Skip to main content
Normal View

JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 16 Jun 2010

Directive on Human Trafficking: Motion

The purpose of the meeting is to consider the motion, a proposal for a directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA. A briefing has been circulated to members. I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials.

Before commencing I advise that a select committee meeting is scheduled for 11.15 a.m. For technical reasons, a 15 minute break is required between this meeting and the meeting of the select committee. I would be grateful, therefore, if we could conclude by 11 a.m. to allow a changeover. The format will be a briefing from the Minister followed by a question and answer session. I invite the Minister to commence.

This initiative is similar in many respects to a framework decision which was discussed by the joint committee in November 2009 but lapsed as agreement was not reached on the measure prior to the entry into force of the Lisbon treaty.

Under Article 3.1 of Protocol 2 annexed to the Treaty of Lisbon, Ireland may notify the President of the Council of the European Union that it wishes to take part in the adoption and application of this proposed directive within three months of the date of publication of the proposal. In the alternative, we can opt into the measure after it has been adopted but in that event we will not be able to influence the content of the measure. The three-month period to take part in the adoption and application of the measure expires on 12 July 2010.

I will set out briefly the main provisions of the proposed directive, given that many of them are very similar or identical to the measure previously discussed. Article 1 sets out the aim of the directive, that is, to establish minimum rules concerning the definition of criminal offences and sanctions for trafficking in human beings and introduce common provisions to strengthen the prevention of the crime and the protection of its victims.

Articles 2 to 6, inclusive, set out the criminal justice provisions, many of which are already covered by the Criminal Law (Human Trafficking) Act 2008. Article 2 defines trafficking in human beings. Article 3 provides that the instigation of, aiding and abetting or attempting to commit an offence of trafficking in human beings is punishable. Both provisions are an exact replica of the text previously discussed by the committee.

Article 4 sets out the penalties to be applied by member states. The penalty for the substantive offence is a maximum of at least five years imprisonment. A maximum period of at least ten years is to be applied in the aggravating circumstances set out in Article 4.2. Under Article 4.3, if an offence is committed by a public official in the performance of his or her duties, this is to be regarded as an aggravating circumstance. The offences of instigation, aiding and abetting or attempt must be punishable by effective, proportionate and dissuasive criminal penalties, which may include surrender under Article 4.4.

Article 5 provides for the liability of legal persons. Article 6 sets out the sanctions to be imposed on legal persons. They are a restatement of the provisions in the 2002 framework decision dealing with this issue and in the measure which lapsed last year.

Article 7 is a non-punishment clause. It provides for the possibility of not prosecuting or imposing penalties on victims for their involvement in unlawful activities to the extent they have been compelled to become so involved.

Article 8 deals with the issue of investigation and prosecution. It imposes a mandatory obligation on member states to provide that an investigation or prosecution will not be dependent on a report or accusation made by a victim and allows for the possibility for criminal proceedings to proceed in the event that the victim withdraws his or her statement. Provision is made for the availability of effective investigative tools for those responsible for investigating or prosecuting trafficking offences. There is a mandatory obligation on member states to train those responsible for investigation or prosecution. Again, Articles 7 and 8 are a restatement of the provisions in the measure which lapsed.

Article 9 requires member states to establish jurisdiction over offences in defined circumstances. The main additional circumstances over and above those provided for in the 2002 framework decision is that jurisdiction must be established where the offender has his or her habitual residence in its territory or the offence is committed against one of its nationals or a person who has his or her habitual residence in its territory.

Article 10 provides for assistance and support to victims. The main difference with the text which lapsed is the addition of a provision at Article 10.3 that assistance and support for victims should not be made conditional on their willingness to act as a witness. Since the text was published, the provision has been supplemented to state that this assistance and support is to be provided unconditionally, at least during the reflection period, for those who do not reside lawfully within the state.

