Resilience and Resistance: the Criminalisation of Solidarity across Europe

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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