New twist in the EU’s restrictive migration policy. The Ministers of Justice have given the green light, with Spain voting against, to a proposal for a directive that makes it easier for Member States to criminally punish anyone who helps migrants for humanitarian reasons to enter Union territory. That is, countries that decide to do so will be able to sanction both NGOs that rescue migrants at sea and smugglers in a human trafficking network. What was approved this Friday is not definitive because it was a position of the Council of the EU to negotiate with the European Parliament, so this wording could still be softened. However, in a European Chamber in which ultra positions have gained ground after the last elections, this will be more difficult.
The change that has been approved, in essence, is more symbolic than real, as the Spanish delegation points out. The current directive, approved in 2002, already left the door open to punish humanitarian aid, because the current clause in that norm does not clearly specify that it is not a crime. And, in fact, it has already been with this norm that NGOs have been criminalized. However, in the wording proposed by the Hungarian presidency for the directive against illicit human trafficking, the name of the norm, and supported by the majority of countries, this clause is not included in the articles. Only in the explanatory memorandum does it indicate that countries are not obliged to penalize humanitarian aid.
This, for Spain, was a problem for several reasons. One is that since it is a directive, it actually sets a minimum threshold for sanctions and, therefore, opens the door to establishing new typologies. Furthermore, it must be taken into account that the definition of what is humanitarian aid and what is not is subject to different interpretations. The directive draws the line between humanitarian aid and human trafficking in whether or not there is a profit motive, but as negotiation sources explain, what happens when, for example, an NGO hires a boat to rescue migrants?
Another problem is that it is not the same that the humanitarian clause is in the articles of a law than in the explanatory memorandum. The logical thing is that it is only binding when it is in the articles. Therefore, it may be that at some point it could be interpreted that the transposition into national laws is not well done if it does not contemplate this crime, something that Spain does not intend to do. Germany and Portugal have also expressed their concern in the debate about the confusion that this may generate, but they have limited themselves to asking for clarification and not voting against.
“There is a campaign against non-governmental organizations led by the extreme right at the European level with the sole objective of promoting a xenophobic discourse that favors these parties electorally,” the Spanish Ministry of Justice has pointed out.
The Platform for International Cooperation on Undocumented Migrants (Picum), after what was voted this Friday, highlights that “there is a real concern that Member States will increase legal procedures against migrants themselves and people who help migrants.” “International law makes it clear that migrants who are victims of smuggling should not be criminalized. The new text only mentions it in a non-binding recital,” he warns.
