Adriano Silvestri – transcript of audio recording

Thank you very much for inviting the European Union Agency for Fundamental Rights (FRA) to these important discussion. I will come in from an EU fundamental rights law angle and focus on three specific elements. I will recall or summarise FRA’s past work covering not only the facilitation of irregular entry but also the facilitation of irregular stay.

Before I move to my three points, one sentence about the Fundamental Rights Agency. Our primary objective is to provide EU institutions and agencies with expertise as regards fundamental rights. We collect this expertise by trying to understand what happens on the ground; so very much combining social research with legal analysis.

My first point concerns the risk of punishing people who act based on humanitarian grounds. Already 15 years ago when I joined the Fundamental Rights Agency, we carried out a large research project on the fundamental rights of migrants in an irregular situation in the EU. We noted that EU’s facilitation directive (2002/90/EC) enables – but does not oblige – Member States to exempt humanitarian action from the punishment for facilitating irregular entry or transit. In FRA’s 2011 report we suggested that the directive should be revised to make the exemption of punishment for humanitarian action compulsory.

Then we looked at what happens on the ground. We realised that some Member States had a humanitarian exception clause in their national legislation but that in practice procedures against civil society organisations or individuals acting with a humanitarian aim were initiated also there. National law had some impact but reality showed that one needs to go deeper. We published a comparative report in 2014, where we described national legislation in the Member States in force at the time and the issues that emerged in practice. And there, we moved away from just suggesting to change EU law, proposing also to give more guidance on how to implement such humanitarian exceptions in practice. Mr Ferrara in his presentation made it clear that it is not so easy to draw the line between what is actually a humanitarian action and what is being disguised as humanitarian action.  

A number of civil society organisations have search and rescue vessels in the central Mediterranean. Although they are rescuing a small portion of migrants and asylum seekers in distress at sea, their activity is very visible. FRA  received reports of different procedures and measures initiated against them. Since October 2018, FRA has been issuing yearly updates of criminal and administrative procedures initiated either against the captain or the crew or targeting the vessel (here the update for 2024). Whereas in the first years most measures were criminal procedures related to migrant smuggling or facilitation of irregular entry (sometimes connected with other crimes), we noticed that over time there were less and less cases of this kind. There was an increase of administrative measures targeting the vessels, who were blocked at ports due to navigation law, safety at sea laws or environmental law, thus limiting the possibility of civil society organisation to be out there and rescue people. Over the last year most of the measures that we’ve seen are measures related to disembarking rescued people in ports different from the place assigned or sanctions for not following maritime rescue coordination instructions. So it's not just about the crime of smuggling of migrants. When you look at the situation from the perspective of a civil society actor that is trying to help in this very complex situation, there are different types of measures that may hinder your work. Since 2017, FRA documented 81 administrative or criminal proceedings affecting SAR operations by civil society actors. Only one out of five concern criminal proceedings, the rest are other types of administrative measures. Also, it may be interesting to highlight that in the end, most criminal cases that are closed, end with acquittal.

To conclude my first point on the humanitarian exception, it's not just about the law. We need to see how we can help ensure a more consistent and comparable implementation of the application of the humanitarian exception for facilitating irregular entry or stay.

The second point I want to make relates to facilitation of irregular stay. When speaking to migrants in an irregular situation, FRA noticed that many of them were living in overcrowded accommodation, partly not fit for living and that some landlords were providing migrants with housing, abusing their vulnerabilities. The facilitation directive requires that the crime of facilitation of irregular stay is committed “intentionally”. Nevertheless, some Member States punish the renting of accommodation to migrants who are in an irregular situation. This leads to migrants renting accommodation informally with the risk of facing abusive landlords. So, one of the recommendations that we had in our report is not to sanction landlords who rent accommodation to migrants in an irregular situation unless this is done for the purpose of preventing their removal. But of course, if there is an exploitative or abusive element, taking advantage of the migrants’ vulnerabilities, that should have consequences.

On my third point I would be very brief. It is about the people themselves, about the individuals who are smuggled. Under EU law, as may have emerged yesterday, there is a directive that protects victims of crime. This victims’ rights directive (2012/29/EU) is applicable to all victims of crime, also to migrants and asylum seekers who have suffered abuse by smugglers. For victims of crimes it's very difficult to come forward and feel sufficiently safe, to seek justice and to cooperate with the justice system. A number steps need to be taken to make it easier for the victims to report, to cooperate and, in this way, to contribute to fight for impunity. There is also an EU directive from 2004 (2004/81/EC) which provides for residence permits for victims of trafficking in human beings. Such directive has an optional clause to provide a temporary residence permit to persons who have been the subject of smuggling and who cooperate with the justice system. So, my third point is about making victims’ rights and victims’ support services relevant also for this situation.

Let me conclude by highlighting the need to look at smuggling of migrants in the bigger context. There is also a need to offer viable alternatives. There is lack of labour force in certain sectors of Europe’s economies and as long as we do not have sufficient legal migration channels to cover labour force demands which cannot be filled domestically, this will remain a pull factor. At the same time, there is also a need for more legal pathways for people in need of international protection to find safety.  I’m very glad that with the pact on migration and asylum, the EU has agreed on a new resettlement framework. This is start, and I hope more options will follow.

Thank you very much.