Article 11 deals with the protection of victims of trafficking in criminal investigations and procedures. Article 12 sets out the general provisions on assistance, support and protection measures for child victims of human trafficking taking account of the best interests of the child. Article 13 provides for assistance and support to child victims of trafficking in human beings. Again, the provisions are similar to those in the draft instrument which lapsed before the Lisbon treaty was adopted.

Article 14 deals with the protection of child victims of trafficking in human beings in criminal investigations and proceedings. The main substantive difference with the previous text is that it is under Article 14.1 for competent authorities, as opposed to judicial authorities, to appoint a special representative for child victims where the holders of parental responsibility are precluded from representing the child. This amendment has been made during negotiations to cater for the differing systems in member states for appointing child representatives.

Article 15 sets out the preventative measures to be applied by member states. Article 16 requires member states to establish national rapporteurs or equivalent mechanisms to conduct assessments on trends in the trafficking of human beings, measure results and report thereon. Again, the provisions are similar to those in the draft instrument which lapsed.

Article 17 repeals Framework Decision 2002/629/JHA without prejudice to the obligations of member states relating to the time limits for transposition into national law.

Article 18 provides that member states shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 30 months from adoption at the latest. The 30-month timeframe for implementation has been amended from two years in the text which was published. In addition, member states shall transmit to the Commission the text of the provisions transposing into national law the obligations imposed by this directive.

Article 19 provides that by five years from adoption, rather than four years in the text which was published, the Commission shall submit a report to the European Parliament and the Council assessing the extent to which member states have taken the necessary measures to comply with this directive. I thank the joint committee for its attention.

I thank the Minister for his presentation, on which I have a few brief questions. I acknowledge the work being done by the Department and welcome the fact that Ireland has moved into tier 1 in the Trafficking in Persons Report 2010, published by the United States. This is a major advance and I compliment the Minister and his officials on the work they have done in recent years to ensure Ireland moved into tier 1. It is important, however, that we do not rest in this matter and proceed to address some of the anomalies which remain in the system, one of which I will discuss in a moment.

I ask the Minister to outline what progress has been made on criminal prosecutions and Garda investigations, including the latest figures on such progress. I compliment the Garda Síochána on its recommendation that a Chinese national would be prosecuted for the possible trafficking of 34 unaccompanied Chinese minors. The difficulty is that children are still going missing from State-provided accommodation. While the Minister of State with responsibility for children has said he will address the matter by the end of the year the fact is that it is the Department of Justice and Law Reform and the Garda Síochána that are placing children in those facilities. If the Garda comes across an unaccompanied minor or separated child who it is suspected has been trafficked he or she will be placed back in those same facilities that have been found to be insecure in the past. All we are doing is facilitating traffickers if we allow a victim who has been picked up by the Garda to be collected again from the asylum accommodation. In reality those facilities have becoming nothing more than holding pens for the traffickers to pick up children again and move them on to another location or destination. That also applies to adult victims of trafficking.

The Minister is well aware that I do not believe it is appropriate for people who have been trafficked to be placed back by the Reception and Integration Agency, RIA, in asylum accommodation because we are aware of evidence of women being groomed in those facilities in the first instance to become involved in the sex and trafficking industries. Perhaps the Minister could give an indication of what progress is being made with prosecutions and investigations. What progress, if any, is being made on the provision of secure accommodation for the victims of trafficking and for unaccompanied minors or separated children who are in this jurisdiction? My understanding is that the new facilities being planned are located beside existing asylum facilities. That will not address the problem.

As with all new legislation it takes time for cases to be taken. We had the ludicrous position of some people on the Opposition benches asking about prosecutions within months of the enactment of the Criminal Justice (Amendment) Act. It is clear that either they did not understand what it takes to bring forward a prosecution once legislation is passed or else they were just being mischievous. This is the most modern legislation to do with human trafficking in Europe. It has taken time for the Garda Síochána and the human trafficking unit in my Department to bring forward prosecutions and to implement the provisions of the Act.

