Migration crisis in Europe - is there a need for a new Eurocrime?

https://doi.org/10.63189/IAIT7189

The ongoing migration crisis in Europe since at least 2015 continues to raise questions about qualitative measures to prevent illegal entry and stay of migrants in EU Member States. A state has the right to protect its own borders against uncontrolled flows of irregular migrants and to decide whom to allow into its own territory. The discussion so far on measures to control migration flows has mainly focused on administrative measures and broadening the treaty base for readmission (and this is what the measures to combat irregular migration proposed by the European Commission in the new Pact on Migration and Asylum amount to). Meanwhile, measures of criminal repression are also an important element in preventing irregular migration, and some EU Member States include in their criminal legislation the offence of illegal entry and stay on their territory. The current needs of EU Member States to combat illegal immigration are very high. Many EU Member States are not only transit countries but also destination countries for irregular migration. Forcible border crossings (e.g. the Polish-Belarusian border) and illegal border crossings by persons wanted by international appointment letters, including for crimes of a terrorist nature, are also increasingly common.

The EU has the competence to establish minimum standards for criminalisation at European level and to define penalties for certain offences (so-called Eurocrimes). Article 83(1) TFEU includes the following Eurocrimes: terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. The catalogue of Eurocrimes is not closed and, depending on the development of crime, the Council may adopt a decision defining other Eurocrimes. However, this is subject to the condition that the offence belongs to particularly serious crime with a cross-border dimension and the type or impact of the offences or the particular need to combat them jointly must be taken into account in the assessment. Such a decision is taken in two stages: first, the Council decides on the addition of a new Eurocrime to the catalogue, and then decides on its definition and scope of jurisdiction.

Given the current state of the law, the minimum standards may concern three offences linked to irregular migration such as cross-border organised crime, trafficking in human beings and money laundering. These are the subject of more detailed regulations in secondary legislation, obliging Member States to criminalise certain behaviour in national law and to establish jurisdiction over these offences. However, the criminalisation of these types of offences is of a general nature and does not only apply to migration-related crime. The establishment of minimum standards at European level for organised crime, trafficking in human beings and money laundering contributes significantly to the fight against such crime, but will not lead to a halt to the mass migration flows experienced by Southern and Central European countries.

The EU has partially recognised the lack of criminalisation of illegal migration carried out outside the activities of organised criminal groups and, back in 2002, regulated the assisting (including for financial gain) of a non-national to enter or transit illegally through the territory of a Member State. To date, however, the EU legislator has not addressed the underlying conduct, i.e. the unlawful crossing of a Member State's border and illegal stay on the territory of that state. This is, in my view, a deliberate exercise, albeit one that has not been thoroughly thought through or analysed. Moreover, the European Commission has not included a proposal for criminalisation in the new migration pact. In the meantime, the criminalisation of illegal entry and illegal stay in violation of EU law may prove to be an effective tool in the fight against illegal migration.

The establishment of minimum standards at European level requires an assessment of the fulfilment of the criteria in Article 83(1) TFEU for the establishment of a new Eurocrime. Illegal migration into the EU has assumed such large proportions that Member States have largely lost the ability to effectively control the flow of people across the EU's external borders. The problem has a pan-European dimension due to both the multiplicity of directions from which illegal migrants attempt to enter Member States and the country of destination they consider. Illegal migration is thus of a cross-border nature and illegal border crossings have very serious implications for all Member States. This is not only about the financial impact, but above all about prevention. Illegal migration gives rise to other crimes and uncontrolled migration flows pose a threat to the security of EU Member States. Often the driving force behind irregular migration is organised criminal groups, for whom organising the illegal transportation of migrants is a source of income. 

Many European countries criminalise illegal border crossing and illegal stay on the territory of a Member State. Activity at EU level linked to the adoption of minimum rules defining a new criminal offence will unify practice in this area and facilitate the prosecution of this crime linked to illegal migration. The lack of criminalisation of illegal border crossing or illegal residence means, above all, the impossibility of criminal cooperation between Member States, as cooperation tools such as the European arrest warrant require the existence of a dual criminality of the offence.

The possible extension of the catalogue of Eurocrimes to include unlawful crossing of the border of a Member State and illegal stay on its territory is not opposed by international agreements binding EU Member States. In contrast, voices condemning the criminalisation of illegal immigration are raised in the Human Rights Council and the Arbitrary Detention Group. Both of these bodies - citing each other's reports, after all - consider that illegal migration is not per se a crime against persons, property or national security. Illegal migrants are not criminals by definition and should not be treated as such. In my view, however, the criminalisation of illegal entry and stay in a state does not exceed the legitimate interest of states in controlling borders and population flows.

However, it should be stipulated from the outset that possible criminalisation at European level should be subject to certain limitations.

Firstly, only the unlawful crossing of the border of an EU Member State should be a criminal offence. It is worth considering whether only the crossing of an external EU border - by land, sea or air - should be criminalised.

Secondly, only the crossing of a border by a person who does not have the nationality of an EU Member State, who does not have the right to reside in an EU Member State or who does not enjoy international protection in a Member State is to be considered criminal. The 1951 Refugee Convention prohibits state parties from imposing penalties for illegal entry or stay on refugees, but subjects this prohibition to two limitations (Article 31(1) of the Convention). Firstly, the prohibition of punishment extends only to those refugees who have come directly from a territory where their lives or freedom were in danger. Secondly, in order to obtain guarantees of impunity, refugees must report immediately to the authorities and present credible reasons for their illegal entry or stay. The prohibition of punishment therefore does not apply to persons who do not have refugee status because they do not meet the conditions for recognition as a refugee, and to persons who are refugees within the meaning of the Convention, but the conditions of immediacy and impunity are not met.

Thirdly, the criminalisation of illegal entry or illegal stay on the territory of an EU Member State should not apply to victims of organised criminal groups or trafficking in human beings. Indeed, the 2003 Protocol contains an explicit clause according to which migrants will not be subject to criminal liability on the grounds that they have become objects of smuggling or certain offences committed to enable the smuggling of migrants (making false travel or identity documents and organising, supplying or possessing such documents). However, the 2003 Protocol only applies to the crime of migrant smuggling if it is of an international nature and has been committed with the involvement of an organised criminal group.

Introducing and defining a new Eurocrime may prove difficult, but it is worthwhile to conduct a thorough analysis and debate on such a solution. Climate change or the instability and impoverishment of so-called 'southern' countries will constantly put migration pressure on wealthy and stable EU Member States. Criminalisation of illegal border crossing or illegal residence - in combination with other measures - may prove to be an effective tool to combat illegal migration.