When is it a crime to help migrants in need?

19 October 2021

In recent years the prosecution of civilians who assist migrants based on humanitarian ideals has increased. To avoid further criminalisation and ensure that migrants in need receive essential support, there is a need to define what humanitarian assistance entails.

The current EU legal framework on facilitation of unauthorised entry and transit in the Schengen area (commonly known as the Facilitation Directive) outlines that member states should prosecute those who assist irregular transit or entry into a Schengen member country (European Council, 2002). However, the directive does not clearly define what constitutes the crime of migrant smuggling and therefore implies broad definitions of what acts are considered criminal. This has led to the prosecution of civilians who support migrants based on humanitarian ideals (Vosyliūtė and Conte, 2019).

Criminalizing those who assist migrants based on humanitarian motives can have as a consequence that people refrain from providing support to migrants due to fear of prosecution. In turn, this could reduce the support to vulnerable and marginalised migrants, who are already in dire need of humanitarian assistance.

While there is an exception for criminal liability if the act of assisting migrants is motivated as 'humanitarian assistance' (Article 1.2), states are not obliged to include this humanitarian exception in their national legislation. It is only optional to implement this part of the directive. Therefore, there are varying practices among EU-member states regarding the possibility to be pardoned for assisting migrants due to humanitarian ideals. Furthermore, the Facilitation Directive does not specify what humanitarian assistance entails (European Commission, 2020, p. 5). This poses challenges to determining when humanitarian exceptions may be applicable, and it may cause diverging practices among EU member states on what is defined as 'humanitarian assistance' (Rabe and Haddeland, 2021).

The lack of clarity regarding what is not a criminal act when assisting migrants within the EU Facilitation Directive contrasts with the precise definition found in the UN Smuggling Protocol. This protocol separates criminal acts from humanitarian motivated acts. First, criminal acts, labelled as smuggling, must entail a financial or material benefit. It is additionally made clear in the Smuggling Protocol that 'smuggling' does not apply to 'persons providing support to migrants – including through facilitation of unauthorised entry and unauthorised stay – on the basis of humanitarian motives or close family ties’ (United Nations Office on Drugs and Crime, 2017, p. 10).

The difficulties of defining what humanitarian assistance entails stem from the fact that it is a broad term (Ticktin, 2014). Traditionally, we may think of humanitarian assistance connected to the principles of neutrality and impartiality and professional NGOs responding to crises and emergencies in foreign countries. Humanitarian action has historically been linked to the founding of the Red Cross movement and, after that, by the emergence of the Geneva Convention and the rise of international humanitarian law (Barnett and Weiss, 2008).

However, there are arguably new forms of humanitarian actors which produce further difficulties with defining situations, places, and organisations as humanitarian (Pries, 2019).

New forms of humanitarian assistance have been shown to include grassroot-volunteers who support migrants in Europe, such as informal groups of volunteers in Calais (Sandri, 2018) and Brussels (Vandevoordt and Verschraegen, 2019). In my research, I have interviewed people who assist rejected asylum seekers with avoiding deportation and identify with humanitarian ideals. They do not consider these acts criminal because they are not causing harm. Rather, they aim to alleviate suffering (Rabe and Haddeland, 2021).

This September, The Commission issued a new action plan against migrant smuggling, which is currently under implementation (Commission, 2021). Without providing a clear definition of humanitarian assistance, the plan outlines how the Commission will follow up the challenges related to the criminalisation of humanitarian assistance. It is stated that the Commission will examine how member states have implemented the Facilitation Directive and continue consulting with Civil Society and EU agencies.

The Commission will finalise a report on how member states have implemented the Facilitation Directive and its effect on the criminalisation of humanitarian motivated acts in 2023. If it is found necessary, the Commission recognises that a new legal framework should be proposed

In the meantime, CSAs who, based on humanitarian motives, assist migrants without legal visa documents will continue to fear prosecution. This may cause some of them to refrain from helping migrants in need, and in turn, it may cause increasing humanitarian needs among vulnerable migrants.

