This blog summarises key findings from our media monitoring on the criminalisation of solidarity with migrants in Europe in 2022. The full report, including notes and sources, is available here.

Between January 2022 and December 2022, at least 102 people faced criminal or administrative proceedings in the EU for acts of solidarity with migrants. The figures stem from extensive media monitoring of national news conducted by PICUM and its network of volunteers over the past year.These findings illustrate a worrying trend in the EU. Previous research shows that at least 89 people were criminalised in the EU between January 2021 and March 2022, while at least 171 faced charges of facilitation of irregular entry, transit or stay in 13 EU Member States between 2015 and 2019.

Our media monitoring recorded 48 cases in Italy, 35 cases in Greece, twelve in Poland, and a total of seven cases reported in Malta, France, Germany, Spain and Lithuania. Criminalisation is an EU-wide phenomenon, and cases from other countries may have been undetected.

These numbers are likely to underrepresent what is actually happening in the European Union. On the one hand, statistical and official data concerning those who are being accused, charged or convicted for smuggling and related offences is largely absent. On the other hand, many cases go unreported because of fears of further victimisation, especially when those criminalised are migrants themselves. Other cases reported by the media might not have been detected by our alert system.

Besides judicial proceedings, human rights defenders and NGOs face several other forms of harassment. Our media monitoring recorded at least eleven different cases of non-judicial harassment, in addition to the 102 cases mentioned above, concerning at least four people and fifteen NGOs. One third of the cases concerned police harassment, while another third regarded restriction and entry difficulties, followed by confiscation of material, administrative fines, threats by right-wing private groups, defamation, and arrest.

France: ban on food distributions in Calais

In September 2020, local authorities in Calais, France, issued an order banning non-state mandated food distributions to migrants stranded in the woods. The order was renewed almost every month for two years. Authorities argued the ban had been put into place to re-establish public order, which was allegedly threatened by the food distributions. Volunteers were systematically prevented from accessing distribution sites, checked for their identity, and issued administrative fines. After a group of these aid organisations challenged the legality of the order, this was finally deemed “disproportionate to the pursued aims” by an administrative court in October 2022.

The criminalisation of migration

The root of the criminalisation of solidarity with migrants is the soaring criminalisation of migration itself. In 2022, migrants were criminalised for driving a boat about to capsize, driving a car across an EU external border, being on a boat that irregularly crossed a border, turning on a mobile phone’s GPS when lost at sea, and resisting pushbacks at sea. For these acts, they were charged with irregular entry, facilitation of irregular entry, acting for profit, involuntary manslaughter, causing an accident at sea, endangering the life of another (including of a child), violent resistance, and membership of a criminal organisation. Many of the cases collected by our media monitoring occurred in Greece, but cases were reported also in Romania, the Netherlands and Italy. In 2022, Borderline-Europe counted at least 264 migrants being arrested following their arrival by boat in Italy, and estimates the number to be around 350.

Acquittals and lengthy proceedings

Among the cases covered by our media review, no one was convicted, which shows how these trials are politically motivated, and judicially unfounded.

Italy: Andrea Costa, Baobab President

The president of the migrants’ rights association Baobab Experience, Andrea Costa, spent six years on trial for “aiding and abetting illegal immigration”. The charges were based on the fact that Andrea Costa and a number of Baobab volunteers had offered eight Sudanese and a Chadian citizen support to buy train and bus tickets from Rome, to reach the Red Cross camp in Ventimiglia. The prosecution against Andrea started in 2016, and charges were finally dropped in April 2022. In 2022, nine people received an acquittal decision. Even if they end in an acquittal, trials still have heavy consequences on human rights defenders’ finances, personal life, and psychological wellbeing. Trials often go on for years, because the state appeals first instance acquittal decisions. For six of the nine people acquitted in 2022, the judicial proceedings lasted for at least five years; for two of the nine, they lasted for more than two years; and only for one person was the length of the proceedings less than a month.

Of the 102 human rights defenders criminalised in 2022, almost 3 out of 4 were facing proceedings which were ongoing from previous years and for 9 out of 10, the trial is still ongoing.

Charges and acts of solidarity

Eighteen of the 102 people faced new charges in 2022, while the legal proceedings of eleven people closed in 2022.

