A Dutch dangerous experiment in criminalizing compassion: How a parliamentary "slip-up" could create Europe's harshest migration law

 

Huub Verbaten, Research Fellow at the Clingendael Institute

Photo credit: Markus Bernet, via Wikimedia commons

On the evening of July 3, 2025, as Dutch parliamentarians prepared to vote on what could become some of Europe's most restrictive asylum laws, NSC MP Diederik Boomsma posed a question that cut to the heart of a dangerous policy experiment. Would offering a "bowl of soup" to someone without legal papers now be a criminal offense?

The question wasn't rhetorical. Just days earlier, a last-minute amendment by Geert Wilders' far-right PVV had passed through what opposition parties later called a "slip-up" in parliamentary procedure. The amendment didn't just criminalize being undocumented in the Netherland, it also made helping undocumented people a punishable offense. Suddenly, the simple act of human kindness that Boomsma described could land someone in jail.

Justice Minister David van Weel's initial response was telling: "Illegal is illegal. The law, is the law." But when pressed again later that evening, he backtracked, saying the criminalization clause wouldn't take immediate effect and would need assessment by the Council of State. The next day, Deputy Minister Thierry Aartsen offered a more pointed critique: "There should be no soup police."

This exchange encapsulates something profound about the moment we're witnessing in European migration policy. What began as political theater, a way for parties to signal toughness on immigration, has evolved into something more dangerous: the systematic criminalization of both vulnerability and compassion. The Netherlands, long seen as a pragmatic, tolerant society, is conducting an experiment in governance through criminalization that could reshape not just migration policy, but the very nature of civil society.

The mechanics of a political accident

To understand how the Netherlands arrived at this point, you need to understand the chaotic final days of the parliamentary session that ended July 3, 2025. What unfolded was less deliberate policymaking than political accident, resulting in a series of miscalculations and missed opportunities that produced legislation even its supporters seemed uncomfortable defending.

The story begins with the collapse of the four-party coalition government just one month earlier. Migration had been the breaking point. Geert Wilders, whose PVV party led the coalition, pulled the plug in June, claiming his partners were moving too slowly on promised migration restrictions. The irony was palpable: Wilders destroyed his own government over the very issue he'd finally gained power to address.

The criminalization amendment emerged from this toxic environment. Originally, the asylum legislation focused on reducing temporary residency permits from five to three years, suspending new permanent residency permits, and restricting family reunification.

These were significant changes, but they operated within existing legal frameworks. The PVV amendment changed everything. When the vote came on July 3, the numbers tell the story of a deeply divided parliament. The main asylum bill passed 95 to 55 MP votes, a comfortable margin that reflected broad support for tighter restrictions. But the criminalization amendment passed much more narrowly, and only because several opposition MPs were absent during the crucial vote. It was, in the words of multiple observers, a "slip-up" that produced one of Europe's harshest migration laws.

The Christian Democrats, who had initially supported the broader asylum package, immediately withdrew their backing once the criminalization clause was added. This wasn't careful policymaking. It was political improvisation under pressure, with consequences that extend far beyond the immediate parliamentary arithmetic.

The evidence against criminalization

The Dutch experiment in criminalizing illegal residence isn't happening in a vacuum. Other European countries have tried similar approaches, and the results offer a sobering preview of what the Netherlands can expect. The evidence is clear (see here and here): criminalization doesn't reduce irregular migration, but it does create a host of new problems.

Start with the basic premise underlying the Dutch legislation that making illegal residence a crime will deter people from coming or staying. Research (here and here) from the Netherlands' own Research and Documentation Centre (WODC) has repeatedly debunked the assumption that illegality and criminality go hand in hand. A recent German study reached similar conclusions, finding no evidence that immigration increases crime rates. Migrants are primarily driven by safety, prospects, and family, not by policy measures. The deterrence theory, appealing as it might sound to politicians, simply doesn't hold up under scrutiny.

The international evidence is even more damning. Belgium offers perhaps the most instructive comparison. Since 1980 - 45 years ago - Belgium has maintained criminal penalties for illegal residence, with fines up to 200 euros and prison sentences up to three months. The result? Belgium currently hosts an estimated 112,000 undocumented residents (see here and here), more than double the highest estimates for the Netherlands (23,000 to 58,000). If criminalization were an effective deterrent, Belgium should have far fewer undocumented residents, not far more.

Germany has taken a different approach that highlights the contradictions in criminalization strategies. Through its Duldung (toleration) system, Germany provides temporary legal status to people who cannot be deported. Between 2015 and 2020, Germany issued nearly 660,000 residence permits to people who had previously been living illegally in the country. Rather than criminalizing these individuals, Germany regularized their status, reducing the undocumented population from 300,000 in 2022 to 240,000 in 2023.

Italy provides the starkest example of criminalization's failures. Since 1998, Italy has maintained criminal penalties for illegal residence, with fines reaching 10,000 euros and mandatory deportation orders. Yet Italian courts have repeatedly rejected the harshest applications of these laws (see here and here). In 2023, it was determined that a protection permit (protezione speciale) may not be automatically denied without an individual assessment. Meanwhile, the informal economy grew, and with it, the vulnerability of undocumented individuals. Since 2020, the number of detected irregular migrants has increased nearly tenfold, from fewer than 23,000 to more than 195,000 in 2023 (see here and here). The paradox is stark: the stricter the policy, the larger the population it fails to control.

What is criminalized in one European country can offer protection in another. While the Netherlands seeks to criminalize illegal stay, countries like Italy and Germany have humanitarian exceptions: protezione speciale, Duldung. The result? Two people in exactly the same situation can face completely different outcomes, purely depending on where they are.

These differences are not minor legal technicalities because they touch on something fundamental: the fairness of European migration policy. How do you explain that someone in Germany might receive a Duldung for policy-related or personal reasons, while that same person would be considered a criminal in the Netherlands?

Systems under breaking point

The Dutch criminalization experiment arrives at a particularly unfortunate moment: when the country's justice system is already stretched beyond capacity. The Netherlands' justice system is currently in crisis. Prison overcrowding has become so severe that the government recently implemented early release programs for convicted criminals to free up cell space. Into this strained system, the criminalization amendment would inject thousands of new cases annually.

The Association of Dutch Municipalities (VNG) has been particularly vocal about the implementation challenges. In their assessment, the legislation creates an impossible situation: municipalities are legally required to provide basic services to vulnerable populations, but the new law would criminalize providing those very services. As VNG chairperson Sharon Dijksma put it, "Municipalities will soon have to break one law in order to comply with another law."

Police leadership opposes Minister Van Weel’s legislation (see here and here): 'Not every illegal alien is a nuisance' and 'When providing assistance to someone who is in the country illegally, the police would actually be in violation. This is an undesirable situation.'

