Discussion: Guidelines on criminalisation and humanitarian assistance

On the 23rd of September, the Commission adopted the Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence:  https://ec.europa.eu/info/sites/info/files/commission-guidance-implementation-facilitation-unauthorised-entry_en.pdf

The Commission clarified that the Facilitation Directive must be interpreted as precluding the criminalisation of NGOs or any other non-state actors that carry out search and rescue operations at sea. The Commission’s Guidance expressly mentioned our ReSOMA key findings showing that judicial prosecutions and investigations against individuals on grounds related to the offence of facilitation have increased in the EU since 2015.

Is the Commission's Guidance in line with researchers and stakeholders' recommendations? Are there still gaps to be addressed? 

I would like to contribute to this discussion by adding three additional questions:

Firstly, what has been the intention of these Guidelines?

Secondly, what is the actual guidance saying?

And, thirdly, what is the gap between the guidance provided and the intention set by Commission?  

1. What has been the intention of these Guidelines?

 The Commission, has started of by recalling that the Facilitation Directive is one of the tools within the ‘multidisciplinary policy framework to address migrant smuggling’. Commission re-iterated (p.1) that ‘Its core objective is to disrupt the business model of criminal organisations that put migrants’ lives at risk and threaten our societies’ security, while avoiding risks of criminalising those who provide assistance to migrants in distress.’

‘Taking into account the European Parliament’s Resolution and the results of the consultation process, the Commission considers that guidance on interpreting the Facilitation Directive is needed to provide greater clarity on its scope of application.’ (p. 2, emphasis added).  The intention has been certainly a welcome and much-needed step. It has been called by the various stakeholders, including, the European Union Agency for Fundamental Rights (FRA), civil society actors and researchers.  

The fact that this time the Commission on several occasion acknowledged the took into account and quoted some of the critical research findings needs also to be acknowledged as a positive development. In particular, that Commission took own initiative to hold regular meetings to ‘to build up knowledge and gather evidence in order to identify the issues linked to interpreting and applying the Facilitation Directive’(p.1, emphasis added).  However, how much of their concerns were addressed in the guidance?

2. What is the Commissions guidance?

The Commission’s Guidance on interpreting the Facilitation Directive. It applies only to Article 1 of the Directive (Definition of crimes of facilitation) as following (p. emphasis added):

(i) humanitarian assistance that is mandated by law cannot and must not be criminalised;

(ii) in particular, the criminalisation of NGOs or any other non-state actors that carry out search and rescue operations at sea, while complying with the relevant legal framework, amounts to a breach of international law, and therefore is not permitted by EU law;

(iii) where applicable, assessment of whether an act falls within the concept of ‘humanitarian assistance’ in Article 1(2) of the Directive – a concept that cannot be construed in a manner that would allow an act mandated by law to be criminalised – should be carried out on a case-by-case basis, taking into account all the relevant circumstances.

Commission also added a policy recommendation, that encouraged the Member States to opt-in and apply humanitarian exemption. 

3. Have the guidelines added clarity on which acts are exempted from criminalisation?  

 3. 1.  What are the acts 'mandated by law'? 

The new Guidelines exempt the humanitarian acts by individuals and NGOs, but only when it is 'mandated by law' (i) as not falling within the scope of the criminal definition of the ‘facilitation of irregular migration’.  The attempt to limit this sweeping definition is good news, and it is no longer optional for the Member States whether to exempt such acts. Bad news – it is not clear what is covered by ‘acts mandated by law’? The Commission acknowledged that ‘life and death situations’ should be exempted as a principle of criminal justice. It seems, that search-and-rescue activities (SAR) is falling in this definition, since sea rescue is international obligation of everyone.  However, then a subsequent provision exempts SAR NGOs (ii) from criminalisation, but added that they need to commply with the ‘relevant legal framework’ (see discussion on this point below).

