In Germany, a 1990 law obliges most public sector workers to report undocumented people to migration authorities. We spoke to Sarah Lincoln from Gesellschaft für Freiheitsrechte (Civil Liberties Association) to know more about this law and what civil society is doing to have it repealed.

Paragraph 87 of the German Residence Act forces any public authority, including social welfare offices, police, and courts, to report undocumented people they come in contact with to immigration enforcement.

The only exception to this rule was carved out in 2011 for schools and kindergartens.

What this obligation means in practice is that undocumented people avoid any contact with public authorities. They do not go to the police to report abuse or seek justice in courts. Many do not even go to the doctor or end up seeking care only in life-threatening situations.

When it comes to health care, the picture is complex: while undocumented people have a right to limited health care on paper, reporting obligations prevent them from accessing it.

According to the Asylum Seekers Benefits Act, undocumented migrants are entitled to limited medical services in the event of acute illnesses or painful conditions as well as during pregnancy and childbirth. Doctors are not obliged to report undocumented patients because they are not public workers (the German health care system is based on private insurances) and are therefore not covered by the Residence Act.

In fact, doctors are not permitted to report undocumented patients because of a legal duty to confidentiality.

But there have been instances where hospital staff reported undocumented patients nonetheless.

And going to the doctor without an insurance, as is the case for undocumented people, often means paying high medical fees and long-term debt. While emergency life-saving care would be provided, the hospital would still claim medical fees in the absence of insurance.

Getting treatment covered by the state requires a person asking for a permission from the social welfare offices, which are obliged to report undocumented people to the police or the migration office.

“The person would probably not even be able to leave the office. Police would come and arrest them and then put them in immigration detention”, said Lincoln.

As a result, undocumented people do not apply for official health care. Some seek treatment through charities and medical students who provide limited health care for free, in many cases severe Illnesses remain untreated.

In one case, a person who came to Germany from the Balkans in the early 90s and later lost his status, was unable to get a heart operation to avoid a (second) heart attack. In another case, a woman from Northern Africa who had been living in Germany for years was diagnosed with late-stage breast cancer by volunteering doctors and found herself with no option to get treatment.

Official data about health outcomes for undocumented people not accessing health care is lacking. But reports from organisations providing free health care and testimonies show that stories like the ones above are commonplace.

Campaigners and advocates have been fighting this law for years. In 2011, they managed to carve out an exception for schools and kindergartens. Since 2021, a coalition led by Doctors of the World and the Gesellschaft für Freiheitsrechte has been campaigning against paragraph 87 of the Residence Act to allow undocumented people to access health care without risking immigration enforcement. The campaign is being supported by over 80 civil society organisations, with the German doctors’ association and German Churches also repeatedly criticising reporting obligations.

The UN Committee on the Elimination of Discrimination against Women noted in its 2023 concluding observations that Germany has no intention of repealing or amending section 87 of the Resident Act and called on Germany to reconsider its position.

In August 2021, Gesellschaft für Freiheitsrechte filed a complaint to the European Commission against paragraph 87 of the Residence Act, denouncing violations of the EU data protection rules (the General Data Protection Regulation) and the right to health care as enshrined in the EU Charter of Fundamental Rights.

While the German government assured that they were considering the complaint (the proposal was in fact taken up by the German government in their coalition programme), they eventually backtracked and on the contrary passed new cuts to social benefits for asylum-seekers, bowing to a political climate ever more hostile to immigration.

Advocates also pursued strategic litigation in German courts, not without challenges. For undocumented complainants, access to courts remains difficult given the court also has an obligation to report to the immigration authorities. And procedures often last too long compared to their urgent medical needs.

Gesellschaft für Freiheitsrechte is currently awaiting to hear about the outcomes of a second complaint filed to the Commission in April 2024.

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.”

On 13 June, the Council of the European Union adopted its position on the Commission’s proposal for a revision of the Victims’ Rights Directive. The European Parliament already published its negotiating mandate in April. More than twelve years after the adoption of the Victims’ Rights Directive, this was an opportunity for governments to stand in solidarity with all victims of crime and to strengthen their rights and treatment. 

Regrettably, with this Council position, States have shown little willingness to commit to enhancing victim rights. They have largely rejected or diluted the EU Commission’s proposals, turning obligations into mere options. This undermines the scope of the Victims’ Rights Directive, leaving diverse crime victims inadequately protected and potentially harmed by the systems meant to protect them and deliver justice. 

