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
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