In its paper, the CCBE expresses concerns about vague definitions that, it says, do not meet the declared objective of clarifying which offences should be criminalised.
The CCBE draws particular attention to the potential impact of the proposal on lawyers providing legal advice in the field of migration and asylum law, in particular the risks of criminalisation of legal assistance.
The CCBE states that EU legislators should adopt a clearer wording in key provisions of the proposal and include a mandatory, explicit, unambiguous, and broad-in-scope solidarity clause.
On 28 November 2023, the European Commission published the proposal that would replace the current framework – Directive 2002/90/EC1 – establishing a common definition of the offence of facilitation of unauthorised entry, transit and residence, and Framework Decision 2002/946/JHA on strengthening the penal framework to prevent such facilitation.
Sanctions
The general objective is an instrument that “clearly defines and effectively sanctions the offence of facilitation of unauthorised entry, transit and stay in the EU”.
The CCBE paper points out the risks of a potential negative impact on fundamental rights and access to justice.
The explanatory statement of the European Commission recognises that there are cases where, due to the broad definition of the offence, people have been prosecuted for providing services to irregular migrants.
The CCBE states that the current situation is already quite vague and uncertain for lawyers providing advice at the borders.
Some lawyers feel there is a risk that they could be connected with smuggling, given the “prevailing hostile political environment”.
The CCBE has reports that lawyers refrain from providing legal assistance in some circumstances because of the fear that the authorities might use it against them as evidence of being connected with smuggling.
Deterrent
The legislation in force has, therefore, a deterrent effect on the provision of legal assistance to asylum-seekers.
In 2016, the CCBE expressed its concern over the ongoing harassment of Electra Koutra, a Greek refugee and human-rights lawyer who was assisting Syrian refugees.
The Council of Europe Commissioner for Human Rights has said that lawyers may be disparaged as acting against the interest of the state, undermining efforts to control migration, rather than as professionals “bringing legal challenges in the interest of their clients”.
Against this background, the CCBE is calling on legislators to amend the proposal in a way that the provisions are legally precise, and do not allow any misuse of the directive to intimidate lawyers or other professionals and civil-society actors who provide legal or humanitarian assistance to migrants and asylum seekers.
The CCBE concurs with the commission’s conclusion that it is necessary to clearly define the offence of facilitation, since the salary paid to a lawyer, or the funding received by an NGO, could constitute a direct or indirect financial or material benefit.
Prosecuted
Under the proposed directive, anyone who helps a third-country national to cross borders and illegally stay in one of the member states, knows about it, and receives compensation for it could potentially be prosecuted.
This could mean that lawyers can no longer provide advice on the residence options or other social rights of a third-country national.
Where previously the rule was that member states could introduce a rule to exclude humanitarian aid from the directive’s scope, the current line is that such aid does not explicitly need to be excluded, because this would already be provided for in other legislation and case law of the member states.