The system strain isn't limited to formal institutions. Civil society organizations that have provided humanitarian assistance for decades suddenly find themselves in legal jeopardy. Churches offering sanctuary, NGOs providing food and shelter, even individual citizens helping neighbors could face criminal prosecution.

The logic of political theatre

If criminalization doesn't work as policy, why does it persist as politics? The answer reveals something uncomfortable about contemporary democratic governance: the gap between what sounds effective and what actually works has become a chasm that politicians exploit rather than bridge.

The Dutch criminalization amendment serves primarily as what political scientists call "symbolic legislation”, laws designed more to send messages than to solve problems. The message is clear: we take illegal immigration seriously enough to make it a crime. The audience isn't primarily migrants, who research shows are rarely deterred by such policies. The audience is voters who want to see their representatives "doing something" about immigration.

This dynamic isn't new in Dutch politics. The current proposal represents the third major attempt to criminalize illegal residence in the past two decades. Each time, the same pattern emerges: political pressure builds for "tough" action on migration, criminalization is proposed as a solution, experts warn about practical problems and limited effectiveness, and the proposal either dies or gets watered down. The current version broke this cycle not because the underlying problems were solved, but because political circumstances aligned to push it through despite expert opposition.

The criminalization approach also serves another political function: it shifts responsibility away from government failure. If the Netherlands cannot effectively manage migration through existing legal and administrative tools, criminalizing the problem makes it someone else's responsibility e.g. police, prosecutors, judges. When these institutions inevitably struggle with implementation, politicians can blame them for being "soft" rather than acknowledging the inadequacy of the policy itself.

When compassion becomes criminal

The most profound impact of the Dutch criminalization experiment may not be on migration patterns, which research suggests will remain largely unchanged, but on the fabric of civil society itself. When basic human compassion becomes potentially criminal, the effects ripple far beyond the immediate targets of the legislation.

Consider the position of healthcare providers who regularly treat undocumented patients. Under the new legislation, providing medical care to someone without legal status could potentially constitute "assistance" to illegal residence. The law contains no explicit medical exemption, leaving healthcare providers in an impossible position: violate their professional oath to "do no harm," or risk criminal prosecution for helping vulnerable patients.

The Dutch legislation creates what legal scholars call "overcriminalization", the expansion of criminal law into areas traditionally governed by administrative procedures or moral obligations. When criminal penalties attach to activities that most people consider morally neutral or even praiseworthy, the law loses legitimacy and becomes harder to enforce fairly.

The European Court of Justice has recognized this complexity in a series of recent rulings that establish minimum standards for human dignity even in restrictive migration regimes. The Jawo decision established that Dublin transfers cannot leave asylum seekers destitute. Haqbin confirmed that even problematic asylum seekers retain rights to basic accommodation. The ruling in Changu underlines that Member States may be strict in their return policies, but they remain responsible for the basic needs of people who cannot (yet) be deported.

The Court recently ruled that illegal travel into EU by a third-country national with minors does not constitute a criminal offence when claiming international protection. Therefore, the Italian law contravenes EU law. These rulings reflect a fundamental principle: human dignity is not conditional on legal status.

The European Commission made a proposal at the end of 2023 for a new directive aimed at clarifying the approach to assisting with illegal residence in the EU. The Netherlands supports the proposal but at the same time emphasized as recently as March 2024 that humanitarian aid must not be criminalized. The Meijers Committee warns that the directive risks criminalizing humanitarian aid and urges the EU to amend vague provisions allowing Member States too much discretion in prosecutions.

An increasing number of aid workers have appeared in court across several Member States for assisting undocumented individuals. According to a recent report by the PICUM network, at least 142 people in Europe were prosecuted in 2024 for helping migrants, including 62 in Greece, 29 in Italy, 17 in Poland, and 17 in France.

The choice ahead

The Dutch criminalization experiment now moves to its final act. When the upper house reconvenes after the summer recess, senators will face a choice that extends far beyond migration policy. They will decide whether the Netherlands embraces governance through criminalization or returns to its tradition of pragmatic, evidence-based policymaking.

The vote is expected to be extremely close. The Christian Democrats, who withdrew support in the lower house over the criminalization amendment, hold enough seats in the upper chamber to block the legislation if they maintain their opposition. This means the fate of one of Europe's harshest migration laws may come down to a handful of votes from politicians who weren't even directly elected on this issue.

The choice facing Dutch senators reflects a broader tension in contemporary democracy between responsive governance and responsible governance. Responsive governance gives people what they want, even when what they want is based on incomplete information or emotional reactions. Responsible governance sometimes requires leaders to resist popular pressure in favor of policies that actually work.

The criminalization amendment represents responsive governance at its worst, a policy that sounds tough but creates more problems than it solves. Responsible governance would acknowledge the legitimate concerns about migration while pursuing solutions that actually address those concerns rather than simply expressing frustration about them.

What would responsible migration governance look like? It would start with honest assessment of what's actually possible. Most undocumented residents in the Netherlands cannot be deported, either because their countries of origin won't accept them or because deportation would violate international law. Criminalizing these people doesn't make deportation more feasible; it just makes their lives more precarious.

The question that began this analysis - whether offering a bowl of soup to someone without papers should be a crime - captures the essence of this choice. Societies that criminalize basic human compassion don't become more secure or more prosperous. They become less humane and ultimately less democratic.

The Netherlands still has time to choose a different path. The question is whether its democratic institutions are strong enough to take it.

A candle in the dark: the CJEU rules against criminalising parents for smuggling their children

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Bologna, taken by Ввласенко, via Wikimedia Commons

Introduction

The world is increasingly bleak for those concerned about civil liberties, poverty or climate change – including for those concerned about the right to asylum and the rights of migrants more generally in Europe. Constraints on those rights have reached the point where a law supposedly intended to combat wicked gangs of people smugglers ended up potentially being applied to criminalise a mother who applied for asylum for assisting her little girl to enter a Member State illegally with her.

In today’s judgment in Kinsa, the Court of Justice ruled that this interpretation of EU law went too far. But there’s a twist: there’s a proposal to amend the legislation, tabled a few months after the Kinsa case was referred to the CJEU, and Member States tried to foresee the Court’s judgment, taking the opportunity to build themselves an escape route to get around it. Yet there’s a further twist here: today’s judgment implicitly appears to be aware of the Member States’ plans, and subtly attempts to block that escape route. It’s the latest move in an unstated game of cat-and-mouse between the EU legislature and judiciary. But above and beyond these games, the Court’s judgment also has broader implications for the highly controversial relationship between criminal law and immigration and asylum law.

