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.
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