Residency Rights for Victims
In principle, victims of human trafficking have the right to residency in Germany.
Victims from an EU country
They may remain in Germany and take up employment according to §2 of the Freedom of Movement Act/EU.
Victims from non-EU countries (third countries)
Essentially, they have two ways of obtaining a (temporary) residency permit in Germany. Both options have specific advantages and disadvantages. There is no universally valid decision on which way provides the most stable solution for the victim. Therefore, both possibilities should be reviewed regularly, as they are not mutually exclusive.
- The victim can seek a residency permit according to one of the specific rules outlined under § 25, 4a or 4b of the German Residence Act (AufenthG).
Compared to asylum proceedings, the advantage of a residence title according to 25, 4a/4b AufenthG is that processing is faster and less formalized. Pursuant to current changes in the Asylum Seekers Benefits Act (AsylbLG), persons in possession of a residency title according to 25,4a/4b (AufenthG), will, in future, be excluded from the scope of the Asylum Seekers Benefits Act. Instead these persons can claim benefits under the Social Code – Book II (Basic Security for Job Seekers) or the Social Code – Book XII (Basic Security for Elderly and Disabled Persons.
After being identified by the authorities as a human trafficking victim, they are granted a three-month respite, during which, they cannot be deported (§ 59, 7 AufenthG). During this period, they can whether or not they will cooperate with the authorities and testify against the perpetrators in criminal proceedings:- If they decide to testify, they are granted a temporary residency permit for the duration of the criminal proceedings (§ 25, 4a AufenthG).
- If they decide not to testify or once the proceedings are completed, they must leave the country or are deported if they have not obtained right of residency for other reasons (§ 60, 2 AufenthG).
- In the context of a petition for asylum, the person can be granted refugee protection, subsidiary protection or at least protection from deportation.
Requirements for granting subsidiary protection and protection from deportation
Even if refugee protection is not granted, the requirements for granting protection from deportation are fulfilled in many cases.
In its jurisprudence on Article 4 European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) protects from deportation, if there is a real risk of becoming a victim of human trafficking due to the deportation or of being exposed to any other unacceptable treatment as per Article 3 ECHR due to their victimhood. In such cases, Members States that have ratified the Convention must grant real protection, and regularly assure continued residency.
Increasingly, national courts are fulfilling their obligation to follow the precedent of the ECHR and grant protection from deportation to victims of human trafficking. For example, women from Nigeria have been granted protection from deportation according to § 60, 7 AufenthG because a return to Nigeria would have been life threatening. Similarly, women and girls from Iraq and Kosovo were protected from deportation in administrative proceedings because they – as single women (in some cases with a child) – would have been at risk to become victims of human trafficking due to precarious situation.
- Cf. Frei, Schweizerische Zeitschrift für Asylrecht und -praxis 1/2013, p. 22f.
- see administrative court Potsdam, decision from 23rd October 2012 – 6 K 896/11.A.; administrative court Würzburg, decision from 29th July 2011 – W 4 K 09.30232.
Requirements for refugee protection
Victims of human trafficking can also be refugees according to the definition of the Convention Relating to the Status of Refugees depending on the circumstances of the specific case. Throughout Europe, human trafficking is proscribed as a severe human rights violation and considered a modern form of slavery. Countries are, therefore, obligated to implement all possible and reasonable actions to protect those affected.
Moreover, victims of human trafficking can, with regard to the means of coercion or form of exploitation, often be affected by further human rights violations or comparable maltreatment, such as abduction, unlawful imprisonment, robbery, sexual slavery, forced prostitution, forced labor, removal of organs, physical violence, deprivation of food or denial of medical treatment.
Therefore, an act of persecution frequently exists for victims of human trafficking in terms of the Convention Relating to the Status of Refugees. The fear of persecution in terms of the definition is justified if there is evidence that dangers of a severe nature are imminent upon return to the country of origin. Relevant for victims of human trafficking are hereby for example repercussions from the perpetrators, ostracism and discrimination or the risk of revictimization.
An act of persecution or a lack of government protection must be connected to a reason for the persecution (§ 3a, 3 AsylVfG). Persecution can, for example, be linked to victims being targeted based on ethnicity, religion, political convictions or nationality. Similarly, the link can be to a specific social group. Human trafficking, as a form of gender-based violence, especially affects women (or subgroups, such as single and poorly educated women).
