Dr Matilde Ventrella and Professor Sonia Morani Foadi – Written Evidence (RES0009)

Written Evidence from Dr Matilde Ventrella[1] and Prof Sonia Morano Foadi[2]

Summary

1. This evidence addresses Question 13 of the Call for Evidence. Our focus is on the fight against trafficking in human beings (THB) and people smuggling, which fall within the area of law enforcement and security. The question that we are addressing is whether to combat human trafficking and people smuggling it is necessary or desirable for any UK-EU reset to take legally binding form. The evidence considers the legal form that should be taken by any new UK-EU agreements, and what the implications would be for parliamentary scrutiny.

2. In the evidence the UK-EU will be referred as the parties. For the purposes of this evidence, we use 'survivors' and 'victims' of human trafficking interchangeably.

3. In order to assist the House of Lords European Affairs Committee, the evidence has considered Question 13 through the following key issues:

1. Steps already taken by the parties;
2. How to enhance cooperation between the parties;
3. Solution by common agreements to overcome divergences in law between the parties.

4. We urge the British Government to conclude a bilateral agreement with the EU (the parties) on human trafficking and people smuggling based on the protection of human rights of survivors and potential victims of human trafficking. 

5.  With regards to the legal form to be adopted, we recommend that the UK Government conclude a legally binding bilateral agreement with the EU following an in-depth debate before the House of Lords European Affair Committee and Parliament. This would provide an opportunity for both parties to combat people smuggling while identifying survivors and potential victims of human trafficking who may be stranded among other migrants.

6. We recommend that the parties conclude an agreement based on the European Convention on Human Rights (ECHR) and other international legal instruments, such as the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) (see paragraph 14 of this evidence), which would not infringe UK national sovereignty, as the UK is already a party to these agreements.

Steps already taken by the parties

7.  Cooperation in criminal matters between the parties was never an issue before Brexit and the parties have indicated their intention to continue to maintain existing commitments. [3]

8.  The parties have agreed cooperation in criminal matters through the Trade Cooperation Agreement (TCA). Irregular migration falls within the scope of the TCA, but only where it concerns law enforcement and judicial cooperation.

9. Part 3 TCA, entitled Law Enforcement and Judicial Cooperation in Criminal Matters[4], addresses issues such as migrant smuggling and human trafficking and calls for strong cooperation on criminal matters between national police and judicial authorities to fight against cross-border crimes such as people smuggling and human trafficking.

10. The Government recognises the difference between migrants and individuals who become victims of human trafficking and has expressed its commitment to adopting a victim-centred approach to modern slavery and human trafficking by distinguishing survivors from other migrants.[5] Additionally, the Government aims to monitor the vulnerability of detained migrants to human trafficking and modern slavery.[6]

11. The TCA included a Working Agreement with Europol.[7] Subsequently, the UK concluded a Working Agreement with Frontex[8] and bilateral agreements with France and Greece.[9]  These agreements mainly focus on repressive measures against people smuggling.[10] 

12. The Government proposed a new UK–EU security pact, which would enable the UK and EU to work more closely on foreign, security and defence policy which would also involve work to tackle cyber threats, organised crime and human trafficking, as well as to address climate change and improve energy security.[11]

How to enhance cooperation between the parties

13. Cooperation between the parties on smuggling of migrants can only be effective if they prioritise the identification and protection of survivors and potential victims of human trafficking. This is because migrants and asylum seekers may become victims of human trafficking before they start their journey (e.g. they might be prepared to accept very dangerous jobs around borders from smugglers in order to be able to pay the cost of their trip),[12] during their journey and when they reach their country of destination (e.g. they would not have access to the legal labour market becoming prey to unscrupulous criminals ). [13] 

14. To strengthen UK-EU cooperation on migrant smuggling, particularly by small boats, the recommended approach—aligned with international obligations—emphasises respect for migrants' human rights, recognition of their vulnerability to trafficking, and a clear distinction between survivors and other migrants. As outlined in Section 10 of this evidence, the Government intends to adopt a 'victim-centred approach,' which aligns with the EU’s stance, as reflected in the 2024 Recast Directive on human trafficking. The Directive affirms that human trafficking is 'a gross violation of fundamental rights' and breaches the Charter of Fundamental Rights (the Charter). It also underscores that 'preventing and combating trafficking in human beings, and supporting the victims of trafficking, regardless of their country of origin, remains a priority for the Union and the Member States’.[14] Moreover, a human rights-based approach is essential, as Article 4 of the Universal Declaration of Human Rights (UDHR) affirms that no person ‘shall be held in slavery or servitude.’ This principle is replicated in Article 4 of the European Convention on Human Rights (ECHR). The Trafficking Protocol of the United Nations Convention against Transnational Organized Crime (UNTOC) further emphasises that efforts to combat human trafficking must fully consider the protection and assistance of victims, ensuring full respect for their human rights. Similarly, Article 1(1)(b) of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) establishes that one of its key purposes is ‘to protect the human rights of the victims of trafficking,’ while Article 5(3) mandates that ‘each Party shall promote a human rights-based approach.’

15. We argue that a bi-lateral agreement between the parties should contain clauses that determine the responsibility of each party for identifying and protecting THB victims. A solely repressive approach to combating people smuggling—focused primarily on detecting the crime and strengthening border controls—fails to adequately address the needs of survivors and potential victims of human trafficking. It also hinders efforts to share responsibility between parties in redistributing and relocating those affected.

