Criminalisation of migrants in an irregular situation and of persons engaging with them.
Date: 2014-04-16
Institutions: European Union Agency for Fundamental Rights
Subjects: EU migration policy, case-law (EU), criminal liability, fundamental rights, illegal migration, migrant, migration control, offence, trafficking in human beings

HELPING TO MAKE FUNDAMENTAL RIGHTS 
A REALITY FOR EVERYONE IN THE EUROPEAN UNION

FREEDOMS

Criminalisation of  
migrants in an irregular 
situation and of persons 
engaging with them

The European Union (EU) is developing a common 
immigration policy, one of whose aims is to prevent 
‘illegal immigration’, as per Article 79 of the Treaty 
on the Functioning of the European Union (TFEU).1 
This policy, one element in the EU’s area of free-
dom, security and justice, must respect the rights, 
freedoms and principles reaffirmed in the Charter of 
Fundamental Rights of the European Union,2 under 
Article 67 of the TFEU. 

This paper looks at the use of sanctions to counter-
act irregular migration, building on previous work 
of  the  European  Union  Agency  for  Fundamental 
Rights (FRA) in the field of irregular migration, bor-
ders and return. It looks first at the punishments 
used for irregular entry or stay, when persons enter 
or stay in a territory although they are not author-
ised to do so. It examines, in particular, the custo-
dial penalties for irregular entry or stay for persons 
to whom the safeguards of the EU Return Directive 
should apply. It then examines the risk that those 
who help such migrants or rent out accommodation 
to them are punished for smuggling human beings, 
or facilitating their entry or stay. The paper com-
pares EU Member States’ legislation and case law 
in this field, analysing the findings in light of rele-
vant EU law. Based on this analysis, the paper pro-
poses changes to policies against the smuggling of 
human beings, to render them more sensitive to 
fundamental rights.

Several EU Member States have resorted to crimi-
nal law measures to deter migrants from entering 
or staying in their territory in an irregular manner. 

1 

2 

EU (2010), Consolidated version of the Treaty on the 
functioning of the European Union, OJ 2010 C 83, p. 47.
EU (2010), Charter of Fundamental Rights of the European 
Union, OJ 2010 C 83 p. 389.

In addition, according to applicable EU legislation, 
EU Member States must punish persons who help 
irregular migrants to enter and stay in the EU. This 
paper  looks  at  the  impact  of  such  measures  on 
fundamental rights, such as the right to liberty and 
security of a person,3 human dignity,4 the right to 
life,5 right to an effective remedy,6 and access to 
social rights, such as housing.7

The findings are put forward in the context of the 
Return Directive (Directive 2008/115/EC), which sets 
out standards and procedures for returning irregular 
migrants,8 as well as the Facilitation Directive (Direc-
tive  2002/90/EC)9  and  its  accompanying  Council 
Framework Decision 2002/946/JHA,10 which oblige 
EU Member States to punish anyone who assists 
a person to irregularly enter, transit or stay in the 
territory of a Member State. 

FRA research has highlighted the risk that domes-
tic EU Member State legislation on the facilitation 
of entry and stay may lead to the punishment of 
those who provide humanitarian assistance or rent 

Ibid., Art. 6 (1) (f).
Ibid., Art. 1.
Ibid., Art. 2.
Ibid., Art. 47.

3 
4 
5 
6 
7  Council of Europe, European Social Charter, CETS No. 35.
8  Council Directive 2008/115/EC of 16 December 2008 on 

common standards and procedures in Member States 
for returning illegally staying third-country nationals 
(Return Directive), OJ 2008 L 348, p. 98, Art. 1.

9  Council Directive 2002/90/EC of 28 November 2002 defining 
the facilitation of unauthorised entry, transit and residence 
(Facilitation Directive), OJ 2002 L 328, p. 17–18.
10  Council Framework Decision of 28 November 2002 on 

the strengthening of the penal framework to prevent the 
facilitation of unauthorised entry, transit and residence, 
OJ L 328, p. 1.

