Chapter 4: The Action Plan in practice
The Four Priorities
80.The Action Plan lists a number of specific actions to tackle migrant smuggling, which are grouped under four main priorities. These are:
(1)Enhanced police and judicial response
(2)Improved gathering and sharing of information
(3)Enhanced prevention of smuggling and assistance to vulnerable migrants
(4)Stronger cooperation with third countries.
81.In addition to these four priorities, the Action Plan also emphasises that there should be flexibility to allow for additional actions to be taken in coming years to fight migrant smuggling, given its rapidly changing characteristics.
82.Many of our witnesses, and especially those involved in law enforcement,71 felt that the priorities were the right ones to achieve the Commission’s goal of transforming migrant smuggling into a “high risk, low return” operation. Mr Wainwright, Director of Europol, conceded that the Action Plan was “ambitious”, but believed that all the actions were achievable “if the actors commit themselves, in the right frame of mind, with the necessary resources, the right information exchange and the right operational attention.”72
83.The International Organization for Migration and the European Council on Refugees and Exiles were also broadly supportive of the priorities, but argued that too much emphasis was placed on the law enforcement aspects, and not enough on the human rights of migrants or the root causes discussed above.73
84.Ms Collett, Director, Migration Policy Institute Europe, on the other hand, said that “The majority of the initiatives set out in the counter-smuggling plan demonstrate to me at what an early stage EU thinking is. There is a lot of talk about setting up networks and contact points in the different states, as well as inter-agency collaboration and intelligence gathering. These are the sorts of things that we would have hoped that by this stage we were building on. The action plan to counter smuggling is to some extent a preparatory document in terms of setting up the institutions within the EU that will think about these things.”74
85.We believe that the Action Plan sets out essentially the correct priorities to achieve its aims. In developing this strategy the Commission must ensure that, in practice, the protection of vulnerable migrants is given equal priority to law enforcement considerations.
(i) Enhanced judicial and law enforcement response
General
86.Actions under this heading include revising the ‘Facilitators’ Package’ legislation; the identification, capture and disposal of vessels intended to be used by smugglers; financial investigations to seize and recover criminal assets and the confiscation of the proceeds of crime; and the establishment of a single point of contact on migrant smuggling to improve operational cooperation, coordination and the sharing of information between Member States and the EU Agencies.
87.Mr Wainwright welcomed the shift in focus under the Action Plan, from dealing with migrant smuggling as essentially a problem for border guards, to regarding it as a more strategic criminal law enforcement issue:
“Whereas a lot of the focus has been on reinforcing the external border and dealing with irregular migrants upon arrival, until now they have lacked focus in what should be the critical third area of any strategy: to identify and target the criminal networks behind the smuggling trade.”75
88.Mr Wainwright told us that the problem was largely caused by gangs of organised criminals:
“It is absolutely clear that criminal networks are at least exacerbating the situation, if not directly responsible for the extent of the trade, and using the Internet to encourage people to make the journey in the first place, forcing them, sometimes against their will, on to unseaworthy vessels. Indeed, in some cases they exploit them on their arrival in the European Union. That is a large criminal infrastructure that is fundamental to this trade. If we can take that away, it will make a big difference.”76
89.Some witnesses, however, such as the Migrants’ Rights Network and the Immigration Law Practitioners’ Association, felt that law enforcement was overemphasised. The latter agreed, that the focus on law enforcement was unlikely to be entirely successful in eradicating the problem, given the extent of demand: “We are doubtful whether increased criminal penalties will affect the behaviour of smugglers in those circumstances.”77 Indeed, as Europol pointed out, “Criminal groups may receive as much as €8,000 per migrant for a journey from Libya to Italy.”78 Such potential profits make it unlikely in the foreseeable future that migrant smuggling will become a ‘low reward’ operation.