16. The Government is willing to support international cooperation with the EU, and the House of Commons has emphasised that ‘international cooperation should not be focused on people smuggling to the detriment of efforts to combat modern slavery and human trafficking and prevent exploitation of the victims’.[15] In 2024, the Modern Slavery Act 2015 Committee emphasised that the UK has binding international obligations under the UNTOC Trafficking Protocol, ECAT, and the ECHR. [16] The Committee has recommended that: ‘The new Government should review its policy and procedures to ensure that primary legislation and statutory guidance are fully aligned with its international obligations under the Palermo Protocol and the European Convention on Action against Trafficking in Human Beings.’ [17]

17. The TCA has specific provisions stating that for general cooperation, agreements between the parties must be based on the respect of human rights.  Article 763 TCA states that the parties will build their cooperation on the respect of democracy, rule of law and human rights. To reinforce the points made in paragraph 9 of this evidence, Part Three of the TCA addresses both human trafficking and people smuggling, including specific provisions to enhance cooperation between the parties within a human rights framework.[18] Article 524 Part Three refers to the ECHR as to the Charter and requires that the UK is respectful of the ECHR and the EU and Member States of the Charter of Fundamental Rights (Charter). Since the UK is no longer a party to the Charter, any cooperation with the EU must be based on the ECHR. If either party fails to respect human rights as protected by these legal instruments, Article 693(1) allows for the suspension of any agreement between them. Therefore, it must be emphasised that Part Three of the TCA makes cooperation between the parties conditional on the respect of the ECHR.[19] 

18. Reframing the narrative to prioritise a human rights-based approach, rather than focusing solely on the criminalisation of traffickers, presents considerable challenges. However, over the long term, such a shift holds the potential to fundamentally reshape the discourse and foster more effective and sustainable outcomes. A human rights-based approach will create better practical outcomes because, in the long term, it facilitates the break-up of trafficking networks and the reintegration of victims in their countries of origin and/or the UK or other EU Member States. This approach fosters cooperation that enables the identification of as many survivors and potential victims as possible, distinguishing them from other migrants and exempting them from detention or immigration control measures.[20]  Cooperation based on respect for human rights could facilitate the referral of survivors in the UK and EU Member States, and potentially lead to policies focused on their reintegration into their countries of origin, with the option for voluntary return and support to prevent revictimization.  

Solution by common agreements to overcome divergences in law between the parties

19. An important consideration in any potential bilateral agreement between the parties is the redistribution of survivors and potential victims of human trafficking. Specifically, who is responsible for them upon identification, and which party should refer them to their respective national referral mechanisms (NRMs)? Agreements on transfer and referral of survivors and potential victims of human trafficking require that the parties agree common rules on their referral mechanisms and on rules concerning detention of irregular migrants who do not fall within the category of survivors of potential victims of human trafficking.  The latter is an important issue as the parties have different rules on detention of undocumented migrants.

20.  If survivors and potential victims are protected and referred to the respective NRMs, they might develop trust in the authorities of the parties and cooperate during investigations against smugglers and traffickers. This is the reason why we urge the conclusion of a bilateral agreement between the parties that should be legally binding after in-depth Parliamentary debates.  This is the only way to ensure repression of smugglers and traffickers and at the same time protection of survivors and potential victims across borders. 

21. We know that asylum and immigration are highly sensitive political issues. Considering this sensitiveness, the instinct of policymakers is often to follow a criminal justice model. Our research, however, shows that a human rights-focused approach is not just good for the human rights of victims but also more likely to facilitate the return of victims to their countries of origin in the long term. Our proposal is that, given the sensitive nature of smuggling and trafficking, the parties should establish an arbitrator to provide temporary solutions within the agreement, resolving potential disputes regarding the specific thresholds for protecting survivors or potential victims, as well as disagreements on detention rules.[21] We urge the parties to conclude a bilateral agreement as an initial step toward establishing a European referral mechanism, as outlined in the European trafficking strategy[22], which would enable the UK to cooperate with the EU as an associate state. Prior to leaving the EU, the UK was part of the 2011 EU Trafficking Directive, which prioritised a human rights-based approach—restoring this focus is essential for effectively combating people smuggling and human trafficking. Given the sensitivity of these issues, we also call on Parliament to closely scrutinise the agreement.

22.  The UK operates under a dualist system, meaning that international treaties have no legal effect unless incorporated into domestic law. This incorporation can occur either through an Act of Parliament, secondary legislation derived from Acts of Parliament, or through non-statutory mechanisms.[23] In theory, the Government is responsible for negotiating and finalising agreements, while Parliament's role is to scrutinize their implementation into domestic law.[24]  However, in practice, parliamentary scrutiny is often minimal because provisions do not always require new primary legislation to take effect; instead, delegated powers for secondary legislation may be used, or only select parts of the agreement are presented to Parliament.[25] Most of the time, a treaty with finalised terms is presented to Parliament, ‘leaving it with no meaningful scope to amend or even influence the terms of the treaty’.[26] Given the importance of agreements such as the proposed one on smuggling and trafficking, we believe they warrant thorough parliamentary debate.

23. Since it is unlikely that Parliament will scrutinise the bilateral agreement in depth, we urge this Committee to take on this responsibility. For example, the Committee could invite ministers, civil servants, and academics to provide evidence on the matter. The Committee should examine whether a human rights-based approach can form the foundation for bilateral cooperation, and address issues such as the relocation of migrants, return policies in cooperation with the EU, rules on detention, protection for vulnerable migrants exposed to human trafficking, support for survivors, and the possible establishment of an arbitrator to resolve disputes between the parties. 

24. We strongly recommend that these critical issues not be left solely to government negotiations or formal parliamentary approval without a genuine debate, as this could exacerbate the already precarious situation surrounding people smuggling and human trafficking.

Received 6 March 2025

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