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 

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.

The new EU Migration Agenda takes shape: analysis of the first new measures

Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Barnard & Peers: chapter 26

Photo: GlobalNation.Inquirer.net

All smoke and no fire in the EU strategy towards the eradication of trafficking in human beings

 

Dr Matilde Ventrella, Senior Lecturer in Law, University of Wolverhampton (UK)

 1.       Introduction

On October 17^th, the European Commission published the mid-term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings (THB) and a Communication on the application of Directive 2004/81 on the residence permit issued to third country nationals who are victims of human trafficking or the subject of an action to facilitate illegal immigration and who cooperate with competent authorities.  In this analysis, I will first examine the mid-term report, I will then examine the Communication on the application of Directive 2004/81 and I will draw my final considerations.

2.       The mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

The Report focuses on the policies and laws that the EU is implementing and on the progress made from 2012 to the third quarter of 2014. 

The Commission’s report states that the first step to take in order to address THB is implementing Directive 2011/36/EU on the criminal law aspects of the issue. This Directive, for the first time, recognises THB as a gender specific phenomenon and that women and men are often victimised for different purposes (paragraph 3).  The Directive requires Member States to investigate and prosecute perpetrators (Article 9) and to give adequate protection to victims.   The mid-term Report emphasises that 25 Member States have communicated the transposition of the Directive in full and it states that Member States shall take full responsibility to eradicate this serious criminal activity.  Their priority should be identifying victims and giving them adequate protection.  The Commission has clearly explained how victims should be identified by publishing the “Guidelines for the Identification of Victims of THB”.  The Guidelines stated that the early identification of victims is crucial as it enables investigative and police authorities to better investigate THB and prosecute the perpetrators.  For this purpose, consular services and border guards should offer regular training to their officers to enable them to identify victims and potential victims.  The Guidelines also stressed that consular services and border guards should consider cooperation agreements to facilitate the identification of victims.  The Guidelines emphasised that cooperation should be developed with organisations such as Non-Governmental Organisations and special attention should be given to child victims of THB. 

Also, the mid-term Report explained that adequate protection to victims could be given by demand reduction and awareness-raising programmes.  Particular attention should be focused on combating violence against women and gender inequalities as these are root causes of THB.  The Commission has launched a study on the gender dimension of THB which should be published in the second half of 2015.

Since THB is a serious form of organised crime, the Commission called for cooperation and partnership between EU Member States.  The Commission encouraged ‘Member States’ operation in the field of internal security’, the support from Europol to Member States’ action and the adoption of ‘annual operational action plans on each priority area identified by the Council’.  The Council has identified THB as one of the priority of the EU Serious and Organised Crime Policy Cycle.

The report also pays particular attention to civil society.  In the Commission’s view, it is essential to involve civil society and for this purpose, it launched in 2013 the EU Civil Society Platform against THB in Member States and selected non-EU countries.  The Civil Society Partnership meets every 2 years, bringing together over 100 civil society organisations specialised in THB in Member States and four non Member States (Albania, Morocco, Turkey and Ukraine). 

Finally, the Commission called for more cooperation between EU Member States and non-European countries in order to identify all forms of THB.  The Commission referred to an action oriented paper (AOP) adopted by the Council in 2009.  The AOP emphasised the importance of dialogue with third countries to fight against THB and it supported ‘international effort in this field advocating at various UN fora the prevention of THB, THB victim protection and assistance’... ‘international cooperation and coordination on THB’.  The AOP also highlighted that EU agencies such as Eurojust, Europol, Frontex and FRA should be consulted when the EU takes action to cooperate with non-EU countries to fight against THB.  

The Justice and Home Affairs (JHA) agencies (CEPOL, Eurojust, Europol, the European Asylum Support office (EASO), the European Institute for Gender Equality (EIGE), FRA and Frontex) have annexed to the Commission mid-term Report, a joint action report carried out in between October 2012 and September 2014.  The Annex stated that these agencies should work together ‘in a more coherent and comprehensive manner, taking synergies and avoiding duplication of effort’.  However, the Annex did not explain clearly how they have to undertake their tasks.  The Report explained that JHA agencies shall have the aim of dismantling criminal groups in cooperation but there is not any concrete proposal.  In other terms, the Annex simply explained that all the JHA agencies have done, was organising meetings, trainings and conferences but no concrete actions against criminal organisations have been undertaken.

 JHA agencies were established for different purposes.  Consequently, I believe their tasks should be clearly differentiated.   Example: the European Asylum Support office (EASO) should not have the same tasks as Europol because the EASO was set up to improve the implementation of a Common European Asylum System, whilst Europol was established to support Member States’ investigation of cross-border crime.  The Annex did not explain how these agencies should fulfil their objectives and how they should ensure coordination while avoiding overlapping.    I believe that the JHA agencies should have pushed for reforms.  The Annex should have explained whether it is desirable to reform Europol’s scope, in order to strengthen cooperation with non European countries as THB is a cross-border crime committed in the EU and outside the EU.  It has been reported that migrants smuggled by sea are exposed to THB during their trips and when they reach their countries of destination.  This is because they cannot repay the price of their journey.  Therefore, they are threatened by their smugglers and eventually they become victims of THB (see reports by the UN, the IOM and the Global Initiative).  Furthermore, recent research undertaken by Italian journalists has found out that people smuggled by sea are often victims of traffic of organs since, when they cannot repay the price for their journey, they are left with no choice than selling their kidneys and corneas to smugglers.  What role should JHA agencies play in detecting these dangerous criminals within and outside the EU?  The Commission’s mid-term Report and the JHA agencies’ Annex, are full of good intentions and fine words but they are inconclusive, as there are no concrete proposals.

