Background:

Council Directive 2004/81/EC defines the conditions for granting residence permits to third-country nationals (TCNs) who are or have been victims of trafficking in human beings (see EMN Glossary: “Trafficking in human beings”). According to article 3(2) of this instrument, Member States may decide to extend the scope of the directive to “third-country nationals who have been the subject of an action to facilitate illegal immigration” (see EMN Glossary: “Facilitator”). This contains, among other actions, human smuggling (see EMN Glossary: “Smuggler”, “Smuggling of migrants”). 

In Belgium, the scope of the special residence procedure for victims of trafficking has been extended to TCN “victims of migrant smuggling in aggravating circumstances” (cf. articles 61/2, 77bis and 77quater Immigration Act). These victims of smuggling may be granted a residence permit if they cooperate with the competent authorities, sever all ties with the presumed smugglers and accept the support provided by a recognized reception centre. 

While the Belgian residence procedure for victims of smuggling has been in force since 2007, relatively few of these procedures have been opened to date. During a parliamentary debate in 2020, the Federal Public Service Justice stated that the application for the residence status of victims of smuggling needed to improve. In this context, EMN Belgium would like to know whether other EU Member States have similar special residence procedures for TCNs who have been the subject of an action to facilitate illegal immigration. 

Respondents:

22 EMN Member and Observer Countries (including BE) provided a public answer to this ad hoc query.

Findings:

A preliminary analysis of the results of the ad hoc query shows that:

• Out of 22 responding countries, only 3 (including BE) provide the explicit possibility of granting residence permits to TCNs based on the fact that they have been the subject of an action to facilitate illegal immigration (e.g. smuggling). In 6 additional countries, there is a residence procedure in place for “victims of crime” or “exceptional circumstances”, which may include persons who have been the subject of smuggling.
   
• The conditions that third-country nationals need to fulfill to obtain a residence permit on the grounds that they were the victim of smuggling vary between countries. In BE, the residence procedure set out in Article 61/2 of the Immigration Act states that the third-country national should be a victim of migrant smuggling with “aggravating circumstances”. These include situations in which the victim is a minor or particularly vulnerable, as well as situations where the action to facilitate illegal immigration was done using violence, coercion, or if the victim’s life was endangered deliberately.
   
• Even in countries where the residence procedure exists, the figures reported show that it is rarely used in practice. In BE, only 81 residence permits were issued to third-country nationals subject to an action to facilitate illegal immigration between 2018 and 2022.

For further details, please read the compilation of answers attached above.