 

Background

Current law

The current EU law on smuggling of migrants – or, more precisely, the facilitation of illegal entry or stay – is set out in two parallel linked laws adopted in 2002: a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay; italics added).

While the prohibition on assisting illegal stay is subject to the requirement that such assistance must be ‘for financial gain’, the prohibition on facilitating illegal entry is not. However, the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in ‘illegal entry’ cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The Framework Decision then requires Member States to penalise the facilitation of illegal entry or illegal stay (as defined in the Directive) via the  criminal law, although the level of that penalty is only set out for the most serious cases (where the offence was committed as part of an organised crime group, or ‘while endangering the lives of the persons who are the subject of the offence’). However, it includes a safeguard for asylum:

This framework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967.

Proposed law

The Commission’s proposal to replace the two 2002 measures with a single Directive would make a number of changes to that law, but I’ll focus on the scope of criminalisation of assistance (for a full discussion of the proposal and the Member States’ response to it, see my analysis here).

On this point, the obligation to criminalise either illegal entry or illegal stay would be limited to ‘financial gain’ cases, and the preamble clarifies that these elements of the offence:

…will usually not be fulfilled when it comes to assistance among family members or the provision of humanitarian assistance or the support of basic human needs. Third-country nationals should not become criminally liable for having been the subject to such criminal offences. Moreover, it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.

A version of the current asylum safeguard would also appear in the preamble:

Member States should apply this Directive in accordance and in full compliance with the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of New York of 1967, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights.

However, this is only the Commission’s proposal. EU legislation must also be agreed by the Council (ie Member States’ representatives) and the European Parliament. According to the Council’s version, agreed last December (after the Advocate-General’s opinion in the Kinsa case, but before today’s judgment) the preamble expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

Assistance of unauthorised entry, transit or stay in the Union should constitute a criminal offence at least when there is a link with an actual or a promised financial or material benefit. This is without prejudice to the way in which Member States deal in their national law with facilitation conducts for which an actual or a promised financial or material benefit is not a constituent element of the offence.

A wholly new recital in the preamble makes the point even more clearly (italics are mine):

This Directive is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers. Member States should ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence at least where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit. However, since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.

And the Commission’s proposed recital stating that family members should not themselves be criminalised, is replaced by a recital giving Member States more leeway to do just that:

Nothing in this Directive should be understood as requiring the criminalisation, on the one hand, of assistance provided to close family members and, on the other hand, of humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with the applicable national and international legal framework.

For its part, to date the European Parliament has not yet agreed its negotiation position on the issue, although there is a draft report on the proposal that exempts humanitarian assistance from criminal liability, and is critical of criminalising family members in the preamble:

(7a) Where an individual or organisation offers assistance to migrants through actions which are selfless and from which no financial or other material benefit is derived, or which are based on the principles of humanity, neutrality, impartiality and independence, then those actions should not be criminalised. Such actions may include the carrying out of search and rescue operations in accordance with international law, assistance to family members, assistance to third-country nationals in situations of danger or distress, the provision of legal assistance, medical assistance, healthcare, housing, shelter, clothing, food and water to third-country nationals or supporting third-country nationals in asserting their rights.

However, it remains to be seen whether the majority of MEPs support the draft report.

 

The Kinsa case

The mother being prosecuted in this case came originally from the Congo, flying to Bologna, Italy from Casablanca, with an 8-year-old and a 13-year-old girl (one was her daughter; the other was her niece, who she was looking after since the girl’s own mother died). (Some of the facts are omitted from the Court’s judgment; there’s more detail in the summary of the national court reference) Although she and the children did not enter via an unsafe vessel across the Mediterranean, they all travelled on false passports, and the Italian authorities decided that she should be prosecuted for breach of the EU Directive and Framework Decision, as implemented in national law, because she assisted the girls’ entry. She subsequently applied for asylum (the fate of that application is unknown).

In the criminal case, the national court had doubts that the EU legislation or its national implementation was compatible with the EU Charter of Fundamental Rights, particularly given that there was no mandatory exclusion for humanitarian assistance. It therefore asked the CJEU if the EU legislation was invalid, or alternatively if EU law precluded Italian law’s implementation of it on this point.

According to the Advocate-General’s opinion, the EU Directive was valid, and obliged Member States to criminalise a mother in these circumstances, although Member States must impose lower penalties in such cases, due to the Charter rule on proportionality of criminal penalties.

The CJEU took a radically different view.

It began by noting that EU legislation should be interpreted in conformity with the Charter as far as possible, in effect redrafting the national court’s questions to focus on Articles 7, 18 and (added by the Court) 24 of the Charter (respectively the rights to family life and asylum and rights of the child).

Interpreting the wording of the Directive, in the Court’s view, the prohibition of assistance to illegal entry was broad; it neither expressly included or excluded its application to those who assisted the illegal entry of children they had effective custody over. But the Court rejected the application of the prohibition of assistance to such cases, for several reasons.

First of all, it was inconsistent with the objectives of the EU law, which concerned assistance to illegal immigration, not the exercise of parental responsibility.

Secondly, this would contradict the right to family life (in particular the family unity of parents and children) and the rights of the child set out in the Charter (the right to protection and care, the best interests of the child, and the right of contact with parents); the latter right is also relevant to decisions addressed to adults which have major consequences for children. As the explanations to the Charter state, the UN Convention on the Rights of the Child (CRC) is relevant too; and that Convention refers to parents or guardians having the primary responsibility for children. It followed that the prohibition in EU law could not apply in these circumstances, even if the mother herself entered unlawfully.

Moreover, the Court ruled that applying the prohibition in such cases would undermine the ‘essence’ of these fundamental rights (see Article 52 of the Charter), given that a parent or guardian is simply exercising their responsibility to look after the children.

Thirdly, applying the prohibition to such case would breach the right to asylum in the Charter too; this right was relevant given the mother’s subsequent asylum application. Both the Charter and (as we have seen) the EU legislation concerned require compliance with the Refugee Convention. In particular, the Court referred to Article 31 of that Convention (also referred to explicitly in the EU legislation), which states that:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1 [ie the definition of ‘refugee’], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Similarly, the Court referred to a number of related points: the obligation set out in the Schengen Borders Code to apply that Code in accordance with human rights, the Refugee Convention, and non-refoulement; the right to submit an asylum application despite any illegal stay, after which the stay could not be considered illegal until a first-instance decision on the application; the prohibition on Member States dissuading an applicant for applying for asylum, without reasonable justification (on the last two points, referring to its judgments in Commission v Hungary (Reception of applicants for international protection), Commission v Hungary (Criminalisation of assistance to asylum seekers) and Commission v Hungary (Declaration of intention prior to an application for asylum); it’s fair to assume that the Hungarian government’s observations in the Kinsa case were unpersuasive); the EU reception conditions Directive and qualification directive refer to the best interests of the child and family unity; and the Final Act to the Refugee Convention refers to family unity of refugees too.

