Select Committee on European Scrutiny Ninth Report


NINTH REPORT

The European Scrutiny Committee has made further progress in the matter referred to it and has agreed to the following Report:—



STRENGTHENING THE PENAL FRAMEWORK TO PREVENT UNAUTHORISED ENTRY AND RESIDENCE


(a)
(21515)
9892/00


(b)
(21519)
10676/00


(c)
(21531)
10712/00


(d)
(21780)
12025/00


(e)
(21969)
13739/00



(f)
(21529)
10675/00


(g)
(21530)
10711/00


(h)
(21781)
12026/00
— 

Draft Framework Decision on the strengthening of the penal
framework to prevent the facilitation of unauthorised entry and
residence.


Revised draft Framework Decision on the strengthening of the penal
framework to prevent the facilitation of unauthorised entry and
residence.


Explanatory Note concerning the proposal for a Framework Decision
on the strengthening of the penal framework to prevent the
facilitation of unauthorised entry and residence.


Draft Council Framework Decision on the strengthening of the penal
framework to prevent the facilitation of unauthorised entry and
residence.


Draft Council Framework Decision on the strengthening of the penal
framework to prevent the facilitation of unauthorised entry and
residence. Draft Council Directive defining the facilitation of
unauthorised entry, movement and residence.


Draft Council Directive defining the facilitation of unauthorised
entry, movement and residence.



Explanatory Note concerning the proposal for a Council Directive
defining the facilitation of unauthorised entry, movement and
residence.


Draft Council Directive defining the facilitation of unauthorised
entry, movement and residence


Legal base: (d), (e) and (h) Article 63(3)(b) EC; consultation; unanimity
Forwarded to the Council: (d) 6 October 2000
(e) —
(h) 6 October 2000
Deposited in Parliament: (d) 14 November 2000
(e) —
(h) 14 November 2000
Department: Home Office
Basis of consideration: EM of 25 January 2001
Previous Committee Report: HC 23-xxxi (1999-2000), paragraphs 5 and 6 (29 November 2000)
To be discussed in Council: 28-29 May 2001
Committee's assessment: Legally and politically important
Committee's decision: (a) to (d) and (f) to (h) Cleared
(e) Not cleared

Background

  1.1  This proposal, originally made by France, is for a Framework Decision on jurisdiction and penalties in relation to 'facilitation' offences, that is, offences concerned with facilitating illegal immigration and trafficking in human beings. The material scope of such offences is to be defined by a Directive to be adopted under Article 63(3)(b) EC defining the facilitation of unauthorised entry, movement and residence.[10] Consideration of the Framework Decision has proceeded in conjunction with that of the Directive, and both proposals are now addressed together in document (e).

  1.2  We considered two earlier versions of the Framework Decision (documents (a) and (b)), and an Explanatory Note (document (c)) on 29 November 2000, when we expressed our concerns on three main points. These were, first, that the Framework Decision did not explicitly exclude asylum seekers from its scope. Secondly, Article 2 of the Framework Decision appeared to us to interfere with the discretion of the judiciary to impose sentences in individual cases. Finally, we questioned whether criminal liability ought to be imposed on legal persons, in the absence of negligence or recklessness by its officers, where a 'lack of supervision or control' merely made possible the commission of the relevant offence.

  1.3  We also considered an earlier version of the Directive (document (f)) and an Explanatory Note (document (g)) on 29 November. We expressed the concern that those representing bona fide organisations should not be penalised by this measure, and over the absence of any express exclusion for asylum seekers. We noted the intention of the Minister of State at the Home Office (Mrs Barbara Roche) to seek an extension of the scope of the offence under Article 1 so as to cause it to apply to facilitating entry into any Member State, but asked her if such an extension would lead to an undesirable extra-territorial assertion of jurisdiction and if it would be preferable for the offence to be prosecuted in the Member State into which entry has been obtained.

  1.4  Both the Framework Decision and the Directive have been further revised. A version of the Framework Decision (document (d)) was submitted to the Council in October 2000 and has itself been superseded by the most recent version annexed to document (e). A version of the Directive (document (h)) was also submitted to the Council in October 2000 and has been superseded by the most recent version annexed to document (e).

The document

  1.5  Document (e) submits to the Council proposals for agreement in principle on Article 1(1), 1(3) and 4a of the draft Framework Decision, and on Article 1(3) of the Directive. The document indicates that the other provisions of the Framework Decision and the Directive will have to be examined at a later stage.

— the Framework Decision

  1.6  Article 1(1) of the proposed Framework Decision requires Member States to provide for 'effective, proportionate and dissuasive' criminal penalties, which may entail extradition, in respect of the activities defined in Articles 1 and 2 of the Directive.

  1.7  Article 1(3) requires Member States to provide for maximum sentences of not less than eight years' imprisonment where the offences defined in the Directive are committed for financial gain and in certain aggravating circumstances. These are where the offence is committed 'by a criminal gang', or where the offence is committed 'while endangering the lives of the persons who are the subject of the offence'.

  1.8  Article 4a provides that the Framework Decision is to apply 'without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention on refugee status'. The provision is described in document (e) as a 'humanitarian clause'. Amongst other effects, it would appear to qualify the offence of facilitating entry which, as the text of the Directive stands, can be committed even where the acts are not done for financial gain. Document (e) points out that some delegations find the wording inadequate, and wish to retain the condition of financial gain 'since it is the only definition which clearly does not adversely affect work done by humanitarian organisations for refugees'.

