A residence permit for victims of human trafficking?

Progress for victims of human trafficking in the field of asylum has gone almost unnoticed. Now, any victim of human trafficking can claim the right to a residence permit (Permit B) under Article 14, paragraph 1 of the Convention on Trafficking in Human Beings (CTEH) of the Council of Europe ^[1]Convention on Trafficking in Human Beings (CTEH), adopted in Warsaw on May 16, 2005, ratified by Switzerland on December 17, 2012, in force since April 1, 2013, RS 0.311.543. By judgment rendered on December 14, 2021 (2C_373/2017), the Federal Supreme Court (TFcame to further clarify the legal framework applicable to them. Although the appeal was rejected on the merits, this ruling is very important for victims in Switzerland, regardless of the administrative procedure they are involved in.

Victims of human trafficking who applied for international protection in Switzerland were for a long time considered only as asylum seekers, and all victim protection rights derived from the Convention were denied to them. This was because upon ratifying the said Convention in 2012, Switzerland considered itself to be fulfilling its obligations under the Convention by having adapted certain provisions in the Federal Act on Foreign Nationals and Integration (Lawand its prescription ^[2]FF 2011 1, Message concerning the approval and implementation of the Council of Europe Convention on Action against Trafficking in Human Beings and the Law on the Protection... Read more. No asylum law adjustments were planned, so the principle of ’exclusivity of asylum procedure« (Art. 14 Para. 1) was systematically invoked. LA siwho gives priority to its application over any other procedure, notably that of the LEI. As a consequence, victims did not benefit from the rights specific to victims of human trafficking. This includes the right to a reflection and recovery period. Or the right to a residence permit normally granted in the context of criminal proceedings when the person is a victim of trafficking in Switzerland and files a complaint to that effect. They could not request the application of immigration law that would have protected them.

Evolving jurisprudence

Given these gaps in legislation, the legal framework has gradually taken shape through case law. To evolve the law towards victim protection through a residency status, cases had to be brought before judicial bodies. As early as 2016, the Federal Administrative CourtTAF) recalled certain obligations to the State Secretariat for MigrationSEMin particular, the obligation to identify potential victims ^[3]Order of the Federal Administrative Court of July 18, 2016, D-6806/2013. Then, by a decision of February 14, 2019, the Federal Tribunal (FT) stated that victims of human trafficking have a right to a short-term residence permit linked to criminal proceedings. This right was deemed directly applicable under the Convention and based on Article 14(1)(b) thereof. ^[4]Federal Supreme Court ruling of February 14, 2019, 2C_373/2017. The case in question concerned an asylum seeker who was a victim of human trafficking in Switzerland, had filed a criminal complaint, and was at the same time subject to a transfer decision to Italy under the Dublin Regulation. According to the TF, the needs of an effective criminal investigation were incompatible with the arguments of the SEM, which stated that the victim could be deported and that a visa would subsequently be granted to her if the criminal proceedings required her presence in Switzerland. ^[5]Federal Tribunal, Judgment of February 14, 2019 (2C_373/2017), Short-stay residence permit for victims of human trafficking for the needs of criminal proceedings.

This was a remarkable breakthrough for victims within the asylum procedure: when they had been victims of trafficking in Switzerland, had filed a criminal complaint, and their presence was necessary for the criminal investigation, they could invoke the Convention to request a residence permit. Since a right derived from international law, the principle of the exclusivity of the asylum procedure no longer applied in this specific case. The question then arose of the direct applicability of Article 14(a) of the CTEH, which states the right of victims to be issued a residence permit «due to their personal situation» and therefore independently of filing a criminal complaint and the location of the offense. The ruling of December 14, 2021 (2C_483/2021) resolves this issue. The Federal Supreme Court indicates that this provision, like letter b, is directly applicable, even without transposition into national legislation. Henceforth, victims of human trafficking will be able to apply for a B permit by invoking Article 14(1)(a) CTEH. They are no longer dependent on the discretion of the cantonal authorities to regulate their stay. Currently, these authorities assess whether the personal situation allows for an exceptional deviation from the admission requirements before proposing the granting of a B permit.

The Federal Tribunal goes even further by recalling that this right also stems from Article 4 of the European Convention on Human Rights (CEDH) – Prohibition of slavery and forced labor – even if Courage has not yet been required to consider the issue. This ruling is very important given that Switzerland does not currently recognize victims of human trafficking as refugees, or only in very rare cases, despite the recommendations of HCR ^[6]UNHCR, Guidelines on International Protection, Application of Article 1A(2) of the 1951 Convention and/or of the 1967 Protocol relating to the Status of Refugees to Victims of the... Read more and of GRETA ^[7]GRETA, Guidance Note on the Right of Victims of Trafficking and Persons at Risk of Trafficking to International Protection, 2020. The ball is now in the hands of legal representatives, who will henceforth be able to enforce this new jurisprudence and offer real protection to victims of human trafficking.