90.On the other hand, Mr Wainwright saw these large sums of money as a potential target in the fight against migrant smuggling.79 He told us that Europol had already acted “as a centre point in the EU for a lot of the anti-money laundering and asset recovery work for the European police community.” He noted, though, that “until now, there has been no systematic use of financial investigation tools in this area. That is something that we need to do a lot more on.”80 Ms Collett added that while the Action Plan contained “some interesting things in terms of addressing the financing,” these did “not necessarily build into a solid understanding of what that financing is.”81
91.Another of the specific actions under this objective is the destruction of migrant smuggling vessels. The Immigration Law Practitioners’ Association said that this was unlikely to be of much use, since these vessels “are used once and abandoned to the persons being carried to bring to shore, so that the smugglers escape prosecution.”82
92.The Action Plan’s ‘enhanced judicial and law enforcement response’ priority is very ambitious, given the size of the demand. To succeed, law enforcement needs to be seen as part of a broader approach to the problem of migrant smuggling. Nonetheless, it is a fundamental and necessary objective, which we support.
The Facilitators’ Package
93.In 2002 the EU adopted a legal framework on smuggling, often referred to as the ‘Facilitators’ Package’. It is composed of a Directive defining the facilitation of unauthorised entry, transit and residence83 and a Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.84
94.The Directive sets out the criminal offences for which EU countries must adopt effective, proportionate and dissuasive penalties (see paragraph 4). The Framework Decision provides minimum rules for EU countries regarding penalties, liability and jurisdiction for infringements relating to the facilitation of irregular immigration. Article 1(2) of the Directive provides that, in cases where the individual has not sought “financial gain,” individual Member States have the option not to impose criminal sanctions “where the aim of the behaviour is to provide humanitarian assistance to the person concerned.” However, this is not mandatory.
95.The Action Plan raises the prospect of further legislative action: “The Commission will make, in 2016, proposals to improve the existing EU legal framework to tackle migrant smuggling … It will seek to ensure that appropriate criminal sanctions are in place while avoiding risks of criminalisation of those who provide humanitarian assistance to migrants in distress.”85
96.In this context, and considering the overlap between the UN Protocol, the Facilitators’ Package and the broader objectives of the Action Plan, we sought to establish whether EU legislation against migrant smuggling added to the UN framework in a coherent and meaningful manner.
97.There are some key differences between the two legal frameworks. Unlike the Facilitators’ Package, the UN Protocol only criminalises smuggling related to criminal acts committed for financial gain. It specifically excludes the criminal prosecution of migrants on the grounds that they have been the object of smuggling and its related activities.86 The UN Protocol also cites conduct by smugglers that endangers the lives and safety of migrants or entails inhuman or degrading treatment, including exploitation of migrants, as aggravating factors.87 In contrast, the EU legislation does not address inhuman or degrading treatment, but does cover endangerment, and smuggling conducted by organised crime organisations.88
98.Where Member States chose not to include the optional exemption under Article 1(2) when implementing the 2002 Directive, some witnesses89 pointed out that the EU Framework appeared to criminalise humanitarian assistance provided to smuggled migrants in distress, for example by fishermen at sea. This has also placed undue pressure on healthcare and welfare providers to collect and provide information on undocumented migrants.
99.Furthermore, the European Council on Refugees and Exiles highlighted a recent report by the EU Fundamental Rights Agency (FRA), which showed that “in almost all EU Member States, irregular entry and stay are offences, often punishable with custodial sentences.”90 As such, the migrants themselves are criminalised with the result that “many people are afraid to use medical services, send their children to school or register births.” The European Council on Refugees and Exiles was accordingly concerned that the Action Plan “does not address concerns on the Facilitators’ Package and the rendering of humanitarian assistance.” It hoped “that this will be addressed as part of [the Commission’s review of the Facilitators’ Package] and will ensure that humanitarian assistance to refugees and migrants arriving in Europe is no longer a potential crime.”91
100.In the light of these concerns we asked Dana Spinant, Head of the Irregular Migration and Return Policy Unit at the European Commission, to clarify the anticipated scope and timing of the Commission’s review of the Facilitators’ Package. She confirmed that the Commission was currently “having an in-depth look at the effectiveness, added value and value in general of this EU legislation. If necessary, we will come forward with fresh legislative proposals to amend it sometime [in 2016]”.
