EU measures to prevent the facilitation of illegal immigration

SUMMARY OF:

Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence

Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence

WHAT IS THE AIM OF THE DIRECTIVE AND THE FRAMEWORK DECISION?

Both aim to strengthen the system of sanctions preventing the facilitation of illegal immigration.

Directive 2002/90/EC provides a common EU definition of what facilitation of illegal immigration is.

Framework Decision 2002/946/JHA harmonises EU countries’ laws regarding:

• penalties;
• the liability of legal persons; and
• jurisdiction for infringements relating to the facilitation of illegal immigration.

KEY POINTS

Infringements

Facilitation of illegal immigration consists in:

• 1.

  intentionally assisting a non-EU country national to enter or transit through the territory of an EU country in breach of laws; or

• 2.

  intentionally assisting, and for financial gain, a non-EU country national to reside in the territory of an EU country in breach of laws.

However, in the first case, when the aim is to provide humanitarian assistance, EU countries are not obliged to impose sanctions.

Penalties

EU countries must adopt effective, proportionate and dissuasive criminal sanctions which may entail extradition. The criminal penalties may be accompanied by other measures, such as:

• confiscation of the means of transport used to commit the offence;
• prohibition to practice the occupational activity in which the offence was committed; or
• deportation.

Infringing or instigating infringement must be punishable by custodial sentences with a maximum sentence of at least 8 years:

• if committed for financial gain;
• if committed as part of the activity of a criminal organisation; or
• if the lives of the subjects of the offences were endangered.

Liability of legal persons

EU countries must also adopt effective, proportionate and dissuasive sanctions against legal persons* for aiding illegal immigration committed for their benefit, in any of the following circumstances:

• the infringement is committed by someone with a leading position within that legal person;
• the infringement is committed by someone under the authority of that legal person and over which the person with a leading position neglects to exercise supervision or control.

The sanctions must include criminal or non-criminal fines and may include other sanctions, such as:

• exclusion from public benefits;
• a temporary or definitive ban on commercial activities; or
• a judicial supervision or dissolution measure.

Jurisdiction

• EU countries must ensure their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. If an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside its territory.
• When an EU country becomes aware of infringements breaching another EU country’s immigration law, it must inform the country concerned. If one EU country requests another to prosecute an infringement of its immigration law, it must provide it with an official report or certificate describing the law that was breached.

Territorial application

• Denmark does not take part in the application of the directive or of the decision under EU law but it is bound by its rules on the basis of Protocol 22.
• The directive and the decision were initially applicable to the United Kingdom but it chose to opt-out of the framework decision with effect from 1 December 2014 on the basis of Article 10(4) of Protocol 36. Therefore, only the directive applies to the United Kingdom.
• The facilitators package does not apply to Ireland yet.
• The directive and the decision constitute a development of the Schengen acquis and therefore applies to Iceland, Liechtenstein, Norway and Switzerland.

FROM WHEN DO THESE ACTS APPLY?

Both acts have applied since 5 December 2002 and had to become law in EU countries by 5 December 2004.

BACKGROUND

The directive and the decision contribute to the development of an area of justice, freedom and security by developing common action among EU countries in the fields of police and judicial cooperation in criminal matters. They supplement the following acts:

• Directive 2009/52/EC on illegal employment;
• Directive 2011/36/EU on trafficking in human beings; and
• Directive 2011/93/EU on the sexual exploitation of children.

KEY TERMS

MAIN DOCUMENTS

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 17-18)

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 1-3)

RELATED DOCUMENTS

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, pp. 1-14)

Corrigendum

Successive amendments to Directive 2011/93/EU have been incorporated in the original text. This consolidated version is of documentary value only.

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, pp. 1-11)

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ L 168, 30.6.2009, pp. 24-32)

Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, pp. 20-23)

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, pp. 43-47)

Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Final act (OJ L 176, 10.7.1999, pp. 36-62)

Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two states with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, pp. 31-33)

Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol on the position of Denmark (OJ C 340, 10.11.1997, p. 101)

Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol integrating the Schengen acquis into the framework of the European Union (OJ C 340, 10.11.1997, p. 93)

last update 11.02.2019