So, in the Court’s view, as an asylum-seeker the mother could not be prosecuted either for her own illegal entry or for accompanying her daughter and niece.  

Fourthly, the Court noted that – as the Commission, and indeed many critics of EU law in this field point out – a narrower reading of the obligation to criminalise for assisting illegal entry is confirmed by the protocol on smuggling of migrants, attached to the UN Convention on organised crime, which the EU and Member States have ratified, and which the EU legislation was intended to give effect to. The Court noted that the intention of the protocol is to criminalise the smuggling of migrants, while protecting the rights of those migrants. However, it also points out that other conduct, such as trafficking in people or sexual exploitation of children, could be criminalised.  

Finally, the Court addressed remedies. Its interpretation of the EU legislation had addressed the argument that this legislation might be invalid for breach of human rights. As for the national law, Member States could not breach fundamental rights when implementing EU law; so when transposing the 2002 Directive, they could not include conduct not covered by it, in breach of Articles 7 and 24 the Charter. In any event, the Court ruled that those provisions of the Charter were, in effect, directly effective; if a national court could not interpret national law consistently with the Charter, it would have to disapply that conflicting national law, ie the principle of supremacy/primacy (referring to Egenberger on enforcing Charter equality rights; on that judgment see here). The judgment did not comment on whether or not Article 18 of the Charter could be used in the same way.

 

Comments

There’s…a lot to unpack here. I’ll discuss in turn: the family life and rights of the child aspects of the judgment; its broader implications for asylum and immigration law; and the even broader legal and political context of the Court’s judgment.

Family life and rights of the child

The Court’s first point (distinguishing between control of irregular migration and parental responsibility) is solely connected to the parent/child relationship, but its second point (the Charter rights to family life and rights of the child, plus the CRC) is potentially broader – as there are family relationships other than the parent/child link. Although the Court’s analysis of the issues is understandably focussed on the facts of this case, there may be other circumstances where it might be relevant by analogy: assistance for other family members, or assistance from a parent already on the territory. The Court’s strong emphasis on the rights of the child aspects (covering all three paragraphs of Article 24 of the Charter, plus the CRC) could be relevant to other issues besides irregular entry; and the very strong remedy – disapplying national law in breach of Articles 7 and 24 of the Charter – could be applicable to many EU law issues inside and outside the scope of immigration or asylum law. And the Court’s ruling that this issue goes to the ‘essence’ of the rights in question makes it impossible to justify a limitation on those rights. (The Court doesn’t discuss whether or not the restriction goes to the essence of the right to asylum or not)

Having said that, the issue of humanitarian assistance goes beyond family relationships: the impulse to rescue strangers is distinct from a mother’s (or father’s) love for their child. In the context of revising the EU legislation on this issue, could the EU legislature simply leave the possible criminalisation of family support out of the law altogether – leaving Member States free to decide whether to criminalise it, untroubled by the constraints of EU law, because they would not be implementing it? Equally, could they evade those constraints as regards humanitarian assistance generally – as the Council’s negotiation position on the Commission’s proposal to amend the law seeks to do – by simply leaving the issue outside the scope of that law? With one bound, could the Member States be free?

Not so fast. While the CJEU could perhaps have confined its analysis to the family life and rights of the child points, it did not – choosing also to answer the national court’s questions about the right to asylum, and doing so in a particularly broad way.

Right to asylum

The mother’s subsequent application for asylum is crucial to the impact of this case – giving the national court the opportunity to ask about the Charter right, thus allowing the CJEU to wax lyrical about a wide swathe of EU asylum and border control law, plus the Refugee Convention.

Starting with the Convention, the Court’s willingness to refer to and apply Article 31 of the Convention – ruling out the prosecution of the mother for illegal entry even though the national court did not ask about that (it’s not even clear if she was charged for it) – is striking. The Court has perhaps forgotten that back in 2014, in the case of Qurbani (discussed here) it claimed that it had no jurisdiction to interpret Article 31 of the Convention. This was very unconvincing, given the express or implied references to that Article in EU law (in the main text of the smuggling Framework Decision and implicitly in the human rights safeguard in the borders code, both referred to in this judgment; Article 31 is also mentioned in the preambles to other EU asylum law), and its obvious relevance to criminalisation of immigration.

Having finally worked up the enthusiasm to discuss Article 31, the Court applies it without much analysis – possibly because it was not even asked about criminal penalties for the mother’s own illegal entry, or perhaps because of the other legal factors it mentioned before reaching its conclusion that she could not be prosecuted for her own illegal entry or for assisting that of the children.

But let’s look at the Article 31 issues in this case. The Court obviously (and surely correctly) assumes that criminalisation of illegal entry constitutes a ‘penalty’ for the purposes of Article 31; the definition of ‘penalty’ is an issue as regards other restrictions following illegal entry, though. The Court also assumes that asylum-seekers – not only recognised refugees – are covered by Article 31.  Another key issue in the interpretation of Article 31 is the meaning of ‘coming directly’: here, the summary of the facts indicates that the family originated in Congo but flew to Italy from Morocco, and the details of their travel to Morocco are not mentioned. Arguably the Court has implicitly accepted that an asylum-seeker must still be regarded as ‘coming directly’ even though they went through an intermediary country, but does this only apply if direct flights were unavailable? (We don’t know if they were). Or if the asylum-seeker only transited there, or the stay was otherwise brief? Perhaps the story of refugees trapped in Casablanca, desperately trying to obtain documentation to travel further abroad, would be a good idea for a film.

Whether the mother’s life or freedom was threatened on Convention grounds is the issue to be decided in her substantive asylum application (she’s fleeing domestic violence, which was the subject of an important CJEU judgment last year). She’s certainly present without authorisation, and appears to have presented herself to the authorities without delay (although this may be more of an issue in other cases). Arguably, seeking asylum is in itself a ‘good cause’ for illegal entry or presence, although national interior ministries might well contest that. And the Court does not even mention Article 31(2) of the Convention, on restrictions on movement or possible movement to other countries – although these issues might arise in relation to detention cases (the mother was only detained for one day), or ‘safe third country’ arguments.

