The European Union (EU) Council is moving towards more stringent migration policies, focusing on criminalizing irregular migration. The latest example of this shift is the draft amending the 2002 directive on aiding and abetting irregular migration, leaked from the EU Council. This text intensifies the criminalization of those who enter, transit, or stay illegally in any of the 27 member countries and those who offer them support and solidarity.
The Belgian rotating presidency, which ended on June 30, handed over a particularly restrictive amendment proposal to the Hungarian presidency. This proposal, first dated May 31, would exclude the element of “financial benefits” in identifying those guilty of aiding and abetting illegal migration. This means national authorities could prosecute anyone suspected of aiding and abetting illegal migration, regardless of financial gain. The proposal retains the “material and financial benefit” element only for facilitating illegal stays, with existing criminal sanctions of up to one year in prison.
For facilitating illegal entry and transit, the proposed amendments extend criminal sanctions even without financial or material gain. Financial or material benefit would instead be an aggravating circumstance, punishable by up to three years in prison. Marta Gionco, Senior Advocacy Officer of the Picum network of NGOs, criticized the proposal, saying it moves towards more criminalization of migrants and those who help them.
To mitigate the harshness of criminalizing humanitarian activities, the Belgian presidency proposed two options. The first would exclude humanitarian assistance aimed at meeting basic human needs from being a crime. The second option would require member states to ensure that humanitarian assistance is not considered a crime. However, there is a risk that national authorities might narrowly interpret “basic human needs,” limiting acts of solidarity to providing food, hygiene, and shelter to maintain physical or mental health.
Additionally, member states are pushing for a restrictive definition of “close family members” to include only spouses or unmarried partners in stable relationships, parents, children, and siblings. The Belgian presidency added an amendment to consider special circumstances of dependency and children’s best interests, but “close family members” are only exempt from criminalization to meet basic human needs.
The 27 member states seem to reject the EU Commission’s proposal to criminalize public incitement of third-country nationals to enter, transit, or stay illegally. This move is to avoid indiscriminate use against civil society organizations providing information and services to migrants. This issue will need close monitoring as it intersects with the concept of instrumentalization of migration and the increasingly restrictive border policies supported by Brussels.
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