For example, specific rights have been removed or weakened, including those relating to safe reporting of crime, court-based support services, access to medical care services, privacy protections, information and participation rights, offender compensation, legal remedies and review decisions. Additionally, the role of NGOs has been diminished by removing commitments to coordinate services – which are largely delivered by civil society – to one of mere consultation. This increases the risk of further stigma, discrimination, or prejudice. Therefore, clear and binding obligations for EU Member States are essential.

This position of the Council contrasts with the European Parliament’s report, which has adopted proposals that build an effective legislative framework for coordinated support, protection and justice. Thus, the European Parliament recognises that the actions and costs involved in this process are investments in our future. 

Every Euro spent on victims’ rights and services reduces the cost of crime and its emotional impact, and it also increases the ability of individuals to return to work, next to the efficiency and effectiveness of criminal proceedings. The European Parliament’s proposals commit to a thriving, safer, more resilient and more just society that upholds EU values, including fundamental rights. 

Member States have recently adopted the Directive on Violence against Women and Domestic Violence, the recast EU Directive on Combating and Preventing Trafficking in Human Beings and they are currently negotiating the Regulation laying down rules to prevent and combat Child Sexual Abuse. This shows a willingness to seek the advancement of the rights of specific victim groups, with a particular focus on children, women and victims of human trafficking. 

Member States should now affirm their commitment to all victims of crime regardless of their sexual orientation, gender identity, gender expression, sex characteristics, age, disability, ethnicity, residence status,, and type of exploitation by enhancing minimum standards for all in the Victims’ Rights Directive Revision. There should be equal treatment of all victims of crime; no victim should be left behind. 

With a new Parliament and renewed vigour, we call on all EU Member States and the European Parliament to stand together – united for every victim in the EU. We call on them to genuinely explore solutions proposed by the European Commission and Parliament that will finally make victims’ rights a reality. We call on them to honour commitments to victims of crime; by adopting a strong Victims’ Rights Directive as the cornerstone legislation for all victims of crime, Member States can demonstrate their commitment to valuing fundamental human rights, human dignity and the European Union’s foundational values.

Signatories

1. AGE Platform Europe
2. Center for Reproductive Rights 
3. Child Helpline International
4. End FGM European Network
5. Eurochild
6. European Disability Forum (EDF)
7. European Forum for Restorative Justice (EFRJ)
8. European Sex Workers Alliance (ESWA)
9. ILGA Europe (the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association)
10. La Strada International
11. Missing Children Europe
12. Platform for International Cooperation on Undocumented Migrants (PICUM)
13. Validity Foundation
14. Trans Europe and Central Asia (TGEU)
15. Women Against Violence Europe (WAVE Network)
16. Advocates for Victims of Homicide (AdVIC) Ireland
17. A Associação Portuguesa de Apoio à Vítima (APAV Portugal)
18. Association for the Prevention and Handling of Violence in the Family (APHVF/ SPAVO) Cyprus
19. Associazione Italiana di Supporto Vittimologico 
20. Associazione Libra
21. ATENIN Spain
22. Bijeli Krug Croatia 
23. Bily Kruh Bezpeci (Czech Republic)
24. Brottsofferjouren Sverige (The Crime Victims’ Center Sweden)
25. Child Rights Centre Albania
26. DROGA Poland
27. Federation for Victim Assistance Ireland
28. France Victimes
29. Irish Road Victims Association (IRVA); International Road Victims Partnership
30. Klaipeda Social and Psychological Support Center
31. Law and Internet Foundation (Bulgaria)
32. Opferhilfe Berlin e.V.
33. Rete Dafne Italia 
34. Slachtofferhulp Netherlands
35. Skalbes Latvia
36. The Smile of the Child – Greece
37. Victim and Witness Support Service Croatia
38. Victim Support at Court (Ireland)
39. Victim Support Denmark 
40. Victim Support Europe
41. Victim Support Finland (RIKU)
42. Victim Support Flanders, CAW (Belgium)
43. Victim Support Malta 
44. Victim Support Sweden
45. Victim Support UK
46. Vilnius Institute for Advanced Studies (VILIAS)
47. Woman’s Room – Center for Sexual Rights Croatia 
48. Weisser Ring Austria
49. Weisser Ring Germany
50. Victimology Society of Serbia
51. Vilnius Institute of Advanced Studies (VILIAS)
52. White Circle Croatia

On 29 May, international and Swedish NGOs, trade unions, academics and faith-based organisations will be heard in the Swedish Parliament about the government’s proposal to oblige public sector workers to report undocumented people they come in contact with to immigration enforcement and/or police.