The extent of THB remains unknown, in particular the number of victims of smuggling who eventually become victims of THB and traffic of organs.  However, the Commission mid-term report published, for the first time, statistical data on victims and traffickers for the years 2010 to 2012.  These data are based on the Statistical Working Paper published by Eurostat.  The working paper provided data based on the total of victims or ‘presumed victims’ identified by the Member States.  Presumed victims are those people who have met the criteria to be identified as victims on the basis of Directive 2011/36/EU but who have not been formally identified by relevant authorities or who have refused to be identified as such.  According to the data, it is estimated that over the years 2010-2012, 30.146 victims or presumed victims were registered in the 28 Member States.  80% of registered victims were female, 45% of victims were of the age of 25 or older, 36% of registered victims were aged 18-24 years old, 17% of victims were in between 12-17 years old and 2% of all victims accounted children aged 0-11 years old.  However, THB concerning EU citizens prevails in the statistics and only victims from five non EU countries were identified (Nigeria, China, Brazil, Russia and Algeria).  Victims who are hiding within Member States or who have been smuggled by sea and eventually have become victims of THB, have not been identified.  The number of these people remains unknown.  The Commission’s report stated that it is a priority to identify victims but only by reinforcing investigations within the EU and outside the EU, victims can be seriously identified.  Understanding the links of criminals can facilitate the identification of victims coming from many African countries.  Nevertheless, no steps have been taken in this direction. 

3.       Analysis of the Communication from the Commission on the application of Directive 2004/81

The Commission analysed how Directive 2004/81 has been implemented by Member States.  The Directive states that victims of THB and victims of smuggling of migrants may be granted a residence permit if they decide to cooperate with law enforcement authorities to contribute to detect criminals.    However, in the case of smuggling, EU Member States retain the discretion to apply the Directive.   The issue of a residence permit is limited to cases where the victims are willing to cooperate with police. However, Member States have the option to grant a residence permit to all victims, even if they are not willing to cooperate. The lack of an obligation to grant a residence permit in cases of non-cooperation is inconsistent with Directive 2011/36, which requires Member States to give THB victims support and assistance even if they are not cooperating with the police.

The Commission stated that it is very important to identify victims ’for the effective application of the Directive’ and inform them of their rights ‘to initiate a recovery process and to reflect  before deciding whether to cooperate with the authorities’.   However,  the Commission has reported that, in the legislation of Member States, it is unclear whether the information is provided to officially identify victims or also to presumed victims.  I think presumed victims should be given the information as it could be a way to give them the opportunity to escape from the traffickers and start a programme of recovery.  

The Commission has also reported that Member States are issuing low numbers of residence permits in exchange for cooperation and, only in exceptional circumstances, the residence permit is issued beyond the willingness of victims to cooperate.   When I interviewed police officers and members of the civil society in Rimini (Italy), I found out that THB can be seriously defeated if victims and presumed victims are granted an unconditional residence permit.  This is because such a residence permit is reassuring and it puts victims and presumed victims in the position to report the criminals without any constraints.  In addition, an unconditional residence permit will interrupt the vicious circle victims become trapped in, when the investigations are concluded and their residence permit expires.  They become vulnerable and again easy targets for traffickers.  Conversely, victims with an unconditional residence permit will integrate in the new society and will not be vulnerable to trafficking anymore.  By adopting this method, police authorities in Rimini have defeated THB and police authorities in Siracusa (Italy) have detected some criminal organisations smuggling people from Egypt to Italy. Police authorities in Siracusa explained that the whole phenomenon of smuggling of migrants by sea cannot be defeated by isolated actions of national police as it requires investigations outside the EU and they would welcome more involvement of JHA agencies.

 The Commission is very concerned about the rare use of the issue of an unconditional residence permit and intends to engage in bilateral exchanges with Member States in order to improve the correct application of the Directive.  It also intends to implement the Task Force Mediterranean established in 2013 with the aim to prevent the death of migrants at sea.  This is very welcome as it seems that finally, the strong connections between THB and smuggling of migrants by sea have been fully recognised.  However, even the Communication on the Task Force Mediterranean is disappointing because it is not clear what concrete action and external cooperation agencies such as Europol and Eurojust can take in the fight against these two crimes.  It promoted cooperation with third countries and a global approach on immigration but no reforms have been proposed. 

4.       Conclusions  

The Commission reports have depicted a situation within Member States which will not contribute to defeat or at least reduce THB.  Furthermore, in the Communication on Directive 2004/81, the Commission has reported how Member States are neglecting to issue residence permit to victims of THB.  The Commission has shown its intention to ensure the situation improves and one hopes progress will be made in the issue of residence permits.

It is also believed that agencies such as Europol should be given relevant investigative powers within the EU and outside the EU.   I am aware that a reform as such requires the consent of Member States as it can be adopted on the basis of Article 87 of the Treaty on the Functioning of the European Union (TFEU).  However, Member States only seem focused on protecting their borders as if the fight against THB would not contribute to protect their borders by reducing irregular migration!  Italy has communicated that the Mare Nostrum Operation will be suspended and other Member States are not making efforts to prevent this suspension by cooperating with Italian authorities in rescuing and hosting migrants at sea.  Not only there is no willingness to cooperate in investigations and grant residence permits to victims, but Member States do not even want to rescue migrants at sea from drowning.  If this situation will continue, victims of THB will increase as will the number of victims of the connected crime of smuggling of migrants by sea.

 Barnard & Peers: chapter 26