Pushing Back

The CJEU has pending before it a crucial case on the criminalisation of seeking asylum and assistance to those seeking protection. In Case C-460/23 Kinshasa the referring court asked the CJEU whether the provisions in the EU Facilitators Package and the Italian implementation measures are ‘precluded’ by EU law, to the extent that they criminalise ‘conduct .. carried out on a non-profit-making basis’ ‘without providing, at the same time, an obligation on Member States to exclude from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance to the foreign national.’ The questions referred invoke the EU Charter of Fundamental Rights (including its right to asylum in Article 18) and the principle of proportionality.

While those with the ‘right’ passports can cross Europe’s borders legally and with ease, find work or education, live and thrive, the opposite holds true for those seeking protection.  With the exception of individuals fleeing Ukraine, visa requirements have rendered refugees’ flight to the EU for the most part, irregular.  What is more, refugee flight is increasingly also criminalised. This often includes the criminalisation of entry and stay; various actions related to identity documentation;  and, our focus, the criminalisation of assistance in crossing borders irregularly or staying irregularly.   This criminalisation offends core principles relating to the appropriate role of criminal law, often criminalising blameless and harmless conduct, and sometimes even assistance to asylum-seekers or life-saving actions, such as search and rescue operations at sea.

At this critical juncture, this blogpost highlights a sample of important decisions in which courts, giving effect to constitutional and international legal principles, set legal limits on this criminalisation. These cases reflect not only the appropriate legal limits, but also acknowledge the character of irregular migration and smuggling. Rather than framing individuals as  dangerous illegal migrants and exploitative smugglers, they reassert the humanity of both those in search of refuge and opportunity, and those that assist them.

The Origins of Overcriminalisation

Soon after the international community adopted the Protocol on Smuggling (a protocol to the Convention on Transnational Crime) in 2000, leading refugee law scholar James Hathaway reminded us that smuggling is vital to refugee protection. Historically refugees have often relied on smugglers to escape persecution and war, rendering the Protocol a danger to refugees. Indeed, the drafters of the 1951 Convention on Refugees discussed smuggling in these terms. These drafters included the then UNHCR High Commissioner for Refugees, Gerrit van Heuven Goedhart, who in his previous life as notable Dutch journalist and resistance fighter had been smuggled across Nazi-occupied Europe to safety. The drafters’ response was to include Article 31 which protects refugees from penalisation for their irregular entry and stay subject to certain caveats. Article 31 is central to the protective scheme of the Refugee Convention, but unfortunately poorly understood and often unimplemented, in particular in EU law.

The Smuggling Protocol is best read as targeting only a narrow slice of activity assisting irregular border crossings, namely that for gain and linked to transnational organised crime.  Moreover, the Protocol explicitly states that migrants themselves should not be criminalised (Article 5), and that it should not be used to breach other international law (Article 19), which includes international refugee law.

Despite these limits, the Smuggling Protocol has catalysed a turn to criminalise not only the sorts of actions envisaged under the Protocol, but all assistance to those crossing borders or staying irregularly. The banally-named but deeply impactful EU Facilitators Package in 2002 expanded the notion of ‘facilitation’ well beyond border crossing, to potentially criminalise all assistance to those who stay irregularly. Above all, it did not include the gain/ profit requirement, thus obliging the Member States to criminalise even assistance provided free of charge. It left it to States’ discretion as to  whether or not to provide a ground for exempting humanitarian conduct from liability. As a result, many European states now have legislation on their books that criminalises all sorts of assistance, including acts that are not only not harmful, but often ones that are literally life-saving.

The Canadian Example

A unanimous judgment of the Canadian Supreme Court in R. v. Appulonappa (2015) concluded that criminalizing conduct that was ‘solely humanitarian, mutual or family aid’ was overbroad. The Canadian inquiry into overbreadth has a similar structure to EU law proportionality, starting with an assessment of the ‘object of the impugned law’ and then whether it infringes rights ‘in cases that do not further that object.’ If it does so, then that infringement is not justified.