This detailed analysis of Article 31 may be begging the question, though, because, as mentioned already, the Court also mentioned a series of other legal factors in its assessment of possible criminal penalties. So presumably Article 31 is not the only issue to be taken into account in such cases, and the finer points of interpreting it sit alongside other issues to be interpreted (the borders code human rights safeguard; the legality of an asylum-seeker’s stay until the first instance decision, which is explicitly set out in EU asylum procedures law; and the prohibition of dissuading asylum applications). And while the Court does mention family unity and the rights of the child in this context, most of the points it makes here are relevant to any asylum application, and also to other types of assistance to asylum-seekers (cf the Court’s reference to the previous judgment against Hungary for criminalising assistance to asylum-seekers). The Court seems to have taken the opportunity arising from this specific case to reach some very general findings about criminalisation and border control in the context of asylum.

All of this encourages national courts to send the EU court further questions to clarify these points, in an environment where asylum-seekers’ access to the territory and the asylum procedure is often very difficult on the ground. But what about the EU legislature?

As noted already, the Member States’ negotiation position on the proposed new Directive on smuggling of persons takes the issue of family assistance in particular, and humanitarian assistance in general, outside the scope of the smuggling law, leaving it up to Member States to determine whether to criminalise such forms of assistance or not. But on the face of it, the Court’s judgment has thwarted this cunning plan – at least in cases where the assistance is offered to, or by, an asylum seeker. For the Court has linked its interpretation also to the Schengen Borders Code (where the human rights safeguard was untouched by amendments last year), (implicitly) the asylum procedures law, the reception conditions directive, and the qualification law – along with the Refugee Convention. So even if Member States win the battle on this point as regards the smuggling of migrants law, the Court has opened four more fronts – and its rulings on the point not only interpret secondary law, but also largely link that interpretation to EU primary law (the Charter, plus the quasi-primary law of the Refugee Convention – linked to the Charter and the EU Treaties). 

Nor could the Member States argue that the future Directive sets minimum standards only, leaving them free to criminalise what they want above that level, because the Kinsa judgment insists that the EU Charter constrains Member States' implementation of the law regardless.

The legislative mouse seems to have been caught by the judicial cat.

Finally, the Court’s interpretation of the UN Protocol is unhelpful for the border control industrial complex too. The Court is correct to point out that the protocol only requires the criminalisation of smuggling in the context of organised crime, although the judgment exaggerates the extent to which the protocol protects migrants’ rights. Again, these are general points not limited to family assistance, or even humanitarian assistance more generally; they could equally apply to criminalising the migrants as such.   

The broader context

Trying to fire a legal weapon devised to combat organised crime at the desperate mother and aunt of two young girls offers us a moment of rare moral clarity. The facts in this case are so sympathetic that the ruling in her favour may not be as controversial as if the facts had been somewhat different. Nevertheless, the CJEU eschewed the opportunity to limit its judgment to such compassionate cases, instead providing fuel for much more general legal challenges to border controls on human rights grounds, even apparently undercutting an attempt to legislate an escape from EU law constraints.

And the Court is surely well aware of the political environment in which it delivered its judgment. Even setting aside the assault on immigration and asylum rights across the Atlantic, the judgment comes shortly after a group of Member States’ leaders delivered a broadside against the case law of the European Court of Human Rights in immigration cases. The CJEU is a different court, but it’s unlikely that these leaders are too thrilled with its asylum and immigration case law either. Yet its response to this broadside was not to surrender and prepare to be boarded. It was to fire back.  

It’s not certain what the full scope of this judgment is; it’s unlikely that every CJEU migration judgment will be as liberal; and it’s possible that Member States may find a way to circumvent this judgment anyway – perhaps by simply ignoring it, as they do with pushbacks. But the judgment is at least a sign that all is not yet lost. In an increasingly dystopian world, it is at least a flicker of hope.

Further reading - for a comparative law angle, the Supreme Court of Canada's R v Appulonappa judgment 

The Council’s position on proposed EU law on migrant smuggling: cynical political theatre?

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Ggia, via Wikimedia Commons

Introduction

Member States’ ministers (the EU Council) are likely to agree a negotiating position this week on replacement of existing EU law on smuggling of migrants – raising questions in particular about the compatibility of this law with human rights, including as regards humanitarian assistance for migrants. The following analysis first sets out the current law, comparing it to the Commission’s proposal for replacing that law last year, then comparing that proposal in turn to the likely text of the Council position, concluding with comments on the latest text. The proposal will still have to be negotiated with the European Parliament, which does not yet have a negotiation position of its own.

Current law

Because it was adopted before the entry into force of the Treaty of Lisbon, the current law is divided between two measures – a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. (The proposed law is a Directive that will combine and replace the two).

According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay). Note that the prohibition on facilitating ‘illegal entry’ is not subject to a ‘financial gain’ motive; but the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in such cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. Member States must also apply sanctions where people are instigators of or accomplices in, or attempt, such actions.

The Framework Decision then specifies that the prohibitions in the Directive must be enforced by ‘effective, proportionate and dissuasive criminal penalties which may entail extradition’, possibly accompanied by ‘confiscation of the means of transport used to commit the offence’, ‘a prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the offence was committed’, or ‘deportation’. In the case of illegal entry for financial gain or instigation, the Framework Decision is more precise about sentencing: there should be a possible maximum penalty of at least eight years where the offence was committed as part of an organised crime group (as defined by a separate EU law), or ‘while endangering the lives of the persons who are the subject of the offence’. But that could be lowered to six years if that was ‘imperative to preserve the coherence of the national penalty system…provided that it is among the most severe maximum sentences available for crimes of comparable gravity.’

After standard provisions on liability of, and sanctions for, legal persons, the Framework Decision requires Member States to establish jurisdiction over an offence committed ‘in whole or part upon its territory’, by its nationals, or for the benefit of a legal person established there. But Member States may waive either of the latter two rules, or apply them only in ‘specific cases or circumstances’. There is also a specific rule on extradition and prosecution (no longer relevant in light of the European Arrest Warrant), and rules on communication between Member States, where one of them is informed about breaches of the law of another Member State, or requests another Member State to prosecute as regards breaches of its own law.

Finally, the Framework Decision includes a safeguard for asylum:

This framework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967.

There is limited case law on the current law, but the Advocate-General’s opinion in the pending case of Kinsa addresses its application to a family member being prosecuted for assisting her child to enter the territory. According to the opinion, this is covered by the obligation to criminalise assistance in the Directive (unless Member States opt out of that aspect), and the Directive is valid; but Member States are obliged to impose lower penalties in such cases.

 

Proposal

The Commission’s proposal starts with a merged criminal offence of assisting illegal entry or stay, either subject to a financial benefit test or a serious harm test:

a) the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit; or

b) there is a high likelihood of causing serious harm to a person.

The preamble states that these elements of the offence:

…will usually not be fulfilled when it comes to assistance among family members or the provision of humanitarian assistance or the support of basic human needs. Third-country nationals should not become criminally liable for having been the subject to such criminal offences. Moreover, it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.