Deputy Naughten is correct in saying that one case is currently before the courts where a person was charged under the Act with the trafficking of a child for sexual exploitation. The case was listed for mention at the Dublin Circuit Court in recent days for the purpose of setting a date for trial. A total of ten persons were prosecuted for offences during 2009 and to date. Ten persons, some on foot of evidence transferred to other jurisdictions, were prosecuted for offences relating to human trafficking. They include a person convicted of an offence of attempting to traffic a child for sexual exploitation who was sentenced to six years. In April 2009 the Director of Public Prosecutions launched an appeal against the leniency of the sentence. The same man received a three year sentence in 2001 for a similar offence.

Three persons were charged and sentenced in Romania in a case that was well publicised involving the trafficking of 28 people for the purpose of labour exploitation where they were paid low wages and required to work in a controlled environment with a debt of €2,500 to pay. All of those trafficked were threatened, beaten and sometimes held at gunpoint. The evidence in the case was gathered here. Three persons were charged with trafficking for labour exploitation to this country. The gang leader was sentenced to seven years and his co-accused were sentenced to five years each.

Three persons were charged in Wales. The majority of the criminal activity took place here. The evidence was gathered here and exchanged with the authorities in the United Kingdom to facilitate prosecution in that jurisdiction in respect of trafficking, directing prostitution and money laundering offences. They were convicted of directing prostitution and money laundering offences and were given seven years, three and a half years and two years, respectively.

Information was provided to Lithuania on money transfers from here to some suspects in an investigation. The suspicion was that the suspects were receiving funds from this country as part of their involvement in human trafficking. On 11 February 2010, one of the suspects named in the request to this country for information was sentenced to 11 years imprisonment for human trafficking offences. The second suspect who received funds from here was sentenced to six years imprisonment for human trafficking offences on the same date.

We had a debate on missing children in the context of the previous framework decision which fell because it was not adopted before the Lisbon treaty was ratified. At that time substantial efforts were being made by the Garda Síochána and the Health Service Executive on children missing from care. There are myriad reasons children could be missing from care. Some cases need investigation but others are due to the family circumstances pertaining to the children in question. The Health Service Executive has developed a joint protocol with the Garda Síochána which was signed in April 2009. It sets out the roles and responsibilities for both agencies on children missing from care. Separated children are dealt with specifically in the protocol which provides clearly defined arrangements to address issues relating to children in care who go missing and set out the principal actions to be taken by both organisations where a missing children in care report is made to the Garda Síochána.

Deputy Naughten made the point that children are put back into RIA accommodation. To my knowledge they are taken in charge by the Health Service Executive, as is required if they come to the notice of the authorities. I am aware that a number of NGOs have raised issues about the standard and type of accommodation being provided. An independent examination of RIA accommodation showed it to be suitable generally for people in the asylum system but also that it is suitable for suspected victims of trafficking. We have asked to be informed if NGOs have complaints about specific issues but to date we have not received any.

I have two brief points to make on the Minister's last two comments. The Health Service Executive and the Garda Síochána agreed a protocol 14 months ago which was to be reviewed after six months. Has that review been completed?

The Minister stated that an independent review of RIA accommodation was carried out. He specifically indicated that the accommodation provision for suspected victims of trafficking is up to standard. Will the Minister clarify whether that is the outcome of the independent review carried out?

There is a system of independent examination of RIA accommodation whereby inspectors can turn up unannounced which showed that the accommodation is reasonable. Many people suggest that different types of accommodation should be provided for asylum seekers in general. That debate is ongoing. We believe the best and most cost-effective system is in place.

The Minister made the point that the independent reviews stated that the general asylum accommodation being provided to victims of trafficking is appropriate.

Yes, that is borne out in the independent examination.

The HSE-Garda protocol was established 14 months ago and was to be reviewed after six.

I am not sure of the position on that. It is a matter for which the Garda and HSE are directly responsible. I will revert to the Deputy on it.

The Labour Party will go along with the motion in principle. With the combined approach, there will be much more intelligence-led work on dealing with this problem. From what states do most people who are trafficked into Ireland come? Are they EU or non-EU states? What intelligence exists on this matter?

