on the new EU Strategy and invited Member States to:
Develop or update functional national referral mechanisms as agreed in the EU Policy Cycle that describe procedures to better identify, refer, protect and assist victims and include all relevant public authorities and civil society;
Strengthen child protection systems that take into account the best interests of the child and ensure inter-agency cooperation and coordination, in human trafficking situations, to further prevent re-trafficking of and to better protect and assist child victims, by establishing cooperation mechanisms between countries of origin, transit and destination.47
In its Mid-term Report on the Strategy,48 the Commission emphasised that it has provided funding for projects that support the establishment and strengthening of NRMs. It reported that over half the Member States have formalised NRMs to co-ordinate the various actors from State ministries and civil society who are involved in identification, assistance, protection, and reintegration.
As prescribed in the EU Trafficking Directive (and outlined in the EU Strategy), Member States’ NRMs should carry out individual risk assessments for each victim of trafficking49 in order to provide appropriate protection and assistance as necessary. Based on Member States’ practice, the Commission will develop guidelines on how to further develop NRMs, and has stated that NRMs should also address issues such as compensation and safe return.50
Regarding possible future EU policy action, experts have argued that the policy-making process should become more inclusive, and that the focus should be on preventing and addressing exploitation, which would mean to treat trafficking outside the European Agenda for Migration, and to ensure the protection and empowerment of all victims without discrimination.51 Such proposals reflect the spirit and intent of earlier EEG Opinion No. 7 –which recommended that NRMs should not only include measures for proper identification and adequate protection, but should also provide a whole set of services ensuring social inclusion and access to the labour market.52
The Council of Europe Convention and monitoring efforts
Action against trafficking in human beings is one of the four priority areas of co-operation between the Council of Europe and the OSCE.53 The implementation of the Council of Europe Convention on Action against Trafficking in Human Beings is monitored by the Group of Experts on Action against Trafficking in Human Beings (GRETA). GRETA recognises the importance of NRMs, in particular when NRMs define the roles and responsibilities of different actors and provide clear procedures, guidance, and operational indicators. GRETA has reported progress in this area, noting that 14 countries have set up an NRM, and others are in the process of developing an NRM.54 Yet despite these inter-agency NRMs being in place, in nine countries GRETA found that identification was usually conducted by only one single authority or body, such as law enforcement.55 Arguably, this may be an indication of a weak NRM, as binding mechanisms under more developed NRMs allow different stakeholders, such as low-threshold NGO service providers, to make an initial identification, which ensures protection of the suspected victim of trafficking, and increases the likelihood of their stabilisation and future co-operation with the authorities on investigation and prosecution efforts.
Challenges for the further development of National Referral Mechanisms
National Referral Mechanisms for suspected child victims of trafficking
At the top of GRETA’s list of ten main gaps in implementation of the Convention is the need to strengthen child victim identification, services, and provision of a legal guardian.56 In 31 countries, GRETA has called upon States to improve the identification of, and assistance to, child victims of trafficking.57 GRETA recommends that States set up:
[A] specific identification and referral mechanism which takes into account the special circumstances and needs of child victims, involves child specialists, child protection services, and specialised police and prosecutors, and ensures that the best interests of the child are the primary consideration.58
The EU Strategy also acknowledges that “comprehensive child-sensitive protection systems that ensure inter-agency and multidisciplinary coordination are key in catering to the needs of diverse groups of children, including victims of trafficking”.59 The EC has published a study on high-risk groups in order to increase knowledge of children’s vulnerability to trafficking, and to contribute to future evidence-based policy development.60
With a view to informing guidance to strengthen the role of guardians and the child protection systems in NRMs, the EU Fundamental Rights Agency has undertaken research and issued a Handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking.