1

Criminalisation of  migrants in an irregular situation and of persons engaging with them

out accommodation.11 Fishermen fear punishment 
for rescuing migrants in distress at sea, under the 
rules on facilitation of irregular entry.12 Such risk for 
fishermen was also reported by the press following 
the tragedies off the Italian island of Lampedusa in 
October 2013, when two shipwrecks occurred and 
more than 380 people were reported to have died.13

The use of criminal sanctions and imprisonment to 
fight irregular migration harms not only the persons 
concerned, but also casts a negative light on how 
society as a whole perceives them. Migrants lack-
ing permits to stay may be committing an offence 
and are, therefore, often unfairly seen as criminals, 
which makes them more vulnerable to exploitation 
and abuse. One tragic example involved 28 Bangla-
deshi migrant workers at a Greek strawberry plan-
tation, who were shot at in a pay dispute over out-
standing wages on 17 April 2013. Sensitive to the 
impact of language on society as a whole, the Euro-
pean  Commission  has  abandoned  the  use  of  the 
term ‘illegal migrant’, in favour of the more neu-
tral terminology ‘irregular migrant’ or ‘migrant in 
an irregular situation’.

The human rights challenges connected to the crim-
inalisation of irregular migration have been docu-
mented  in  various  reports,  including  in  a  Council 

of  Europe  Commissioner  for  Human  Rights  issue 
paper14  and  a  report  by  the  United  Nations  (UN) 
Special Rapporteur on the human rights of migrants 
on the management of the external borders of the 
EU.15 FRA published in 2011 reports on Fundamen-
tal rights of migrants in an irregular situation in the 
European Union and in 2013 on Fundamental rights 
at Europe’s southern sea borders. The reports draw 
attention to the fact that all persons have rights, 
including migrants who enter or stay in the EU with-
out permission. In practice, however, such persons 
are often deprived of their basic rights. 

The annex gives an overview of national legislation 
punishing irregular entry and stay, as well as the 
facilitation thereof, in the 28 EU Member States. It is 
available on FRA’s website at: http://bit.ly/1iire0E. It 
also covers the existence, or lack, of exceptions for 
assisting a person to enter or stay for humanitarian 
purposes, including for the purpose of seeking inter-
national protection, and the possible punishment of 
persons who provide accommodation to migrants in 
an irregular situation. The draft report and its annex 
were shared for comments with selected interna-
tional organisations and NGOs, the European Com-
mission, the FRA National Liaison Officers network 
and relevant authorities.

11  FRA (2011), pp. 63–64.
12  FRA (2013), pp. 34–36.
13  BBC (2013a, b).

2

14  Council of Europe, Commissioner for Human Rights (2010), 
Criminalisation of migration in Europe: Human rights 
implications, Issue paper, 4 February 2010. See also the 
Commissioner’s Viewpoint, It is wrong to criminalise 
migration, 29 September 2008.

15  United Nations (UN), Human Rights Council, Crépeau, F. 

(2013).

1. 

 Criminalisation of migrants in 
an irregular situation 

In almost all EU Member States, irregular entry and 
stay are offences, often punishable with custodial 
sentences. Under certain conditions and provided 
certain safeguards are respected, a person may also 
be detained within the return procedure. 

Applicable EU legislation obliges EU Member States 
to  issue  a  return  decision  to  any  third-country 
national who is in an irregular situation, unless his/
her status is regularised.16 The EU Return Directive 
regulates the standards and procedures applicable 
to persons subject to a return decision.

Under certain conditions, Article 15 of the Return 
Directive  allows  the  detention  of  third-country 
nationals for up to six months, which can exception-
ally be extended up to 18 months, to carry out the 
removal process. In line with the case law elaborated 
by  the  European  Court  of  Human  Rights  (ECtHR) 
on Article 5 (1) (f) of the European Convention on 
Human Rights,17 the Return Directive provides that 
such detention pending removal must respect sub-
stantive and procedural safeguards. For example, 
detention is lawful only if removal arrangements 
are in progress and executed with due diligence and 
only as long as there is a reasonable prospect for 
removal. Detention is allowed only after other via-
ble alternatives have been examined. Article 17 of 
the directive includes a strong presumption against 
the detention of children and in favour of alterna-
tives. Detention must be reviewed at regular inter-
vals, to ensure it is not unduly prolonged. In its rul-
ing in the Kadzoev case, the Court of Justice of the 
European  Union  (CJEU)  confirmed  that  the  maxi-
mum  detention  period  of  18  months  may  under 
no  circumstance  be  exceeded.18  The  same  ruling 
also clarified that deprivation of liberty cannot be 
allowed on grounds that a person has no means to 
support him- or herself and no accommodation.19 