Deputy Naughten dealt to some extent with people being trafficked into Ireland for the sex industry. Are people being trafficked in to work in bonded labour? To what extent are traffickers being paid to help economic migrants gain access to the country? How are they getting here and what are the main channels of entry.

Most people trafficked into the country are trafficked in for labour exploitation. There has been a fairly dramatic downturn in the number coming to these shores because of the recession.

The nature of our investigations is such that we clearly see the benefit of working with our international colleagues, particularly our EU colleagues. There is some trafficking from some eastern European countries, including Romania and Lithuania. Nigeria is a reasonably significant country for trafficking.

Under the administrative immigration arrangements, seven Africans are protected, followed by three Asians and one person from the European Union. There were 66 potential and suspected victims and they came from various regions. The largest group, comprising 46, came from Africa. The second largest group constituted persons from Asia and it amounted to 12. There were six persons from the European Union and one person from a European country outside the European Union. There was one person from the Caucasus. Nigeria was the main African country and China was the main one in Asia. Lithuania was the main country in the European Union and Moldova was the country from which a European beyond the European Union originated. I refer only to potential and suspected victims.

What is the method of dealing with people who are trafficked here and who have become known to the authorities? Are they deported or are they allowed to remain?

No one is ever deported if she or he is a victim of human trafficking. The new legislation will crystallise significantly the supports in the existing legislation required for victims of human trafficking.

What about those who have paid traffickers to enter the country as opposed to those who have been victims of human trafficking? They fall into the asylum category.

It depends on what they want to do. Some want to go back home to their families while others may want to remain in Ireland.

I am talking about people who really want to come here. I refer to economic migrants who have paid traffickers to bring them here. Does this motion deal with that group at all?

People who pay to come here would not be regarded as trafficked.

If there is no coercion, this does not apply.

I suspect that anyone who pays to come here is normally termed an asylum seeker. An economic refugee is somebody who is not entitled to asylum here and he must go through the immigration process. The legislation pertains to circumstances in which one is forced to come here. If people are forced to come here, evidence suggests they are not and would not be deported, unless they want to return to the country whence they came.

The penalties are set out in Article 4. Am I correct in stating the substantive offence involves trafficking and coercion into prostitution?

I note the maximum sentence is at least five years in prison. Our laws pertaining to the sale of drugs to willing purchasers, for example, establish a mandatory sentence of ten years. It strikes me that trafficking a person against her will and coercing her into a way of life that could have an impact for life is a far more serious offence than drug dealing, yet the sentence for that is only half as long as it is for drug dealers. Should we review the hierarchy of offences and penalties?

Our maximum sentence for trafficking is life imprisonment.

The article refers to a maximum of at least five years.

That is the agreed position of all the countries. Our legislation goes much further in that our maximum sentence is life imprisonment.

Should we not have some harmonisation of sentences within the European Union? A maximum sentence of five years may be a very small deterrent.

If other countries want to follow our example, they may do so. We will be involved in the discussions leading to the final adoption of the directive.

I would like my view to be included in the discussions. It is a point we need to make. Our laws should have a clear deterrent.

I apologise for being somewhat late. As Deputy O'Shea said, I am glad we are opting into this measure. I very much welcome the proposal and motion. The Minister said that if we opt in during the first period — by 12 July next — we can influence the content of the measure. Does the Government plan to influence the content of the measure? In his response to Senator Walsh, the Minister pointed out that our legislation already goes further than the directive, in terms of the penalties it provides for. Perhaps that would be a point on which Ireland could seek to influence the content of the measure.

I suggest that our legislation clearly falls short of the directive in terms of the protection it offers to people who have been trafficked. Deputy O'Shea rightly said there can be a fine line between those who pay to come in as economic migrants, and are then subjected to exploitation, and those who are brought in on false pretences for the purposes of exploitation. In the latter circumstance, it is a case of trafficking as it involves some sort of coercive or deceptive means. It can sometimes be difficult to understand the difference. We clearly fall short in the case of some of the issues that were to be addressed by the Immigration, Residence and Protection Bill 2008, which has now been withdrawn. Can the Minister clarify whether the new Bill will improve on this country's measures to protect the victims of trafficking? Will it include a more specific reference to victims of trafficking? Will it state who can identify a person as having been trafficked? Currently, such identification must be made by a Garda superintendent.

