Avoiding any rash deportation or expulsion of trafficked persons is crucial for adequate protection of victims.
If a person residing in Germany is identified as a trafficked person on the grounds of specific evidence, the immigration authorities principally have a legal obligation to grant the person a three-month period to leave the country. In this case, legal provisions give priority to humanitarian grounds over prosecution interests; as soon as there is any evidence that this is a case of trafficking in human beings, potential victims must be granted a residence permit during an adequate period during which they are effectively protected from any expulsion order or deportation. Trafficked persons need this time in order to:
The person can demonstrate that there is tangible evidence through a plausible statement before the immigration authorities, but the police or the public prosecution can also provide information regarding this point. Any evidence provided by counselling centres specialised in supporting trafficked persons can also be taken into account. This must, in KOK’s view, urgently be taken into account on the ground.
When the “Second Act for the Directives Implementation” (Act for the Implementation of the European Union Directives on Residence Rights and for Adapting National Provisions to the EU Visa Code) came into force on 26 November 2011, the reflection and stabilisation period for trafficked persons was increased from at least a month to a minimum of three months.
Section 59 para. 7 of the Residence Act now provides for the following:
(7) If the immigration authorities have tangible reasons to believe that the foreign national is a victim of an offence covered by Section 25 para. 4a sentence 1 or by Section 25 para. 4b sentence 1, they have the obligation to grant, unlike the specification in para. 1 sentence 1, a period to leave the territory, allowing the person to take a decision regarding their willingness to testify in accordance with Section 25 para. 4a sentence 2 no. 3 or Section 25 para. 4b sentence 2 no. 2. The period granted to leave the territory must be three months minimum. The immigration authorities can waive, revoke or shorten the period specified in sentence 1 provided that
1) the foreign national’s residence is a threat to public security or order, or to any other key interests of the Federal Republic of Germany, or
2) the foreign national has voluntarily been in contact again with the individuals defined in Section 25 para. 4a sentence 2 no. 2 (…). The immigration authorities or anybody mandated by them informs the foreign national of existing rules, programmes and measures for victims of offences covered by Section 25 para. 4a sentence 1.
The Act uses the expression “period granted to leave the territory” to refer to the reflection and stabilisation period. KOK judges this to be unfortunate, as one might fear that the relevant authorities will not recognise the purpose of such a provision if it suggests the victim should be leaving the territory. Another critical point is the fact that the reflection period is limited to the decision regarding the person’s willingness to testify, which, in addition to the wording used in Section 59 para. 7 of the Residence Act, is also mirrored by the inclusion of the reflection period in the Residence Act under the title “Threat of deportation” and in the paragraph on the “Enforcement of the obligation to leave the country”.
Provisions derived from EU law
According to Section 6 para. 1 of EU Directive 2004/81/EC (Directive on protection of the victims), member countries are required to ensure that trafficked persons are granted a reflection period during which they can recover and escape from the influence of the perpetrators. The aim of this period is to allow trafficked persons to become fully aware of their situation, their legal rights and advice options, to seek information on existing programmes and to take informed decisions regarding their future. However, the “period granted to leave the territory” primarily focuses on the interests of prosecuting authorities, and not on human rights issues or the protection of victims. Trafficked persons are indeed expected to mainly use this time to decide whether they are willing or not to cooperate with prosecuting authorities.
KOK views this with scepticism and believes that there is still room for improvement. We recommend, among other things, greater involvement of specialised counselling centres in the decision of the immigration authorities in cases of suspension of the reflection period.
The Council of Europe Convention on Action against Trafficking in Human Beings also refers to what it calls in Article 13a the “Recovery and reflection period”. Article 13 reads as follows:
“Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. (…) During this period, the Parties shall authorise the persons concerned to stay in their territory.”