References:

Barnett, M., and T. G. Weiss. (2008). Humanitarianism in Question: Politics, Power, Ethics. Ithaca, NY: Cornell University Press.

Carrera, S., V. Mitsilegas, J. Allsopp, and L. Vosyliūtė. (2019). Policing Humanitarianism: EU Policies against Human Smuggling and Their Impact on Civil Society. Oxford: Bloomsbury Publishing.

Carrera, S., G. Sanchez, L. Vosyliūtė, S. Smialowski, and J. Allsopp. (2018). Fit for Purpose?: The Facilitation Directive and the Criminalisation of Humanitarian Assistance to Irregular Migrants: 2018 Update. European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs.

European Commission. (2020). Commission Guidance on the Implementation of EU Rules on Definition and Prevention of the Facilitation of Unauthorised Entry, Transit and Residence. Accessed  September 14, 2021.

https://ec.europa.eu/info/sites/default/files/commission-guidance-implementation-facilitation-unauthorised-entry_en.pdf

European Commission. (2021). A renewed EU action plan against migrant smuggling (2021- 2025). Accessed October 14, 2021. https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12724-Fighting-migrant-smuggling-2021-2025-EU-action-plan_en

European Council. (2002). Council Framework Decision of 28 November 2002 on the Strengthening of the Penal Framework to Prevent the Facilitation of Unauthorised Entry, Transit and Residence. Accessed October 14, 2021. http://data.europa.eu/eli/dec_framw/2002/946/oj

Pries, L. (2019) Introduction: Civil society and volunteering in the so-called refugee crisis of 2015—ambiguities and structural tensions. Refugee protection and civil society in Europe. Springer, pp.1-23.

Rabe, T., and Haddeland, H.B. (2021) Diverging interpretations of humanitarian exceptions: assisting rejected asylum seekers in Norway. Journal of ethnic and migration studies. 1-18.

Sandri, E. (2018) ‘Volunteer Humanitarianism’: volunteers and humanitarian aid in the Jungle refugee camp of Calais. Journal of ethnic and migration studies 44(1): 65-80.

Ticktin, M. (2014). “Transnational Humanitarianism.” Annual Review of Anthropology 43 (1): 273– 289. doi:10.1146/annurev-anthro-102313-030403.

United Nations Office on Drugs and Crime (UNDOC). (2017). “Issue Paper: The Concept of ‘Financial or Other Material Benefit’ in the Smuggling of Migrants Protocol.” Accessed October 14, 2021. https://www.unodc.org/documents/human-trafficking/Migrant-Smuggling/Issue-Papers/UNODC_Issue_Paper_The_Profit_Element_in_the_Smuggling_of_Migrants_Protocol.pdf

Vandevoordt, R., and Verschraegen G. (2019) Subversive humanitarianism and its challenges: Notes on the political ambiguities of civil refugee support. Refugee protection and civil society in Europe. Springer, pp.101-128.

Vosyliūtė, L., and Conte C. (2019) Crackdown on NGOs and volunteers helping refugees and other migrants. Report, Research Social Platform on Migration and Asylum, Brussels.

 

 When is it a crime to help migrants in need?

Biography:

Thea Rabe is a PhD student in sociology at Nord University, in Levanger, Norway. Her PhD project investigates assistance from European citizens to young migrants from Afghanistan who have had their asylum claim rejected. It looks at the secondary migration of rejected asylum seekers within the Schengen area and how European citizens contend EU migration policies in the context of pro-migrant movements and new forms of humanitarianism. Rabe has a Master’s degree in political science from the University of Amsterdam. She holds a Bachelor’s degree in political science from the University of Oslo and a bachelor’s degree in journalism from Volda University College. Before starting her PhD, she worked as a senior advisor for the Norwegian Red Cross.

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