Justice and Home Affairs Council, 28-29 May 2001
01 May 2001
The Justice and Home Affairs Council in Brussels at the end of May had before it four proposals put forward by the French Presidency in July 2000 on "illegal" immigration and migrants rights (see Statewatch, vol 10 no 3/4).
Carriers liability
This draft Directive was discussed in the Mixed Committee (the JHA Council plus Norway and Iceland, re Schengen arrangements). The press release of the meeting simply concentrates on the financial sanctions not the implications for asylum-seekers and refugees. The "harmonised" financial penalties are to be either a maximum of at least 5,000 euros or 3,000 euros (minimum) or a maximum lump sum of 500,000 euros (over £300,000). The sanctions will apply to carriers who transport any person who does not have a visa or other travel documents. The effect will be an obligation to return migrants to the country from which they came or their country of origin from which they are fleeing.
Amnesty International said that any sanctions should not deny asylum-seekers their rights to proper asylum procedures and that "carriers' employees should not be asked to perform duties of the state in recognising who is entitled to protection under international and national law". Statewatch observed on the proposal: "The carrier sanctions Directive will force even more asylum-seekers to have recourse to illegal means if they want to enter the Community". The measure was formally adopted on 28 June at the Telecommunications Council with the title of "Council Directive supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985".
Facilitation of unauthorised entry and residence
The Council reached "political agreement" on the text of a draft Directive defining those who "facilitate" the "unauthorised entry and residence" or "illegal employment" of migrants whose presence in the EU is not authorised. Such actions are to be viewed as a serious criminal offence covered by a draft Framework decision with a maximum sentence of not less than eight years if financial gain is involved and "not less than six years" in other situations.
While there has been substantial opposition to this proposal from civil society groups the only problem for the Council was the proposal to insert a clause to protect those helping migrants for "humanitarian" reasons. This was opposed by Austria and the result is that EU states may decide not to impose criminal sanctions where the "faciltation" is for humanitarian motives.
Member states have to provide for serious criminal sanctions for "any person who intentionally assists or tries to assist" a person who is not a national of a Member state to enter or transit and "any person" for "financial gain" who does the same. These criminal sanctions will also apply to "any person who is the accomplice of the instigator of any conduct as referred to".
Groups and organisations helping migrants could be fined and staff jailed as could family members.
Amnesty International said: "Measures intended to stop those who smuggle human beings in breach of immigration laws should not have the consequence of preventing asylum-seekers from finding safety and criminalise those who assist them in doing so".
Mutual recognition of expulsion orders
The Council adopted, as an "A" point without debate, a Directive on "the mutual recognition of decisions on the expulsion of third-country-nationals". An expulsion order from the EU issued by one member state has to be recognised by another member state in many cases if the person has been issued with a residence permit. The grounds are very general and the standards very low and are: a) if the third country national has been issued with an expulsion order based on being "a serious and present threat to public order or to national security and safety" but the standard is simply that they have been convicted of an offence carrying just one year in prison or "there are serious grounds for beli