A shared European approach to address migrant smuggling
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 1 October 2024 (27th sitting) (see Doc. 16032, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Lord Simon Russell). Text adopted by the Assembly on
1 October 2024 (27th sitting).See also Recommendation 2283 (2024).
1. Referring to the
Reykjavik
Declaration and the renewed commitment by the heads of
State and government, during the 4th Summit of the Council of Europe,
to fight against the smuggling of migrants, the Parliamentary Assembly
considers that the smuggling of migrants is a transnational criminal
activity that challenges the sovereign right of States to control
their borders and increases the vulnerability of people on the move.
2. The Assembly considers that one of the keys to combating migrant
smuggling is to make the business of smugglers unprofitable and
to increase effective access to safe and legal pathways for labour
migration, family reunion and people seeking international protection.
A State-led approach should aim to regulate and protect human mobility
on the one hand, while enhancing the means dedicated to investigating
and sanctioning organised cross-border criminal groups involved
in the smuggling of migrants, on the other.
3. The Assembly believes that an effective strategy against the
smuggling of migrants should involve a multidisciplinary approach
across competent administrations within and across member States.
Equally, co-operation between source, transit and destination countries
of migration movement should be structured around a response covering
both the criminal and human aspects, aiming to address the drivers
of migrant smuggling through information campaigns and an effective
increase of safe and legal migration pathways, and at the same time
to protect the fundamental rights of people on the move, including
smuggled migrants.
4. The Assembly highlights that migrant smuggling is a transnational
crime and that only through international co-ordination and co-operation
will source, transit and destination countries be able to ensure
that the response to this crime is rooted in the rule of law and
international human rights frameworks, thus allowing for the defence
of both the sovereign right of States to control their borders and
the rights of people on the move.
6. The Assembly considers that any initiatives taken by the Council
of Europe, including through the adoption of a regional instrument
on the issue of migrant smuggling, should not aim to create new
crimes but should instead complement the Smuggling of Migrants Protocol,
facilitating its unambiguous and consistent interpretation in the
light of the challenges faced today.
7. The Assembly recalls that the crime of migrant smuggling is
not equal in nature to irregular border crossing. Moreover, pursuant
to Article 31 of the
United
Nations Convention relating to the Status of Refugees, “States
shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where
their life or freedom was threatened …, enter or are present in
their territory without authorization, provided they present themselves
without delay to the authorities and show good cause for their illegal
entry or presence”. The need for international protection of each
person should be examined in a fair and individualised manner. States
should also not impose penalties on individuals who are coerced
into committing an illegal act pursuant to Article 26 of the Council
of Europe Convention on Action against Trafficking in Human Beings
(
CETS
No. 197).
8. The Assembly highlights that the crime of migrant smuggling
and the crime of trafficking in human beings are different and distinct
in nature. The Assembly warns against conflating these two crimes,
which hinders the ability of States to provide an effective response
and to put an end to these criminal activities.
9. The Assembly notes with concern the lack of consistency in
the legislation of member States aimed at combating the smuggling
of migrants, which can lead to negative human rights consequences.
It recalls that laws or actions relating to migrant smuggling should
never be used to intimidate or criminalise migrants and migrants’
rights defenders. Such practices do not increase the efficiency
of policy action to prevent and tackle the crime of migrant smuggling
and moreover put the rights enshrined in the European Convention
on Human Rights (ETS No. 5, the Convention) at risk, in particular
Articles 3 and 11, for instance when they result in the obstruction
of humanitarian assistance.
10. The Assembly reiterates its view, as expressed in
Resolution 2323 (2020) and
Recommendation 2171 (2020) “Concerted
action against human trafficking and the smuggling of migrants”,
that a Council of Europe instrument would usefully complement the
international standards set in the Smuggling of Migrants Protocol, and
recommends that a strict definition be adopted and transposed into
domestic law by member States with a view to ensuring as much consistency
as possible in the understanding and interpretation of this crime.
Such an instrument should in particular:
10.1 comply with the definition of the crime of migrant smuggling
and the scope of criminalisation as defined in Articles 3 and 6
of the Protocol against the Smuggling of Migrants by Land, Sea and
Air, supplementing the United Nations Convention against Transnational
Organized Crime, including aggravating circumstances;
10.2 acknowledge the heterogeneous profile of people involved
in the perpetration or the facilitation of the crime of migrant
smuggling and the necessity to prosecute perpetrators according
to a proportionate, gradual and nuanced approach to criminal sanctions;
10.3 recall that the “procurement” of illegal entry is not
tantamount to crossing a border irregularly and that the crime of
migrant smuggling necessarily implies that the smuggler is making
a material or non-material profit;
10.4 expressly state that migrants are not the perpetrators
of the crime of smuggling and that reducing or waiving the smuggling
fee in return for facilitating the unauthorised crossing of a border
should not be considered as a criminal act committed by the smuggled
migrant if this was done under coercion or threat, or if they are
found to be in need of a form of protection (refugee, person in
need of humanitarian protection, person at risk of being a victim
of trafficking or victim of trafficking);
10.5 clarify that people in need of protection should never
be criminalised or administratively sanctioned for crossing a border
unauthorised pursuant to Article 31 of the United Nations Convention relating
to the Status of Refugees and Article 26 of the Council of Europe
Convention on Action against Trafficking in Human Beings;
10.6 explicitly exempt humanitarian assistance and any support
to migrants in accessing their fundamental rights from any form
of criminal liability, when such acts are conducted without seeking
any financial benefit;
10.7 clarify that member States are legally bound by the obligation
to protect and safeguard the right to leave any country, including
one’s own, as enshrined in Article 2 of Protocol No. 4 to the Convention for
the Protection of Human Rights and Fundamental Freedoms, securing
certain rights and freedoms other than those already included in
the Convention and in the first protocol thereto (ETS No. 46), and in
Article 12 of the
International
Covenant on Civil and Political Rights.
