Newly leaked EU Council text furthers criminalisation of migration

This press release is based on an article written by PICUM and published on Statewatch’s website.

A draft text proposed by the Belgian Council presidency, just published by Statewatch, furthers the criminalisation of irregular entry in the EU and threatens people helping migrants.

The text, which was presented to other EU member states on 31st May, is a redraft of proposed changes to the law criminalising the facilitation of irregular migration (2002 Facilitation Directive), which has also been used to criminalise migrants and people acting in solidarity with them.

The Belgian redraft will serve as the basis for further discussions within the Council, with Hungary now in the presidency role until the end of this year, in view of adopting a common position on the revised Facilitation Directive.

Marta Gionco, Senior Advocacy Officer at PICUM, said: “This text goes in the direction of more, not less, criminalisation of migrants and those who help them. Sadly, we can expect that the final Council position will follow this trend”

Financial benefit

The Belgian Council presidency’s redraft of the proposed Directive confirms that most member states are against the inclusion of a “financial or material benefit” element in the definition of the criminal offence of facilitation, as already indicated by a previous “non-paper”.

The presidency proposes dividing the offence into two parts. Firstly, for the facilitation of irregular entry into or transit through an EU member state, criminal sanctions would apply even if the facilitator did not receive any financial or material benefit. If there is financial or material benefit, this would be considered as an aggravating circumstance and be sanctioned with maximum sentences of at least three years of imprisonment.

Secondly, for the facilitation of irregular stay, criminal sanctions would apply only if there is financial or material benefit, as is currently the case under the 2002 Directive.

Humanitarian exemption

The presidency proposes two options for exempting humanitarian activity from criminal prosecution, in article 3, both of which are inspired by the Council of Europe Convention against Trafficking in Human Organs.

The first would clarify that the facilitation of irregular entry and transit does not include humanitarian actors or other assistance “aimed at meeting their basic human needs, in order to preserve their human dignity or physical and metal integrity.”

The second would require states to take “the necessary measures to ensure that humanitarian assistance, or any other assistance aimed at meeting their basic human needs, in order to preserve their human dignity or physical and metal integrity” are not criminalised.

As both options focus on “basic human needs”, acts of solidarity considered to go beyond such needs would still risk to be criminalised.

Limiting “basic human needs” and family members

The redraft further limits the scope of humanitarian exemptions in relation to “basic human needs” and “family members”, by defining both concepts in restrictive ways.

On “basic human needs”, the amended recital 7 would clarify that these only include food, personal hygiene and a place to stay, and ensuring that people are not put “in a state of degradation incompatible with human dignity.”

On “family members”, the text introduces a further limitation to recital 7, narrowing down the definition of family members (who would be exempt from criminalisation) only to spouses or unmarried partners in a stable relationship, parents, children and siblings.

Removal of public instigation offence

The Commission’s proposal includes the offence of “publicly instigating” irregular entry, transit, or stay, a move that was sharply criticised by UN Special Rapporteur on Human Rights Defenders, amongst others.

The Special Rapporteur highlighted the serious risk that this provision would be used against civil society organisations and have a chilling effect on the much-needed provision of information and services to migrants.

The presidency redraft deletes this offence. Member states had previously raised concerns about the proposal, with the German delegation commenting that “this affects freedom of expression and possibly also freedom of the press. This should be avoided.”