So what are the 'acts mndated by law'? The Commission has not made any further example, besides ‘acts that had to be carried out to avert a dangerous situation’ and SAR, so it seems to be related with the very basic state's obligations and the right to life. For instance, whether provision of food and blankets for refugees and migrants crossing the French Alps (Briancon 7 case)  would be seen as ‘mandated by law’ to uphold the right to life and human dignity? Or 'mandated by law' are lifts to hospitals by those organisations, i.e. that are running government-owned refugee camps? Also, would a voluntary pro-bono legal assistance to irregular migrants in the border zones is regarded as ‘mandated’ by law’ (for instance, Hungarian Bill No. T/333 provision criminalising information sharing to migrants)?  Or would such acts that are seen rather as ‘allowed by law’ but not ‘mandated’, and thus further fall within the scope of the optional exemption and be subject to (iii) case-by-case assessment’ in a criminal court? 

As mentioned above, SAR NGOs are not entirely exempted from criminalisation. Their exemption seems to be subject to (ii), 'compliance with the relevant legal framework'.  While on the surface it looks, like a legitimate concern, that 'saving lives'  should be conducted when complying with instructions of relevant authorities, and while ensuring the safety, and that Member States should be informed about such activities. However, realities are quite gloomy. FRA monitoring is showing how the national authorities are barring SAR NGOS by de-flagging, confiscating ships, precluding disembarcations, i.e. on COVID-19 risks.  Thus, the requirements of 'safety' and ‘information sharing’ are not always intended on 'saving lives'. Let's dig into that. 

3.2. Are SAR NGOs exempted from criminalisation?

In Section 3, the Commission put forward some strong arguments in favour of the exemption of SAR NGOs from the scope of the criminalisation.  The Commission stressed that international maritime law is binding all States and that (p.7) it is ‘the duty of countries to set out the obligation for shipmasters to assist any individual, vessel or aircraft in distress at sea is recognised as a principle of customary international law’.

While the Member States carry undisputable  ‘obligation to rescue’, Commission has inserted a qualifier for SAR NGOs. Not only their activities need to be ‘mandated by law’ they also need to comply with the relevant legal framework (ii). For instance, would the Italian Code of Conduct, that international human rights bodies openly criticised, as an effort to prevent sea rescues, is seen as part of ‘relevant legal framework’?

Commission attempted to clarify this elaborating that: ‘Everyone involved in search and rescue activities must observe the instructions received from the coordinating authority when intervening in search and rescue events, in accordance with general principles and applicable rules of international maritime and human rights law.’ However, what if instructing authority is Libyan MRCC?  What if European MRCC is instructing non-rescue or non-disembarkation? For instance, Italian MRCC was calling Sea-Watch ship to handle over the rescued migrants in S.S. and others v. Italy case that is pending before the European Court of Human Rights. Another example, Greek MRCC instructing pushbacks, in this case to a statutory vessel of the Danish coastguard in the context of the Poseidon operation. What if similar instruction is made to SAR NGO?

It is welcomed that Commission, reminds obligations of ‘everyone’, including statutory ships under European and national missions, military ships, as well as merchant ships and SAR NGOs, to comply with international maritime and human rights law. Nevertheless, another Commission’s Recommendation on cooperation among Member States concerning operations carried out by vessels singles out only private actors. It seems, that SAR NGOs are subject to additional safety and information-sharing requirements.

Thus,  while Commission guidance in (ii) seems to exempt SAR NGOs from criminalisation under the Facilitation directive. However, only when they act in compliance ‘with the relevant legal framework’. And possibilities to expand disciplinary measures to SAR NGOs are provided in the abovementioned Commissions Recommendation .  For instance, should an NGO object additional safety and data sharing requirements (i.e. with Libyan authorities) as disproportionate, or obstructing their life-saving activities, could this lead to qualifying this SAR NGO ‘as non-compliant’ and thus bringing them back within the scope of Article 1 of the Facilitation Directive?

3.3. What means 'case-by-case assessment' ?

It seems that the crime of facilitation of irregular migration, will continue to pose risks of criminalisation of various humanitarian and human rights activities that are ‘allowed by law’. In this context, especially, at stake is civil society space, based on freedom of association, freedom of assembly, freedom of information and expression, that is protected by the EU Fundamental Rights Charter from ‘unjustified government interference’.

