STUDY Requested by the PETI committee Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 Update Policy Department for Citizens' Rights and Constitutional Affairs Directorate General for Internal Policies of the Union EN PE 608.838 - December 2018 Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 update STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, aims to update the 2016 study “Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants”. It takes stock of and examines the latest developments that have taken place since 2016, specifically the legislative and policy changes, along with various forms and cases of criminalisation of humanitarian actors, migrants’ family members and basic service providers. The study uses the notion of ‘policing humanitarianism’ to describe not only cases of formal prosecution and sentencing in criminal justice procedures, but also wider dynamics of suspicion, intimidation, harassment and disciplining in five selected Member States – Belgium, France, Greece, Hungary and Italy. Policing humanitarianism negatively affects EU citizens’ rights – such as the freedom of assembly, freedom of speech and freedom of conscience. When civil society is effectively (self-)silenced and its accountability role undermined, policies to combat migrant smuggling may be overused and give rise to serious breaches of the EU’s founding values, notably the rule of law, democracy and fundamental rights. Moreover, policing humanitarianism negatively affects wider societal trust and diverts the limited resources of law enforcement from investigating more serious crimes. ABOUT THE PUBLICATION This research paper was requested by the European Parliament’s Committee on Petitions and was commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Ottavio MARZOCCHI Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHORS Sergio CARRERA (scientific coordinator), CEPS and the Migration Policy Centre – European University Institute Lina VOSYLIUTE, CEPS Stephanie SMIALOWSKI, CEPS Dr Jennifer ALLSOPP, Postdoctoral Research Fellow, Migration Leadership Team, London International Development Centre, SOAS University of London Gabriella SANCHEZ, Migration Policy Centre – European University Institute The media monitoring has been conducted in cooperation with Michele Levoy, Elisabeth Schmidt-Hieber, Kadri Soova from the Platform for International Cooperation on Undocumented Migrants (PICUM). The authors would like to thank editors, namely, Kathleen King, Lee Gillete and Hugh Barton-Smith. LINGUISTIC VERSION Original: EN Manuscript completed in December 2018 © European Union, 2018 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. 2 Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 update ____________________________________________________________________________________________ CONTENTS LIST OF FIGURES 6 LIST OF TABLES 6 LIST OF BOXES 6 ABBREVIATIONS 7 EXECUTIVE SUMMARY 9 1. INTRODUCTION 21 1.1 Aims, objectives and research questions 21 1.1.1 Aims 21 1.1.2 Objectives 21 1.1.3 Research questions 21 1.2 Our approach, scope and definitions 22 1.2.1 Our approach 22 1.2.2 Definitions 23 1.2.3 Scope 25 1.3 Methodology 26 1.3.1 Desk research 26 1.3.2 Media monitoring 26 1.3.3 Compilation of civil society reports and academic research 26 2. LATEST POLICY DEVELOPMENTS ON THE FACILITATORS’ PACKAGE 27 2.1 REFIT conclusions in light of the latest studies: A missed opportunity 27 2.1.1 Key challenges identified in the legal framing of the Facilitators’ Package 28 2.1.2 Heterogeneous implementation by Member States 36 2.1.3 Key impacts evidenced in practice 42 2.1.4 Comparison of conclusions and recommendations 46 2.2 EU citizens’ concerns reaching EU institutions 48 2.2.1 Petition 1247/2016 48 2.2.2 European Citizens’ Initiative: “We are a welcoming Europe” 52 2.3 The European Parliament’s concerns and objections 53 2.3.1 Objections by the European Parliament to the Facilitators’ Package from the very beginning 53 2.3.2 Calls from the European Parliament for the exemption of humanitarian assistance 57 3. POLICING