The European Commission's fight against people smugglers: a risk of criminalisation for exiles and NGOs
Advocacy team of France terre d'asile - Published on October, 23rd 2024English VersionIn November 2023, the European Commission unveiled a new proposal for a directive to combat people smugglers. NGOs and the United Nations’ Office of the High Commissioner for Refugees are concerned about this text, which could lead to further criminalisation of people in exile and solidarity associations.
Arrested on 25 August 2021 in Greece, Homayoun Sabetara is still awaiting trial. This 59-year-old Iranian national, who fled his country in an attempt to reach Germany where his children are living legally, is accused of being a people smuggler. While trying to reach Europe, he drove the vehicle carrying him and other migrant people across the Greek-Turkish border. Greece, which has ratified the Geneva Convention and the Palermo Protocol committing States to restrain from criminalising people who cross a border irregularly to seek asylum, and to considering those who make no profit or gain as smugglers, has nonetheless adopted a law that makes people who drive “a boat or vehicle carrying other migrants” liable to up to 10 years' imprisonment.
This Greek legal provision seems to have inspired what the European Commission is seeking to put in place for all Member States. In 2023, at least 78 migrants were submitted to administrative procedures or criminal proceedings within the European Union for crossing a border irregularly. On 28 November 2023, Ursula von der Leyen presented a proposal for a directive ‘laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union’ (‘Facilitation Directive’). It would replace the previous directive dating from 2002. The Commission, which believes it can use the fight against ‘migrant smuggling’ as a lever to achieve its objective of reducing illegal immigration, has chosen to introduce a new, more repressive legal arsenal by merging offences and creating new offences related to border crossing. However, the United Nations High Commissioner for Refugees (UNHCR) and several NGOs have expressed doubts about the effectiveness of these measures in combating the trafficking of migrants towards and within the EU. On the contrary, they fear that they will strengthen smugglers, as several analyses have shown that anti-smuggling legislation often has the opposite effect to that intended. These observers fear that the text will actually increase the dangers faced by exiles, by criminalising them, and will penalise associations that intervene for humanitarian reasons.
“The real people smugglers don't get on the boats”.
Faced with the rise in migration to Europe, as estimated by the International Centre for Migration Policy Development, the European Union is showing its determination to combat people smugglers. However, smugglers are not the origin of migration, and generally rank 7th or 8th among the factors of departure. Moreover, targeting the people who drive the boats does not make it possible to combat the networks of smugglers, who remain on land. The drivers are often exiles themselves, who help their peers without any financial or material compensation, or in return for a reduction in the cost or a free crossing. They are often forced to do so. This is illustrated by the film ‘Moi Capitaine’, released in January 2024, which follows the story of Amara Fofana, who was imprisoned while arriving in Italy for driving the boat on which he arrived.
The UNHCR has expressed its concern that the proposed European directive does not take these realities into account. With borders closing and no legal alternative for reaching a safe country, the risks run by exiles are very high. The more the borders are guarded and militarised, the longer, more difficult and more dangerous the routes people take. Smugglers are therefore increasingly essential to border crossings, and are raising their prices, getting richer and expanding their networks.
Criminalisation: exiles are the first victims
If the Commission's proposal were adopted as it stands, people in exile, even if forced to drive vehicles, would not automatically be protected from any criminal risk. Furthermore, according to PICUM (Platform for international cooperation on undocumented migrants), the very definition of assistance with entry, transit or residence would include services traditionally exchanged for money without exploitation, such as taxi journeys or rent, which could therefore be penalised. In addition, it would be enough for the person to receive or accept, directly or indirectly, the ‘promise of an advantage’ or to have ‘acted with a view to obtaining such an advantage’ for them to be liable. For example, a parent who undertakes a risky migratory journey with his or her child, or a person forced to drive a small boat in the Mediterranean, could be criminally convicted because there is a ‘strong likelihood of causing serious harm to a person’. In other words, it would no longer be the actual occurrence of serious harm that could be punished, but the ‘strong probability’ of it happening. This raises questions about the transposition of this measure in the Member States, particularly in France, where a conviction cannot be based on a ‘strong probability’ but on established facts.