Several EU Member States have national laws pre-
scribing  custodial  sanctions  for  irregular  entry  or 
stay.  Accordingly,  they  may  imprison  migrants 
beyond pre-removal detention as allowed by the 
Return Directive. 

16  Council Directive 2008/115/EC, OJ 2008 L 348, pp. 98–107, 

Art. 6.

17  For an overview of ECtHR case law, see FRA and ECtHR 

(2013), Chapter 6 ‘Detention and restrictions to freedom of 
movement’, pp. 135–170.

18  CJEU, Case C-357/09 [2009] ECR I-11189, Kadzoev, 

30 November 2009, para. 72 (1).
Ibid., para. 72 (6).

19 

Most  aspects  of  criminal  law  and  rules  on  crim-
inal  procedure  are,  in  principle,  outside  EU  com-
petence.  However,  referring  to  the  duty  of  loyal 
cooperation  under  Article  4  (3)  of  the  Treaty  on 
the European Union (TEU),20 the CJEU has said that 
“a Member State may not apply criminal law rules 
which  are  liable  to  undermine  the  application  of 
the common standards and procedures established 
by Directive 2008/115 and thus to deprive it of its 
effectiveness”.21 Imprisonment of a migrant in an 
irregular situation for the offence of having unlaw-
fully entered or stayed in the territory of a Member 
State  must not,  therefore,  take precedence  over 
applying the Return Directive, including its funda-
mental  rights  safeguards.  In  Achoughbabian,  the 
CJEU said that imprisonment for the offence of irreg-
ular stay, before carrying out the removal, unnec-
essarily  delays  the  removal  process,  even  when 
such penalties are rarely imposed in practice.22 It 
is,  therefore,  not  allowed  under  EU  law  to  apply 
a custodial penalty to a migrant in an irregular sit-
uation for irregular entry or stay, before a return 
decision is adopted and while it is implemented.23 

In that decision, the CJEU did not, however, exclude 
the possibility that EU Member States impose a fine 
for irregular entry or stay,24 or that they resort to 
imprisonment after the return procedure is com-
pleted  –  that  is  to  say  when  the  coercive  meas-
ures provided for by Article 8 of the Return Direc-
tive  have  been  applied  but  the  person  was  not 
removed.25  Home  detention  is  also  not  allowed, 
unless  its  enforcement  can  be  lifted  as  soon  as 
the physical removal of the individual concerned 
becomes possible.26

Irregular entry and stay are unlawful in all EU Mem-
ber States, and triggers a return procedure. In most 
Member States, these acts also constitute offences 
that are separately punishable with imprisonment 

20  EU (2010), Consolidated version of the Treaty on the European 

Union, OJ 2010 C 83, p. 13–45.

21  CJEU, Case C-61/11, El Dridi, 28 April 2011, paras. 55–59; CJEU, 

Case C-329/11 [2011] Alexandre Achoughbabian v. Préfet 
du Val-de-Marne, 6 December 2011, paras. 39 and 43; CJEU, 
Case C-430/11, Sagor, 6 December 2012 (concerning the 
imposition of a fine), para. 32.

22  CJEU, Case C-329/11 [2011] Alexandre Achoughbabian 
v. Préfet du Val-de-Marne, 6 December 2011, para. 40.
Ibid., para. 45.

23 
24  CJEU, Case C-430/11, Sagor, 6 December 2012, para. 50.
25  CJEU, Case C-61/11, El Dridi, 28 April 2011, paras 52 and 609; 
CJEU, Case C-329/11 [2011] Alexandre Achoughbabian 
v. Préfet du Val-de-Marne, 6 December 2011, para. 46.
26  CJEU, Case C-430/11, Sagor, 6 December 2012, para. 50.

