Civil society actors helping irregular migrants punished due to ambiguous EU laws

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Optional exemption of humanitarian assistance in EU law leads to penalties and stigma for acts of solidarity with migrants in the EU, EESC hearing shows


European civil society organisations and citizens helping irregular migrants and refugees are increasingly often punished and stigmatized as a climate of distrust and hostility towards their work is growing, a European Economic and Social Committe (EESC) hearing revealed on 17 May.

Humanitarian assistance is being criminalised largely because the EU legislation in this field is ambiguous and lacks a proper definition of humanitarian assistance.  However, the European Commisison (EC) is reluctant to change it, the participants told the EESC hearing Civil society support for refugees and migrants: decriminalising solidarity and providing humanitarian admission.

"There is a much darker or a shadowed side of helping refugees and migrants and that is the issue of criminalisation of solidarity.  This is something that is not often visible, this is not so much in the media and this needs an action," Mr Pavel Trantina, president of the EESC Section for Employment, Social Affairs and Citizenship said in his opening speech.

The legislation refers to the Facilitation Directive and its Framework Decision, together known as the "Facilitators' Package", which were adopted in 2002 and constitute the backbone of the European policies which combat migrant smuggling and punish the facilitation of unauthorised entry, transit and residence.

The laws contain a "humanitarian clause" which allows the Member States not to impose sanctions on those who assist irregular migrants if their aim is to provide humanitarian assisstance. However, this "humanitarian clause" is optional and what can be qualified as humanitarian assistance is left to the discretion of the Member States.

"This is a seriously charged political concept and the fact that in our legislation we do not have common understanding or a definition of humanitarianism means that this ambiguity is allowed to thrive," said Jennifer Allsopp, a PhD candidate at Oxford University who was the co-author of the study for the European Parliament’s LIBE Committee  on the Facilitation Directive.

Despite numerous calls for a revision of the legal package, the EC concluded the laws were fit-for- purpose and need not be changed, as the findings of an evaluation in March 2017 showed "a serious lack of reliable and comparable data on migrant smuggling offences and criminal justice responses at national and European level."

One case of such offence was presented by a participant in the EESC hearing, Danish activist Mikael Lindholm, himself convicted of smuggling migrants. Together with his wife, a former Danish children's ombudsman, Ms Lisbeth Zornig, Mr Lindholm was found guilty by two Danish courts in a case which received much media attention in Denmark and Europe.

He recalled how his wife took pity at a Syrian family stranded at the Danish border as many migrants reached Europe in September 2015. He said his wife had even asked a policeman if it was alright to give a lift to the refugee family. Mr Lindholm himself called the police to check and the police said "they did not mind", so she took them home. "My crime was to offer coffee and soda and cinammon rolls to a Syrian family with small children and give them a lift to the train station," Mr Lindholm said, adding that the family had been on the run from Damascus for 40 days and were trying to reunite with relatives in Sweden.

A month later the couple were proclaimed guilty of human smuggling and handed a sentence of 14 days in prison or a fine of EUR 3,300. Lindhom now considers seeking justice from the European Court of Human Rights.

Paula Schmid Porras, a lawyer and an adviser to the NGO PROEM-AID, said there were many cases like Lindholm's and questioned the EC's inability to find adequate evidence which would justify a revision of the legislation. "You can easily find at least 15 such cases just by googling," she said, adding the EC has decided to "totally ignore this issue" although some 140,000 signatures were collected by and Social Platform to support the request for decriminalisation of humanitarian assistance.

"The Commission is confused about international law and about human rights that need to be upheld in Europe. All they say is – we don't care at the moment," Ms Porras said.

Agnieszka Sternik, a Policy Officer at DG Home of the EC, told the hearing the Commission had decided that it would be "more efficient to work hand in hand with all the players on the ground and work harder on the implementation of the existing legislation" instead of striving for a common definition of humanitarian assistance. 

But the activists at the hearing said the realities on the ground were confusing and "open to interpretation".

"Ordinary citizens are expected to know these complex matters of law, what they are allowed to do and what they are not," Ms Allsopp said. This, she said, has led people including doctors, landlords and policemen to become cautious, discouraged citizens from volunteering and funders from funding this line of work. Refugees in turn become afraid to access social services.

"There has been a breakdown of social trust," Allsopp concluded. "Precisely because of these laws and this climate, a lot of this work is being put into the shadows and is invisible."