sou · GQB369d1 · 2003-01-01 00:00:00 — avgöra om det finns skäl som är starka nog för permanent uppehållstillstånd. Den ordning kommittén föreslår ger också möjlighet att ge ett kortare uppehållstillstånd för en utlänning som i en akut och uppslitande situation behöver viss betänketid för att ta ställning till sin eventuella medverkan i brottsutredning eller längre vistelse i . Att en utlänning beviljats ett tidsbegränsat uppehållstillstånd för att medverka i förundersökning eller huvudförhandling skall inte hindra att en asylansökan eller ansökan om uppehållstillstånd på grund av humanitära skäl prövas. De utlänningar som ansöker om uppehållstillstånd på de nu diskuterade grunderna eller beviljas sådant tidsbegränsat uppehållstillstånd som föreslagits kan under sin vistelse vara i behov av bistånd i form av såväl hälso- och sjukvård som boende och allmänna levnadsomkostnader. Kommittén föreslår att en sådan utlänning skall ha rätt till samma hälso- och sjukvård som asylsökande utlänningar har. För annat bistånd ansvarar enligt gällande regler den kommun i vilken utlänningen vistas. bör inom ramen för sitt tillsynsuppdrag informera kommunerna om de rättigheter som i dessa fall gäller enligt socialtjänstlagen (2001:453). Kommuner och landsting skall ersättas av staten för de kostnader som kan uppkomma medan en ansökan om uppehållstillstånd prövas eller sedan ett föreslaget tidsbegränsat uppehållstillstånd beviljats. I samband med inträde i upphörde personkontrollerna vid landets gränser för resor som görs inom Schengen. Detta har lett till bl.a. en ökning av antalet asylansökningar som görs efter inresa i landet och utan giltiga resedokument. De problem som detta för med sig – belastning av och kostnader i asylprövningssystemet, väntetid för personer som har rätt till skydd, lagföringsproblem samt risk för minskat stöd för en generös politik för skyddsbehövande – har påtalats av framför allt polisen och . Liknande problem har i andra Schengenstater lett till kompensatoriska åtgärder i form av exempelvis personkontroller, misstankebaserade eller ej, som utförs i närheten av gränsen. Polisen har fortfarande huvudansvaret för personkontrollen vid utlänningars inresa i . För att denna i praktiken skall kunna utföras utan att strida mot krävs någon form av kompensatoriska åtgärder. Att de borttagna personkontrollerna kompenseras förutsätts dessutom enligt och är en förutsättning för att inte skall utgöra en svag länk i det kontrollarbete som i alla Schengenstaters intresse utförs av andra länder. Det finns ett uppenbart behov av att i nära anslutning till inresa, dvs. nära gränserna, få utföra en del av kontrollen. Detta talar för att kontrollen bör göras som en del av den inre utlänningskontrollen i enlighet med 5 kap. 6 § UtlL. Kontrollerna kan bli effektiva genom att utgå från välgrundad information från t.ex. kriminalunderrättelsetjänsten eller andra länder om misstänkta fordon, resvägar etc. Sådan informationsstyrd verksamhet kan även i samband med sådan inre utlänningskontroll som kan göras i andra sammanhang än vid inresa leda till att det finns särskild anledning till kontroll. I samband med inresa kan det dock vara befogat att kontrollera även andra personer än utlänningar. Dessutom finns det annan brottslighet att kontrollera än just den som avser invandringsregleringen. Detta gör att det kan finnas alternativ som är lämpligare än en utveckling av den inre utlänningskontrollen, exempelvis en särreglering som avser all gränskontroll. Eftersom regleringen av personkontroller inte har varit någon av kommitténs egentliga frågor lämnas inget förslag till hur denna bör göras. Kommittén påtalar dock vikten av att regeringen – för att det arbete mot illegal invandring och människohandel som påbörjats och drivs inom skall vara meningsfullt – låter utreda frågan om hur regleringen av nämnda frågor bör göras. Kommitténs förslag bör kunna träda i kraft . Förslagen förväntas inte innebära annat än ett mindre antal beviljade uppehållstillstånd och torde inte ge upphov till kostnader som kräver ökade anslag. Förslagen kan få positiva effekter på det brottsförebyggande arbetet. In this part of the investigation entrusted to it, the committee has not only had to evaluate and review the provisions of the Aliens Act (1989:529) concerning the punishment meted out for smuggling people, but has also had to investigate what possibilities there might be of facilitating legal proceedings in cases of both smuggling people and trafficking in them, as well as considering the possibility of supporting, both legally and otherwise, the victims of the trafficking in humans, so that they are able to assist with the criminal investigations. This has meant investigating whether the provisions concerning the smuggling of humans in the Aliens Act which came into force in 1994 and 1997 are formulated in a fashion suitable for their purpose, and what effects the provisions have had when they have been put into practice. An additional task has been to survey the number of arrests that have been made with the support of the provisions and thereafter analyse the judgements given, with a particular focus on what significance the prerequisite for the purpose of financial gain has had for the deliberations in the course of the legal proceedings with respect to matters of evidence. The task has also entailed considering what possibilities there are for making the legislation clearer as well as carrying out a review of the penalties that are stipulated in the Aliens Act on the basis of the level of culpability of the deeds in question. Crimes that contravene Section 10 of the Aliens Act There are provisions in Section 10 of the Aliens Act concerning the criminal liability etc of those who commit crimes that contravene the legislation concerning aliens. Among other things, this entails the following: It is an offence to help a foreigner to enter in contravention