3

Criminalisation of  migrants in an irregular situation and of persons engaging with them

and/or fines. For irregular entry and stay, fines can 
be  up  to  €10,000  (Italy).  For  irregular  entry,  the 
maximum length of imprisonment ranges from one 
month in Croatia to three months in Belgium and 
five years in Bulgaria. For irregular stay, it ranges 
from 60 days in Croatia to three years in Cyprus. In 
spite of the CJEU case law mentioned earlier, it is 
still generally possible to apply custodial sentences 
to persons subject to a return procedure.

Under  Article  8  of  the  EU  Anti-Trafficking  Direc-
tive  (Directive  2011/36/EU),27  victims  of  traffick-
ing  in  human  beings  should  not  be  punished  for 
their involvement in criminal activities committed 
as a direct consequence of their victimisation. This 
includes an exemption from punishment for immi-
gration-related offences.

1.1. 

Irregular entry

Legislation in all but three EU Member States pun-
ishes irregular entry with sanctions in addition to 
the coercive measures that may be taken to ensure 
the removal of the person from the territory of the 
state,  as  Figure  1  shows.  Legislation  in  17  Mem-
ber States28 punishes irregular entry with impris-
onment and/or a fine. Eight Member States pun-
ish  it  with  a  fine  only,29  although  in  aggravated 
circumstances the punishment may still be impris-
onment.  Depending  on  the  Member  State,  if  the 
migrant has no means to pay the fine it may be 
converted into a custodial sentence. Malta, Portugal 
and Spain do not punish irregular entry with a fine 
or imprisonment, but return procedures are imme-
diately initiated.

Figure 1:  Punishment of irregular entry, EU-28  

No punishment

Fine

Fine and/
or imprisonment

Source:   FRA, 2013 based on national legislation outlined in Annex ‘EU Member States’ legislation on 
irregular entry and stay, as well as facilitation of irregular entry and stay’ (available online)

27  Council Directive 2011/36/EC 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 2011 L 101.

28  Belgium, Bulgaria, Croatia, Cyprus, Denmark, Estonia, 

Finland, France, Germany, Greece, Ireland, Latvia, Lithuania, 
Luxembourg, Romania, Sweden and the United Kingdom 
(see annex).

29  Austria, the Czech Republic, Hungary, Italy, the Netherlands 

(only if declared an “undesirable alien”), Poland, Slovakia and 
Slovenia (see annex).

4

Criminalisation of migrants in an irregular situation 

States must not impose penalties on refugees who 
enter without authorisation if they come directly 
from a territory where their life or freedom was 
threatened,  according  to  Article  31  of  the  1951 
Convention  Relating  to  the  Status  of  Refugees. 
Bulgarian, Finnish and Spanish legislation on irreg-
ular  entry,  for  instance,  makes  reference  to  the 
obligation of the state vis-à-vis asylum seekers. In 
2011 in Bulgaria, the Svilengrad and Smolyan regional 
courts convicted 63 % of the asylum seekers who 
submitted asylum applications at the border of illegal 
entry.30 The Haskovo County (Appeal) Court ruled in 
2013, however, that no crime of irregular entry has 
been committed if the person applied for asylum at 
the earliest convenience, in line with Article 279 of 
the Criminal Code and the Geneva Convention.31 

1.2. 

