Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants

EXECUTIVE SUMMARY OF A STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE (Full study – 128 pages-accessible HERE) 

Authors: Dr Sergio CARRERA , Prof. Elspeth GUILD, Dr Ana ALIVERTI, Ms Jennifer ALLSOPP ,Ms Maria Giovanna MANIERI, Ms Michele LEVOY

The ongoing ‘asylum crisis’, with the tragic experiences and loss of lives among people trying to reach and cross the EU’s external borders, has been the catalyst for renewed EU policy efforts to address the issue of irregular migration and people smuggling  in the scope of the  European Agenda on Migration.

The issue of facilitating the entry, transit and stay of irregular migrants has been politicised at the EU’s internal borders and within Member States during the course of 2015. While migrants remain in transit in areas such as Calais, Ventimiglia and the Serbian-Croatian border, often seeking out the services of smugglers to cross into neighbouring states to reunite with family members or fulfil a personal migration goal, humanitarian actors seek to respond to their human rights and needs in an increasingly ambiguous, punitive and militarised environment. Within many EU Member States, the backdrop of austerity and cuts to public services has placed local authorities and civil society actors in a difficult position as they seek to respond to the basic needs of new and  established  migrants.

In the EU Action Plan against migrant smuggling (2015-2020) (COM(2015) 285), the Commission noted that it would ensure that appropriate criminal sanctions are in place while avoiding the risks of criminalising those who provide humanitarian assistance to migrants in distress. Accordingly, the Commission has at least implicitly acknowledged the inherent tension between assisting irregular migrants to enter, transit and remain in EU Member States and the real risks this poses to those who provide humanitarian assistance of being subject  to criminal  sanctions.

This tension between the criminalisation of people smuggling and those providing humanitarian assistance is a by-product of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (the Facilitation Directive) and the Council Framework Decision implementing it – collectively known as the ‘Facilitators’ Package’. The tension arises because the Facilitators’ Package seeks to compel Member States to provide criminal sanctions for a broad range of behaviours that cover a continuum from people smuggling at one extreme to assistance at the other, but it does so with a high degree of legislative ambiguity and legal uncertainty.

The implementation of the Facilitators’ Package has been said to face a number of key challenges. There is, however, a lack of on-the-ground information about the multilayered effects of the practical implementation of the Facilitation Directive on irregular migrants and those providing assistance to them. This study aims to address this gap by providing new knowledge on this issue, while also identifying areas for further research. It provides a comprehensive understanding of the implementation of the humanitarian exception provisions of the Facilitators’ Package and their impact on irregular migrants, as well as the organisations and individuals assisting them in selected Member States.

The study finds a substantial ‘implementation gap’ between the UN Protocol against the Smuggling of Migrants by Land, Sea and Air (referred to as the UN Smuggling Protocol) and the international and EU legal frameworks on people smuggling. Chiefly, the latter differs from the UN Protocol in three main ways: i) the extent of the inclusion and definition of an element of “financial gain” in the description of facilitation of irregular entry, transit and stay; ii) the inclusion of an exemption of punishment for those providing humanitarian assistance; and iii) the inclusion of specific safeguards for victims of   smuggling.   As   a   result   of   the   discretionary   powers   granted   to   Member   States    in   the implementation of the Facilitators’ Package, the study further finds variation in the way in which laws are implemented in the national legislation of selected Member States. This results in legal uncertainty and inconsistency, and impacts on the effectiveness of the legislation.

An analysis of available statistics coupled with an in-depth analysis of court cases in selected countries involving the criminalisation of facilitation and humanitarian assistance reveals that qualitative and quantitative data on the prosecution and conviction rates of those who have provided humanitarian assistance to irregular migrants is lacking at the national and EU level. We can therefore identify a significant knowledge gap regarding the practical use and effects of the criminalisation of entry, transit and residence. Domestic court cases in selected EU Member States offer anecdotal evidence that family members and those assisting refugees to enter have been criminalised. Meanwhile, domestic developments in Greece and Hungary suggest that these laws are being applied with renewed rigour but with minimal monitoring of the direct or indirect impact on humanitarian assistance. Irrespective of the actual number of convictions and prosecutions, the effects of the Facilitators’ Package extend beyond formal   prosecutions and the number  of criminal  convictions.

Drawing on primary evidence from an online survey, the study demonstrates that, in addition to direct and perceived effects, the Facilitation Directive has profound unintended consequences (or indirect effects) that have an impact not just on irregular migrants and those who assist them, but also on social trust and social cohesion for society as a whole. Some civil society organisations fear sanctions and experience intimidation in their work with irregular migrants, with a deterrent effect on their work. They similarly highlight the lack of EU funding to support the work of cities and civil society organisations providing humanitarian assistance to irregular migrants. Moreover, we find widespread confusion among civil society practitioners about how the Facilitation Directive is implemented in their Member State, which can lead to misinformation and ‘erring on the side of caution’, thereby compromising migrants’ access to vital services. This is especially true in the context of the current migration crisis, where everyday citizens are obliged to volunteer vital services in the absence of sufficient state provision. This confusion stems in part from a lack of coordination between local and national authorities regarding implementation  of the Facilitation  Directive.

In certain Member States, the implementation of the Facilitation Directive is perceived to contribute to the social exclusion of both irregular and regular migrants and to undermine social trust. Shipowners report that they feel poorly supported by Member States and  are ill  placed  to  help  irregular migrants  at  sea.

In light of the above considerations, the study formulates the following policy recommendations  to  the  European Parliament:

Recommendation 1: The current EU legal framework should be reformed to i) bring it into full compliance with international, regional and EU human rights standards, in particular those related to the protection of smuggled migrants; ii) provide for a mandatory exemption from criminalisation for ‘humanitarian assistance’ in cases of entry, transit and residence; and iii) use the financial gain element and include standards on aggravating circumstances in light of the UN Smuggling Protocol. Clarity and  legal   certainty should  be  the  key guiding  principles  of  this  legislative reform.

Recommendation 2: Member States should be obliged to put in place adequate systems to monitor and independently evaluate the enforcement of the Facilitators’ Package, and allow for quantitative and qualitative assessment of its implementation when  it  comes to the number  of  prosecutions  and convictions, as  well   as  their effects.

 

Recommendation 3: EU funding should be made available for cities and civil society organisations to address the human rights, destitution and humanitarian needs of irregular migrants.

Recommendation 4: Firewall protections should be enshrined for irregular migrants to allow them to report human rights abuses and access public services without fear that they  will  immediately  be  reported  to  immigration  authorities.

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