of the applicable provisions. According to sub- section 2 a of Section 10, the penalty for this is a prison sentence of no more than six months, or, if there are extenuating circumstances, fines. If the crime is a grave one, a prison sentence of no more than two years may be given. Preparations to commit the crime and attempts to commit the crime are also punishable. In previous preparatory work, a prerequisite for punishability has been deemed to be into the country avoiding passport control, or cases where the foreigner goes through passport control when concealed or with the help of forged documentation. Moreover, since 1984 it has been a criminal offence to organise, for financial gain, journeys to for foreigners who do not have permission to enter the country (sub-section 5). The provisions were made more strict in 1994 and 1997, partly by making certain forms of assistance punishable and partly by raising the maximum sentence for the principal crime to four years imprisonment. Since then the provisions have not been changed. According to the current purport of sub-section 5, a person who, for the purpose of financial gain, plans or organises an activity intended to facilitate the journey of a foreigner to without a passport or those permits required to enter , will be sentenced to prison for a maximum of four years or, if the crime is less serious in nature, to fines or to a prison sentence of no more than six months. A person who helps a foreigner to to without a passport or those permits required to enter will be sentenced for complicity in the crime if he or she realised or had reasonable grounds to presume that the journey had been arranged for the purpose of financial gain by means of an activity of the kind mentioned above. Unlike sub-section 2 a it is not a requirement that the foreigner enters the country or intends to enter illegally. Moreover, it makes no difference if the foreigner, after entering , is given the right to stay here as a refugee or someone otherwise in need of protection, for example. What matters instead is if the foreigner is lacking a passport and those permits required for entry, if the journey is part of a planned enterprise intended to facilitate the arrival of foreigners in without the documentation required and if the organiser acted with financial gain as his or her purpose. The extent of the enterprise and how much profit was made by the organiser are factors that can be considered when evaluating what penalty the crime merits. The provisions of sub-section 5 are only intended for those enterprises that are conducted with the intention of making a profit. Consequently the offence is not a punishable one when it is part of a non-profit-making enterprise intended to help someone to come to in order to apply for asylum or some other permit once here. It is also punishable, for the purpose of financial gain, to prevent the execution of an order refusing entry to an alien, or a deportation order, by concealing a foreigner or by some other such measure (sub-section 3). The sanction is a prison sentence of no more than one year or, if there are extenuating circumstances, fines. However, there is no provision in the Aliens Act concerning the culpability of someone who hides a foreigner with the intention of preventing an order refusing entry or a deportation order being issued at all. With the advent of 's participation in the Schengen Agreement there was an extension of the current penalties in sub- sections 2 a and 3 so that they also included assisting an illegal entry and sojourn in other Schengen states (sub-section 3 a). With respect to assisting illegal entry, it is a requirement in this case, unlike the case of an entry into , that there is a profit motive involved. The provisions of 3 a entail, among other things, that it is a punishable offence to smuggle a foreigner through to another Schengen state for the purpose of financial gain. As far as trafficking in humans is concerned, there were no particular penal provisions prior to the first of 2002. The conduct in connection with such a criminal activity was instead judged in accordance with the provisions of the penal code concerning, for example, the punishments meted out for procuring, kidnapping or unlawfully depriving someone of their . The penal provisions that have now come into force entail that anyone who, with the help of certain improper means, induces a person to make their way to or allow themselves to be transported to another country for the purpose of allowing that person to be subjected to certain sexual crimes or in any other way be exploited for sexual purposes, can be sentenced to prison for trafficking in humans for sexual purposes for not less than two years and no more than ten years. The penal provision also applies to someone who, in such circumstances, receives, transports or gives shelter to such a person. However, the provision only applies to human trafficking for sexual purposes in which frontiers are crossed, which means that if is to live up to its international obligations, other forms of human trafficking will also have to be made punishable at a later date. For foreigners who have become victims of trafficking in humans or similar activities, general rules apply concerning the possibility of having access to, for example, health care, attention and legal and other help during the criminal investigation and trial. There is no particular provision concerning the possibility of granting permits of limited or permanent duration in order to co-operate in a criminal investigation or trial. First and foremost there is a basic difference between smuggling humans and trafficking in humans. Smuggling humans is considered to be a crime against the state and the initiative has often been taken by the foreigner who wishes to be smuggled, not by the organiser behind the smuggling. Trafficking in