Joint Statement: The EU must stop the criminalisation of solidarity with migrants and refugees

PRESS RELEASE

OVER 100 ORGANISATIONSCALL VON DER LEYEN TO STOP CRIMINALISATION OF SOLIDARITY WITH MIGRANTS

Over 100independent organisations are calling the new European Commission to stop thecriminalisation of solidarity with migrants in Europe in a joint statementpublished today.

Theorganisations are calling the European Commission and its newly elected headUrsula Von der Leyen to reform the EU Facilitation Directive, which currentlyallows Member States to criminalise humanitarian aid.

Inparticular, the signatories wrote:

“Most investigations and formal prosecutionsare related to the vague definition of crime in the EU Facilitation Directivewhich fails to properly distinguish between human smuggling and humanitarianwork. But the European Commission has been reluctant to consider the linksbetween the EU Facilitation Directive and the criminalisation of solidarity”

Thestatement also refers to a recent study by the European research platformReSOMA which found at least 158 Europeans have been criminalised for their helptowards migrants since 2015.

Thesignatories wrote:

“The targets include volunteers, activists,NGOs, crew members of rescue ships, migrants’ family members, and alsojournalists, mayors and priests. The recent arrest of the Sea Watch 3 captain,Carola Rackete, is just the latest example of how people are being blamed forsaving migrants’ lives and providing the humanitarian assistance which MemberStates are unwilling or unable to provide, despite being obliged to accordingto international and EU law.”

ENDS

Notes to the editors:

· The signatories to the jointstatement include organisations working for human rights and humanitarian aid.

· The full list of signatories isavailable in the joint statement below.

Press contacts:

· For information about the joint statement and the history ofcriminalisation of solidarity in Europe, please get in touch with GianlucaCesaro at gianluca.cesaro@picum.org or at +32 488 60 76 21.

· For information about thejoint statement and the ReSOMA research, please get in touch with Hind Sharifat hsharif@migpolgroup.com or at 02 230 59 30 and Lina Vosyliūtė at lina.vosyliute@ceps.eu.

Joint Statement:

The EU must stop thecriminalisation of solidarity with migrants and refugees

Brussels, 26.07.2019 - The criminalisation of solidarityin Europe is soaring. Researchers and civil society have identified at least 49ongoing cases of investigation and criminal prosecution in 11 Member Statesinvolving a total of 158 people in a recent study by the European research platform ReSOMA. The number of individualscriminalised for humanitarian activities has grown tenfold, from 10 people in2015 to 104 in 2018.

Thetargets include volunteers, activists, NGOs, crew members of rescue ships,migrants’ family members, and also journalists, mayors and priests. The recent arrest of the Sea Watch 3 captain, Carola Rackete, is just thelatest example of how people are being blamed for saving migrants’ lives andproviding the humanitarian assistance which Member States are unwilling orunable to provide, despite being obliged to according to international and EUlaw.

Independentjudges have found no sound evidence for convictions in most of these cases. This suggests thatprosecutions are often being politically used to deter solidarity and create ahostile environment for migrants. Policing solidarity further involves suspicion, intimidation, harassment and disciplining against civil society, withlong-term consequences for the rule of law, democratic accountability, socialcohesion, freedom of association and fundamental rights in the EU. Thesemisguided investigations fuel the negative image of migrants as criminals andperpetuate the perception of chaos at Europe’s borders.

Criminalisingsolidarity also distracts the public from the real issues in EU migration andasylum policies:

· lackof protected entry and regular migration channels,

· inadequatereception conditions,

· violationsof international obligations in Search and Rescue operations,

· pullbacksto Libya and other EU neighbouring countries as well as pushbacks amongstMember States, and

· lackof clear agreements on disembarkation arrangements.

Mostinvestigations and formal prosecutions are related to the vague definition ofcrime in the EU Facilitation Directive which fails to properly distinguishbetween human smuggling and humanitarian work. But the European Commission hasbeen reluctant to consider the links between the EU Facilitation Directive andthe criminalisation of solidarity as well as the compliance of the EU’s anti-smugglingpolicies with the EU Charter of Fundamental Rights[1]. In addition, the EUprotects human rights defenders abroad but fails to protect people acting insolidarity with migrants within its own borders.[2]

TheEU institutions and Member States must put an end to the criminalisation ofpeople and organisations supporting those in need. To end the criminalisationof solidarity, we recommend:

TheEuropean Union institutions to:

· Revisethe EU Facilitation Directive by clearly defining migrant smuggling, in linewith the UN Migrant Smuggling Protocol, that requires criminal intent, such as‘financial or other material benefit’ or unjust enrichment. The new directiveshall not allow the criminalisation of humanitarian actors, by making the humanitarianexemption clause mandatory for the Member States.

