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Justice and Home Affairs Council adopts Conclusions on "migrant smuggling" and facilitating "illegal entry & transit"

01 March 2016

- the "humanitarian exception" of helping refugees is seen as an "obstacle" to prosecutions
- the term "refugee" is not mentioned once
10..3.16

At the Justice and Home Affairs Council in Brussels on 10 March Council Conclusions on migrant smuggling (Doc no 6475-16, pdf) were adopted on the "nod" (without debate). At first sight it seems as if the Council was listening to wiser advice than has been usual recently. The Preamble refers to respecting the:

"human rights and dignity of the smuggled migrants as well as of those providing humanitarian assistance"

and goes on to "stress" that Article 1.2 of Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence provides for:

"the possibility for Member States to exempt persons facilitating irregular entry or transit in order to offer humanitarian assistance to migrants from sanctions."

Although recognizing that the "smuggling of migrants" and "trafficking in human beings" are "two distinct forms of crime" under EU and international law the Conclusions say that as smuggling has been become an "increasingly violent form of crime" involving physical violence and human rights abuses that there is little difference between the two crimes.

Under the law there is a very clear distinction in law between "smuggling" and "trafficking" if the former use violence and abuse they would fall under the crime of "trafficking". As the IOM observes:

"Smuggling - "The procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident” (Art. 3(a), UN Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000). Smuggling, contrary to trafficking, does not require an element of exploitation, coercion, or violation of human rights."

It is noteworthy that throughout the Conclusions the term "refugee" does not appear once with the connotation that everyone who is arriving in the EU is an "economic" migrant.

Council's adopted Conclusions on "migrant smuggling"

So how do these Conclusions differ from the first draft: Draft Council conclusions on migrant smuggling (LIMITE doc no 5481-rev-2-15, pdf): discussed during the meeting of the Justice and Home Affairs Counsellors on 27 January 2016.

For Background see: Refugee crisis: Council proposals on migrant smuggling would criminalise humanitarian assistance by civil society, local people and volunteers

The first draft (above) the Council's Conclusions did not mention exempting "humanitarian assistance" as set out in the 2002 Directive and NGOs are marginally referred to "where appropriate".

In the adopted Conclusions Eurojust is asked to:

"Ensure that the recently established Eurojust thematic group on migrant smuggling aims at (i) supporting the needs of prosecution including by sharing appropriate information, such as ongoing investigations, investigative guidelines, landmark case-law, in a timely manner, (ii) identifying and analysing the obstacles regarding prosecution and judicial cooperation - such as obstacles related to the assertion of jurisdiction especially on the high sea, the differences between the Member States as regards the definition of "illegal immigrant smuggling", the scope of the "humanitarian exception", and the gathering, storing and sharing of appropriate information and evidence and the admissibility thereof - and (iii) improving the use of the EU and international legal instruments, also with a view to identifying the possible legal and practical shortcomings of these instruments"

Where in the first draft there was the omission of any reference to humanitarian assistance by NGOs and volunteers now the Council is trying to find a legal route to limit the scope of the "humanitarian exception" or to remove it altogether.

Second, the Conclusions lay great emphasis on the role of social media - which is extensively used by refugees, migrants, NGOs, local people and volunteers - and to:

"Ensure that a mapping exercise is executed on the ways in which social media are used for the purpose of migrant smuggling in coordination with the relevant agencies."

And to develop "partnerships with social media companies", for EU agencies to: "share all relevant information including data from social media" and develop "a counter-narrative in the media" - referring targeted social media to Europol's Internet Referral Unit and their "partnerships " which could mean they will request posts or pages to be taken down.

Tony Bunyan, Statewatch Director, comments:

"Has the threat to criminalise NGOs, volunteers and local people disappeared? On the contrary, it has moved formally onto the agenda for Eurojust to conclude that the "humanitarian exception" of helping refugees in need is an "obstacle" to the investigation and prosecution of "migrant smugglers".

At the same time, here and now, in Greece NGOs and volunteers are being required to register with the state-police and account to them for all their actions."

See: NGOs and volunteers helping refugees in Greece to be placed under state control