The renewed EU action plan against migrant smuggling (2021-2025), presented by the European Commission at the end of September, risks exacerbating all the reasons why migrant smuggling happens in the first place.

At the EU level, migrant smuggling is defined as the facilitation of irregular entry, transit or stay into a country, and is often portrayed as a very lucrative business operated by powerful criminal networks that exploit migrants. In reality, research has shown time and time again that most people convicted for smuggling are in fact individuals, often helping friends and family, or migrants themselves trying to reach a certain country. We also know that people who want to reach Europe often have no other way to get here in a regular manner, and have to rely on other people who help them cross irregularly.

The Action Plan furthers these common misconceptions and uses them to justify measures that are actually counter-productive and harm the fundamental rights of migrants. Crucially, it fails to recognise that restrictive migration policies often incentivise smuggling activities: the more limited the regular pathways, the more people will be forced to rely on smugglers to access Europe.Read our briefingIn line with such biases, the Plan focuses on stemming irregular migration through stepping up returns, and on increasing pressure on third countries to prosecute and punish smugglers, with little consideration for basic safeguards.

No attention is paid to the root cause of smuggling, which evidence shows is linked to the lack of regular pathways to cross borders. International calls to create such regular pathways, also included in the Global Compact for Migration, are not heeded either.

Cooperation with and sanctions of third countries

In the Action Plan, the European Commission aims at incentivising cooperation with third countries to fight against migrant smuggling outside the EU, including by linking it to development cooperation funds and stepping up cooperation on return and readmission agreements. This is very much in line with trends of so-called “externalisation” of migration policy, whereby the EU passes the buck to third countries to manage/prevent migration, and crucially fill the gaps of our failing migration system.

The Action Plan does not only address cooperation with third countries, but also sanctions towards countries involved in “artificially creating and facilitating irregular migration”, which is equated to migrant smuggling. The Commission devotes a section to Belarus, which has been allowing migrants to cross its territory and pushing them to the borders of EU countries like Lithuania and Poland in retaliation to economic sanctions. Labelled as a “hybrid attack to destabilise Europe” which “instrumentalises” migrants, the Commission urges EU states to put pressure on Minsk through concerted action on a number of policy fields, including visas, trade, development, and financial assistance.

This approach reinforces an extremely problematic narrative which, on the one hand, presents migration as a threat, while, on the other hand, legitimises serious fundamental rights violations at the EU external borders.

Increasing returns

The Action Plan endorses and builds on several key tenets of the 2020 Migration Pact, which sets out priorities in EU migration management for the years to come, mainly by increasing detention and returns.

In this line, the Plan repeatedly stresses the need to increase returns to reduce incentives to irregular migration. Just like the Migration Pact, this Action Plan also foresees a big role for the EU’s border control agency Frontex in stepping up returns. This is no good news for human rights, as the agency has been investigated for multiple allegations of complicity in human rights violations at the borders.

Surveillance and digital technologies

The Plan foresees measures that increase surveillance on people arriving to Europe in several ways.

On a micro-level, the Plan endorses measures in the Migration Pact which allow border guards to interrogate migrants about smuggling activities. Crucially, the Plan explicitly suggests that information collected in reception centres and during the asylum interviews should be shared with prosecutors, which risks leading to abuses of power and disregard of procedural safeguards.

The Plan further suggests increasing monitoring around asylum reception centres to prevent asylum seekers from being reached by smugglers. This measure will likely lead to more controls and restrictions to the freedom of movement of people in the centres.

On a macro-level, the Plan features digital technologies as further tools to survey and fight against migrant smuggling, including by developing artificial intelligence programmes and brushing up on old plans to increase social media surveillance through Frontex. The use of artificial intelligence in the public sphere presents high risks of discriminatory profiling, which have been denounced by various civil society organisations.

Weak protection for people in vulnerable situations

To detect and protect people in situations of vulnerability, the Action Plan only relies on screenings done at the borders (so-called “pre-entry screenings”). These screenings are introduced by the EU Migration Pact and essentially focus on identity and security checks for anyone arriving at EU borders. Assessments of individual vulnerabilities are possible but not mandatory, which raises serious doubts about how effective this process can be in detecting vulnerabilities.

The very few references to assistance to vulnerable migrants are limited to campaigns to dissuade irregular migration, existing instruments on trafficking in human beings, and a short mention of the EU Strategy on the Rights of the Child.

Criminalisation of humanitarian assistance

The fight against irregular migration and migrants’ smuggling often rhymes with criminalisation of solidarity with migrants. Humanitarian acts such as providing food and shelter can be seen as aiding irregular entry or outright smuggling operations. On this aspect, the Plan reiterates that acts which are “mandated by law” (for instance lifesaving operations by specific NGOs) should never be criminalised. However, it also explains that a different set of rules applies to what the Plan calls “humanitarian acts not mandated by law” (e.g. providing food, shelter, car lifts or information). With regard to these acts, member states are merely “invited” to make use of the possibility to amend their national legislations to exempt them from criminalisation.

The criminalisation of people helping migrants as a result of the fight against irregular entry is not new. In 2017, the European Commission already hinted at risks of criminalisation of humanitarian assistance when evaluating EU legislation on the facilitation of irregular entry. In 2018, a study funded by the European Parliament found that the same EU legislation had “resulted in the policing of citizens and civil society”.

Today, the new Action Plan optimistically claims that previous studies show that policies related to the facilitation of irregular entry are effective, “although some aspects should be clarified”.

The European Commission has committed to re-evaluating the Action Plan in 2023. We hope this will be an opportunity to rethink the whole approach to migrants’ smuggling, and put migrants’ rights front and centre.Cover image: danmir12 – Adobe Stock

Over 100 independent organisations are calling the new European Commission to stop the criminalisation of solidarity with migrants in Europe in a joint statement published today.

The organisations are calling the European Commission and its newly elected head Ursula Von der Leyen to reform the EU Facilitation Directive, which currently allows Member States to criminalise humanitarian aid.

In particular, the signatories wrote:“Most investigations and formal prosecutions are related to the vague definition of crime in the EU Facilitation Directive which fails to properly distinguish between human smuggling and humanitarian work. But the European Commission has been reluctant to consider the links between the EU Facilitation Directive and the criminalisation of solidarity”The statement also refers to a recent study by the European research platform ReSOMA which found at least 158 Europeans have been criminalised for their help towards migrants since 2015.

The signatories wrote:“The targets include volunteers, activists, NGOs, crew members of rescue ships, migrants’ family members, and also journalists, mayors and priests. The recent arrest of the Sea Watch 3 captain, Carola Rackete, is just the latest example of how people are being blamed for saving migrants’ lives and providing the humanitarian assistance which Member States are unwilling or unable to provide, despite being obliged to according to international and EU law.”

ENDS

Notes to the editors:

• The signatories to the joint statement include organisations working for human rights and humanitarian aid.
• The full statement and list of signatories is available here.

Press contacts:

• For information about the joint statement and the history of criminalisation of solidarity in Europe, please get in touch with Gianluca Cesaro at gianluca.cesaro@picum.org or at +32 488 60 76 21.
• For information about the joint statement and the ReSOMA research, please get in touch with Hind Sharif at hsharif@migpolgroup.com or at 02 230 59 30 and Lina Vosyliūtė at lina.vosyliute@ceps.eu.