In a week in which the first response of several European countries to the fall of the Bashar al Assad regime has been the suspension of the processing of asylum applications from Syrian citizens and in which the European Commission has endorsed the suspension of that right on the eastern borders due to the “hybrid threat” from Russia and Belarus, the 27 send another gesture of hardening the anti-immigration position. In this case, the main recipients of the message are the NGOs that provide aid to migrants by proposing the elimination of what is known as the ‘humanitarian clause’ according to which European legislation allows member states to criminalize aid to reach European soil. when it has a humanitarian purpose.
The decision was adopted by the Ministers of Justice this Friday within the framework of the review of the 2002 directive that establishes common minimum standards to prevent the smuggling of migrants, although its final adoption depends on subsequent negotiation with the European Parliament. which has not yet established its position, but which has suffered a significant shift to the right after the elections last June. What the majority of governments want, with the exception of Germany, Spain and Portugal, is for the possibility of “not imposing sanctions” on those who help migrants to enter an EU state to disappear from the provisions of the regulations, despite that violates current legislation, if it has a humanitarian purpose.
The so-called ‘humanitarian clause’ appears in the current regulations without preventing countries from sanctioning humanitarian aid. According to data from the International Platform for Cooperation with Undocumented People (PICUM), at least 117 people were criminalized for helping migrants in 2023; at least 102 people in 2022, and at least 89 people, between January 2021 and March 2022. “The majority were accused of facilitating the entry, stay or transit or illicit trafficking of migrants,” the organization states in his latest report. Italy and Greece were the countries that most persecuted this type of behavior, but so did Poland and Latvia.
The initial proposal of the European Commission eliminated the ‘humanitarian clause’, but because it limited the sanctions to cases in which there was a profit motive in the aid. The music a priori It sounded good, but it also set off alarms over the possibility of it being used as a drain to punish humanitarian aid. “There may be cases where the line is quite gray. For example, a ship that is contracted by a foundation to charge and rescue migrants,” diplomatic sources explain, who also point to the payment of the captain of a ship that saves people at sea.
“The directive is about making it clear that member states do not have to criminally punish anyone who helps immigrants for humanitarian reasons. It is not that he is left out of crime. It will allow Member States to decide not to punish. Someone may punish. Spain does not want to and in fact we are not going to do it,” say Spanish diplomatic sources.
In the negotiation, a majority of countries were in favor of removing the ‘humanitarian clause’, despite the fact that having it already allows them to punish such behavior. Other countries were in favor of it remaining in the articles and, finally, the text that has been closed and that will have the endorsement of the vast majority of countries is limited to mentioning the possibility of not punishing humanitarian aid in the preamble.
Spain is “radically” opposed to this decision and has voted against the entire initiative in the EU Council that is being held this Friday. “The political message that is sent by taking it to the recitals can be worrying. Spain’s position that it be incorporated into the articles makes sense from the point of view of legal technique and from the political message that we want to send,” said the Minister of Justice, Félix Bolaños. Germany and Portugal have also intervened against the decision. “It will have to be clear that if aid is provided for humanitarian reasons it will not be a crime,” said the Portuguese representative.
Diplomatic sources warn that there are technical doubts regarding what the elimination of the articles will entail, despite the fact that the European Commission has guaranteed them that there will be no problems due to not including sanctions in the Penal Code. “If it allows not to punish something that could theoretically be a crime, it has to be said in the articles, not in a preamble,” these sources warn.
But the rejection of the initiative also has an important political background given the imposition that is taking place in the EU of anti-immigration positions with a majority of countries, for example, pushing to create deportation centers outside of community territory, as Italy has done. with Albania. “In the wave that we are experiencing right now in Europe, the message that the directive sends, relegating that clause to the preamble, has seemed very worrying to Spain,” explain the same sources.
Spain, against the “campaign” of the extreme right, counts on NGOs
“The Government is aware that there is a campaign against non-governmental organizations led by the extreme right at the European level with the sole objective of promoting xenophobic discourse that electorally favors these parties. This campaign is based on the falsehood of equating these entities with criminal organizations dedicated to human trafficking, which is evidently false and has the complete rejection of the Spanish Executive,” state government sources.
“Such speech can not only have political consequences, but also legal and humanitarian ones: if the persecution of NGOs that rescue migrants is allowed, crimes based on political and humanitarian convictions and the lives of thousands of people who cross the border would return to the EU.” sea to seek a better life, children included, would be in much more danger,” these sources add.
“Without a legal requirement prohibiting the criminalization of migration and solidarity, there is a real concern that Member States will increase legal procedures against migrants themselves and people who help migrants,” PICUM denounces. “European governments have increasingly cracked down on migrants and the people who help them. This vote goes in the direction of greater criminalization, and it is expected that more people will face trials, fines and prison sentences simply for helping other people,” laments Marta Gionco, Head of Political Advocacy for the organization.
The meeting of EU Interior Ministers was the latest showcase of this hardening of the anti-immigration position. At a lunch, they analyzed the “innovative solutions” to address the immigration phenomenon, which is the euphemism used in the community club for initiatives such as that of the far-right Giorgia Meloni to create deportation centers. A majority of ministers reiterated their support for exploring this possibility, which currently has no place in European legislation and which Ursula von der Leyen opened up to studying when she began her second term under pressure from 15 member states.
Spain is one of the few countries that maintains its rejection of this possibility and is committed to cooperating with countries of origin and transit basically to short-circuit the departures of migrants as much as possible.
The other issue that has been on the table has been the situation of Syrian refugees. A majority of European countries have decided to paralyze the processing of new applications after the fall of the Bashar al Assad regime. Spain has criticized this decision, which it considers hasty and, for now, an acceleration of returns is not contemplated, although it was even proposed before the change occurred.
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