11. The Assembly recognises the particularly complex challenges
associated with the investigation and sanctioning of migrant smugglers
and strongly recommends that European co-operation efforts be primarily geared
towards the strengthening of criminal justice efforts to address
migrant smuggling in a way that disrupts the criminal organisations
and removes the financial incentive for this crime. In this respect,
the Assembly welcomes the establishment of the Council of Europe
Network of Prosecutors on Migrant Smuggling and the co-operation
between this network and the Focus Group of Prosecutors and Investigative
Judges Fighting Migrant Smuggling of the European Union Agency for
Criminal Justice Cooperation (Eurojust).
12. The Assembly takes note of the particularly dense fabric of
regional and international co-operation initiatives already involved
in supporting member States and their international partners to
combat the smuggling of migrants. It is convinced that such co-operation
would strongly benefit from the engagement of Council of Europe
member States through a jointly agreed definition. The Assembly
suggests that such definition be mainstreamed in the use and monitoring
of standards such as the European Convention on Mutual Assistance
in Criminal Matters and its additional protocols (ETS Nos. 30, 99
and 182); the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data and its amending
protocol (ETS No. 108 and CETS No. 223, “
Convention
108+”); the Criminal Law Convention on Corruption and
Civil Law Convention on Corruption (ETS Nos. 173 and 174); the Convention
on Cybercrime (ETS No. 185); and the Council of Europe Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime and on the Financing of Terrorism (
CETS No. 198).
13. The Assembly stresses the obligation of member States to protect
the fundamental rights of smuggled migrants, including children,
whose vulnerability may be heightened during their passage through
smuggling channels.
13.1 Council
of Europe instruments should be fully used in the context of border
management and migration policies, in particular the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (
ETS
No. 126), the Council of Europe Convention on Action against
Trafficking in Human Beings (CETS No.197), the Council of Europe
Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (
CETS
No. 201) and the Council of Europe Convention on Preventing
and Combating Violence against Women and Domestic Violence (
CETS
No. 210).
13.2 The Assembly reiterates the obligations deriving from
the European Social Charter in its original version (
ETS No. 35)
and the European Convention on the Legal Status of Migrant Workers
(
ETS No. 93),
which provides for the protection of migrant workers who are nationals
of a contracting party, in particular in its Articles 4 and 5. It
also refers to Recommendation
CM/Rec(2022)21 of
the Committee of Ministers to member States on preventing and combating
trafficking in human beings for the purpose of labour exploitation,
and the importance of ensuring that labour inspections are carried
out to ensure that all migrants, including migrant workers, are
treated with dignity.
14. The Assembly stresses the important strategic role of the
European Union. It considers that the harmonisation of norms along
commonly shared human rights standards is paramount, not only for
the sake of coherence between the laws of the European Union member
States, which are also members of the Council of Europe, but also
because of the influence which European Union law exerts on non-European
Union member States, especially in the field of migration and border
management. Moreover, such norms should conform to Council of Europe
standards, and it is paramount that the Council of Europe is proactive
in enhancing co-ordination with the European Union on this front.
15. In the context of the recent proposal by the European Commission
to revise the so-called “Facilitators Package”, the Assembly warns
against the excessively large scope of the crimes falling under
the definition of migrant smuggling contained in the proposed directive
intended to replace
Directive
2002/90/EC of 28 November 2002 defining the facilitation
of unauthorised entry, transit and residence. This definition exacerbates
the risk of inconsistency across European States with regard to
their understanding and interpretation of what the crime of migrant
smuggling should and should not entail.
16. The Assembly endorses the concerns expressed by the European
Data Protection Supervisor on the Proposal for a Regulation on enhancing
police cooperation in relation to the prevention, detection and investigation
of migrant smuggling and trafficking in human beings, and on enhancing
Europol’s support to preventing and combating such crimes and amending
Regulation (EU) 2016/794 (
Opinion
4/2024). It agrees with the supervisor that the proposal
fails to demonstrate its alignment with international data protection
and fundamental rights standards, with a potential to lead to the
adoption of conflicting norms in European Union member States bound
by the Council of Europe norms. The Assembly considers that this
proposal may be premature and touches on policy areas which are
broader than the issue of migrant smuggling. It recommends that
discussions on this piece of legislation be disconnected from the
discussions around the revision of
Directive
2002/90/EC.