Although the asylum safeguard would be dropped from the main text, a version of it would still appear in the preamble:

Member States should apply this Directive in accordance and in full compliance with the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of New York of 1967, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights.

The proposal also suggests a fleshed-out offence of ‘public instigation’ of illegal entry or stay, although the preamble states that providing ‘objective information’ about immigration and asylum law is not to be covered by this, and that the instigation would amount to ‘illegal content’ covered by the social media content regulation rules in the Digital Services Act.

The offence must be treated as ‘aggravated’ where it was committed within the framework of organised crime, ‘deliberately or by gross negligence caused serious harm to, or endangered the life of, the third-country nationals who were subject to the criminal offence’, was ‘committed by use of serious violence’, where those subject to the offence ‘were particularly vulnerable, including unaccompanied minors’, or where it caused the death of the migrant. Member States must also criminalise incitement, aiding and abetting and attempt – except as regards the ‘public instigation’ offence.

There would be more details on penalties: a maximum penalty possible of at least three years in general for the main offences; ten years (up from eight, or maybe six) for the (longer) list of aggravated cases, also now applying to illegal stay assistance, not only assistance for illegal entry; and fifteen years where a death was caused. (There would be no specific sentencing rule as regards the inchoate offences of incitement, aiding and abetting, or attempt).  

An expanded list of other penalties would include ‘withdrawal of permits or authorisations to pursue activities which have resulted in committing the criminal offence, or prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the criminal offence was committed’ (the latter part reflecting the current law); return to a non-EU country either following sentence in the Member State concerned, or serving some or all of the sentence in the non-EU country, without prejudice to more favourable EU or national rules (building upon the current ‘deportation’); an entry ban for an appropriate period of a maximum ten years, again without prejudice to more favourable EU or national rules; exclusions from public funding etc; fines; and freezing and confiscation of proceeds and instrumentalities (building on the current confiscation of means of transport).

The current provisions on liability of legal persons would be supplemented by more detailed rules on levels of fines, resembling more the penalties in EU competition law (or the Digital Services Act): 3% of worldwide turnover as the general rule, 5% in the case of aggravated offences, 6% where a death is caused. There would also be a list of aggravated circumstances: an offence committed by a public official; a link to illegal employment offences; a prior conviction for the same offence; a link to ‘the exploitation or instrumentalisation of’ the migrant; dispossessing migrants of their ‘identity or travel documents’; or committing the offence while carrying a firearm. Conversely, helping the authorities to ‘find evidence’ or ‘identify or bring to justice other offenders’ would be a mitigating circumstance. But the consequences of either would not be further specified by the Directive.

Like several recent EU criminal law measures, there would be rules on minimum limitation periods: at least seven years after the commission of the offence as a general rule; ten years for aggravated offences; and fifteen years for deaths (including attempts). The same limitation periods would apply as regards enforcement of the sentence, from the date of conviction. As a derogation, these periods could be reduced to five, eight and ten years, ‘provided that the period may be interrupted or suspended in the event of specified acts’.

Jurisdiction would be expanded, to include not only acts committed on the territory in whole or part, but also by nationals and non-EU habitual residents, for the benefit of a legal person also where it does business in the territory, on board its ships or aircraft (registered or flying its flag), or resulting in the entry, transit or stay of the migrants concerned. Unlike the current law, Member States could not opt out of any of these jurisdiction rules. Where an offence was committed outside its territory, Member States would have to drop any requirement that the act was a criminal offence in the other country, or that prosecution required information from the other country first.  

There are some vague new provisions on prevention, resources, training, investigative tools, and data collection, and finally a requirement to apply the new law within one year – shorter than the normal two years for Directives.

 

Council position

First of all, the Council version simplifies the main criminal offence by dropping the provision about causing serious harm as well as the ‘public instigation’ offence. The offence remains assistance to illegal entry or stay, with a financial benefit element. A further safeguard clause has been added to the preamble:

In particular, nothing in this Directive should affect the rights, obligations and responsibilities of Member States and individuals to provide assistance to third-country nationals, for humanitarian reasons or aimed at meeting their basic human needs, under applicable international law - including international human rights law and in particular, where applicable, the 1951 Convention relating to the status of refugees as amended by the Protocol of New York of 1967, the United Nations Convention on the Law of the Sea, and in compliance with legal obligations. This assistance can also include legal, linguistic or social advice or support.

However, the preamble also expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

Assistance of unauthorised entry, transit or stay in the Union should constitute a criminal offence at least when there is a link with an actual or a promised financial or material benefit. This is without prejudice to the way in which Member States deal in their national law with facilitation conducts for which an actual or a promised financial or material benefit is not a constituent element of the offence.

A wholly new recital in the preamble makes the point even more clearly:

This Directive is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers. Member States should ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence at least where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit. However, since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.

And the Commission’s proposed recital stating that family members, and migrants subject to the offence, should not themselves be criminalised, is replaced by two recitals giving Member States leeway to do just that:

Nothing in this Directive should be understood as requiring the criminalisation, on the one hand, of assistance provided to close family members and, on the other hand, of humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with the applicable national and international legal framework.

Without prejudice to rules of national law relating to unauthorised entry in the territory of the Member State concerned, third-country nationals should not become criminally liable for the sole fact of having been the subject to the criminal offence of facilitating the unauthorised entry, transit across, or stay within the territory of any Member State.

In this context, it should be noted that the case law on the Returns Directive, beginning with El Dridi, places limits on Member States enforcing criminal law against migrants for irregular entry or stay by means of custodial sentences – although this is subject to exceptions, and the rationale for it is to speed up expulsion.  

The penalty would follow the Commission proposal for at least a three year possible maximum sentence for the offences. But it would revert to eight years (as at present, although without the option to lower that to six years) for (a longer list of) aggravated offences. It would also revert to an option to apply these sentences to illegal stay cases, and refer to serious endangerment of life – a higher threshold than the current law – as regards one of the grounds of aggravated offences (and the proposed extension to include serious harm would be dropped). The possible maximum sentence would be at least ten (not fifteen) years where a death is caused (subject to the added requirement that the death was caused by seriously endangering the migrant’s life; a new recital in the preamble refers to ‘intention’ being defined by national law, and the avoidance of strict liability). As for additional penalties, the Council would drop the reference to return (thus being less stringent on this point than the current law) as well as the specific reference to a 10-year entry ban (the length of the ban would not be specified).

