One year on from the adoption of the proposal for a New Pact on Migration and Asylum, the Commission presented on 29 September a Report on Migration and Asylum. The Commission also adopted a renewed EU action plan against migrant smuggling and a Communication on the application of the Employers Sanctions Directive.
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Renewed EU action plan against migrant smuggling (2021-2025)
How does the action plan help achieve the objectives of the New Pact on Migration and Asylum?
Preventing and fighting migrant smuggling inside and outside the EU is a key objective of the New Pact on Migration and Asylum. The EU action plan will contribute to preventing loss of life, reducing unsafe and irregular migration, facilitating orderly migration management and establishing a sustainable migration and asylum framework. It also supports the objectives of the EU Security Union Strategy, as well as the 20212025 EU Strategy on Combating Trafficking in Human Beings.
What is “state-sponsored” migrant smuggling and how does the Commission propose to address it?
“State-sponsored” migrant smuggling refers to a situation where a State artificially creates and facilitates irregular migration, using migratory pressure as a tool for political purposes. The actions of Belarus using migratory pressure at the EU’s external borders exemplify this.
To reply in a joint and effective manner to the challenges of this new phenomenon, the EU needs a reinforced toolbox bringing together the full range of operational, legal, diplomatic and financial instruments at its disposal. This includes the rapid mobilisation of EU agencies notably Frontex, Europol and EASO in cooperation with Interpol and other international organisations (such as UNODC) to provide operational support to manage the situation at the EU’s external borders, gather intelligence and operational information and assist the migrants subject to such instrumentalisation.
Responding to the use of irregular migration by State actors requires broad dialogue and engagement with countries of origin and transit on the prevention of irregular migration, the instrumentalisation of migration and on the facilitation of return. Where appropriate and applicable, the use of restrictive measures under the EU Global Human Rights Sanctions Regime could be considered to target individuals, entities and bodies participating in State-led schemes and being responsible for, involved in or associated with serious human rights violations and abuses.
In addition, the EU should take targeted measures in areas such as visa policy (as done in the case of Belarus with today’s proposal to partially suspend certain provisions of the EU-Belarus Visa Facilitation Agreement), trade, development or financial assistance.
As announced by Commission president von der Leyen in her 2021 State of the Union address, the Commission will, as part of its work on Schengen, set out new ways to respond to such aggression and ensure unity in protecting our external borders. In this context, the Commission will consider strengthening the EU’s legal framework to ensure a common approach to better protect the external borders and the essential interests of the EU and its Member States, while always respecting fundamental rights.
What is the difference between migrant smuggling and trafficking in human beings?
In the case of migrant smuggling, migrants willingly engage in the irregular migration process by paying for the services of a smuggler to cross an international border. Trafficking in human beings refers to people being trafficked for exploitation purposes. Trafficking in human beings does not necessarily take place across borders. Migrant smuggling and trafficking in human beings are often linked, as smuggled persons can become victims of traffickers for labour, sexual or other exploitation purposes.
The EU Strategy on Combating Trafficking in Human Beings for 2021-2025 sets out an EU response to combat trafficking in human beings, from prevention through protection of victims to prosecution and conviction of traffickers. It aims at reducing demand that fosters trafficking, breaking the criminal model to halt victims’ exploitation and protecting, supporting and empowering the victims, especially women and children.
The renewed EU action plan against migrant smuggling for 2021-2025 presented today also contributes to disrupting traffickers’ business and provides a strong European response to fight smuggling networks.
What will be covered by the Anti-Smuggling Operational Partnerships with partner countries along migratory routes to the EU?
As part of the comprehensive and mutually beneficial partnerships the EU is seeking to establish with key third countries of origin and transit under the Pact, a dedicated strand of Anti-Smuggling Operational Partnerships will provide tailor-made support to partner countries or regions to counter migrant smuggling. These will aim at strengthening legal, policy, operational and strategic frameworks in partner countries and at increasing the impact, ownership and sustainability of efforts to tackle migrant smuggling.
Member States should, through pooling knowledge and resources in a Team Europe approach, play a central role in the design and implementation of the Anti-smuggling Operational Partnerships. The operational partnerships will rely on Member States’ capacity and knowledge for providing the necessary assistance to partner countries. EU agencies, in particular Europol, Frontex and Eurojust, should also offer support, including through facilitating the exchange of information, providing technical assistance, training, and deploying liaison officers.
Anti-smuggling operational partnerships will be launched as a priority in the Eastern Mediterranean/ Western Balkan region, based on a whole-of-route approach that includes the Silk Route and North and West African countries, in cooperation with more partner countries.
How will the EU deal with the use of digital tools by smugglers?