The Canadian legislation aimed to give effect to the Smuggling Protocol, and prosecution of those with ‘no connection to and no furtherance of organized crime’ was not in keeping with this purpose. The Supreme Court also took into account Article 31 of the Refugee Convention, confirming  that it had to be interpreted to provide immunity to persons who often seek refuge in groups and work together to enter a country illegally, and that the Smuggling Protocol had a “saving clause” to ensure it was not relied on to breach other international provisions (Article 19). As a result, the conclusion was that it would ‘depart from the balance struck in the Smuggling Protocol to allow prosecution for mutual assistance among refugees, family support and reunification, and humanitarian aid.’ The Canadian provisions were thus declared unconstitutional insofar as it permitted ‘prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.’

Developments in Member States

The urgency of providing clear principled limits as a matter of EU law is all the more apparent given the appetite for overcriminalisation in some Member States. Some important rulings have been made by courts across Europe. Here we include a small sample, that illustrate both the constitutional principles relied on and the pressing need for clearer guidance in EU law. While constitutional and legal protection for saving lives is offered, the cases often depend on judicial recognition of underspecified principles, and leave the much uncertainty around the scope of the actions that ought to be legally protected as ‘humanitarian’.

Fraternité

In 2018, the French Conseil Constitutionnel in Herrou invoked the principle of fraternité in the French Constitution, to extend constitutional protection to the offer of assistance to strangers in need, regardless of the legal status of the assisted person. The judgment arose out of the criminal trial of Cédric Herrou, accused of having facilitated the entry, transit and irregular stay of non EU-citizens coming across the Italian border at Ventimiglia. The Conseil held that French legislation did not offer sufficient protection for humanitarian action.  While both the approach and the principle are highly resonant, the judgment did not go so far as to extend the protection to facilitating irregular entry.  Subsequent caselaw illustrates that the law remains highly uncertain, and that prosecutions of those offering humanitarian assistance continue.

Proportionality

In 2022, the Italian Constitutional Court ruled on the national regulation implementing the Facilitators Package.  The factual background is the same underpinning the Kinshasa case and concerns a Congolese woman arrested at Bologna airport while attempting to pass border controls with false documents for herself, her minor daughter and another child travelling with them. The Constitutional Court declared the penalties provided for the offence of facilitating illegal entry, aggravated by the use of false documents and international transport services, were unlawfully disproportionate.  The Court also emphasized the requirement that criminal laws differentiate between different types of actors that may perform the facilitation, in particular between international networks that speculate on the vulnerability of migrants and acts of a solidaristic nature, in respect of which migrants themselves cannot be considered victims, but rather beneficiaries.

Duty to Rescue

In the summer of 2019, Carola Rackete, the shipmaster of a Seawatch rescue ship, was arrested by the Italian border authorities for having docked in the port of Lampedusa carrying about fifty migrants rescued in international waters. Investigations were opened against her for several offences, including facilitating irregular immigration. In 2020, the Italian Court of Cassation recognised that Rackete had acted in fulfilment of the duty to rescue at sea under International Law of the Sea. By acknowledging the shipmaster’s margin to identify a safe port, especially where coastal states do not cooperate, the ruling offers greater protection to shipmasters in light of the life-saving nature of their actions. However, the ongoing trial of the Iuventa crew and other NGOs shows that the criminalisation of search and rescue activities continues in Italy.

The Potential Approach of the ECtHR

This small sample of case law reveals diverse attempts to limit the criminalisation of assistance. However, unlike the Canadian Supreme Court ruling, these decisions often turn on domestic principles, and give little attention to international law. Unfortunately, as yet, we do not have clear guidance from the ECtHR, despite it having considered cases that involved the criminalisation of solidarity. While it did not directly challenge the criminalisation itself, in Mallah v. France, 2011, the Court considered in its proportionality assessment that the applicant had not actually been penalised precisely because of the altruistic nature of his conduct. More recently, the same Court found a violation of Article 2 ECHR regarding the violation of positive obligations to protect the life of a migrant who died while trying to cross a river at the border between Serbia and Hungary (Alhowais v. Hungary, 2023). The implications are to be fully explored, but at a minimum, those positive obligations must have a bearing on the criminalisation of irregular migrants and assistance to vulnerable migrants.