Humanitarian work in the sights of the European Commission
This new proposal for a directive also weakens and risks criminalising associations working with people on the road to exile. The text proposes deleting a clause on the protection of humanitarian work which, although optional, appeared in the previous directive. The exception relating to humanitarian assistance would now only appear in the introduction to the directive and not in the articles, and humanitarian aid would only be protected from criminal prosecution when the legal framework of the country concerned so provides - which is not the case in all EU countries. In Italy, since the so-called ‘Piantedosi’ decree-law of 2023, search and rescue operations by ships run by NGOs have been hampered. The Council of Europe's Commissioner for Human Rights has called for the withdrawal of this text, which could be contrary to “Italy's obligations in terms of human rights and international law”. The deletion of the clause on humanitarian work in the new European directive would now allow Member States to adopt this type of legislation. In addition, the adoption of the directive would make it much easier to criminalise humanitarian work where there is a ‘strong likelihood of causing serious harm to a person’: this could apply to sea rescues in high-risk situations. NGOs could also be held responsible for the individual actions of their members, and sanctioned. The UNHCR advises Member States to continue to apply the exception contained in the 2002 directive.
Towards a tightening of the offence of solidarity?
The proposed measures also run the risk of criminalising solidarity actions and restraining the work of associations by restricting freedom of expression and information. One of the new offences introduced in the draft directive, which the HCR recommends deleting, is ‘public instigation: if the directive was adopted, Member States would have to punish the act of “publicly instigating third-country nationals to enter, transit through or reside on the territory of any Member State [...]”. A number of players are pointing the finger at the vagueness of this measure, its disproportionality and the risk it could pose to freedom of expression and the activities of NGOs. Sharing information on regularisation schemes or rescue at sea could potentially be interpreted as an incentive to go to the EU. Any citizen could then be dissuaded from sharing information about migration and asylum, or informing people about their rights, although it is mentioned that objective advice or information would not be affected by this measure.
Transposing the directive as it stands would ultimately mean reinstating the ‘offence of solidarity’ that has gradually been abolished in France, and could therefore enter in conflict with the Constitution. In fact, since the Constitutional Council's decision of July 2018, fraternity is a principle with constitutional value, and an “act of assistance provided with a humanitarian aim” to a person illegally residing on national territory without consideration cannot be prosecuted.
In November 2023, the European Commission unveiled a new proposal for a directive to combat people smugglers. NGOs and the United Nations’ Office of the High Commissioner for Refugees are concerned about this text, which could lead to further criminalisation of people in exile and solidarity associations.
Arrested on 25 August 2021 in Greece, Homayoun Sabetara is still awaiting trial. This 59-year-old Iranian national, who fled his country in an attempt to reach Germany where his children are living legally, is accused of being a people smuggler. While trying to reach Europe, he drove the vehicle carrying him and other migrant people across the Greek-Turkish border. Greece, which has ratified the Geneva Convention and the Palermo Protocol committing States to restrain from criminalising people who cross a border irregularly to seek asylum, and to considering those who make no profit or gain as smugglers, has nonetheless adopted a law that makes people who drive “a boat or vehicle carrying other migrants” liable to up to 10 years’ imprisonment.
This Greek legal provision seems to have inspired what the European Commission is seeking to put in place for all Member States. In 2023, at least 78 migrants were submitted to administrative procedures or criminal proceedings within the European Union for crossing a border irregularly. On 28 November 2023, Ursula von der Leyen presented a proposal for a directive ‘laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union’ (‘Facilitation Directive’). It would replace the previous directive dating from 2002. The Commission, which believes it can use the fight against ‘migrant smuggling’ as a lever to achieve its objective of reducing illegal immigration, has chosen to introduce a new, more repressive legal arsenal by merging offences and creating new offences related to border crossing. However, the United Nations High Commissioner for Refugees (UNHCR) and several NGOs have expressed doubts about the effectiveness of these measures in combating the trafficking of migrants towards and within the EU. On the contrary, they fear that they will strengthen smugglers, as several analyses have shown that anti-smuggling legislation often has the opposite effect to that intended. These observers fear that the text will actually increase the dangers faced by exiles, by criminalising them, and will penalise associations that intervene for humanitarian reasons.
“The real people smugglers don’t get on the boats”.