· Monitorearly signs of policing of solidarity, before it leads to the criminalisationof humanitarian actors. Such monitoring could be carried out by an independentobservatory linked to the proposed EU Rule of Law Mechanism, and throughparliamentary investigations. The monitoring should not only include criminalconvictions but also all cases of criminal investigations as well as ongoingharassment and targeting of human rights defenders of migrants.

· Setup an EU proactive search and rescue mission to address the gaps inhumanitarian protection of people on the high seas.

· Adoptguidelines on the respect for the fundamental rights of human rights defendersand humanitarian actors in the fight against smuggling and other border controloperations. Such guidance should introduce the principle of a ‘firewall’ inorder to clearly separate immigration enforcement and civil society andprofessional mandates (including the role played by health, educational,social, legal actors, as well as labour inspectors and law enforcementauthorities).

· DedicateEU funding to strategic litigation and support of human rights defenders inEurope, with specific support to civil society in EU Member States experiencingrule-of-law backsliding.

MemberStates to:

· Stop interference with humanitarian SAR missions.

· Ensure that social and health service providers, law enforcement (police) andlabour inspectors are not required to collect and share information withimmigration authorities, based on the principle of a ‘firewall’.

TheEuropean Union and its Member States to:

· Promote a conducive environment to humanitarianassistance and solidarity towards migrants. Remove restrictions to civil society’sspace and prevent violations of the rights of human rights defenders, includingsmear campaigns, threats and attacks against them, and other attempts to hindertheir work.

· Broaden and facilitate direct access to EU fundingfor civil society under the EU Multiannual Financial Framework for 2021-27,including for humanitarian assistance provided to undocumented migrants and foractions promoting EU values and the rule of law.

· Adopt and implement balanced EU migration policiesthat include safe and regular pathways to Europe, including resettlementschemes, complementary pathways such as humanitarian visas and work permitschemes, and labour migration schemes grounded in the decent work principlesand across skills levels that would contribute to the reduction of humansmuggling and trafficking.

*If you wish to addyour signature to the statement, please write to: marta.gionco[at]picum.org*

[1] All people and civil society organisations have the right to conscientiousobjection (Article 10), freedom of expression (Article 11), freedom ofassociation (Article 12) and right to justice (Article 47-50). Humanitarianactors have the right to provide assistance, on land and at sea, especiallywhen Member States fail to guarantee [migrants’] right to life (Article 2) andtheir effective right to asylum (Article 18) and fail to protect them fromtorture and inhuman or degrading treatment (Articles 4 and 19), forced labourand trafficking (Article 5). The right to humanitarian assistance cannot bedenied to people forced to live in destitute conditions that violate theirhuman dignity (Article 1), without adequate accommodation or access to basicservices such as running water, electricity, heating, social assistance(Article 34) or health care (Article 35). Nor can assistance be denied topeople facing violations of their basic rights as a family (Article 7), a child(Article 24), an elderly person (Article 25) or a person with disabilities(Article 26). Finally, EU citizens have the fundamental right to goodadministration (Article 41), which entails a responsibility for the EUinstitutions to issue clear legislation and guidance that protects the work ofhuman rights defenders and humanitarian actors.

[2] The EU Guidelines on Human Rights Defenders setout “that the activities of Human Rights Defenders have over the years becomemore recognised. They have increasingly come to ensure greater protection forthe victims of violations. However, this progress has been achieved at a highprice: the defenders themselves have increasingly become targets of attacks andtheir rights are violated in many countries. The EU believes it is important toensure the safety and protect the rights of human rights defenders”.

1. Association Européenne pour la défense des droits del’Homme, AEDH

2. Association promotion droits humains, APDH

3. Caritas Europa

4. Emmaus Europe

5. Eurodiaconia

6. European AIDS Treatment Group

7. European Federation of National Organisations Workingwith the Homeless,FEANTSA

8. European Network of Migrant Women, ENoMW

9. FIDH, in the context of the Observatory for theProtection of Human Rights Defenders

10. Fondation Assemblée des Citoyens et Citoyennes de la Méditerranée, FACM

11. Instrategies - Inclusive Strategies

12. International Detention Coalition

13. International Rescue Committe

14. Jesuit Refugee Service (JRS) Europe

15. Migration Policy Group,