Irregular stay

Similarly to irregular entry, legislation in 25 EU Mem-
ber States punish irregular stay, with 10 applying 
a fine and and/or imprisonment32 and 15 a fine only,33 
as Figure 2 illustrates. Such sanctions are in addi-
tion to the coercive measures that may be taken 
to ensure the removal of the person from the terri-
tory of the state. Depending on the Member State, 
the fine may be converted to a custodial sentence 
if the migrant cannot pay. In Malta, Portugal and 
France, irregular stay is not punished either with 
a fine or imprisonment; but a return procedure is 
initiated. France deleted provisions punishing irreg-
ular stay from the Code on Entry and Stay of Aliens 
and the Right to Asylum34 following the El Dridi and 
Achugbabian  cases.  Belgium  also  plans  to  mod-
ify  the  Immigration  Act,  in  accordance  with  CJEU

jurisprudence.35  Dutch  legislation  in  force  in  Feb-
ruary 2014 punishes the stay of an alien declared 
‘undesired’. The Dutch House of Representatives 
is considering a legislative proposal which would 
expand this punishment to cover all unlawfully stay-
ing foreigners by adding a new Article 108 A to the 
Dutch Aliens Act.36

When a return decision is issued, a period of volun-
tary return is usually also set. The migrant may, how-
ever, still risk punishment for irregular stay within 
this period. A rejected asylum seeker in Slovenia, 
for  example,  was  granted  a  period  of  voluntary 
return, but was still fined €400 for irregular stay. 
The  Constitutional  Court  resolved  the  issue,  rul-
ing  that  irregular  residence  starts  only  after  the 
period for voluntary return has elapsed. It ordered 
the laws to be amended accordingly.37 The Dutch 
proposal mentioned earlier would make it explicit 
that aliens are not punishable until the departure 
period has expired.

Similarly, there is a risk that a person who cannot be 
returned is punished because the receiving country 
does not issue travel documents. Courts have been 
called upon to address this. In the Netherlands, for 
example, the Court of Appeal concluded that if the 
irregular migrant is unable to leave the Netherlands 
through no fault of his/her own, he/she cannot be 
punished for irregular stay.38

30  Bulgaria, General Directorate Border Police, UNHCR 

and Hungarian Helsinki Committee (2012), Tri-partite 
annual border monitoring report on access to territory 
and procedure, available at:  
www.refworld.org/pdfid/524541d54.pdf. 

35  Communication by Belgium to the European Commission, 

31  Bulgaria, County (Appeal) Court, Хасковски окръжен 

EU-pilot No. 5555/13/home. 

съд (Haskovo County Court), І-ви наказателен състав 
(1st Division) Case No 92/2013 Haskovo, Decision No. 70, 
14 May 2013, available at: http://okrsud.haskovo.net/
sprweb/0070d813/09242313.htm.

32  Belgium, Croatia, Cyprus, Denmark, Estonia, Germany, Ireland, 
Luxembourg, the Netherlands, and the United Kingdom.

33  Austria, Bulgaria, the Czech Republic, Finland, Greece, 

Hungary, Italy, Latvia, Lithuania, Poland, Romania, Slovakia, 
Slovenia, Spain and Sweden.

34  France, Law of 31 December 2012 (Loi n° 2012-1560 du 

31 décembre 2012 relative à la retenue pour vérification 
du droit au séjour et modifiant le délit d’aide au séjour 
irrégulier pour en exclure les actions humanitaires et 
désintéressées), JO, 1er janvier 2013, Article 8, available at: 
www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT00
0026871211&dateTexte=&categorieLien=id.

36  The Netherlands, House of Representatives (Tweede Kamer 
der Staten-Generaal), Amendment of the Aliens Act 2000 in 
relation to the criminalisation of illegal stay of aliens in the 
Netherlands (Wijziging van de Vreemdelingenwet 2000 in 
verband met de strafbaarstelling van illegaal verblijf van 
vreemdelingen in Nederland), Parliamentary documents 
2012/2013, No 33 512, available at: www.tweedekamer.nl/
kamerstukken/detail.jsp?id=2013D00696&did=2013D00696.

37  Slovenia, Constitutional Court of the Republic of Slovenia 
(Ustavno sodišče Republike Slovenije), Decision 
Nos. Up-456/10 and U-I-89/10, 24 February 2011, available at: 
www.uradni-list.si/1/objava.jsp?urlid=201126&stevilka=1168.

38  The Netherlands, Nijmegen Court of Appeal, 

ECLI:NL:GHARN:2011:BP6259, 1 March 2011, available at: 
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHARN:2
011:BP6259.

