Select Committee on European Scrutiny First Report



(a) Draft Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence.

(b) Draft Council Directive defining the facilitation of unauthorised entry, movement and residence.

Legal base: (a) Article 63(3)(b) EC; consultation; unanimity
(b) Articles 31(e) and 34(2)(b) EU; consultation; unanimity
Department: Home Office
Basis of consideration: EM of 25 January 2001
Previous Committee Report: HC 28-ix (2000-01), paragraph 1 (21 March 2001)
Discussed in Council: Justice and Home Affairs Council 28-29 May 2001
Committee's assessment: Legally and politically important
Committee's decision: Not cleared


7.1  This proposal, originally made by France, is for a Framework Decision on jurisdiction and penalties in relation to 'facilitation' offences, that is, offences concerned with facilitating illegal immigration and trafficking in human beings. The material scope of such offences is to be defined by a Directive to be adopted under Article 63(3)(b) EC defining the facilitation of unauthorised entry, movement and residence. Consideration of the Framework Decision has proceeded in conjunction with that of the Directive, and both proposals are now addressed together in the same document.

7.2  When the previous Committee considered the document on 21 March it questioned whether it was appropriate that an offence of facilitating unauthorised entry should be committed irrespective of any motive of financial gain, and asked the then Minister if she had consulted humanitarian organisations on the so-called 'humanitarian clause' included in Article 4a of the Framework Decision and to state if these were content with the protection it provided in circumstances where the Directive defining the offence continued to provide that the offence could be committed irrespective of any motive of financial gain.

7.3  The Committee had earlier[8] raised the question of whether criminal liability ought to be imposed on legal persons, in the absence of negligence or recklessness by its officers, where a 'lack of supervision or control' merely made possible the commission of the relevant offence. Such provision was made in Article 3(2) of the Framework Decision.

7.4  The Committee held the document under scrutiny, pending the Minister's reply on the question of the 'humanitarian clause'. The Committee noted, as far as the Directive was concerned, that the document [9] dealt only with the question of whether or not financial gain should be a condition of the offence. It also noted the then Minister's comment that a number of amendments to the Directive "should appear in a future version". The Committee indicated that it would comment on a revised text of the Framework Decision and Directive.

The Government's views and the JHA Council

7.5  In a letter of 11 May copied to the Committee the then Minister of State at the Home Office (Mrs Barbara Roche) referred to the 'humanitarian clause', as follows:

    "A concern raised in your letter of 1 March, and in several NGO submissions, was that Article 1 of the draft Directive could criminalise the work of: non-governmental organisations; bona fide legal representatives; and individuals, such as close relatives, who assist asylum seekers and refugees from purely humanitarian motives. The JHA Council meeting on 15 March, discussed the possibility of adding a 'humanitarian' clause to the draft Directive, which would allow Member States to exempt from prosecution those people or organisations who act for humanitarian reasons. Such a clause would provide protection for humanitarian action in those jurisdictions which are not able to apply discretion in their criminal proceedings. We have made it clear that any such clause, if agreed, should be tightly defined, so as not to provide a shelter for organised crime, and that it must be optional rather than mandatory. We would not wish to introduce this type of immunity under UK law, because we are satisfied that any mitigating circumstances of this kind could be taken into account by our courts. As to the situation of refugees and asylum seekers themselves, a point raised by a number of NGOs, Article 4a of the draft Framework Decision effectively safeguards their position. The distinction whereby financial gain is an element of the offence of facilitating unlawful residence, but not of the offences of facilitating unlawful entry or transit, means that people such as friends or relatives who provide shelter for an illegal entrant, without profiting from it, will not be penalised."

7.6  The Minister also commented in the following terms on the question of criminal liability of legal persons:

    "The provisions on liability of legal persons are standard provisions, included in a number of previous EU instruments ... criminal liability of legal persons would be established only when an offence was committed 'for the benefit' of a legal person, which would normally mean a financial benefit. It is important to note that the provision which establishes liability based on a lack of supervision or control (Article 2(2) of the Framework Decision in its latest version) does not require that this should take the form of criminal liability."

7.7  In a letter of 6 June to the Leader of the House, the then Minister briefly described the discussion, at the Justice and Home Affairs Council on 28 and 29 May, of the draft Framework Decision and draft Directive. The Minister explained that this proposal was one of the "B" points at the Council.[10] The Minister further explained that the UK maintained a scrutiny reserve, but "made it clear that it would lift the reserve when the points came up for formal adoption".


7.8  We ask the Minister for an account of where matters now stand with the draft Framework Decision and with the draft Directive and to deposit the current revised versions of them.

7.9  We note the Minister's remarks which suggest that those who act for humanitarian reasons can be adequately protected by prosecution discretions and by the courts taking such reasons into account by way of mitigation. However, we consider that conduct which is in furtherance of humanitarian concerns with no motive of gain ought not to be made criminal in the first place. We ask the Minister to explain the view that any 'humanitarian clause' should be optional rather than mandatory.

7.10  We deplore the practice of a Minister announcing in the Council, before a document has cleared scrutiny, that the scrutiny reserve will be lifted, and will take a serious view of any further instance of this. We ask the Minister to explain why such an announcement was made in this case. In the meantime we shall hold the document under scrutiny.

8  (21515) 9892/00; see HC 23-xxxi (1999-2000), paragraph 5 (29 November 2000) Back

9   (21969) 13739/00 submitted to the Council proposals for agreement in principle on Article 1(1), 1(3) and 4a of the draft Framework Decision, and on Article 1(3) of the Directive. The document indicated that the other provisions of the Framework Decision and the Directive would have to be examined at a later stage. Back

10  i.e. a point which is for discussion, rather than formal adoption. Back

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