At the national level, child rights advocates are also lobbying for child-specific NRMs. For example, in the UK, the Anti-Trafficking Monitoring Group, composed of 11 leading NGOs, has proposed a best practice, model NRM for children.61 This model respects the key principles of the UN Convention on the Rights of the Child, including non-discrimination, the best interests of the child, the right to survival and development, and the right to be heard. It builds on the guida
nce from the Committee on the Rights of the Child’s General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration.62 It stresses the importance of embedding the NRM process within the existing child protection system, and of ensuring an interdisciplinary approach similar to the Multi-Agency Safeguarding Hubs (MASH) model.63 Furthermore, it proposes that if decisions were then taken by such a MASH, legislative reform might be considered that would allow a right for the child concerned to apply to the Family Court when the child, or its guardian, would like to appeal a decision concerning the child.64
At a transnational level, the EU is funding projects on durable solutions based on an individual assessment of the best interests of the child, and which are aimed at developing good practice in this area – such as the project on Durable Solutions for Separated Children in Europe, led by the Irish Refugee Council.65 Actors involved in the National Referral Mechanism may play a key role in identifying and implementing a durable solution for a trafficked child in line with the best interests of the child as required by Article 16 of the EU Trafficking Directive.66
National Referral Mechanisms and international protection systems
While children are particularly vulnerable, every trafficked person has the right to an individual assessment of their needs67 and should be granted international protection when warranted. A study commissioned by UNHCR in 2009 revealed gaps in State practices in relation to ensuring complementarity between international protection systems and procedures for the protection of victims of trafficking.68 The 2012 Joint UN Commentary on the EU Trafficking Directive also noted that:
[A]sylum systems remain a weak link in the process of identifying, referring and protecting trafficked persons, including under the protection regime for refugees and other persons in need of international protection.69
In its 5th General Report, GRETA included a special section on the identification and protection of victims of trafficking among asylum seekers, refugees, and migrants.70 GRETA noted that the CoE Convention’s rights to assistance may not be effectively protected where a victim of trafficking is also seeking asylum.71 Furthermore, GRETA raised concerns about violations of potential trafficked victims’ rights when they have been unable to apply for asylum while still in an identification procedure for trafficked victims.72 Suspected victims of trafficking should receive information on their rights, free legal aid, and the possibility to seek asylum. This is important because, as has been clarified in the UNHCR Guidelines, some trafficked persons may qualify for refugee status.73 Therefore, it is important that National Referral Mechanisms refer trafficked persons to a lawyer, who can advise if an asylum application would be appropriate, and provide free legal aid for any necessary procedures. Together with other UN agencies, UNHCR also encourages Member States when implementing the EU Trafficking Directive:74
[T]o ensure that their NRMs include close cooperation and established protocols with their national asylum authorities for the age-and gender-sensitive protection and assistance of victims of trafficking who are also in need of international protection.75
As noted in a study on Identification of victims of trafficking in human beings in international protection and forced return procedures by the European Migration Network (EMN), some Member States do provide for the possibility of granting international protection on grounds of the applicant being a victim of trafficking.76 Such measures are crucial, as trafficked persons may face reprisals, discrimination, persecution, and the risk of re-trafficking if returned to their country of origin. Therefore, it is important that authorities examine each case individually and assess whether the applicant’s situation satisfies all the elements of the refugee definition, as explained in the UNHCR Guidelines.77
The EMN study also found that, despite improvements in EU legislation and possibilities for international protection provided by Member States, there is evidence that not all victims are identified and, therefore, may not be granted protection and assistance. The EMN study also outlines how the Recast of the EU asylum acquis seeks to address this challenge by obliging Member States to identify applicants with special procedural needs, and by recognising victims of trafficking as vulnerable persons whose situation should be taken into consideration when implementing the law.78 Regarding Dublin transfers and forced return procedures, the report also summarises Member State practices where there have been some improvements,79 but, again, where the decisions not to transfer “remain dependent on effective detection methods, identification processes and a procedure in place for the transfer to be delayed or a final decision made whether or not to proceed with it”.80 The fact that the Dublin III Regulation81 includes a provision to conduct a personal interview82 is viewed as an opportunity to improve practice and to detect vulnerable migrants. This does not mean, however, that a victim of trafficking may not be transferred under the Dublin procedure. Rather, it confirms the critical need to improve the identification process and interviewing techniques – as well as the provision of information – and to conduct a thorough assessment of every individual case.