5

Criminalisation of  migrants in an irregular situation and of persons engaging with them

Figure 2: Punishment of irregular stay, EU-28

No punishment

Fine

Fine and/
or imprisonment

In Latvia and Lithuania, the punishment may also be a “warning”.

Note: 
Source:  FRA, 2013 based on national legislation outlined in Annex ‘EU Member States’ legislation on 
irregular entry and stay, as well as facilitation of irregular entry and stay’ (available online)

1.3. 

 Migrants’ fear of 
apprehension results 
in impunity for 
perpetrators of crime

EU  Member  States  must  issue  a  return  decision 
to  illegally  staying  third-country  nationals  under 
Article 6 (1) of the Return Directive. FRA research 
found that certain apprehension and reporting prac-
tices disproportionately interfere with fundamen-
tal rights of migrants in an irregular situation. This 
is, for example, the case with apprehensions at or 
near service providers, such as schools or hospitals. 
Also, national legislation may require public author-
ities and service providers to report the offence of 
irregular entry and/or stay to the law enforcement 
agencies. Because of a real or perceived danger of 
detection, migrants in an irregular situation often 
refrain from approaching medical facilities, sending 
their children to school, registering their children’s 
births or attending religious services. If the state 
encourages the general public to report migrants in 

an irregular situation to immigration authorities,39 
this will drive migrants further underground, depriv-
ing them of access to public services and making 
them more vulnerable to exploitation and abuse.

The  rights  included  in  the  EU  Victims’  Directive 
(Directive 2012/29/EU) apply to all victims of crime 
in  a  non-discriminatory  manner,  regardless  their 
residence status (Article 1). Migrants in an irreg-
ular  situation,  however,  will  rarely  be  treated  as 
victims  of  crime,  as  they  typically  refrain  from 
reporting crimes, including serious crimes against 
themselves.40 This reluctance to report effectively 
bars their access to justice, leading to impunity on 
the part of the perpetrators.

For migrant workers in an irregular situation, the 
Employer Sanctions Directive (Directive 2009/52/EC) 

39  See, for example, the United Kingdom, where the UKBA 

homepage contains information on how immigration-related 
crimes can be reported, available at: www.ukba.homeoffice.
gov.uk/aboutus/contact/report-crime/.

40  FRA (2011), p. 59.

6

Criminalisation of migrants in an irregular situation 

includes some important safeguards on access to 
justice through third-party representation, such as 
by  trade  unions  or  civil  society  organisations,  in 
complaints  procedures  (Article  13).  The  directive 
clarifies  that  providing  assistance  to  lodge  com-
plaints  must  not  be  considered  as  facilitation  of 
irregular  stay.  It  makes  it  possible  to  grant  tem-
porary stay to victims of particularly exploitative 
working conditions and to minors who cooperate 
with  investigations  or  judicial  proceedings  (Arti-
cle 13 (4)), like that which is provided in Article 8 of 
Directive 2004/81/EC introducing a residence per-
mit for victims of human trafficking.41 Article 3 (2) 
of that directive obliges EU Member States to issue 
residence permits to victims of trafficking in human 
beings and they ‘may’ also issue such permits to 
third-country nationals who have been subject to 
an action to facilitate irregular immigration. 

Greece, for instance, plans to facilitate access to jus-
tice for migrants in an irregular situation by amend-
ing the Immigration Act to grant residence permits 
to third-country nationals who fall victim to, or are 
important witnesses of, serious crimes against life, 
health,  physical  integrity,  property,  and  personal 
and sexual freedom.42

Destitute  migrant  women  in  an  irregular  situa-
tion and those working in the domestic sector are 
particularly vulnerable to sexual exploitation and 
abuse, in return for basic necessities, such as hous-
ing and food.43 The UN report on violence against 
women migrant workers, published in 2013, sug-
gested a number of ways to help make access to 
justice available to them. These include hotlines, 
complaint and dispute resolution mechanisms, legal 
aid and assistance, psychological, health and social 
services access to shelters and compensation for 
damages.44