The Court of Justice of the European Union and the European Court of Human Rights provided that restrictions not only need to be ‘prescribed by law’ but also ‘proportional’ and ‘necessary within the democratic society’. Besides, the right to defend human rights, including upholding human dignity, right to seek asylum, non-discrimination, the prohibition of inhuman and degrading treatment and other rights those enclosed in the EU Treaties and EU Charter of Fundamental Rights remain at risk of prosecution. Thus no game-changer here.

Moreover, our research found that when such prosecutions are not embedded in criminal justice checks and balances, but in migration management logics, the risk of misuse and politicisation is high. In words of ReSOMA focus group discussion participants 'prosecution can be a means of persecution'. In another study we argued, that such laws can be misused to prevent democratic participation, upholding other EU laws,  including fundamental rights.

4. Commission needs to further narrow the scope of application of  the Directive and to clarify its pupose

To conclude, the Guidance provided by the Commission raised more questions than answers. If the goal was to provide more clarity and to highlight clear preference to fight ‘organised criminal groups that endanger migrants’ lives’. However, to get there Commission needs to make a bold move and to insist that prosecutors focus on those who profit from migrant smuggling, rather than numerous investigations in non-profit activities of individuals and volunteers who save migrants’ lives and uphold their human dignity. Commission, added some clarity on SAR operations not to be criminalised as crimes of facilitation, but made them to comply with 'relevant legal framework' and subject to additional requiremens, that can also effectively preclude such operations.

At the moment ‘any assistance to those without relevant documents to enter, transit and (for profit motives) to reside and stay irregularly’, except, when it is ‘mandated by law’. Sounds, quite broad. And it is. Given, that under the Article 2 of this directive related crimes are ‘Instigation, participation and attempt’. The directive does not exempt smuggled migrants from criminalisation, nor mentions fundamental rights as ‘minimum standard’ or safeguard to prevent misguided prosecutions. Thus, Commission would need to continue narrowing the scope of the current Directive as to provide the clarity what this legislation aims to achieve, and legal certainty for various legitimate civil society activities and civil liberties that they shall not be the targeted by this directive and national laws transposing it. 

The Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence only invites not to criminalise acts which are “mandated by law”, which are very different from acts “permitted by law”. Activities like providing food, shelter, car lifts or information, all remain excluded, in particular when they’re not carried out by an official NGO which is “mandated” to carry out such activities. The almost exclusive focus on search and rescue also risks leaving out activities at land and activities which are not directly life-saving.

Furthermore, search and rescue operations are only considered legitimate when they “observe the instructions received from the coordinating authority” and while “complying with the relevant legal framework”, which leaves the door open to prosecution of NGOs under (often trumped-up) accusations of breaching national legislation or instructions on disembarkation.

The climate of suspicion is further reinforced by the Commission Recommendation on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities. Many provisions of the Recommendation contribute to shed suspicion on the work of SAR NGOs and impose further restrictions on their work, in particular as regards “safety and health requirements”, reporting obligations on the administrative structure of the NGO, and to verify “compliance with migration management rules”.

The Recommendation reinforces the risk of trumped-up accusations of links between migrant smuggling and NGOs, suggesting that “it is essential to avoid a situation in which migrant smuggling or human trafficking networks, including criminal organisations trafficking people or engaging in forms of exploitation assimilated to slavery, take advantage of the rescue operations conducted by private vessels in the Mediterranean”.

In addition, other elements from the Pact contribute to increase the risk of fuelling suspicion and facilitating criminal harassment against volunteers, NGOs and migrants themselves. In particular, the Pact facilitates the exclusion of NGOs’ from accessing border facilities both for monitoring purposes and to provide information during the pre-entry screening, providing only that member states “may” authorise relevant NGOs (Screening Regulation, art 8(4)) and fundamental rights monitoring (art. 7(2)).

Lastly, the de-briefing form filled in by the authorities at the end of the pre-entry screening phase will have to include “information on assistance provided by a person or a criminal organisation (art. 13)”, with no further clarification on how to ensure that the information collected will not be used against volunteers, NGOs or other migrants.

The collective impact of these measures likely legitimise and expand practices of criminalisation of NGOs’ operations at external borders, as already happening for instance in Hungary and Greece.