101.Within the scope of this evaluation, the Commission was “looking at ways to bring [the Facilitators’ Package] in line with the UN protocol against migrant-smuggling.” It was also “looking at ways to strengthen the criminal sanctions—the penal framework—against migrant-smugglers, while at the same time making it more differentiated in order to clearly exclude from criminal sanctions organisations that provide humanitarian assistance to migrants.”92 Ms Spinant expected the evaluation to last until mid-2016, at which point the Commission aimed simultaneously to publish its results, any new legislative proposals and an impact assessment.
102.We recommend that, following its current review of the ‘Facilitators’ Package’, the Commission should propose an EU Framework that builds on the humanitarian aspects of the UN Protocol, by criminalising only acts committed for financial gain, and by adding clauses to avoid the criminalisation of individuals or organisations acting for humanitarian purposes. We would also welcome the addition of inhuman or degrading treatment as an aggravating factor in the sentencing of convicted smugglers.
103.While we await the precise outcome of the Commission’s review and any new legislative proposals, we further recommend that the Government should look favourably at opting into any Commission proposals designed to bring the EU’s regime into line with the UN’s and, subject to further parliamentary scrutiny, support such a proposal in the Council.
(ii) Improved gathering and sharing of information
104.The Action Plan states that the present state of knowledge and information concerning migrant smuggling is poor, because of its clandestine and fast-changing nature. It proposes to improve the gathering and sharing of information on “modus operandi, routes, economic models of smuggling networks, on links with trafficking in human beings and other crimes, and on financial transfers”, in order to target smugglers effectively.
105.The Action Plan sets out a number of actions to achieve this goal. There is an emphasis on making better use of existing mechanisms, such as strengthening Joint Operational Team (JOT) MARE to make it the EU information hub for cases of migrant smuggling by sea.
|
JOT MARE is a Joint Operational Team hosted by Europol, the EU’s law enforcement agency. It was launched on 17 March 2015 specifically to combat migrant smuggling in the Mediterranean. According to Europol, “JOT MARE will combine Europol’s unique intelligence resources and Member States’ capabilities to carry out coordinated and intelligence-driven actions against the facilitators. As well as ensuring an intensified exchange of intelligence with Frontex and close cooperation with Interpol, national experts seconded to JOT MARE will facilitate the necessary cooperation between Europol and the services of the participating EU Member States.” The Action Plan states that “Europol’s Focal Point on migrant smuggling and its Joint Operational Team (JOT) MARE should be strengthened, to make it the EU information hub for cases of migrant smuggling by sea”. |
Source: Europol, ‘Joint Operational Team launched to combat irregular migration in the Mediterranean’: https://www.europol.europa.eu/content/joint-operational-team-launched-combat-irregular-migration-mediterranean (accessed 26 October 2015)
106.A ‘Hotspot’ approach has been launched under the heading of ‘Improved gathering and sharing of information’, to enable EU Agencies to operate on the ground in areas where there are large numbers of migrants entering the EU. Hotspots are dealt with further in Chapter 5.
107.The Action Plan also calls for further cooperation with third countries in the gathering and exchange of information. Finally, it calls for monitoring of the Internet, both to develop the knowledge base and to disrupt Internet operations.