— the Directive

  1.9  Article 1 of the Directive defines the general offence of facilitation, whilst Article 2 refers to participation in, or instigation of, the general offence. Article 1(a) of the Directive provides that the general offence of facilitation is committed where a person assists or tries to assist an alien[11] to enter or transit within the territory of a Member State or the territory of Norway or Iceland in breach of the laws of the State concerned on the entry of aliens. Article 1(b) provides that the offence is also committed by any person who assists or tries to assist an alien to reside within the territory of a Member State or of Norway or Iceland, in breach of the laws of the State concerned on the residence of aliens, but the offence is not committed unless such acts are done for financial gain. Document (e) refers to the removal of the condition of financial gain in connection with the facilitation of unauthorised entry as the 'key point in the Presidency's proposal'.   

The Government's views

  1.10  In her Explanatory Memorandum of 25 January 2001 the Minister of State at the Home Office (Mrs Barbara Roche) comments on the scope of Article 1(1) of the draft Framework Decision as follows:



    "as the text of the draft Framework Decision stands in 13739/00, penalties which may entail extradition now apply to all the offences in Article 1 of the draft Directive. The Government's position is that it is important that dissuasive penalties should not be limited to serious cases of facilitation."

  1.11  On Article 1(3), the Minister comments as follows;

    "Article 1 also now has a sub-article 1(3), which is based partly on a proposal by the UK. This provides for a minimum maximum penalty of 8 years' imprisonment for offences that involve certain aggravating circumstances. The Government is mindful of the minimum maximum penalty of 8 years' imprisonment for the offences of fraudulent making or altering of currency in the Framework Decision on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the Euro. The Government considers that crimes of serious facilitation, which in some cases endanger life, should be liable to a similar penalty. Some Member States consider that a penalty of 8 years is too long, and discussions on this point are continuing."

  1.12  On the question of the 'humanitarian clause' in Article 4a, the Minister makes the following comments;

    "This is a new article which provides that the Framework Decision shall apply without prejudice to the protection afforded to refugees and asylum seekers under international law. The Government considers that it is sensible to include such a provision, in particular in light of the Government's comments in paragraph 14 of the Explanatory Memorandum on Council Document 10676/00, that the Framework Decision did not exclude asylum seekers from its scope[12]. Article 4a ensures that there is no inconsistency between the Framework Decision and the Geneva Convention. However, the Government would not wish to see this article extended to provide immunity from prosecution for breaking the law."

  1.13  With regard to the Directive, it will be recalled that document (e) is concerned only with the issue of whether or not financial gain should be a condition of the offence. On this point, the Minister comments as follows;

    "Other important changes are the removal of the word 'offence' (because of concerns that a 1st pillar instrument should not define criminal law offences — instead the Framework Decision specifies that the actions defined in the Directive must be liable to criminal penalties) and the new requirement in Article 1(b) that the facilitation of unauthorised residence must be committed for gain. This requirement has not been included in Article 1(a). At the UK's request, the word 'intentionally' — which was included in document 10675/00 but omitted from the subsequent French Presidency text — has been inserted into the draft text of Articles 1(a) and 1(b) before the word 'assists', and 'transit within' in Article 1(a) has been amended to 'transit across'. These changes should appear in a future version."

Conclusion

  1.14  We thank the Minister for her helpful Explanatory Memorandum, which deals also with a number of issues which await further discussion and on which we will comment in the light of a revised text of the Framework Decision and Directive. For the moment, we confine our comments to those issues raised in document (e).

  1.15  The first such issue is whether it is appropriate that an offence of facilitating unauthorised entry should be committed irrespective of any motive of financial gain. We note that a 'humanitarian clause' has been included in Article 4a of the Framework Decision, but we also note that a number of Member States, but not — it seems — the UK, consider this provision to be inadequate and wish to retain the condition of financial gain in order to make clear that the work done by humanitarian organisations for refugees is not adversely affected. We note and share the Government's concern that the Directive must not inadvertently penalise lawful activities on the part of those representing bona fide organisations. We ask the Minister to state if she has consulted such organisations on this issue, and if so, to state if those consulted are content with the protection of the 'humanitarian clause', even in circumstances where it is provided that the offence of facilitating entry can be committed irrespective of any motive of financial gain.

  1.16  On the second issue, namely the penalty under Article 1(3) of the Framework Decision, we found the analogy drawn by the Minister with the penalties for counterfeiting the euro to be less than convincing. However, we acknowledge that a good case can be made out for a higher penalty where the offence is committed for financial gain and in the aggravating circumstances described. We note that some Member States consider that a penalty of eight years is too long, and we ask the Minister to inform us of the outcome of discussions on that issue.

  1.17  Since the earlier documents (a) to (d) and (f) to (h) have now been superseded, we are content to clear them. We do not clear document (e), and shall await the Minister's reply.


10  (21529) 10675/00, (21530) 10711/00; see headnote to this paragraph.  Back

11  A person who is not a national of a Member State of the European Union or of Norway or Iceland. Back

12   "The text of the Framework Decision in its present form, by referring to the offences described in Article 1 of the Directive, does not explicitly exclude asylum seekers from its scope. The Government is currently considering how this provision might more correctly be worded." Back


 
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