By Lorraine Lally
Barrister at Law
When discussing this issue with a young Irish teenager she
looked at me and said the same thing that happened to Bridget Jones in the
movie where Mr. D’Arcy came to save her. As a lawyer I would not have made that
comparison but it is a good example where a person is of significance they
receive assistance. The EU Directive was designed to protect a vulnerable group
of persons who are often forgotten within the Justice system. The transposition of the EU Directive 2011/36/EU was considered in the recent case
of P v Chief Superintendent Garda
National Immigration Bureau & Ors [2015] IEHC 222 where the applicant
argued that there had been a breach of her rights under Directive and that it
had not been properly transposed into Irish law. The Directive confers a right to ‘assistance and
support’ to persons recognised as victims, whether or not they are prosecuted
The applicant had been arrested on suspicion of committing
offenses under s.15 of the Misuse of Drugs Act. Her evidence was that she had
been recruited by deception and transported to Ireland for the purposes of
exploitation. Judicial review was sought seeking an order of certiorari
quashing a decision not to identify her as a victim of trafficking and an order
of mandamus requiring her identification as a victim.
O’Malley J. referred to the Council of Europe Convention on
Action Against Trafficking in Human Beings, 2005 and the United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000. These
instruments do not have direct effect in the Irish State but it was accepted
that the standards established by them were those that the Ireland had
undertaken to apply ([2015] IEHC 222, paragraph 19). Reference was also made to
the “Dehli Indicators” ([2015] IEHC 222, para. 20). Judge O’Malley reviewed the
legal context including the existing law ([2015] IEHC 222, paras 12-13)
Administrative Immigration Arrangements for the Protection of Victims of Human
Trafficking ([2015] IEHC 222, paras 21-27) and also referred to the National
Plan (paras 28-34), its review (paras 35-37), the DPP Guidelines (para.38) and the GRETA Report (paras 39-44).
In relation to the
transposition of the Directive in Ireland, she held:
198. The Directive does not purport to prescribe any particular
procedure, stating only that “appropriate mechanisms” are required. It does not
seek to interfere with the criminal process, apart from requiring that the
competent authorities should have the necessary discretion.
199. In my view “appropriate” must mean appropriate to the issues to be
determined. In this context, the interests sought to be furthered will in all
cases include both the State’s interest in investigating the potential crime of
human trafficking and the interests of a victim in receiving assistance and
support.
201. In my view the Directive confers a right in all circumstances to
an ‘appropriate’ mechanism for determination of the question of the applicant’s
status. The mechanism must be one that will facilitate early identification,
and where identification is made consequential rights arise. This, therefore,
being a Directive intended to confer rights on individuals, it may be relied
upon directly.
202. It seems to me that the mechanism adopted in circumstances such as
the present case cannot be considered to be “appropriate” unless it deals
clearly with the interaction between the application for recognition and the
criminal investigation into the applicant’s alleged activities.
The Judge held that what is required is the making of policy
decisions within the area of discretion left by the Directive in cases
involving suspected criminal activity on the part of the applicant. This
discretion does not affect the overall obligation to implement an ‘appropriate
mechanism.’ She concluded therefore that the current mechanism as it is “must
be held to be inadequate in terms of the transposition of the Directive”. The Court invited the parties to address the
court further on the issue of an appropriate remedy in the circumstances.
This case is one of
many that will be dealt with by the Courts and the Gardaí what is required is
legislation to ensure that victims of trafficking are adequately protected and
identified as soon as is practicable. This is not an election issue because the
victims of trafficking are poor and often are non-EEA nationals as an
immigration lawyer I have met many victims and the system is not in place to
provide protection which is unacceptable with the increase in exploitation of
human beings.
#humanTrafficking # GE2016 #HumanRights #drugs #Ireland
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