Will the new Bill provide for the unconditional provision of assistance to victims? Article 10 of the directive provides for the unconditional provision of assistance and support to victims. Our current administrative arrangements require the victim of trafficking to co-operate. That may be difficult if the person in question is being intimidated or his or her family at home is subject to pressure. I wonder if the Minister can clarify that. I welcome his indication that in the new Bill, he will increase the residence and reflection period to 60 days. I wonder if he will also provide for the unconditional granting of residence permits to enable victims to stay here during the course of a prosecution.

On child victims, Deputy Naughten expressed the concerns of many members about the large numbers of children who have gone missing from HSE care, having come in as unaccompanied minors. There are clear links in this regard. Some of them have been found to have gone into exploitative work in brothels, restaurants and so on. It is clear that they have been trafficked. I note that Article 14 of the Directive proposes that a special representative be employed in such circumstances. I apologise for raising this matter if the Minister has already dealt with it. I wonder if legislation will be introduced to provide for something like a guardian ad litem for children in this situation. It would be a really important protection for child victims.

On the last point, we do not need legislation on the rapporteurs. I understand officials from the Department and the HSE will discuss the special representative. The whole point of being able to opt in is that is enables us to influence the final outcome. If we opt in at a later stage, it will be a fait accompli by then. That is the beauty of the à la carte position we secured during the Lisbon treaty negotiations. We can opt in and out of these things as we please. We really have the best of all worlds. I saw an example of that at the most recent meeting of the Justice and Home Affairs Council, which took place in Luxembourg. There was a lengthy discussion on Protocol 21, which we succeeded in having inserted into the Lisbon treaty. The protocol allows Ireland and the UK to decide whether to opt in or out. A point was made forcefully to me during the intriguing debate. We have indicated to our EU colleagues that we want to opt in as often as possible. Although the UK had opted into Article 21.3 of the treaty, there was a suggestion that it would ultimately be excluded on the basis that it had not made up its mind in time. The article in question provides that if after a reasonable time either Ireland or the UK delays the proposal, having opted in, its vote can be ignored in the context of a blocking minority. Such an interesting circumstance arose at the recent meeting. It reminded me that when we make our strategic decisions on whether to opt in, we have to forensically examine the best position to adopt, from an Irish point of view. Generally our view is that we should opt in, so that we can be part of the discussions. Several discussions have already taken place on Articles 8, 10 and 11, in respect of which we had some concerns. We had some influence in changing that.

Senator Bacik also asked about the changes being made with regard to the immigration Bill. I was somewhat surprised by public comments by Deputy Rabbitte. I cannot remember his exact words, but he expressed some surprise about the withdrawal of the Bill. Deputy Naughten was at the meeting when I asked Opposition Deputies how they wanted to deal with the immigration Bill. Every one of the Opposition spokespersons, including Deputy Rabbitte, suggested that the best thing to do was to withdraw the existing Bill, in effect, and to produce a new Bill. Although that was my view as well, I did not foist it on the Opposition at the meeting in question. I allowed them come to that view. I read subsequently that Deputy Rabbitte had suggested — he may have been playing to the gallery — that there was some ulterior motive behind our withdrawal of the Bill.

Deputy Rabbitte would never play to the gallery.

That is not the case.

What is the timetable for its publication?

None of the officials with me is from the immigration section but we hope to bring it to the Government next week. Although a few slight changes may need to be made, we are on course to publish it before the end of this session.

Will the Second Stage debate take place before the end of this session, in line with the original timetable?

