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Statewatch Criminalising Asylum: the EU adopts the French Immigration Proposals

28 March 2012

Criminalising asylum:
The EU adopts the French immigration proposals

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This report assesses four proposals introduced by the French Presidency of the European Union last summer which were strongly criticised by NGOs. It concludes that:

Taken as a whole, the four French proposals have been worsened, not improved, by the process of negotiation within the Council... for migrants and asylum-seekers the "area of freedom, security and justice" consists largely of measures preventing their entry and removing them from the EU"

The Report

Last year, the French Presidency proposed four measures which would make it considerably harder for asylum-seekers to reach the EU or to stay here after entry, all in the name of combatting illegal immigration (reported first on Statewatch News Online, July 2000). After a year of negotiation, two of these measures have been adopted and two are the subject of "political agreement". In many respects, the final versions of these measures are even worse than the initial proposals, and their overall impact will be to criminalise asylum-seekers and irregular migrants even more than at present.

Preventing legal entry: the carrier sanctions' directive

The Directive on carrier sanctions, agreed by the JHA Council in May 2001 and formally adopted by the Transport and Telecoms Council at the end of June, supplements the provisions on carrier sanctions in Article 26 of the Schengen Convention, a provision which the UK has also signed up to. It requires Member States to choose one of three options for imposing sanctions on carriers who have transported foreigners without the necessary travel documents onto national territory: a maximum level of at least 5000 euros a person, or a minimum level of at least 3000 euros a person, or the maximum lump sum per infringement must be at least 300,000 euros per person. The sanctions are 'without prejudice to Member States' obligations in cases where a third country national seeks international protection', but this vague clause does not expressly require Member States to waive the sanctions in any particular case. This means that the final text is weaker on this issue than the original proposal, which would have required Member States to waive sanctions when a person was 'admitted to the territory for asylum purposes'. The German delegation had expressly objected to this original version on the grounds that "[t]here is a risk that the proposed [directive] could...increase asylum applications". Although the final version of the Directive does require Member States to ensure that carriers 'have effective rights of defence and appeal' against the imposition of penalties, there is nothing to specify what the content of those defence and appeal rights should be, and there is no provision for appeal rights against the other obligations in the Directive.

These other obligations are first, that carriers must return third-country nationals not just when a third-country national is refused entry into the territory, but also where third-country nationals are 'in transit', if the carrier which was to take them to the intended destination refuses to let them on board, or if the authorities of the state of destination refuse them entry and send them back to the country of transit. Secondly, Member States shall oblige carriers which cannot themselves effect the return of a third-country national to find means to ensure the 'immediate onward transportation' of a person refused entry and bear the cost of that transportation, or if this is not possible, to assume responsibility for the costs of that person's stay and return. When carriers have to arrange onward transportation, there is no express provision preventing carriers from arranging such transportation to unsafe countries, as this clause in the Directive makes no reference to the Geneva Convention on refugees or other human rights rules.

The Directive will mean that asylum-seekers will have even greater difficulty obtaining legal passage to a Member State. Due to the combination of increased penalties for carriers, new cases where third-country nationals will have to be returned, and new obligations to pay the costs of either immediate onward transportation with another carrier or the cost of stay, carriers will be even more reluctant to take any risk at all with regard to a would-be passenger. Since there is nothing in the Directive to ensure detailed protection for asylum-seekers or for the carriers which transport them, or to ensure that asylum-seekers have any remedy against carriers' decisions to prevent them from boarding, return them or transport them to a third country, the Directive represents a further erosion of the right to asylum in practice.

Preventing illegal entry and residence: the Directive and framework decision on 'facilitation'

If asylum-seekers are prevented from travelling legally, they will obviously consider travelling illegally. Two connected proposals concern this issue, and both were 'politically agreed' at the JHA Council in May. Only the scrutiny reservations of the UK, Sweden and Denmark have prevented its formal adoption since. The first measure, a Directive, obliges Member States to impose 'appropriate sanctions' on any person who either: 'intentionally assists" a third-country national to 'enter, or transit across, the territory of a Member State' in breach of that Member State's law on entry or transit, or 'for financial gain, intentionally assists' a third-country national 'to reside within the territory of a Member State' in breach of that Member State's law on residence. For the first of these cases (entry and transit), but not the second (residence), Member States may decide against imposing sanctions 'where the aim of the behaviour is to provide humanitarian assistance to the person concerned'. The optional exemption for family members found in the original proposal has been deleted. However, the distinction between the cases of entry and residence is limited, because Member States must impose the same sanctions in cases of instigation, complicity or attempt to commit the two acts; and it can obviously be argued that assisting unauthorised entry is actually an attempt to assist unauthorised residence.

