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Implications of the Residence Act for trafficked persons

As “foreigners”, individuals who have been trafficked and reside in Germany are subject to the provisions of immigration law with regard to their residence status. KOK have seen a sharp deterioration of the situation of trafficked persons since the act came into force and have actively taken part in the political discourse and legislative process. Find out more in KOK’s position papers (only in German).

The “Act to Control and Restrict Immigration and to Regulate the Residence and Integration of EU Citizens and Foreigners” [Zuwanderungsgesetz] came into force on 1st January 2005.

The Immigration Act is what is qualified as an “omnibus act”. It includes the: 

  • “Act on the Residence, Pursuit of a Professional Activity and Integration of Foreigners on the Federal Territory”, also called the “Residence Act” (Aufenthaltsgesetz, Section 1 of the Immigration Act); it replaces the previous Act on Foreign Nationals [Ausländergesetz];
  • “Act on the General Freedom of Movement of EU citizens”, also called the “Freedom of Movement Act/EU” (Freizügigkeitsgesetz/EU, Chapter 2 of the Immigration Act), which replaces the Residence Act/EEC [Aufenthaltsgesetz/EWG]; 
  • Amendments to other acts, such as the Asylum Procedures Act [Asylverfahrensgesetz]. 

In the meantime, the Residence Act has been amended several times. KOK views as significant the “Second amending law implementing the European Union Directives on the right of residence and asylum” from 19 August 2007, and the “Act implementing European Union regulations regarding the right of residence and adapting national and legal regulations to the Visa Code EU” from 25 November 2011.

The last provisions relating to the rights of residence of trafficked persons were modified by the “Act redefining the right of residence and termination of residence”, which came into force on 1 August 2015.
You will find KOK’s brief position paper (only in German) here.

Legal provisions for the right of residence of witnesses during preliminary investigations and criminal proceedings

The relevant sections for witnesses are Section 25 para. 4a, Section 25 para. 4b and para. 5 of the Residence Act.

Section 25 para. 4a of the Residence Act

According to Section 25 para. 4a of the Residence Act, a residence permit is to be granted as long as the person’s continued presence in the federal territory is temporarily required on “pressing humanitarian or personal grounds or due to substantial public interest” (e.g. as a witness in criminal proceedings against human traffickers). The residence permit may only be granted if:

  1. The temporary presence of the witness in the federal territory for criminal proceedings because of this offence is deemed necessary by the public prosecution or the criminal court because their absence would make it difficult to shed light on the events; 
  2. The witnesses have severed all ties with the individuals accused of having committed the offence;
  3. They have stated their willingness to testify as witnesses during the criminal proceedings relating to the offence.

The residence permit is to be renewed after the end of the criminal proceedings provided that the person’s continued presence in the federal territory is required on humanitarian or personal grounds, or due to public interest.

KOK welcomes the improvements for trafficked persons brought about by the new act, including a new compulsory issuance of a first residence permit pursuant to Section 25 para. 4a of the Residence Act and the option to renew it on humanitarian or personal grounds.

However, KOK regrets that the willingness of trafficked persons to cooperate with prosecuting authorities remains enshrined in the law. This is especially true for trafficked persons under the age of 18, whose specific needs are not accounted for by the act. Due to its being limited to holders of a residence permit granted on the basis of Section 25 para. 4a of the Residence Act and other restrictions (need for human rights or humanitarian grounds or the necessity to protect political interests), the new possibility of reuniting families defined in Section 29 para. 3 of the Residence Act falls short of expectations.

KOK continues to call for a right of residence that is independent from the trafficked person’s role as a witness. The key condition for the issuance of a legal residence permit should therefore not be the willingness to cooperate, but for example whether the perpetrators can be found or whether there is sufficient evidence. 

Section 25 para. 4 b of the Residence Act

Section 25 para. 4b of the Residence Act provides for a temporary residence permit for foreign nationals who were employed under strikingly different conditions to German employees and without a work permit. As with para. 4a, the decision is struck at the discretion of the authorities. Issuance of the permit also requires testimony during the criminal proceedings and the foreign national must be willing to testify. Both groups can claim benefits in accordance with the Asylum-Seekers Benefits Act [Asylbewerberleistungsgesetz]. Unlike with para. 4a, the residence permit can be renewed if the person is entitled to claim remuneration. Moreover the person is not required to sever all ties with the employer. It is to be expected that there are common features with trafficked persons as defined by para. 4a, as these are sometimes employed without a work permit. However, this excludes trafficked persons involved in a perfectly legal working relationship with regards to their residence permit. This means that they are disadvantaged compared to the group covered by para. 4b.

Section 29 para. 3 of the Residence Act

This paragraph provides for the possibility of reuniting trafficked persons with their families. However, due to its being limited to holders of a residence permit granted on the basis of Section 25 para. 4a of the Residence Act and other restrictions (need for human rights or humanitarian grounds or necessity to protect political interests), Section 29 para. 3 of the Residence Act falls short of expectations.

KOK e.V. is being supported
by the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth

KOK supports the nationwide helpline violence against women. For further information, please visit
https://www.hilfetelefon.de

„Human Trafficking in Germany – An Overview from a Practical Standpoint”

Link to our new book of the same name

„Human Trafficking“
An animated movie about KOK and its work.