There is a real necessity at this stage to build capacity to implement such changes. The European Asylum Support Office (EASO) has a key role to play in addressing current gaps. EASO is mapping Member State asylum authorities’ current practices regarding the identification of vulnerable applicants, including victims of trafficking. In March 2014, EASO organised a first experts meeting on trafficking in human beings and asylum. It was acknowledged during the meeting that the issue of identification was one of the main challenges to be faced by asylum policy and case officers when coming into contact with a victim, or potential victim, of trafficking. Therefore, one of EASO’s objectives for 2015 was supporting better identification of vulnerable persons.83 In May 2015, EASO hosted an experts meeting on the ‘Identification of Victims of Trafficking of Human Beings who may be in need of International Protection’. This meeting examined good practices and challenges, and resulted in the establishment of the EASO Expert Network on Activities on trafficking in human beings (THB-EASOnet).
As reported in the Mid-term Report on the EU Strategy,84 EASO has been updating its ‘interviewing vulnerable persons’ training module to equip asylum officers with the skills to identify vulnerability indicators, including the ability to identify potential trafficking victims, and to interview them taking into account their special needs. EASO has also recently updated its ‘country of origin information’ module, introducing a distinct section on ‘research on trafficking’.
Transnational referral mechanisms
In the EU Strategy, the European Commission committed to developing a model for an EU Transnational Referral Mechanism (TRM), which should link NRMs to better identify, refer, protect, and assist victims.85 In trafficking cases that are international in nature, a functioning TRM should increase international co-operation and strengthen transnational protection mechanisms. The Council Conclusions on the EU Strategy also invited the Commission to develop a model for an EU transnational referral mechanism.86 The EC Guidance Document on the transposition of the Victim Directive also encourages Member States to consider concluding formal bilateral co-operation agreements in order to deal better with cross-border cases.87
The ICMPD has been active in developing guidelines and implementing projects to assist States to set up a functioning TRM. Since 2006, ICMPD has carried out projects to promote and to support the development of TRMs. Within the framework of the TRM EU project, 14 countries collaborated to develop a TRM.88 ICMPD Guidelines for the development of a TRM in Europe define a TRM as:
a co-operative agreement for the cross-border comprehensive assistance and/or transfer of identified or potential trafficked persons. A TRM links all stages of the referral process from the initial screening, through formal identification and assistance, to the voluntary assisted return, the social inclusion, and the civil and criminal proceedings. It is based on the co-operation between governmental institutions,
intergovernmental agencies and non-governmental organisations of countries of origin, transit and destination of the assisted trafficked persons. Through the TRM, state actors of different countries fulfil their obligations to promote and protect the human rights of trafficked persons.89
Similarly to an NRM, key elements of a TRM include Standard Operating Procedures (SOP) in order to clarify the mandate and co-operation of the various State, civil society, and international agencies that may be involved in identification, first assistance and protection, long-term assistance, return, and social inclusion, as well as any criminal or civil proceedings. For each SOP, practical measures are outlined with flowcharts for easy reference and co-ordination. The detailed ICMPD Guidelines respond to the questions what, when, where, who, and how for every proposed measure. Such measures reflect good practice and recommendations to strengthen inter-agency work, while assessing the needs and respecting the rights of each trafficked person.
An additional benefit of clearly defined and agreed SOPs is that it should then be easier to inform victims of their options and the relevant procedures, as well as to seek their views on how interventions could be more effective.90
In addition to the SOPs, ICMPD recommends that there are formal international co-operative agreements between relevant stakeholders – including both national actors and International Organisations (such as the International Organization for Migration) –in different countries, which clearly specify the roles, responsibilities, and obligations of each actor involved in the TRM.91 Additionally, mechanisms for monitoring and evaluating the TRM need to be put in place. In this regard, ICMPD has described the TRM as a “process on which all involved actors continue to work in co-ordination with their international counterparts”.92
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