The content of these penalties are defined in the connected Framework Decision. All the acts covered by the Directive must be subject to criminal penalties which might entail extradition (which means a sentence of at least one year). Where the offence of facilitating unauthorised entry or transit is committed 'for financial gain' or instigated by persons in a 'criminal organisation' as defined by a 1998 EU Joint Action, which is so broadly drafted as to cover many non-violent political organisations, or who endanger the lives of the persons who are the subject of the offence, the maximum sentence should be at least eight years. However, Member States are still arguing over this sentence period. Also, where necessary to "preserve the coherence of the national penalty system", the maximum sentence could be six years, but on the other hand, some Member States are planning to state in a Declaration that they will impose a ten-year maximum penalty. Penalties must also be applied on legal persons. The Framework Decision is 'without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights', in particular the Geneva Convention on the status of refugees, but this 'saving clause' is not very specific.

As the UNHCR pointed out in its comments on these proposals:

'as a result of States' increasingly restrictive immigration policies, resorting to the services of smugglers has often become the only viable option for many genuine asylum-seekers who seek sanctuary in the European Union'.

As a result, any 'crackdown' on smugglers necessarily means a crackdown on the ability of asylum-seekers to enter the territory, unless it is accompanied by a policy of enhancing legal means for asylum-seekers to enter. More particularly, a successful crackdown is likely to reduce the number of smugglers who are willing to assist an asylum-seeker to enter, transit or reside in a Member State, and/or to increase the price charged by the smugglers. The 'saving clause' in the Framework Decision does not ameliorate this effect, for the obvious effect of the Directive and Framework Decision will be to reduce the number of asylum-seekers reaching the territory or to make it more expensive to arrive. Compared to Article 27 of the Schengen Convention, which these two measures will replace, Member States will now have to criminalise immigration offences, and extend penalties to cases where a person intends to assist another's unauthorised residence even where there is no financial gain involved.

Removing migrants: the Directive on expulsion

Finally, what happens to irregular migrants who are present in the Member States? The fourth French proposal, aiming to enhance expulsion of such persons, was adopted by the JHA Council in May 2001. It permits one Member State to enforce the expulsion decision applied by another Member State. The expulsion decisions to be enforced pursuant to the Directive are those following: conviction for a an offence punishable by at least one year (a very low standard); the 'existence of serious grounds for believing that a third-country national has committed serious offences or solid evidence of his intention to commit such offences'; or 'failure to comply with national rules on the entry or residence' of foreigners. These are the same grounds that apply to decisions to list a person in the Schengen Information System according to Article 96 of the Schengen Convention, with the result that such persons cannot in principle be given a visa or residence permit or permitted to enter the territory of any of the Schengen states or travel throughout them (unless that person already has a residence permit). The Directive therefore extends the low and imprecise threshold which the Schengen rules apply largely to decisions on admission of persons to decisions concerning the removal of persons who are already present, even though national law usually sets a much higher threshold for a state to justify the removal of a person than it does to justify refusal of admission. Moreover, the Directive provides that in certain cases a Member State could enforce another Member State's expulsion decision even where a Member State has issued the third country national a residence permit.

Although the final version of the Directive exempts 'family members of citizens of the Union who have exercised their right to free movement', it implicitly covers all other third-country nationals, including family members of EU citizens who have not exercised their free movement rights and persons with rights under treaties agreed between the EC and third countries. While Member States must allow the person concerned to bring proceedings for a remedy against the expulsion decision, the protection which individuals can invoke against expulsion is vague, since the Directive only provides that it must be applied 'with due respect for human rights and fundamental freedoms' and that the enforcing Member State must examine the situation of the third-country national 'to ensure that neither the relevant international instruments nor the national rules applicable' prevent the expulsion. The Directive also assumes that the costs of expulsion should in principle be imposed upon the third-country national.

The effect of this Directive will be increase the chance that each Member State will recognise and enforce an expulsion decision by another Member State, potentially even where the person concerned has a residence permit or some other basis to reside in or visit the other Member State legally. The protection of human rights standards is very vague, without any express reference to the detailed case law of the European Court of Human Rights on circumstances when persons should not be expelled, and the Directive potentially conflicts with treaties agreed by the Community with third states.

Conclusions

Taken as a whole, the four French proposals have been worsened, not improved, by the process of negotiation within the Council, particularly as a result of the removal of the specific protection for asylum-seekers contained in the original text of the carrier sanctions Directive. In the meantime, the Commission's far more positive proposal on family reunion, submitted months before adoption of the French proposals, is still under discussion, with successive Presidencies weakening its text significantly. So far, for migrants and asylum-seekers the "area of freedom, security and justice" consists largely of measures preventing their entry and removing them, with at least one Member State expressly motivated by a desire to forestall any increase in asylum applications.

Full-text documentation on the new measures

Statewatch News online coverage (July 2001)

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