The penalties for legal persons would be simplified by adding a possibility of a lump sum (€24 million for basic cases, €40 million for aggravated cases); deaths of migrants would be subsumed within the rules on other aggravated cases. A new provision would allow for different penalties than these, if necessary to be consistent with national penalty systems. Aggravating circumstances would no longer include a link to illegal employment, exploitation of migrants (although ‘instrumentalisation’ would now be defined in the preamble), or carrying a firearm, but would now include cases where ‘the criminal offence was committed involving cruel, inhuman, or degrading treatment of a third-country national who was subject to the criminal offence.’

Limitation periods for prosecution would be reduced compared to the proposal, matching the sentencing rules – ie a limitation period of three years where the maximum penalty must be at least three years, eight years for aggravated offences, and ten where death was caused via serious endangerment. A separate set of limitation periods would apply to enforcement after a sentence – three, five, eight or ten years from the conviction, depending on the length of the sentence. Member States could reduce either set of limitation periods to five years (where they were longer than that).

Next, Member States would only be obliged to assert jurisdiction where the offence was committed in whole or part on its territory, or by their nationals, or on board their ships or aircraft. Unlike the proposal, it would be optional to assert jurisdiction as regards non-EU habitual residents, where the act was for the benefit of a legal person established or doing business in the territory, or where the act aimed at the entry, transit or stay of the migrants concerned. Where an offence was committed outside its territory, Member States could retain a requirement that the act was a criminal offence in the other country. Finally, Member States would have two years to give effect to the Directive – probably bringing us to the second half of 2027.

 

Comments

If the European Parliament accepts the Council’s position – and we have no idea what the Parliament (now less liberal than it was before on immigration issues) will argue for – then the main changes from the current law would be:

-          criminalising assistance to illegal entry without financial benefit would no longer be the rule under EU law, with an opt out for Member States, but rather outside the scope of the law, leaving Member States free to criminalise it if they wish;  

-          a three year possible maximum criminal sentence for the main offences, and ten years where a death was caused by seriously endangering a migrant’s life;

-          returns would no longer be explicitly referred to as a penalty, although entry bans now would be;

-          there would be more specific possible penalties for legal persons;

-          there would be new rules on aggravating circumstances, mitigating circumstances, and limitation periods; and

-          jurisdiction would have to be asserted also as regards ships, aircraft and nationals.

The most controversial element here is likely to be exactly how to treat offences not committed for financial gain. (On this point, see also the Belgian Presidency redraft six months ago) Although nominally removing the default obligation under EU law to criminalise all cases of assisting illegal entry, unless Member States choose to opt out, Member States will still be left to criminalise such cases if they wished to, outside the scope of EU law.

In fact, if the Advocate-General’s opinion in the pending Kinsa case is followed, the position of anyone criminalised in this situation will arguably be worse: if EU law no longer applies to them, then even the obligation to reduce the possible penalties applicable to them, recommended by the Advocate-General, will no longer apply. Only a fully-fledged humanitarian defence to criminal liability would suffice. But on that point, it might be argued that since the EU can only set minimum rules on criminal offences (according to the Treaties), EU law is unable to provide fully for defences, because Member States are always free to insist upon greater criminal obligations than EU law provides for.

As for the other changes to the law, the provisions on sentencing, entry bans, limitation periods, special circumstances and jurisdiction may already reflect what many Member States do in practice. It’s hard to be sure because the Commission did not produce an impact assessment on its proposal, although the explanatory memorandum to that proposal did give some examples of potential maximum sentences of less than three years in some Member States. Taken as a whole, this exercise looks like another example of ‘migration theatre’ – an activity intending to signal some effort to control migration flows, but which does not change things much in practice, either as regards criminal liability for those profiting from smuggling, or exemption from liability for humanitarians and desperate family members who do not.

 

Human & humanitarian smugglers: Europe’s scapegoat in the ‘refugee crisis’

Rachel Landry, Fellow for Refugee Policy, Center on National Security, Fordham Law School 

In the middle of one night in January 2016, Salam Aldeen received what had now become a routine call regarding boats in distress off of the coast of Greece. Since co-founding Team Humanity, a volunteer rescue organisation, in September 2015, Aldeen had responded to distress calls from approximately 200 boats with a total of approximately 10,000 refugees on board. As per protocol, Aldeen informed the Greek coast guard that he was going out in search of the boats. Yet on this particular evening, Aldeen and the four other volunteer lifeguards with him never reached the refugees in need of rescue.

When a military ship came threateningly close to their rescue boat, they altered course and headed back to shore. Before they reached land, two military vessels and the Greek coast guard surrounded them, ultimately arresting them and confiscating their boat. Their alleged crime: human smuggling. Their actions: attempting to fulfil the widely acknowledged duty to rescue at sea. Aldeen was released from prison after paying a significant fee, but is unable to leave Greece and is required to check in weekly with the Greek authorities. He awaits trial and faces up to ten years in prison.

The arrest of Aldeen and the four volunteers is far from unique. Deeply entangled within the EU’s robust fight against human smuggling in the current ‘refugee crisis’ is the threat of criminalisation of a range of humanitarian acts, which should not be punished but rather praised. The European Commission (EC) has rhetorically acknowledged the importance of ‘avoiding risks of criminalisation of those who provide humanitarian assistance to migrants in distress’, yet the actions of individual Member States suggest otherwise.

The EC is scheduled to release a proposal by the end of 2016 to ‘improve the existing EU legal framework to tackle migrant smuggling’. As such, it has been reviewing Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (Facilitation Directive), legislation that governs human smuggling in addition to other acts facilitating the transit and stay of irregular migrants. Given the much-needed review of the Facilitation Directive and the current strategy to combat abhorrent and ‘humanitarian’ acts of smuggling alike, it is a critical moment to reflect upon the moral quality and complexities of human smuggling.

I offer five observations as a preliminary framework for considering the deficiencies in the Facilitation Directive and where the boundary between blameworthy acts of smuggling and blameless acts of ‘humanitarian smuggling’ should be drawn. These observations stem from my recently published research through the Refugee Studies Centre, The ‘humanitarian smuggling’ of refugees: Criminal offence or moral obligation?

       1. Combatting human smuggling and all humanitarian acts construed as such are in service of the larger goals of deterring and securitising irregular migration.

The EU is employing all possible tactics to deter refugees and migrants from attempting to reach its Member States’ shores – from the United Nations Security Council Resolution permitting EU security forces to intercept vessels suspected of human smuggling off the coast of Libya, to the deployment of NATO warships in the Aegean Sea, to the EU-Turkey deal to send those arriving irregularly back to Turkey. These policies of deterrence and securitisation are neither ad hoc nor unprecedented. Rather, they are integral to EU law governing irregular migrants and those who assist them.