Faced with the rise in migration to Europe, as estimated by the International Centre for Migration Policy Development, the European Union is showing its determination to combat people smugglers. However, smugglers are not the origin of migration, and generally rank 7th or 8th among the factors of departure. Moreover, targeting the people who drive the boats does not make it possible to combat the networks of smugglers, who remain on land. The drivers are often exiles themselves, who help their peers without any financial or material compensation, or in return for a reduction in the cost or a free crossing. They are often forced to do so. This is illustrated by the film ‘Moi Capitaine’, released in January 2024, which follows the story of Amara Fofana, who was imprisoned while arriving in Italy for driving the boat on which he arrived.
The UNHCR has expressed its concern that the proposed European directive does not take these realities into account. With borders closing and no legal alternative for reaching a safe country, the risks run by exiles are very high. The more the borders are guarded and militarised, the longer, more difficult and more dangerous the routes people take. Smugglers are therefore increasingly essential to border crossings, and are raising their prices, getting richer and expanding their networks.
Criminalisation: exiles are the first victims
If the Commission’s proposal were adopted as it stands, people in exile, even if forced to drive vehicles, would not automatically be protected from any criminal risk. Furthermore, according to PICUM (Platform for international cooperation on undocumented migrants), the very definition of assistance with entry, transit or residence would include services traditionally exchanged for money without exploitation, such as taxi journeys or rent, which could therefore be penalised. In addition, it would be enough for the person to receive or accept, directly or indirectly, the ‘promise of an advantage’ or to have ‘acted with a view to obtaining such an advantage’ for them to be liable. For example, a parent who undertakes a risky migratory journey with his or her child, or a person forced to drive a small boat in the Mediterranean, could be criminally convicted because there is a ‘strong likelihood of causing serious harm to a person’. In other words, it would no longer be the actual occurrence of serious harm that could be punished, but the ‘strong probability’ of it happening. This raises questions about the transposition of this measure in the Member States, particularly in France, where a conviction cannot be based on a ‘strong probability’ but on established facts.
Humanitarian work in the sights of the European Commission
This new proposal for a directive also weakens and risks criminalising associations working with people on the road to exile. The text proposes deleting a clause on the protection of humanitarian work which, although optional, appeared in the previous directive. The exception relating to humanitarian assistance would now only appear in the introduction to the directive and not in the articles, and humanitarian aid would only be protected from criminal prosecution when the legal framework of the country concerned so provides – which is not the case in all EU countries. In Italy, since the so-called ‘Piantedosi’ decree-law of 2023, search and rescue operations by ships run by NGOs have been hampered. The Council of Europe’s Commissioner for Human Rights has called for the withdrawal of this text, which could be contrary to “Italy’s obligations in terms of human rights and international law”. The deletion of the clause on humanitarian work in the new European directive would now allow Member States to adopt this type of legislation. In addition, the adoption of the directive would make it much easier to criminalise humanitarian work where there is a ‘strong likelihood of causing serious harm to a person’: this could apply to sea rescues in high-risk situations. NGOs could also be held responsible for the individual actions of their members, and sanctioned. The UNHCR advises Member States to continue to apply the exception contained in the 2002 directive.
Towards a tightening of the offence of solidarity?
The proposed measures also run the risk of criminalising solidarity actions and restraining the work of associations by restricting freedom of expression and information. One of the new offences introduced in the draft directive, which the HCR recommends deleting, is ‘public instigation: if the directive was adopted, Member States would have to punish the act of “publicly instigating third-country nationals to enter, transit through or reside on the territory of any Member State […]”. A number of players are pointing the finger at the vagueness of this measure, its disproportionality and the risk it could pose to freedom of expression and the activities of NGOs. Sharing information on regularisation schemes or rescue at sea could potentially be interpreted as an incentive to go to the EU. Any citizen could then be dissuaded from sharing information about migration and asylum, or informing people about their rights, although it is mentioned that objective advice or information would not be affected by this measure.
Transposing the directive as it stands would ultimately mean reinstating the ‘offence of solidarity’ that has gradually been abolished in France, and could therefore enter in conflict with the Constitution. In fact, since the Constitutional Council’s decision of July 2018, fraternity is a principle with constitutional value, and an “act of assistance provided with a humanitarian aim” to a person illegally residing on national territory without consideration cannot be prosecuted.