Europeans are being prosecuted for aiding illegal immigrants. EU states had a choice to exempt humanitarian aid from criminal charges. Most didn’t take it.

immigrants
An African at a temporary camp for immigrants seeking entry to Europe, in Melilla (Spanish autonomous city in North Africa), 12 October 2005 (EPA/Chema Moya)

By Lizan Nijkrake

In the fall of 2017, Anouk van Gestel, editor-in-chief of the Belgian magazine Marie-Claire, was awakened one morning by banging on her front door.

It was the federal police. Seven armed cops burst in. They searched her house for two hours and gathered her computers, phones and notebooks.

It wasn’t until her friend, journalist Myriam Berghe, called that Van Gestel understood what was going on. Berghe’s house, too, had been raided. They are both members of a citizens’ initiative called Solidarity is Not a Crime. Its members pick up migrants from a Brussels park and offer them an overnight stay.

Van Gestel, Berghe and 10 others were charged with the human trafficking of 95 people and involvement in a criminal organization. They were acquitted at trial last November, but the public prosecutor has appealed the decision.

Van Gestel and Berghe’s case is not an isolated event.

‘Things escalated in 2018.’

The United Kingdom’s Institute for Race Relations, which has been tracking criminal cases, reported that 81 people were prosecuted for assisting immigrants in 2018, compared with 20 in 2017.

One of the cases is that of Elin Ersson, a Swedish student whose 15-minute protest on a Turkish Airlines flight to prevent the deportation of a man to Afghanistan went viral. Ersson has been charged with violating the Swedish aviation act.

“Things escalated in 2018,” says Anya Edmond-Pettitt, a researcher at the Institute of Race Relations. “People got charged with serious crimes, linked to terrorism and membership of a criminal organization.”

Why is this happening?

In 2002, the EU adopted a directive that requires all EU member states to impose sanctions on citizens who intentionally help illegal immigrants secure unauthorized entry into, transit across or residence within in the EU — thus making it illegal to offer aid in the form of free rides or overnight stays.

The directive says its objective is to “combat the aiding of illegal immigration” to further the EU’s goal of creating “an area of freedom, security and justice.”

“The EU rules are clear cut,” according to the European Commission’s Migration and Home Affairs. The European Commission is the main law-making body of the EU in this matter, and it has set out minimum rules for sanctions.

Criminalizing free sleepovers

But in a study for the European Parliament, the Centre for European Policy Studies (CEPS), a Brussels-based think tank, concluded that the EU rules are not in line with the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air.

The UN protocol stipulates that assisting a migrant can be a crime only when there is a clear aim of making money or other material gains.

While the EU directive says offering overnight stays is illegal only if it is done for profit, CEPS reported last December  that 13 out of 28 member states have criminalized free sleepovers. Out of 28 EU countries, CEPS says that only four have laws that adhere fully to UN protocol: Germany, Ireland, Luxembourg and Portugal.

The EU directive allows member states to exempt individuals from sanctions for helping illegal immigrants enter or move across EU territory if done for reasons of “humanitarian assistance,” such as giving food, shelter and first aid to people in need. Nine member states have included some types of exemption in their national laws, according to the European Commission.

But the CEPS said states should be required to make such an exception. “And even in the European nations that have exempted humanitarian acts, we still see prosecutions happening, for example in Italy,” said CEPS researcher Lina Vosyliūtė.

‘We’re watching you.’

The laws can have far-reaching implications.

“It’s hard to find families willing to join our project,” said Sophie Djigo, founder of Migraction59, a group that organizes weekend stays with French families for migrants who are stuck in the refugee camps of Calais, France. “People don’t know how far they can go in helping immigrants.”

Djigo continued: “Let’s say the refugees help me clean the table after dinner and work in my garden. With bad intent, that could be interpreted as smuggling because I’m helping migrants and I get something in exchange. It’s important that refugees are protected by anti-smuggling rules, but it illustrates the difficulty of our work.”

In most cases, there is a slow lead-up to the laying of criminal charges.

“There’s almost always an escalation,” Vosyliūtė said. “First there’s suspicion, intimidation, harassment. Then some kind of sanction that seems far-fetched, for example police saying it’s not allowed to provide food to refugees on the basis of food hygiene norms. Then maybe after that, there will be actual prosecution for aiding immigrants.”

Djigo says she now finds herself in the intimidation phase: “Every two or three months, I get a call from the state police telling me, ‘We’re watching you.’ That’s it, nothing else.”

A citizens’ petition calling for policy reform

Vosyliūtė said EU member states often violate human rights by moving to prosecution.

“EU states must protect the right to life and ban inhuman and degrading treatment. Their citizens have the right to critically check the government, whether it’s upholding the rule of law. People have got a right to speak out and assemble.”

In the UN Declaration on Human Rights Defenders, EU countries promised to recognize human rights activists and protect them.

But no change is expected any time soon.

The European Commission has consistently said there’s no need to change the law.

In early 2018, it wrote that it should be left to judges in the countries themselves to decide on a case-by-case basis whether or not to prosecute citizens. It has noted that few people have been convicted.

While most of those charged have been acquitted, in the case involving Van Gestel and Berghe, seven of the defendants were convicted and given suspended sentences of 12 to 24 months.

More than 170 organizations have launched an initiative, “We are a welcoming Europe – let us help!” (#WelcomingEurope), with the goal of securing a million signatures on a citizens’ petition that calls for migration policy reforms, including the decriminalization of deeds of solidarity.

QUESTIONS TO CONSIDER:

  1. Why is it a criminal offence to provide humanitarian aid to illegal immigrants in some EU states but not others?
  2. On what moral and legal grounds is a prohibition on aiding illegal immigrants problematic? Why do you think the EU enacted this law? Do you think there are good justifications for it?
  3. In what ways could EU citizens challenge this law?

LizanLizan Nijkrake is a journalist and former diplomat who is based in Amsterdam. She is a fellow in global journalism at the Munk School of Global Affairs at the University of Toronto — and covers international affairs, human rights and (im)migration, with a focus on Europe.

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Should it be a crime to help illegal immigrants?

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