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)

Lizan Nijkrake published on 25 March 2019 an excellent piece under the title “Should it be a crime to help illegal immigrants?” She describes how European defenders of migrants are being prosecuted for aiding illegal immigrants. EU states had a choice to exempt humanitarian aid from criminal charges but most didn’t take it. And those who did are not always following the rules.

Take the UK as an example: 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. “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.” 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.

Lizan Nijkrake’s piece gives concrete examples of how the laws and the application in practice are affecting those who try to help.

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, Nijkrake 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 (in Belgium), 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.