Smugglers increasingly use digital services and tools such as social media and mobile applications for recruitment, communication and money transfers, pick-up or hand-over of migrants and even monitoring of law enforcement activities. The use of digital services presents a new challenge to law enforcement and judicial authorities when it comes to investigating, prosecuting and convicting smugglers.
The renewed EU action plan focuses on enhancing data collection and research to understand the nature of criminal networks involved in migrant smuggling and strengthened cooperation with the private sector to ensure a comprehensive policy response. The adoption of the proposed EU rules on access to electronic evidence will foster more efficient investigations and prosecutions of crimes where electronic evidence is involved.
How are migrant smugglers sanctioned?
International and EU rules lay down the tools to sanction the activities of smugglers operating outside and within the EU.
The UN Protocol on Smuggling of Migrants by Land, Sea and Air obliges States to establish smuggling of migrants and other forms of activity that support such smuggling as criminal offences, while migrants should not become liable to criminal prosecution for having been smuggled. The EU transposes into EU law sanctions agreed by the UN.
The EU Global Human Rights Sanctions Regime, adopted on 7 December 2020, allows the EU to target those responsible for, involved in or associated with serious human rights violations and abuses worldwide. This new sanctions regime covers trafficking in human beings, as well as abuses of human rights by migrant smugglers when these abuses are widespread, systematic or of serious concern as regards the objectives of common foreign and security policy. The Commission calls on the Council and the Member States to sanction migrant smugglers by transposing UN sanctions and, where appropriate, using the EU Global Human Rights Sanctions Regime.
Within the EU, the Facilitators package requires Member States to appropriately sanction anyone who intentionally assists a non-EU national to enter or transit through an EU country or, for financial gain, to reside there. Its primary aim is to fight against the criminal networks responsible for migrant smuggling. Member States should fully implement the Facilitators package and apply adequate sanctions against migrant smugglers.
The Commission will work with Member States to improve the enforcement and implementation of the rules, and, where relevant, open infringement proceedings. The Commission will report on the implementation of the Facilitators package in 2023 and will consider further action, including a proposal to revise the legal framework if needed.
What legal pathways will the EU put in place to ensure that people do not have to rely on smugglers to reach the EU?
Beyond the support provided to partner countries for addressing the root causes of irregular migration, sustainable and safe legal pathways to Europe are also needed to offer protection to those in need and job opportunities to attract the talent that the EU economy needs.
Since 2015, EU resettlement schemes have helped more than 81,000 people in need of protection to find shelter in the EU. These efforts will continue and the EU provides financial support to the Member States in this regard. In addition, in its 2020 Recommendation on legal pathways to protection in the EU, the Commission called on Member States to put in place other complementary pathways linked to study, work or family reunification to expand the overall number of admissions of people in need of protection. In cooperation with the European Asylum Support Office (EASO), the Commission also promotes an EU approach to community sponsorship schemes, which give a stronger role to civil society in the reception and integration of newcomers.
With regard to legal labour migration, following the agreement on revised rules on the Blue Card for highly-skilled migrant workers, the Commission will soon put forward a Skills and Talent package including:
- a revision of the EU rules on long-term residents to improve their rights and their mobility within the EU;
- a review of the Single Permit Directive, to streamline and simplify the application procedures for employers, migration authorities and migrants and improve the protection of non-EU workers;
- the development of an EU Talent Pool, an EU-wide platform for international recruitment to match the skills of migrant workers with the needs of the EU employers.
What kind of assistance and protection will the EU provide to people smuggled to the EU?
The EU’s approach to providing protection and assistance to vulnerable smuggled migrants is outlined in the EU Strategy on victims’ rights 2020-2025, the Strategy on Combatting Trafficking in Human Beings 2021-2025 and the Strategy on the rights of the child.
Once in the EU, migrants with special needs should be identified as a priority and referred to adequate support. The pre-entry screening proposed under the New Pact on Migration and Asylum will play an important role in this respect. In the meantime, EU agencies will continue to support Member States with identification and referrals, in line with the Reception Conditions Directive and Asylum Procedures Directive. Member States and partner countries should prevent the separation of families during migratory journeys and develop search mechanisms for missing migrants.
One third of migrant children arriving in the EU are unaccompanied minors. As a highly vulnerable group, they face various risks, including trafficking in human beings. The Anti-trafficking Directive provides for binding rules to prevent trafficking, prosecute criminals effectively and protect the victims.
Will the EU provide financial support to anti-smuggling activities?
A number of financial instruments will contribute to implementing the objectives of the renewed EU action plan against migrant smuggling. These include the Neighbourhood, Development and International Cooperation Instrument Global Europe (NDICI), the Instrument for Pre-Accession Assistance III for the period 2021-2027, the Internal Security Fund, the Asylum, Migration and Integration Fund and the Border Management and Visa Instrument.