humans, on the other hand, is considered to constitute a crime against the person. Those people who are exploited in such an enterprise constitute victims of crime. Survey and analysis of arrests and judgements In 1998, the authorities throughout reported 147 cases of arrests for smuggling to . During the three subsequent years, the number diminished to 91, 85 and 50 respectively. The arrests took place primarily in the county of , in and at airport. Usually there was an attempt to smuggle 1-3 people, but attempts to smuggle 4, 5 or 6 people have not been uncommon either. Almost without exception the smugglers have been foreign citizens or Swedish citizens of foreign extraction. Between 1995 and 2000, 125 judgements were given by district courts with respect to crimes against Section 10 sub-section 2 a of the Aliens Act. often some crime concerning documentation had been committed in connection with the smuggling or attempted smuggling. When individual relatives have been smuggled, the consequences have been fines as a rule. If the judgement also involved crimes concerning documentation, in certain cases it was not considered that the consequences could be limited to fines. When the gravity of the crime against the Aliens Act was deemed to be normal, this has usually resulted in a brief term of imprisonment. Between 1995 and 2000, 11 judgements were given by the district courts concerning crimes against Section 10 sub-section 5 of the Aliens Act. Four of the accused were sentenced for complicity in accordance with Section 10 sub-section 5 of the Aliens Act. Prior to the first of January 1994, when the legislation was changed, their complicity would not have been a criminal act. It has not been possible to glean from the judgements what effect the increase in the severity of the punishment that came into force in 1997 has had with respect to the implementation of legal measures in practice. Neither has it been possible to draw any far- reaching conclusions from the deliberations that have been recorded in the judgements concerning the prerequisite for the purpose of financial gain. Review of the penalties stipulated in the Aliens Act Since the committee's directive was written, a Council Directive has been worked out within the EU defining the facilitation of unauthorised entry, transit and . There has also been a Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and . In addition, the work at the UN against transnational organised crime has produced results in the form of a convention with an additional protocol concerning the smuggling of migrants. This has been taken into account as part of the committee's review of the penal provisions of the Aliens Act. Illegal immigration is on the increase. It has become more and more common for foreigners to get to Europe by paying large sums of money to smugglers of people in order to apply for asylum subsequently. If they are not granted a permit, they are obliged to return to the circumstances they have left, which are usually much more grim. The smuggling of humans is being conducted to a greater and greater extent by criminal organisations that have branches in various countries. The smuggling of people, and other assistance given to evade the legislation concerning foreigners, means that the regulation of immigration is sabotaged and the life, health and property of individuals are put at risk. Such actions also put at risk the popular support that there is behind the right to apply for asylum. is therefore of the opinion that there should be a more strict approach with respect to the punishment of those who organise the smuggling of humans and provide other assistance to evade the legislation concerning foreigners. This is also in line with the purport of the EC legislation and the struggle that is being waged within the EU against the smuggling of humans and other illegal immigration. has come to the conclusion that the provisions of Section 10 sub-sections 2 a and 5 of the Aliens Act correspond to the requirements stipulated by the EC directive and the additional protocol of the UN with respect to making criminal the act of assisting people to enter illegally. With respect to the demand in the directive that those who assist a foreigner to pass through a member state illegally should be punished, thanks to Section 10 sub-section 3 a of the Aliens Act it is punishable at the present time to smuggle a foreigner through to another Schengen state. In order to fulfil 's obligations according to the EC directive, it is proposed that the provisions of sub-section 3 a as they are at present should be expanded to also include actions that are aimed at other states in the EU, and that the requirement that there must be a profit motive should be dropped. Since the procedures of Section 10 sub-sections 2 a and 5 of the Aliens Act often overlap each other, the committee proposes that the same provision should regulate them both. Moreover, in order to make the legislation clearer it is proposed that the charge of smuggling humans should be introduced. The opportunity that is given by the EC directive to introduce exemptions on humanitarian grounds has been taken account of in that the requirement that there be a profit motive is retained for those procedures that are regulated in Section 10 sub-section 5 of the Aliens Act as it is at present. In order to fulfil the obligations of the framework decision, it is proposed that the maximum punishment for smuggling humans be raised to a prison sentence of no more than six years. As a consequence of the increased severity of the punishment, it is proposed that the minimum punishment should be increased to a prison sentence of at least two years. This would enable the use of secret wire-tapping, provision of call associated data and the secret use of video cameras as part of the investigation of the crime. In addition the committee