I doubt it because I am trying to get through a substantial amount of legislation, including the Criminal Justice (Psychoactive Substances) Bill 2010, which is to be published on Friday. I understand the Opposition has indicated that it will facilitate the passage of that legislation. Due to the focus on that Bill and one or two other Bills, it is unlikely that we will reach Second Stage of the new immigration Bill by the end of this session. When that debate takes place, I hope it will go smoothly and quickly. I hope the Committee Stage of the new Bill will not be bogged down with a massive number of amendments. We will not propose any new amendments at that stage. I admit that on the last occasion we tabled many amendments, some of which we based on the comments of committee members. We have agreed that we need to pass this legislation quickly. We do not want an extended Committee Stage, with Opposition Deputies asking for more and more, like Oliver Twist. We have a good Bill now.

If the Minister addresses his end of it, we will address our end of it.

The Deputy will admit that we have been more than willing to facilitate the Opposition by changing our approach. I assure Senator Bacik that we have provided for substantial assistance, including various checks and balances. I refer to the type of support given to people who are suspected of involvement in human trafficking. One element of that is the extension of the relevant time period. Anyone required for a criminal prosecution will get the time required to remain in Ireland and will get the necessary supports during that time.

Can the Minister clarify that they will receive unconditional assistance? It should not be conditional on their co-operation with the prosecution because of the issues being addressed.

It is a matter of balance. We need people to come forward to give evidence and to assist. Without that assistance, we will not get to the people we want to get to. We are not interested in the people at the coalface but in the gang lords behind the orchestration of all of this. Therefore, there needs to be an element of co-operation with the Garda authorities. That worked well under the old legislation and I understand it is working well under the new legislation. The Deputy can take it that the Garda Síochána will be extremely understanding and reasonable with regard to the type of co-operation required. As she knows, the recovery and reflection period is not contingent on co-operation.

I agree with what the Minister said with on the immigration Bill. We spent 18 days on Committee Stage of that Bill and I certainly would not like to go through that again.

I apologise for my late arrival and thank the Minister for providing his speech, which I have read. To take up the point made by Senator Bacik, is the assistance and support being provided essentially just legal assistance and support or is it wider than that?

On the legal side, people who have come to my clinics have spoken about the length of time a legal process can take, particularly in a situation where free legal aid is being provided, because of the large number of cases being dealt with by one solicitor. Will this type of case be part of a distinct category apart from much of the legal work carried out by the free legal aid people? Will it have a different time frame and will it involve criminal prosecutions rather than general case work? Most of the people who come to my clinics with questions are people who seek asylum and so forth.

It is a priority of the refugee legal service to deal with people affected by trafficking. Therefore, there will be no delay, nor have there been delays in that area. The cases Deputy Sargent has come across are ordinary asylum seekers who are going through a legal process of their own making, because they are challenging every decision made under the existing legislation. When I started out as a solicitor, a judicial review was the exception rather than the norm. Today, some 60% of all judicial reviews in the courts are on asylum or immigration matters. There are a number of cases where there have been up to four judicial reviews of the immigration process.

The sooner we get this new directive passed the better. The idea behind it is that decisions will be made quickly for people going through the process. If they then want to go to court, they can do so based on that decision, rather than facing six different hurdles or having six different bites of the cherry as happens currently. The reason there are people in Reception and Integration Agency, RIA, accommodation today is generally because there are legal cases involved and these people are bogged down in their legal cases. This happens because everything is challenged. However, if anyone goes into the system today, the decision on their case will be made quickly.

Is there a separate category to deal with people caught up in trafficking?

The refugee legal service is available to people caught up in human trafficking and we will give them all the assistance required.

Is this category essentially a separate category from a legal point of view and is there a separate timeframe for dealing with the case?

Yes. I understand that some 25 cases of people suspected to have been subjected to human trafficking have already been referred to the legal service people.

That concludes questions. We have now completed our consideration of the motion and in accordance with Dáil and Seanad standing orders we will report back to the Dáil and Seanad to that effect. Is it agreed that there should be no further debate on the matter by the Dáil or Seanad? Agreed. I thank the Minister and his officials for their attendance.

Top
Share