The proposal was included in the coalition programme of the government in 2022, (the Tidö Agreement, p.33) and is currently being studied in a public inquiry before concrete legislation is tabled.

The proposal has been heavily and widely criticised by a number of actors, including university teachers, welfare professionals, health care workers, teachers, municipal workers and library staff.

All denounce that mandatory reporting would lead to discrimination and stigmatisation, and fuel growing racism. Many undocumented children would no longer be able to attend school, while undocumented patients would find it difficult to access health care. Teachers, doctors and other public workers would have to act as border guards and compromise their professional independence and integrity.

The proposal would also have a detrimental effect on access to justice and protection for undocumented victims of crime and is likely to further prevent such victims and witnesses from reporting abuse to the police or agreeing to give evidence in criminal proceedings.

The Swedish government also instructed (p.16) the public investigator to consider “consequences” for those who do not comply with the obligation to report.

Over 4000 health care workers already pledged to commit civil disobedience and refuse to report their patients should the measure be implemented in the healthcare sector. Several directors of Swedish regional health care authorities voiced criticism towards the proposal.

The Swedish Teachers’ Council on Professional Ethics also strongly criticised the proposal and encouraged teachers to commit civil disobedience should the proposal become law. Nine out of ten librarians contest the proposal.

The Tidö agreement foresees to investigate the possibility of introducing limited exemptions from the obligation to denounce undocumented people, without promising that such exemptions would later be applied. But no exemption, whatever its extent, can mitigate the harm of this proposal: any reporting obligation is harmful and discriminatory, and should be rejected.

The results of the public inquiry should be made public by 30 September 2024.

QUOTES:

Michele LeVoy, Director of the Platform for International Cooperation on Undocumented Migrants:

“This proposal is utterly inhumane. This is part of a growing trend that criminalises solidarity with undocumented people across Europe, which exacerbates their marginalisation and segregation. Everywhere where obligations to denounce undocumented people have been applied, the result has been more discrimination, suffering and fear. Clear safeguards are urgently needed against data sharing between public services and immigration authorities. The Swedish government should withdraw this proposal and ensure all people can access public services safely, without risking detention and deportation”.

Jacob Lind, Postdoctoral researcher in international migration at Malmö University:

“This proposal is a paradigm shift in the position of human rights in Sweden, a country that for a long time has been perceived by others as a role model on the international stage when it comes to promoting human rights.”

Hannah Laustiola, Executive Director of Doctors of the World Sweden:

“The proposal of a duty to report irregular migrants in Sweden is not only counter-productive, but also seriously harmful for individuals, the professionals bound by such a duty, as well as for society at large. With over 30 years of experience in working with irregular migrants, Doctors of the World Sweden can safely conclude that such a law would lead to even more people refraining from seeking health care, resulting in worsened health conditions at best, and premature death at worst.”

Anna Troberg, Chair of cultural sector trade union DIK:

“A vast majority — more than nine out of ten — of Swedish librarians are strongly opposed to reporting undocumented migrants to the police, and rightly so. They are librarians, not border patrol. Many say they would rather lose their jobs than report those in need. If the Swedish government advances this law, the librarians will come out on the right side of history. Ultimately, this is a question of trust, humanity and democracy.”

Heike Erkers, Chair of the Union for Social Sciences, ASSR:

“This measure would be disastrous not least for social services. We need to ensure that social services continue to be a safe space for all in our country to ensure that people in need will get help and support.”

It’s also about the potential breach of confidentiality and erosion of trust to society that our members are working so hard to ensure. This potential law would result in a growing number of people hiding and being exploited in appalling conditions.”

Bishop Andreas Holmberg, Church of Sweden, Stockholm diocese:

“I share a concern with many within the Church of Sweden, not least among my deacon sisters and brothers, about how a reporting obligation can affect the vulnerable people we meet. We are really concerned that our close cooperation with the public sector and civil society may be obstructed if a reporting obligation becomes a reality. I am particularly concerned about how such a law will affect children who are already living in great vulnerability.”

MEP Malin Björk, Swedish Left Party:

“Forcing public servants to denounce undocumented migrants to the police would be a breach of the Convention of the Human Rights, the Convention of the Rights of Children and the European Union’s Charter of Fundamental Rights. The current Swedish government depends on extreme right wing party Sweden Democrats, which would like to make it mandatory for all citizens to denounce undocumented persons. This kind of law has no place in modern, democratic societies”.

Between January and December 2023, at least 117 people faced judicial proceedings in the EU for acting in solidarity with migrants. The majority were charged with facilitation of entry, stay or transit or migrant smuggling (depending on how the crime is defined in the national legislation). The figures stem from media monitoring of different national news outlets conducted by the Platform for International Cooperation on Undocumented Migrants (PICUM) throughout 2023.