People have been criminalised for actions including offering assistance with an asylum application; driving migrants by car or assisting them during a train ride; buying or giving money to buy public transport tickets to migrants; providing food, water and/or shelter to migrants; occupying abandoned buildings to shelter migrants; rescuing or helping migrants in distress at sea; helping migrants to disembark safely; being on a boat or helping others in need on a boat; helping migrants who had been pushed back to cross the border again; photographing coast guard vessels; and anti-racist, pro-migrant activism.

Germany: Julia Seelmann, Franciscan nun

In 2019 and 2020, German nun Julia Seelmann sheltered two Nigerian women who had fled sexual exploitation in Italy in her church. Seelman applied the long-standing practice of “church asylum” in Germany, which protected the women from deportation, and provided them with social support and accommodation. In 2021, the nun was accused of facilitation of irregular stay and ordered to pay a €500 ‘warning fine’ by a regional court. After appealing the court’s decision, she was eventually acquitted in 2022. Half of all 102 human rights defenders were criminalised for acts of solidarity on land, and half for carrying out acts of solidarity at sea.

Three out of four human rights defenders were charged with facilitation of entry, transit or stay or migrant smuggling (depending on how the crime is defined in the national legislation). A third of those charged with facilitation also faced other charges, including money laundering, membership of a criminal organisation, espionage, conspiracy, abuse of office, fraud, extortion, embezzlement, and obstructing investigations by authorities.

Other charges used to criminalise human rights defenders include: acts of terrorism; use of violence; unlawfully and forcibly removing a person to another country; causing another person to fear that violence will be used against them or their property; arrest, detention or confinement of a person against their will; disturbing the peace; radicalisation and being a threat to national security; breach of domicile and irregular stay.

Common narratives describe migrant smugglers as ruthless “criminals who take advantage of people’s vulnerability and naïveté”. Counter-smuggling policies – often based on limited empirical data and several misconceptions – focus on cracking down on smuggling through more policing and criminal sanctions. While they often refer to the violence that migrants suffer from the hands of smugglers, very little attention is paid to the major harm done by counter-smuggling policies themselves. More importantly, little attention is paid to the reasons why people decide to turn to smugglers – notably, the lack of any opportunities for many people to move and cross borders in a regular manner. As a consequence, several of these policies end up harming migrant communities and those who support them.

This can happen in three main ways.

1.  Counter-smuggling legislation is often used against migrants themselves

More and more people trying to cross to Europe are unfairly accused of being “smugglers”, and risk long periods of arbitrary detention and exclusion from accessing asylum and other regularisation procedures. This is in violation of articles 5 and 16 of the UN Protocol on Migrant Smuggling, which forbid the use of counter-smuggling legislation against migrant themselves, and article 31 of the Convention relating to the Status of Refugees, according to which asylum seekers should not be penalised for crossing borders without authorisation.

Often, the mere fact of having touched the wheel of the boat, or having turned on a GPS, is enough to be considered a smuggler. Testimonies from other people on the boat asserting that the person was only trying to save everyone’s lives, or the fact of having one own’s children or other family members on the boat, are not considered as sufficient counter-evidence to smuggling accusations. As a consequence, migrants often face decades of imprisonment. In many cases, asylum seekers have been charged of smuggling just after being rescued from a shipwreck.

Far from being isolated incidents, the criminalisation of boat drivers is a widespread phenomenon in several EU countries. Criminal proceedings, including when they end in acquittals, can have a life-long impact on migrants’ ability to live regularly in the EU. A first instance conviction, or even just reliable proof for suspicion, can lead to people being effectively prevented from applying for asylum and other residence permits. Even if acquitted, migrants who have been accused of smuggling often have difficulties accessing asylum procedures, and they are often excluded from official reception centres.

2.  Counter-smuggling policies make crossings more unsafe

Counter-smuggling policies are often justified by policy-makers with the need to protect migrants’ lives and safety. But this narrative contributes to hide the real harm that people are suffering as a direct consequence of counter-smuggling policies.Almost a decade ago, academic Hein de Haas highlighted that “smuggling is a reaction to border controls, not the cause of migration”. As counter-smuggling policies lead to the increased militarisation of borders, crossing becomes more and more unsafe, pushing more people into taking dangerous and expensive routes and having to rely on smugglers, increasing risks of extortion, debt bondage and other abuses. History could not be clearer: because of the progressive increase in border surveillance in the Mediterranean since the nineties, people have had no choice but to take increasingly risky routes. More recently, the militarisation of the English Channel led to the creation of “an infrastructure that completely revolves around smuggling”.