The Anti-smuggling Operational Partnerships will inform the programming of the EU’s external funding. Out of the total budget of 79.5 billion of the Neighbourhood, Development and International Cooperation Instrument Global Europe, indicatively 10% will be dedicated to actions directly targeting specific challenges related to migration and forced displacement, including anti-smuggling.
Communication on the application of the Employers Sanctions Directive
How is the Employers’ Sanctions Directive currently implemented in the Member States?
Member States have transposed the provisions of the Directive on sanctions into national legislation, although the approaches chosen vary significantly, as they are influenced by factors such as different national sanctioning systems, social impact and perception of illegal employment, economic situations and levels of wages, and incidence of illegal employment on the economy. This is reflected in the significant diversity in the range and scale of financial and criminal sanctions, as well as in the different choices made by Member States in the use of measures relating to exclusion from public aid or EU funding or exclusion from public contracts.
What is the level of the sanctions applied to employers?
The Employers Sanctions Directive defines minimum standards for financial and criminal sanctions against employers and gives a possibility of applying additional administrative measures, such as loss of public benefits or exclusion from public contracts, to counter illegal employment. Member States have flexibility in determining the actual level of sanctions, depending on the specific national situation, the severity of the violation or whether the employer is a natural or a legal person. Member States may introduce higher standards than the minimum ones laid down in the directive.
In line with the directive, financial sanctions should proportionally increase with the number of people employed illegally. Available information shows that there are significant differences in different Member States. Minimum sanctions range from 300 in Belgium to approximately 10,000 in Croatia while maximum sanctions range from 3,000 in Belgium, Cyprus and Estonia to 43,000 in Italy.
Criminal sanctions (which may be criminal fines, prison sentences or other penalties) are applied to serious cases with aggravating circumstances such as repeated violations, employing a significant number of irregular migrants or employing them in particularly exploitative working conditions, or employing victims of trafficking in human beings and minors. The severity of criminal sanctions varies between Member States, for instance in terms of length of possible prison sentence, ranging from 8 days to 12 years depending of the severity of the violation.
What happens to irregular migrants employed by employers that are sanctioned?
The Employers Sanctions Directive grants irregular migrants a right to lodge complaints against labour violations and to claim back unpaid wages, within the EU, but also from abroad if they are no longer in the EU.
To protect the victims of labour exploitation, facilitate complaints so that these serious crimes are detected and punished, and facilitate recovery of unpaid wages, the Directive allows Member States to grant temporary residence permits to irregular migrants, linked to the length of the relevant investigation. Further efforts are however needed in the implementation of this provision. Consultations with stakeholders show that victims of labour exploitation face challenges in obtaining residence permits notably due to lack of information and legal advice on the application procedure.
In cases where the assessment of the individual situation is concluded and where it has been established that the person has no right to stay in the EU, they should return to their country of origin in line with the procedures and safeguards outlined in the Return Directive.
How will the EU ensure protection of the rights of irregular migrants employed illegally?
The Employers Sanctions Directive grants irregular migrants a set of rights to ensure that they are adequately informed about their rights, can lodge complaints against labour violations and claim back unpaid wages. Reporting labour violations and engagement of irregular migrants with the relevant authorities also helps holding employers accountable for unpaid wages, taxes and social contributions, ensuring a level-playing field on the labour market, and making situations of exploitation and abuse of workers emerge.
Member States must still make further efforts in implementing the protective elements of the directive, particularly in relation to access to information, access to justice and recovery of back payments, and the granting of temporary residence permits.
How can irregular migrants bring their employers to justice and claim back wages?
The directive requires the establishment of mechanisms to file a complaint to relevant authorities either directly or through third parties such as trade unions, employees’ associations and non-governmental organisations, including when the person concerned is no longer present in the Member State. Irregular migrant workers may also receive support from trade unions or non-governmental organisations in administrative or civil proceedings. Cooperation between public authorities and social partners and non-governmental organisations is key to facilitating complaints, as they often have direct contact with the workers and can raise awareness, inform the irregular migrants of their rights and help the workers identify situations of undeclared work and labour exploitation in order to file a complaint.
Member States have chosen different ways to set up effective complaints mechanisms. While migrants that are found to be illegally employed (regardless of whether they are residing regularly or irregularly) can file claims for compensation of unpaid wages in 20 Member States under the same conditions as with a valid employment contract, in practice the complaints mechanisms could operate more efficiently.
Factsheet on Migrant Smuggling and the Employers Sanctions Directive
Renewed EU action plan against migrant smuggling (2021-2025)
Communication on the application of the Employers Sanctions Directive
Source: European Commission