This is most likely an undercount, as statistical and official data concerning those who are being accused, charged, or convicted for smuggling and related offences is often lacking. Many cases go unreported by the media or because people fear retaliation, especially migrants themselves. In addition, some cases reported by the media might not have been detected by our alert system.

Nonetheless, this data confirm a concerning, ongoing trend observed in previous reports. At least 102 people were criminalised in the EU in 2022. At least 89 people were criminalised between January 2021 and March 2022, and at least 158 were accused of smuggling between 2015 and 2019.

Michele LeVoy, Director of PICUM, said: “These numbers are only the tip of the iceberg of what is actually happening in the European Union. Current trends are likely to worsen as EU proposals to fight migrant smuggling fail to include a binding exemption of humanitarian acts from potential criminalisation.”

Our media monitoring found that the majority of people criminalized were in southern Europe: 74 people were criminalised in Italy and 31 people in Greece. People were also reported criminalized in other countries: six in Poland, three in Malta; two in Latvia and one in Cyprus (there may also be cases in other countries that went undetected in our alert system).  Nearly 60% of people were criminalized for solidarity with migrants on land, and roughly 40% at sea.

Among those criminalised, forty-six people were criminalised for rescuing or helping migrants in distress at sea. Nineteen were criminalised for providing shelter to migrants; 18 for promoting inclusive policies at local level; 17 for trying to stop a deportation, and eight people were criminalized for providing migrants with food, water, and clothes. For example, In one case from Latvia, two citizens were charged with facilitating irregular entry simply because they gave food and water to migrants stranded at the border with Belarus.

The average length of the proceedings is 3.5 years, but many last even longer. In one case from Italy, former Riace mayor Mimmo Lucano, with international renown for the projects on the inclusion of migrants in his village, spent five years in house arrest and under investigation. In another case from Greece, 24 human rights activists, including volunteer lifeguards Sean Binder and Sarah Mardini, have been undergoing legal proceedings for more than four years for charges brought against them for rescuing asylum-seekers at sea. While part of the charges were finally dropped in 2023, the felony charges are still unresolved.   

Among the 42 individuals whose trials were closed in 2023, 40 people received an acquittal. Even if they end in an acquittal, trials still have heavy consequences on people’s finances, personal life, and psychological wellbeing.

People criminalised for crossing borders irregularly

Not only solidarity with migrants is being criminalised under counter-smuggling legislation, but also the very act of migrating. According to our monitoring, between January 2023 and December 2023, at least 76 migrants in Italy, Greece and Spain were criminalised for the sole act of crossing borders irregularly.

At least seven of the people criminalised in 2023 were children at the time of the facts.

LeVoy said: “The criminalisation of solidarity with migrants is deeply tied with the criminalisation of migration itself. These are not two separate issues but are in fact a continuum of restrictive migration policies that make border crossing unsafe and create a hostile environment against those who are considered to have entered in an irregular manner.”

Fifty-three migrants were charged with facilitation of irregular entry for actions including driving a boat, being on boat (12 people charged), and resisting a pushback at sea (9 people charged). The accusations fail to capture the underlying motivations behind these actions, which often include reuniting with family members, covering the cost of the passage, seeking livelihoods, and supporting others. In one case from Greece, a 45-year-old Egyptian man was sentenced to 280 years in prison under the accusation of human trafficking, smuggling, and belonging to a criminal organisation simply because he helped steer the vessel he was in with other 476 migrants, including his son.

Administrative sanctions and non-judicial harassment of NGOs

Our media monitoring also recorded at least 15 cases of non-judicial harassment, concerning 17 individuals and 12 NGOs. These cases are in addition to the 117 described above.

In one third of the cases, the person or the organisation concerned was issued an administrative fine for their actions in support to migrants. Other non-judicial forms of harassment included confiscation of material, police harassment or detention, threats by private groups, restrictions of access to certain locations and to people of concern, and defamation.

In one case from France, three members of the NGO Bidasoa Etorkinekin were taken into police custody in the city of Urrugne for one day after sheltering migrants in a local reception centre. In Italy, search and rescue ships Geo Barents, Humanity 1, Sea Watch Aurora, and Open Arms were all impounded and their crews fined several thousand euros for violating the Italian Legislative Decree 15/2023 that prohibits multiple rescues at sea in one trip. In Cyprus, equality NGO KISA has been facing harassment and attacks for years, including a bombing attack in their offices in January 2024.