108.The National Crime Agency (NCA) and Europol were clear that improved gathering and sharing of information were key to achieving a comprehensive European approach to migrant smuggling. Success in this area would amount to a “complete intelligence picture”, which would “close the intelligence gaps” that currently exist.93
109.Other witnesses were more critical. We heard that there were too many actors at both EU and national level collecting information on smugglers. They were doing so for different purposes, and to different quality standards. The European Council on Refugees and Exiles told us: “There is a lack of criminal statistics, data and regular reporting mechanisms on smuggling.”94 There were also legal and technical difficulties in sharing information effectively. Ms Collett and Dr Düvell were concerned by the quality of the underlying evidence base. Ms Collett regretted that the Action Plan said little of “increasing understanding of the smuggling networks themselves”.95 She noted that governments were not necessarily trusted by people “who may have grown up with a deep mistrust of the governments of the countries they come from. They are also concerned that anything they tell the authorities may lead to retribution from the smuggling networks themselves.” She therefore believed that, while “There is an enormous amount of research to do … governments are not necessarily the right actors for conducting the interviews and establishing the research.”96
110.Dr Düvell, Associate Professor, University of Oxford, also commented on the difficulty of acquiring accurate information from those most directly affected by migrant smuggling:
“Everything we know is based either on small-scale case studies made at a certain point in time and thus reflecting a very specific situation or is based on evidence gathered by state agencies. The people we talk about know very well what the discourses are and what the game is: what they are expected to say. They do not talk about their real background motivation and experience; they give what we call a morally adequate account of what they are expected to say.”97
111.More fundamentally, it may be impossible ever to establish a complete, final picture. Migrant smuggling affects a vast range of areas inside and outside the EU. The routes and methods of smugglers are changing all the time. As Ms Collett explained:
“One thing to add to that is about the fluidity of smuggling networks and routes over time, which means that even if you had a robust snapshot of the routes from, say, October last year, when the primary maritime route was through the central Mediterranean, it would not really help you understand what is happening now through Greece and Turkey and up throughout the western Balkans. There has been a complete shift in routes, operators, networks and populations. It is not just that there are lots of different institutions working in lots of different geographies and constellations, with different levels of mandate and resources, but the picture is constantly changing. It is not possible to say, ‘We have done it now; we have mapped all the smuggling networks’, and sit back.”98
112.The sharing of information, once acquired, is equally problematic, being heavily reliant on Member States’ authorities’ willingness to participate fully. As Mr Wainwright said, “Can we build the necessary trust and operational engagement with the relevant authorities so that they will share data with us effectively and systematically? The answer to that is yes a lot of the time, but not always.”99
113.Nonetheless, the NCA remained optimistic that the Action Plan put in place a strategy for dealing with these problems: “Our response reflects this flexibility: the breadth of our overseas deployments and our commitment to Europol’s JOT MARE will enable our intelligence collection and analysis capabilities to keep pace with criminals’ adaptability.”100
114.The International Organization for Migration welcomed the strengthening of JOT MARE to become “a single inter-agency information hub for cases of smuggling by sea”, but noted that there was an “absence in details for a mechanism of information sharing for other forms of migrant smuggling, such as by land or air.”101 The European Council on Refugees and Exiles noted that “Data on the role of smuggling in secondary movements within the EU also needs to be collected in a uniform manner, including through the development of indicators.”102
115.The networks, practices and routes used by migrant smugglers are constantly changing. The fluidity of this situation presents a significant challenge to law enforcement. Urgent work therefore needs to be undertaken at EU level to ensure that information collected and shared is of high quality. Gaps in the intelligence picture should be identified and remedied, and this process should be regularly updated as patterns continue to evolve. The necessary focus on gathering information on migrant smuggling in the Mediterranean must not result in neglect of migrant smuggling operations elsewhere, including within the EU’s borders.
116.The Commission should continue its efforts to coordinate the collection of intelligence by Member State authorities and EU Agencies. A single Agency, ideally Europol, should be responsible for collating and sharing.
117.We recommend that EU funding be made available for further academic and field research in order to address the lack of a comprehensive understanding of migrant smuggling. This research, together with intelligence and data gathered by law enforcement agencies including Europol and Frontex, should inform the development of policy making at EU level.
(iii) Preventing smuggling and assisting vulnerable migrants
General
118.The aim of this priority within the Action Plan is to combat migrant smuggling by making it seem less attractive to both smugglers and migrants. The Commission seeks to do this by raising awareness of the risks of smuggling and increasing the effectiveness of returning irregular migrants. It proposes to take stronger action against employers who employ irregular migrants. It will also help business operators by producing a handbook on the prevention of migrant smuggling. Finally, it states that it will “step up efforts to provide smuggled migrants, in particular vulnerable groups such as children and women, with assistance and protection.” To this end it will review Directive 2004/81/EC103 (the 2004 Directive) on residence permits issued to victims of trafficking in human beings.