proposes an increase in the severity of the punishment even in cases where the circumstances are less serious. It is proposed that the scale of punishment in such cases should be raised to a prison sentence of no more than three years. According to the EC directive and the UN's extra protocol, assisting an illegal sojourn is also to be considered punishable. The provisions of Section 10 sub-section 3 of the Aliens Act are limited to punishments for those who, with the intention of gaining financially, by hiding a foreigner or by taking some other measure, attempt to prevent the implementation of an order refusing entry or a deportation order. Since a foreigner who remains in without having the necessary permit and without applying for such a permit can be punished, it is the opinion of the committee that the criminal liability of sub-section 3 should be broadened to include assisting any sojourn in the country that is in breach of the Aliens Act. The requirement that there is an intent to gain financially is to be retained. Moreover the committee proposes that the maximum punishment should be increased to a prison sentence of no more than three years and that, as a consequence of this, the possibility that a fine can be the sentence when there are extenuating circumstances, should be taken away. permit etc for certain victims of crime has had access to comprehensive material concerning the circumstances that usually prevail when there is trafficking in humans. It is the ruthless exploitation of people who in some find themselves in a vulnerable situation. It is often not possible to describe what the victims of the crimes are subjected to as anything other than appalling. received considerable attention and, as a result, several countries have already implemented special regulations concerning permits and measures to support such victims of crime. In , as in many other countries, it has happened that the and the prosecutor investigating trafficking in humans have experienced problems because there are no legal grounds for a victim or other person who has evidence to remain in while the process of runs its course. This has resulted in women being refused entry to the country after just a preliminary interview with the . Later in the proceedings this has made the situation regarding evidence more difficult. The lack of any means of temporarily retaining a foreigner in the country for further investigation has also meant that foreign women who are found to have prostituted themselves are immediately refused entry and sent home, since they lack sufficient funds for their sojourn or do not support themselves in an honest fashion (Section 4 sub- section 2 of the Aliens Act). In such cases there is no further investigation with respect to the circumstances which prevailed when they came to and resided here. This means that a lot of information about, for example, the trafficking in humans can be lost. In those cases of trafficking in humans that have been investigated in and other European countries, the victims have often been in an extremely poor state, both mentally and physically. They have also been in a threatening situation. This has meant that, whatever the chances of them remaining in the country have been, they have not dared to co-operate in the investigation of the crime. Taking into account the importance of the work against the trafficking in humans and the smuggling of humans, the committee has found that when there is serious transnational criminality, there is a need to allow people whose evidence is required to remain in in order to assist the and the prosecutor in their investigation. This is to be done by incorporating a special provision into the Aliens Act whereby a foreigner may be given a permit of limited duration if this is deemed necessary in order to conclude a preliminary investigation or the main proceedings in a criminal case. When it comes to evaluating whether this really is necessary, the opinion given by the leader of the preliminary investigation to will be of great importance. permits of this nature, that are limited in time, can also be justified in the investigations of other crimes than that of trafficking in humans. Moreover, in the light of what has been discovered, it is not reasonable merely to discuss permits of limited duration, given the situation that some of the victims of trafficking in humans find themselves in. There might be occasions when the victim's situation and wishes can constitute due cause to grant a permanent permit on humanitarian grounds. Such cases would be situations in which foreigners have been subjected to trafficking in humans in connection with their journey to , or during their sojourn here. It should be possible to grant such a permit with the support of the provisions of the Aliens Act with respect to permits on humanitarian grounds. In the light of the entire evaluation that is always carried out when investigating if there are humanitarian grounds, this provision gives the authorities concerned with foreigners the possibility of deciding that there are strong enough grounds to grant a permanent permit, taking into account, for example, what has been discovered in the course of the criminal investigation, and after the leader of the preliminary investigation has given his opinion. The regulations proposed by the committee also enable a permit of shorter duration to be granted for a foreigner who is in an acute and trying situation and who needs a certain amount of time to think in order to consider whether or not to cooperate in a criminal investigation or stay in for a longer period of time. The fact that a foreigner has been granted a permit of limited duration in order to cooperate in a preliminary investigation or main proceedings is not intended to prevent an application for asylum or for a permit on humanitarian grounds from being considered.