The frequent criminalisation of migrants who steer the boat before or during shipwrecks make crossings more unsafe because migrants fear taking the helm of the boat; they might also move away from the motor when the boat is intercepted by the authorities so not to be identified, which leads to even more imbalance on board. In other cases, migrants have thrown their satellite phone overboard when the authorities were approaching, so not to be convicted as “smugglers”, thus interrupting contact with the rescue mission.

Over 30,000 people have died trying to reach Europe between 2000 and 2015. Increased counter-smuggling efforts seem to have led to even more deaths: in only six years, between 2014 and 2022, nearly 24,000 migrants have died in the Mediterranean.

3.  Counter-smuggling policies are used to create a hostile environment and deter solidarity with migrants

The EU Facilitation Directive requires Member States to impose “effective, proportionate and dissuasive” sanctions on any person who facilitates someone’s irregular entry or transit across a Member State, even if they did not obtain any financial gain. Article 1(2) of the Directive permits Member States not to criminalise actions “where the aim of the behaviour is to provide humanitarian assistance to the person concerned”. Only eight Member States (Belgium, Greece, Spain, Finland, Italy, Malta, Croatia and France) have introduced this exemption clause.

As a consequence, people helping migrants risk being accused of “facilitating their irregular entry, transit or stay” even if they did not receive any financial or material benefit. Even where the “humanitarian exemption” was introduced, people have still been criminalised for acting in solidarity with migrants.

Between 2015 and 2019, at least 171 human rights defenders were investigated or convicted on grounds related to the EU Facilitation Directive in 13 EU Member States, including volunteers and search and rescue NGOs. This trend continues unabated: between January 2021 and March 2022, at least 89 human rights defenders were criminalised in the EU. In 88% of the cases, they were charged with facilitation of entry, transit or stay or migrant smuggling.

Migrants who help other migrants are disproportionally hit by criminalisation policies. Any involvement in criminal proceedings, including when it does not lead to a conviction, can have very harmful consequences on migrants’ life, including their ability to receive asylum or another residence permit in the EU. Migrants also often face harsher treatment during investigations, including lengthy pre-trial detention.

Besides having a chilling effect on solidarity with migrants, the excessively broad definition of smuggling also makes it hard or even impossible for service providers to cater services like housing or transport to undocumented people. In fact, under these provisions, service providers such as taxi drivers, landlords, and Airbnb owners are forced to verify their clients’ documents, as they are at risk of being considered “smugglers” if they provide services to undocumented people.

For instance, in nearly two thirds of EU member states, landlords who rent to undocumented migrants risk a fine or imprisonment. Provisions criminalising renting to undocumented migrants exclude people, including families with children, from the regular housing market. This pushes them into precarious, over-crowded and unsuitable housing, often at exploitative rent prices, where they face eviction, abuse and theft of rent and deposits.

This blog is based on the executive summary of our new report Resilience and Resistance: the Criminalisation of Solidarity across Europe, where we investigate the state of the criminalisation of solidarity with migrants in Europe in 2021-2022. The report was made possible thanks to the support of The Greens/EFA group in the European Parliament and was written by Marta Gionco, PICUM’s advocacy officer, and Jyothi Kanics, independent researcher.

The European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, in recent years, these values have been under threat within the EU, as many Member States’ policies and actions have led to a “shrinking space” for civil society. Perhaps this trend is nowhere more evident than in the treatment of migrants in Europe and the human rights defenders working to assist them. The “criminalisation of solidarity” strikes at the heart of European values and contributes to the erosion of rule of law and democracy, while seriously impacting the rights and welfare of the most vulnerable in our societies and those who seek to protect and assist them.

The criminalisation of solidarity with migrants remains a widespread phenomenon across the EU. According to our media monitoring, at least 89 people were criminalised in the EU between January 2021 and March 2022. Out of them, 18 people faced new charges, while the other 71 were ongoing cases from previous years. Of the 89 individuals who were criminalized, four were migrants. Of all of those criminalized, three were convicted and 15 were acquitted. The remaining cases are still pending. People have been criminalised for actions including providing food, shelter, medical assistance, transportation and other humanitarian aid to migrants in dire conditions; assisting with asylum applications; and rescuing migrants at sea.

