4 April 2014

A report published by the EU’s Fundamental Rights Agency (FRA) recommends reforms to the way Member States treat migrants in an irregular situation and persons who assist them.

According to FRA, the EU Facilitation Directive, which requires Member States to impose sanctions on persons who intentionally assist irregular entry, transit or residence of foreign nationals, must be reworded to introduce fundamental rights safeguards. In particular, FRA maintains that the directive fails to stipulate that EU Member States are obligated under international law to assist persons in distress at sea, regardless of their immigration status and that those who do so should not be punished under the directive. Only a quarter of the Member States have national legislation allowing states not to impose sanctions when irregular entry is facilitated for humanitarian purposes.Until the directive is reviewed, FRA recommends that practical guidance must be issued to Member States explicitly precluding punishment for humanitarian assistance at entry and non-profit provision of food, shelter, medical care and legal advice to irregular migrants. In addition, guidance and a revised Directive should ‘make clear that renting accommodation to migrants in an irregular situation without the intention to prevent the migrant’s removal should not be considered facilitation of stay’.

The criminal legislation on facilitation of irregular migrants does not expressly require for prosecution a motive of profit in 24 Member States with respect to entry, and 13 Member States with respect to stay. In Spain, the fine for facilitating irregular stay, if motivated by profit, is up to 100,000 Euro and, in the UK, facilitating entry and stay is punishable by up to 14 years imprisonment. Cyprus, Denmark, Estonia, Greece, and Lithuania have legislation explicitly punishing landlords for leasing accommodation to irregular migrants.

The report also underlines that as required by case law of the Court of Justice of the European Union, irregular migrants who are or should be subject to the EU Returns Directive must not additionally be at risk of imprisonment as a criminal sanction for irregular entry or stay. Currently, imprisonment is a possible punishment for irregular entry in 17 Member States and irregular stay in 10 Member States. For example, irregular entry in Bulgaria can result in 5 years imprisonment, and irregular stay is punishable by up to 3 years imprisonment in Cyprus.

In accordance with Article 31 of the Refugee Convention and the right to asylum in Article 18 of the Charter of Fundamental Rights of the EU, FRA also calls on EU Member States to explicitly provide in domestic law that migrants entering irregularly who come directly from a country where their life or freedom was threatened must not be subject to penalties.

In order not to discourage migrants who are victims of exploitation and abuse from reporting crimes, FRA recommends that these victims should be given a residence permit independent of the perpetrator, whether an exploitative employer or abusive family member. FRA also expresses concern for irregular migrants who, fearing detection, refrain from seeking medical care, registering the birth of their children, and sending their children to school.

This article originally appeared in the ECRE Weekly Bulletin of 4 April 2014
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