Anti-Smuggling Legislation and Migrant Rights

In a worrying development the EU recently approved plans to establish a naval force to combat people-smugglers facilitating migration from the Middle-East and North Africa to Europe. Much in line with the mandate adopted by EU Ministers to quash Somali piracy in the Indian Ocean, the new naval force will have authority to destroy the ‘networks’ which give rise to migrants putting to sea in search of what they perceive to be better life opportunities in Europe.

Whilst no one doubts the prevalence of unscrupulous criminal networks capitalising on the hardships suffered by migrants, it is right to consider what academic commentators specialising in the field of slavery and migration have argued, namely that there is a need to disambiguate the terms ‘human-smuggling’ and ‘human-trafficking’ for fear of conflating two very different unlawful acts. The former represents a diminutive version of the latter and is distinguished by its non-pecuniary and humanitarian motives. The danger of such a conflation is that we risk treating those on the one hand who traffic people by force, for vast financial gain, and in cruel, degrading, and inhuman conditions with those on the other hand who assist people on humanitarian grounds to find a better way of life.

The plans raise further worries not only for the potential ‘collateral damage’ that may ensue as a consequence of military action, or for what will happen to the stranded migrants in places such as Libya, but also because this signifies an escalation in an already hard-line approach the EU adopts with respect to assisting unlawful migration into Europe on humanitarian grounds.

Article 1(1) of Council Directive 2002/90/ECEU sets out the scope of the general infringement where anti-smuggling legislation is concerned. It requires each Member State to adopt appropriate sanctions with respect to “any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned”. Article 1(2) provides Member States with a discretionary power with regard to the behaviour defined in Article 1(1) “where the aim of the behaviour is to provide humanitarian assistance to the person concerned.” The fact that this is a discretionary and not mandatory provision within the Directive is a particular point of concern.

The UK gives effect to Council Directive 2002/90/ECEU through s25 of the Immigration Act 1971. A person guilty of an offence under this section could face a maximum prison term of 14 years. S25A(3) of the Act sets out a defence on grounds of humanitarian assistance, but this only applies to persons acting on behalf of organisations and is limited to the UK only i.e. other Member States may not exercise this discretion in favour of humanitarian actors. It is quite conceivable therefore that a British citizen, who acts in a private capacity, renders assistance to migrants in distress at sea and takes them to a place of safety in Europe, could be charged with assisting unlawful migration under s25 of the Immigration Act 1971.

As we know, there is a state delegated duty upon masters of vessels to render assistance to anyone in distress at sea, regardless of their status or nationality. However, EU anti-smuggling legislation has in some cases deterred masters from fulfilling this requirement. Fearing that they will be held individually criminally responsible for assisting with unlawful migration, anecdotal accounts of masters breaching their duty to render assistance to migrants in distress have been disturbingly high, in turn violating the human rights of migrants seeking to enter Europe often in need of international protection.

Italy exercised its discretionary power in an unfavourable light when it prosecuted the master of a German flagged vessel operating under the auspices of the non-governmental organisation, Cap Anamur, on grounds of assisting unlawful migration (Cap Anamur, Tribunale di Agrigento, I Sezione Penale, I Collegio, 954/2009). Prevented from entering Italian territorial waters having rescued migrants in distress in the Mediterranean and in urgent need of food and water re-supplies, the vessel subsequently entered the Italian Port of Empedocle without authorisation. This act led to a lengthy trial which, although resulted in the accused’s eventual acquittal, acted as a clear deterrent to other would-be humanitarian actors.

The approach the EU adopts with respect to migration in the Mediterranean risks undermining the very system of rights and fundamental freedoms put in place to divine the future of Europe post-World War Two. Now is not the time to re-assess this system and dilute its effect through knee-jerk policy implementation. On the contrary, now is the time to celebrate the lessons history has taught us and put in place measured plans which are both practical in effect and steadfastly fair and humane in nature.

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