119.The European Council on Refugees and Exiles was sceptical that information campaigns would be useful in influencing potential migrants: “It is often argued that migrants know that there are risks involved or that those who want to migrate will not listen to negative information on the journey ahead and will undertake the trip regardless.”104 The European Council on Refugees and Exiles was similarly sceptical with regard to the enhanced returns measures, saying that there was no evidence that they had any effect on potential migrants’ decision to leave their home countries.105
120.While some witnesses welcomed in principle the inclusion of measures to assist vulnerable migrants,106 NGOs such as the European Council on Refugees and Exiles expressed concern about the lack of detail. Mr Symonds, Programme Director, Refugee and Migrants Rights, Amnesty International UK, said that:
“When one looks at the detail of the Action Plan under the heading ‘Enhanced Prevention of Smuggling and Assistance to Vulnerable Migrants’, one sees that there is very little that deals with the issue of assistance or protection. Indeed, the one proposal under that heading is itself not specific. It is a proposal for a consultation about amending a directive, without any clarity as to what direction the amendment might take. Indeed, if one looks more broadly at the other objectives, protection is largely absent. That is a great worry.”107
121.The International Organization for Migration and Amnesty International UK also lamented the conflation of “prevention” (of smuggling) with “assistance” (to migrants). In the words of Mr Symonds: “There is an eliding of prevention of smuggling with assistance/protection for vulnerable migrants.” Alluding to other international documents to do with tackling migrant smuggling or trafficking, including the EU’s strategy in relation to trafficking, he noted that “objectives that are directed to assistance and protection are always separated from those directed to prevention because they are separate and distinct issues … Indeed, prevention of smuggling can lead to serious human rights abuses and further exacerbation of the vulnerability of, for example, refugees.”108
122.We welcome the inclusion in the Action Plan of measures to assist vulnerable migrants. We believe that insufficient weight is attached to this objective. It should be regarded as being at least equally important as increasing law enforcement measures, and should be distinct from measures intended to prevent migrant smuggling. It is disappointing that no meaningful proposals have been made to address assistance to vulnerable smuggled migrants.
123.We recommend that Member States put in place arrangements for the safeguarding of smuggled migrants’ rights and safety. They should allocate resources to ensure that smuggled migrants have adequate shelter, food and other support. The Commission should monitor and support such arrangements and, where appropriate, provide additional funds.
Residence Permit
124.The 2004 Directive defines the conditions for granting residence permits to third-country nationals who cooperate in the fight against trafficking in human beings or migrant smuggling (the UK does not participate in this Directive). The duration of the permits is limited and linked to the length of the legal proceedings. Member States must apply the Directive to third-country nationals who have been victims of human trafficking, even if they have illegally entered the EU. It is currently optional for Member States to apply the Directive to third-country nationals “who have been the subject of an action to facilitate illegal immigration.” The Commission intends to review whether or not application to those falling into this category should be mandatory.
125.Ms Spinant, Head of Unit at the European Commission, explained that extending the Directive to smuggled migrants “would enable Member States to provide temporary residence permits to smuggled migrants who co-operate with authorities in investigations into migrant smuggling.”109
126.The Immigration Law Practitioners’ Association was in favour of this change, as long as the Directive’s provisions safeguarding the right to asylum remained in place.110 Mr Symonds, though, said that “Simply addressing aspects of the residence permit has not proved sufficiently fruitful in terms of protecting victims of trafficking, which is why EU legislation has moved on so far, which is good. Although it is a different phenomenon, there is a question as to how much can be gained from the 2004 Directive in respect simply of victims of people smuggling.”111
127.The International Organization for Migration, while supporting the policy to provide residence permits to those who had facilitated criminal proceedings against smugglers, said that “it should not be considered, in and of itself, to be a measure of assistance to smuggled migrants, if the motivation is solely about tackling smugglers as opposed to providing protection.”112
128.We support the extension of the 2004 Directive, which requires Member States to provide residence permits to victims of human trafficking, to smuggled migrants who have assisted in criminal proceedings against smugglers. The current asylum safeguards, which protect the right of asylum, must remain in place.
(iv) Cooperation with third countries
129.The Action Plan calls for closer cooperation with third countries in order to target migrant smuggling and also to address the root causes of irregular migration. Accordingly, the Commission aims to launch or enhance bilateral and regional cooperation frameworks, providing capacity building to third countries and improving cooperation and coordination with third countries.
130.Mr Brokenshire told us that the Government was particularly committed to this element of the Action Plan. It was involved in the Khartoum Process, a joint initiative of the EU and African Union states to tackle migrant smuggling in the Horn of Africa. It also intended to create some “regional development and protection programmes.”113 Mr Brokenshire felt that this was a “more fruitful and positive way of dealing” with the current crisis than engaging in resettlement and relocation schemes, which would benefit relatively few people.