Back to Luxembourg

The CJEU must soon clarify the limits of criminalisation. Its caselaw already shows a willingness to preclude national measures criminalising irregular migration, if they adversely affected the application of other EU measures.   In one of the rule of law infringement cases brought by the Commission against Hungary, the CJEU held that Hungarian laws criminalising assistance to would-be asylum seekers were precluded by EU law on asylum procedures and reception for asylum seekers. Crucially, the Court explicitly considered the ‘very significant deterrent effect’ of the criminal penalties on individuals who would otherwise offer the assistance envisaged under the Procedures Directive (para 98). It also acknowledged that Article 18 of the Charter of Fundamental Rights, the right to asylum, is engaged in these circumstances, and that the deterrent impact of criminal sanctions on private actions may undermine access to asylum.

In the Kinshasa case, the CJEU has an opportunity to draw on both the constitutional principles expressed in the national caselaw we identify, and the principles of international legality.

The reference to the CJEU opens up the proportionality of the smuggling prohibitions, building on arguments developed by legal scholarship on the basis of article 52(1) of the Charter of Fundamental Rights. It provides the CJEU with an opportunity not only to limit overcriminalisation decisively, but also to draw principled limits based on the common constitutional principles of the Member States and pertinent international law.  We urge that the CJEU take note of the Canadian Supreme Court’s ruling in Appulonappa, where the latter took account of the balance struck in international law between supressing irregular migration and enabling access to protection. That balance is reflected in Article 31 of the Refugee Convention and the Smuggling Protocol itself, both of which are binding sources of law for the CJEU in Kinshasa. 

The Appulonappa ruling is directly on point for the CJEU in Kinshasa, and we hope that the CJEU will step up to its constitutional function. Indeed, the EU legal order is even clearer about the role of the Refugee Convention – the EU Treaties affirm that EU asylum policy should be in accordance both with the 1951 Refugee Convention, and the other relevant treaties, such as the European Convention on Human Rights. Article 18 of the Charter refers to the right to asylum to be ‘guaranteed with due respects for the rules in the [Refugee Convention].’ Moreover, the EU is a party to the Smuggling Protocol.  Accordingly, the interpretation adopted in Appulonappa is also fitting as a matter of EU law.

Advice for the EU legislator

At the end of November 2023, the EU Commission published a reform proposal.  The proposal obliges Member States to criminalise  a more clearly delineated range of conduct, namely that carried out for a ‘financial or material benefit’ or that which endangers migrants. However, like the original directive, it does not prevent Member States from overcriminalising, nor does it secure the limitations that are mandatory in international law – the protection that asylum seekers and refugees derive from Article 31 of the Refugee Convention, and the protection in Article 5 of the Smuggling Protocol. Moreover, the stipulations in the proposal are also apt to be transposed and applied in a manner that once again overcriminalises humanitarian conduct, in particular given that no mandatory “humanitarian defence” is provided, and that the ‘for gain’ criterion does not exclude from the scope of criminalisation, for instance, transportation by ordinary means or remunerated legal assistance. Finally, the legislator should consider that criminal law rules with an excessively broad scope of application may be inefficient, as they are unable to select the most serious conduct and thus focus investigative and judicial resources on it.

Conclusion

The Kinshasa judgement is expected this year. As promptly argued by Mitsilegas, the Court could act as a “game changer” in the reform of EU criminal law on facilitating illegal immigration. Indeed, the CJEU has the opportunity to establish clear and principled limits on criminalisation, reasserting the ‘balance’ established in international law, in keeping with the commitments in the EU Treaties and the Charter of Fundamental Rights to respect both the Refugee Convention and the other relevant international treaties, including the Smuggling Protocol itself, to which the EU is itself a party.

The authors thank Anja Bossow and Professor Natasa Mavronicola, Professor of Human Rights Law, University of Birmingham for their most insightful comments.  All errors remain, of course, our own.