Notably, the Facilitation Directive is first and foremost concerned with deterring irregular migration. As the first paragraph of the Directive states: ‘[o]ne of the objectives of the European Union is the gradual creation of an area of freedom, security, and justice, which means, inter alia, that illegal immigration must be combatted’. Prohibiting the facilitation of irregular entry is merely one means to combat irregular migration. As Spena argues, ‘[p]aradoxical as it may seem, in the Facilitation Directive’s approach, smuggling, as a form of facilitation, is only wrongful in an ancillary way, as if it was only a form of complicity in the real wrong which is the wrong of irregular migration’. The focus on deterring irregular migration produces a disregard for the smuggled migrants themselves, highlighted by the fact that the Directive does not define its relationship to international human rights or refugee law.

     2. The Facilitation Directive, as transposed into national law, permits the criminalisation of genuinely humanitarian acts.  

The infringements set out in the Facilitation Directive mirror its expansive intent to sanction, most regularly through criminal law, a wide range of activities that may support irregular migration. Article 1.1.a stipulates that Member States:

shall adopt appropriate sanctions on: any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens.  

Article 1.2 includes an optional ‘humanitarian clause’, which applies only to Article 1.1a such that ‘[a]ny Member State may decide not to impose sanctions...where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The majority of Member States have transposed Article 1.1a expansively, permitting the criminalisation of a broad range of individuals facilitating irregular entry – from members of smuggling rings putting refugees in deliberate danger to volunteers rescuing refugees in peril at sea. The optional humanitarian exemption ultimately permits the criminalisation of what seems to be a limitless spectrum of activity at the national level, failing to enable subjects to orientate their behaviour accordingly and even prohibiting ethically defensible, if not praiseworthy, acts like those of Aldeen. According to a 2014 report by the Fundamental Rights Agency, the optional ‘humanitarian clause’ has been explicitly transposed in a variety of forms at the national level in only eight Member States.

        3. The historic example of the rescue of the Danish Jews during World War II clearly illustrates, with the benefit of hindsight, the moral necessity and praiseworthiness of certain acts of smuggling.

The current ‘refugee crisis’ is regularly referred to as the largest crisis since World War II. Equally, international cooperation to resettle refugees in the aftermath of WWII is frequently invoked as a response that should be emulated today. Less frequently invoked, however, are those ‘humanitarian smugglers’ – known today simply as heroes - who rescued Jews from persecution long before the international community stepped in.

In 1943, 95% of the Jewish population in Denmark was able to escape deportation to concentration camps, in large part due to the collective action of fellow citizens and the Danish resistance movement. When the Nazi regime formalised the order to deport Danish Jews to concentration camps in September 1943, within two weeks Danes mobilised to successfully smuggle more than 7,200 Danish Jews and 680 non-Jewish family members to safety in Sweden, predominantly by way of Danish fishermen.

Those individuals who effectively evacuated almost the entire Jewish population out of Denmark not only made an assessment of the likely consequences and certainty of the impending harm for the Danish Jews if they did not act, but also accepted significant risks to their own lives as a result of their actions. If caught by the Nazis, those who aided and abetted Jews faced criminalisation and even possibly execution. The heroic rescue of the Danish Jews from impending deportation to concentration camp is but one reminder of the historical continuity, praiseworthiness, and unfortunate necessity of ‘humanitarian smuggling’.

     4. The drafters of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) considered including a safeguard against penalisation for individuals assisting refugees to cross borders irregularly on humanitarian grounds.

Under certain circumstances, Article 31 of the Refugee Convention provides that presumptive refugees may cross borders irregularly and nevertheless be exempt from punishment. The drafters recognised that given the unique and vulnerable predicament of refugees, a refugee may have no choice but to cross borders irregularly and should not be penalised for doing so.

In light of the expansive scope of the Facilitation Directive and the threatened criminalisation of humanitarians like Aldeen, it may come as a surprise that some of the drafters - in particular the Swiss government - recognised that safeguards should exist not only for refugees, but also their rescuers. According to the French representative, organisations assisting refugees to reach safety were engaging in ‘an obvious humanitarian duty’. The French government was nevertheless opposed to modifying the language of Article 31, fearing it would encourage refugee organisations to become ‘organisations for the illegal crossing of frontiers’. Similarly, the United States representative acknowledged that the failure to include a safeguard for those proving humanitarian assistance to refugees irregularly crossing borders might be ‘a possible oversight in the drafting of the article’. Yet, the United States government did not support including protections for those providing assistance.

There is, of course, no safeguard for ‘humanitarian smugglers’ in the Refugee Convention. Yet, there was a recognition that governments should not – and a false assumption that they would not - criminalise those assisting refugees for humanitarian reasons.  

     5. The November 2015 landmark Supreme Court of Canada case, R. v. Appulonappa, may set a legal precedent for a more narrowly drafted smuggling offence in the Facilitation Directive to decriminalise ‘humanitarian smugglers’.

The November 2015 Supreme Court of Canada (SCC) case, R v. Appulonappa, sets a legal precedent for a narrower smuggling prohibition. The SCC ruled that its law criminalising smuggling, S. 117 of the Immigration and Refugee Protection Act, was overbroad and should be ‘read down…as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members)’. S. 117 is not dissimilar to Article 1.1 of the Facilitation Directive in that it theoretically criminalises anyone who facilitates irregular entry, regardless of motive or the means by which the act is carried out.

The SCC ruled that S. 117 exceeded its legislative intent of criminalising organised crime: ‘[a] broad punitive goal that would prosecute persons with no connection to and no furtherance of organised crime is not consistent with Parliament’s purpose’. Possible amendments to S. 117 may serve as a model for a more narrowly drafted prohibition that more accurately delineates between blameless and blameworthy acts of smuggling.

Conclusion

These five observations offer entry points into the moral complexities of human smuggling and the legal imperative of decriminalising humanitarian acts of the facilitation of irregular entry. Ultimately, if the EC intends to provide recommendations to amend the Facilitation Directive that reflect the need to avoid criminalising humanitarian assistance to irregular migrants, it will first need to more narrowly and clearly define acts of the facilitation of irregular entry worthy of criminalisation. The EC’s challenge lies with the fact that the primary purpose of the Facilitation Directive is to deter irregular migration and a narrower directive would ultimately undermine this objective.

In the current crisis, human smugglers – and all individuals deemed as such – have become Europe’s scapegoat. Targeting human smugglers worthy of criminalisation and those ‘humanitarian smugglers’ worthy of praise is Europe’s Band-Aid solution to a problem that can only be solved through safe and legal pathways for refugees to reach Europe.

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo credit: wikicommons:  Syrian and Iraqi refugees arrive from Turkey to Skala Sykamias, Lesbos island, Greece. Spanish volunteers (life rescue team - with yellow-red clothes) from "Proactiva open arms"http://en.proactivaopenarms.org/ help the refugees.