131.Other witnesses questioned the efficacy of the measures suggested under this priority, including the Immigration Law Practitioners’ Association, which stated:
“Work with third countries to tackle border management, youth and employment and mobility are unlikely to affect patterns of movement where the causes of that movement are war, famine, pestilence and death.”114
132.Mr Symonds said:
“It is again disappointing that while there is much in this plan about co-operation with third countries, none of the co-operation that is referred to refers to anything about capacity-building on those lines in relation to those third countries, which would clearly be a valuable and important aspect of any working with African or indeed other states in relation to this.”115
133.Mr Symonds also felt that the EU should not think that “it can simply demand of African states—or, indeed, Asian states that are much poorer than Europe—that they can continue to bear the by far the greater numbers and pressure without some degree of sharing of responsibility.” The International Organization for Migration regretted that there was not “greater partnership language here, in line with the EU’s GAMM, which also considers the needs and interests of third countries in relation to migrant smuggling.”116
134.Ms Collett cautioned that the Action Plan “might be slightly naive”, in that
“it does not really mention corruption and rule of law in the countries where smuggling is taking place. It is extremely difficult to talk about robust counter-smuggling activities without taking into account the governance structures within which you are working. It would mean really thinking about how smuggling links to corruption, law enforcement locally, the facilitation of those networks and how local economies often depend on smuggling networks.”117
135.Aside from the practical difficulties of cooperating with third countries, there are also ethical difficulties. The Migrants’ Rights Network welcomed “an increase in cooperation with third countries, providing it is focused on measures that preserve the rights and improve the conditions of people in those countries”, but stressed that “the EU should be very careful to avoid situations where third countries end up committing human rights abuses against those seeking to enter the EU, pursuant to EU policy.”118
136.The European Council on Refugees and Exiles agreed: “The EU Action Plan should not be pursued in isolation, as a targeted cooperation area, but as part of a more holistic cooperation package with partner countries. The GAMM should still remain the overarching framework for cooperation with third countries in this regard.”119
137.Cooperation with third countries is key to tackling migrant smuggling effectively, as third countries may be either countries of origin or transit for migrants. We therefore welcome the efforts being made to coordinate efforts with third countries, while cautioning that in return assistance must be provided to share some of their burdens in dealing with this crisis. Particular care must be taken to avoid actions that would make the EU or Member States complicit in human rights abuses.
138.We also note that cooperation with third countries will do little to help the many thousands of migrants who have already reached the EU. The large amount of secondary migration within the EU means that these people are not yet safe from the dangers posed by migrant smugglers.
139.We welcome the Government’s engagement with this objective within the Action Plan. However, as argued in our report on the relocation of migrants, the Government, by being selective about which measures to support, risks undermining the EU’s ability to develop a coherent response to the refugee crisis.
73 Written evidence from European Council on Refugees and Exiles (PMS0004) and International Organization for Migration (PMS0013)
83 Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32002L0090 (accessed 26 October 2015)
84 Framework Decision 2002/946/JHA, Penal framework for preventing the facilitation of illegal immigration: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:jl0045 (accessed 26 October 2015)
85 Communication from the Commission, EU Action Plan Against Migrant Smuggling (2015–2020) (COM(2015)285 Final)
86 Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea and Air. United Nations, Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention against transnational organized crime (2000) p3: https://www.unodc.org/documents/southeastasiaandpacific/2011/04/som-indonesia/convention_smug_eng.pdf (accessed 26 October 2015)
87 Article 6(3) of the Protocol against the Smuggling of Migrants by Land, Sea and Air
88 Article 1(3) of Framework Decision 2002/946/JHA, Penal framework for preventing the facilitation of illegal immigration: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:jl0045 (accessed 26 October 2015)
89 Written evidence from European Council on Refugees and Exiles (PMS0004), International Organization for Migration (PMS0013) and Immigration Law Practitioners’ Association (PMS0007)
103 Council Directive 2004/81/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:
32004L0081:EN:HTML (accessed 26 October 2015). The UK did not opt in to this Directive.
105 Ibid.