CIVIL SOCIETY ACTORS: LEGAL/POLICY CHANGES IN EU MEMBER STATES AND CASES OF CRIMINALISING HUMANITARIAN ASSISTANCE AND SOLIDARITY 59 3 Policy Department for Citizens’ Rights and Constitutional Affairs ____________________________________________________________________________________________ 3.1 Legal and policy changes targeting CSAs providing assistance to asylum seekers and undocumented migrants 59 3.1.1 Hungary: Policing CSAs 60 3.1.2 Belgium: Policies and laws stirring suspicion, intimidation and harassment 65 3.1.3 France: Repressive policies towards migrants in transit that create a hostile environment for CSAs 66 3.1.4 Italy: Policing CSAs conducting SAR activities in Italy – suspicion, intimidation, disciplining and criminalisation 67 3.1.5 Greece: Policing SAR CSAs and those working in hotspots 68 3.2 Policing civil society conducting SAR activities 69 3.2.1 Lack of a holistic approach to challenges in the Central Mediterranean: Why SAR NGOs entered the scene 69 3.2.2 Suspicion: A shift in approach towards SAR NGOs – from ‘helpers’ to potential ‘smugglers’70 3.2.3 Formal criminalisation of SAR NGOs 72 3.3 Policing CSAs in the areas of first arrival, transit, stay and residence 80 3.3.1 France: Prosecuting and disciplining individuals, volunteers and activists 80 3.3.2 Belgium: From suspicion to prosecution of individual volunteers 82 3.3.3 Intimidation and harassment of CSAs in places of transit and residence 83 4. ‘CRISIS’ IN THE MAKING: UNINTENDED IMPACTS AND UNRESOLVED CHALLENGES 88 4.1 Impacts on the rule of law and fundamental rights 88 4.1.1 Rule of law and democracy 88 4.1.2 Fundamental rights: Freedom of assembly and freedom of speech 89 4.2 Impacts on societal trust 92 4.3 Other unintended societal and individual impacts of migrant smuggling 96 4.3.1 EU policy-making in ‘crisis’ mode and unchallenged assumptions about the migrant smuggling phenomenon 96 4.3.2 Impacts of criminalisation on refugees, other migrants and family members 100 4.3.3 Impacts of combating migrant smuggling on women and children 103 4.3.4 Impacts on third countries: Criminalisation dynamics creating more criminals 105 5. CONCLUSIONS AND RECOMMENDATIONS 106 5.1 Conclusions 106 5.1.1 The Facilitators’ Package is a bad law 106 5.1.2 Current application of the Facilitators’ Package in some Member States infringes civil society’s free space and other rights of EU citizens 106 5.1.3 The policing of CSAs challenges EU founding values 107 5.1.4 SAR NGOs are scapegoated for the lack of a holistic approach and solidarity among Member States 107 5.1.5 Anti-smuggling policies and actions have counterproductive effects in the EU and third countries 108 4 Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants: 2018 update ____________________________________________________________________________________________ 5.2 Recommendations 109 5.2.1 What should be investigated and prosecuted? 109 5.2.2 What should not be criminalised? 110 5.2.3 How should it be monitored? 110 5.2.4 How should the status quo be assessed and sanctioned? 111 5.2.5 What should be the alternatives to prevent migrant smuggling? 111 6. REFERENCES 113 ANNEX 1. MEDIA MONITORING COMPILATION 125 ANNEX 2. COMPILATION OF NEW EVIDENCE: CIVIL SOCIETY REPORTS AND ACADEMIC RESEARCH 165 ANNEX 3. REFIT PUBLIC CONSULTATION: SELECTED QUESTIONS 175 ANNEX 4. EU AGENCY FOR FUNDAMENTAL RIGHTS: OVERVIEW OF NGO SHIPS INVOLVED IN SEARCH AND RESCUE IN THE MEDITERRANEAN AND UNDER CRIMINAL INVESTIGATION 178 5 Policy Department for Citizens’ Rights and Constitutional Affairs ____________________________________________________________________________________________ LIST OF FIGURES Figure 1. Dynamics of policing CSAs (shown in the centre) and contextual factors .......................................................... 23 Figure 2. Monthly sea arrivals via the Mediterranean Sea, 2015–18 ......................................................................................... 69 Figure 3. Monthly comparison between the rescue operations performed by NGOs and those initiated via satellite