In the vast majority of the cases (88%), human rights defenders were charged with facilitation of entry, transit or stay, or migrant smuggling (depending on how the crime is defined in the national legislation). It is also notable that the criminalisation of solidarity has continued, and in certain cases even soared, during periods in which many countries adopted COVID-19 restrictions, at a time when human rights defenders risked their own personal safety and health to leave their homes to help others. Emergency measures adopted to address the COVID-19 pandemic have been used to limit access to reception facilities and detention centres, to impose fines on organisations providing services during lock-downs or after the curfew, and to limit the right to freedom of assembly.

National data further contributes to give an idea of the magnitude of the criminalisation of solidarity in the EU. For example, according to the Polish civil society network Grupa Granica, nearly 330 people were detained for helping people crossing borders irregularly between Belarus and Poland between August and November 2021. Those detained include EU nationals as well as migrants and their family members, many of whom had residence permits in Belgium, Germany and Poland. Many are likely to have been motivated by humanitarian reasons, including helping family members. In another example, a total of 972 people were convicted in Switzerland in 2018 on grounds of facilitation of irregular entry or stay. The vast majority, almost 900 people, acted out of solidarity or family reasons.

These numbers are likely to only represent a very minimal percentage of the people who are criminalised in the EU for solidarity towards migrants. On the one hand, our media monitoring has no claim of comprehensiveness, as some news may not be detected by our alert system. On the other hand, the majority of the cases are likely to go unreported because of fears that media attention could further endanger the relations with the authorities and limit access to border areas or reception centres; to preserve volunteers’ right to private life and not to put them and their families at risk; or because some human right defenders might prefer not to speak out while trials are ongoing. Many cases of harassment which do not amount to criminal prosecution might also not be picked up by the media. The criminalisation of human rights defenders who are migrants themselves is even more underreported because of the particularly vulnerable situation of individuals who might risk deportation, pushbacks, arbitrary detention and loss of status as well as harsh financial, social and economic consequences.

A range of elements contribute to creating a “hostile environment” for those engaged in humanitarian action and solidarity efforts towards migrants in the EU:

• The “criminalisation of migration” itself leads to migrants being treated as criminals and even viewed as a threat to national security. It follows then that those who seek to assist them can also be perceived and labelled as engaging in “illicit” activity and causing harm to society. Negative attitudes towards migrants greatly influence how official policies and practices are shaped. The legal and policy framework appears in many cases to be underpinned by xenophobic narratives and a lack of implementation of human rights obligations.
• In many EU Member States, there are administrative and criminal laws which constrain and prosecute civil society actors providing humanitarian assistance to migrants or denouncing human rights abuses.
• Limitations to freedom of expression, assembly and association contribute to a shrinking civic space which can make it very challenging for human rights defenders to respond to judicial and other forms of harassments. When civic space is eroded, this further undermines civic dialogue, transparency and accountability.
• Additionally, a lack of independent human rights monitoring contributes to impunity following attacks on human rights defenders and increases the risk of human rights violations.
• Finally, decisions on resource allocation further minimise the space for civil society and their capacity to engage and to respond.

Nevertheless, despite all these challenges, human rights defenders continue to make valiant efforts to assist migrants and to demonstrate solidarity with migrants in vulnerable situations. Their resilience, persistence and resistance is demonstrated by the actions they have taken in the face of intimidation, harassment and violence, which they have often confronted alone on the frontline at EU borders and in communities across Europe.

In order to support them, the EU has a range of avenues for engagement through which it can strengthen protection of migrants’ rights as well as address the key elements of the “hostile environment” outlined above. While many of these developments, such as proposed legislative changes to the EU Facilitation Directive, are goals to be achieved in the longer term, there are other actions that the EU can take in the short-term to nurture and support an enabling environment for those working for solidarity and justice within the EU.

This report proposes five overarching recommendations for EU action:

1. Prevent the criminalisation of humanitarian assistance
2. Cultivate the civic space and better protect human rights defenders
3. Adequately fund humanitarian assistance and human rights monitoring
4. Promote and advance a more balanced EU migration policy in line with European values
5. Strengthen human rights monitoring and solidify the evidence base on criminalisation of migration and solidarity

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