Leiden Law Blog

If immigration is a crime…

If immigration is a crime…

In the course of the last three decades, security and territorial sovereignty concerns have shaped the discussion over immigration in the European Union. The common Schengen borders are being closed up with fences, extended units of border guards and the latest achievements of military technology.

The tool of criminalization is also employed, according to the EU Fundamental Rights Agency (FRA), to counteract irregular migration. In its recently published paper Criminalization of migrants in an irregular situation and of persons engaging with them, the FRA looks into the consequences of these practices on fundamental rights, such as the right to liberty and security of a person,  human dignity, the right to life, the right to an effective remedy, and access to social rights, such as housing.

In all EU Member States (MSs), irregular entry and stay are unlawful and trigger a return procedure, which, according to the Return Directive follows after detention up to 18 months. The FRA found though that in almost all MSs, irregular entry and stay are also criminal offences, punishable separately with custodial sentences and/or fines.
Irregular entry is a crime in all EU countries, with the exception of Malta, Portugal and Spain, while legislation in 25 Member States punishes irregular stay, with the exception of Malta, Portugal and France. While France has modified its legislation to comply with the CJEU rulings in El Didri and Achugbabian, and Belgium is preparing to do the same, the Netherlands recently decided to abandon the consideration of a legislative amendment moving in the opposite direction. The proposed amendment would extend the criminal punishment from those aliens declared ‘undesired’, to all unlawfully residing foreigners.

The sanctions for these crimes amount to fines up to €10,000 (Italy) and up to five years of custodial sentence (Bulgaria). Moreover, criminal sanctions imposed on those facilitating the irregular entry and stay of third country nationals, extend also to those who help migrants by providing humanitarian or legal assistance, or persons who rescue people in distress at sea and landlords renting accommodation (‘solidarity offences’). The maximum fine for facilitating entry and stay, amounting to €78,000, is imposed in the Netherlands, while in the United Kingdom, the offence is punished with up to 14 years imprisonment.

The paper proposes changes to policies against the smuggling of human beings, so that they are applied in a fundamental rights compliant manner. The FRA also finds that the Facilitation Directive, in particular, raises a number of fundamental rights challenges and opens the door for criminalization responses by the MSs that do not provide for exceptions for humanitarian assistance, proposing the rewording of the Directive.
Finally the FRA notes that the use of criminal sanctions as a tool to deter irregular migration goes further than harming only the persons concerned, ‘but also casts a negative light on how society as a whole perceives them’ hinting on the discussion on racism and hate crime.
A separate annex providing an overview of national legislation punishing irregular entry and stay, as well as the facilitation thereof, in each of the 28 MSs can be found here.

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