A particular concern is that the residence permit of 
the victim may be dependent on the perpetrator. 
This may be a family member or, for domestic work-
ers, the employer. This further discourages victims 
from reporting crimes. Victims’ residence permits 
must be made independent from the perpetrator, 
according to Article 59 of the 2011 Council of Europe 
Convention on preventing and combating violence 
against women and domestic violence (Istanbul Con-
vention). If the perpetrator is a family member, Arti-
cle 13 of the Free Movement Directive (2004/38/EC) 

41  Council Directive 2004/81/EC of 29 April 2004 on the residence 
permit issued to third-country nationals who are victims of 
trafficking in human beings or who have been the subjects of 
an action to facilitate illegal immigration, who cooperate with 
the competent authorities, OJ 2004 L261.

42  Draft Code on Migration and Social Integration (Σχέδιο Νόμου 

Κώδικας Μετανάστευσης και Κοινωνικής Ένταξης).

43  FRA (2011), p. 7.
44  United Nations (UN), et al. (2013).

and Article 15 (3) of the Family Reunification Direc-
tive (2003/86/EC) also make it possible to grant vic-
tims an independent right of residence. EU Mem-
ber State experts and the European Commission, 
in cooperation with FRA, have developed practical 
guidance on apprehending migrants in an irregu-
lar situation. The guidance offers law enforcement 
officials “dos and don’ts”. It recommends delinking 
the immigration status of victims of violence from 
the main permit holder, when this person is also 
the perpetrator, to provide the victim with an inde-
pendent right to stay. It builds on promising prac-
tices in EU Member States. National legislation in, 
for instance, France,45 Spain46 and the United King-
dom47 allows undocumented women who are vic-
tims of domestic violence to apply for residence 
permits  independent  of  the  main  permit  holder. 
These laws also protect them from destitution by 
granting them access to the labour market or pub-
lic funds. To support Member States in establishing 
and operating an application of Article 6 (1) of the 
Return Directive that complies with fundamental 
rights, these common principles have been included 
in the minutes of the Contact Group on the Return 
Directive that the European Commission convened.

45  France, Law on Violence against Women, No. 2010-769 of 
9 July 2010, Art. 16-3; Loi relative aux violences faites 
spécifiquement aux femmes, aux violences au sein des 
couples et aux incidences de ces dernières sur les enfant 
(a temporary residence permit is issued to a foreigner who 
has been issued a protection order), available at:  
www.legifrance.gouv.fr/affichTexte.do?cidTexte= 
JORFTEXT000022454032&categorieLien=id. Code on and Stay 
of Foreigners and on the Right to Asylum [Code de l’entrée 
et du séjour des étrangers et du droit d’asile], Art. L316-1 
(temporary residence permit allowing access to the labour 
market for victims of domestic violence who file a complaint), 
available at: www.legifrance.gouv.fr/affichCode.do;jsessionid
=62EED98ACDC020393460EF699CAB05F6.tpdjo16v_2?cidTex
te=LEGITEXT000006070158&dateTexte=vig.

46  Spain, Law 4/2000 [Ley Orgánica 4/2000, de 11 de enero, 

sobre derechos y libertades de los extranjeros en España 
y su integración social], Art. 31 bis (temporary residence 
permit giving access to the labour market to women victims 
of violence based on a protection order or a report by the 
Prosecutor’s Office indicating signs of gender-based violence). 
Available at: http://noticias.juridicas.com/base_datos/Admin/
lo4-2000.html.

47  United Kingdom, para. 289A-289C of the Immigration Rules 

(indefinite leave to remain if the relationship broke down 
as a result of domestic violence), available at:  
www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/
immigrationrules/part8/victimsofdomesticviolence/; 
Guidance – Victims of domestic violence, 29 July 2013, 
pp. 40-43, available at: www.ukba.homeoffice.gov.uk/
sitecontent/documents/policyandlaw/modernised/family/
section4.pdf?view=Binary.

7

2. 

 “Délits de solidarité” – criminalisation 
of persons engaging with migrants in 
an irregular situation

Criminalisation harms not only the migrants them-
selves, but also those who support them, such as 
providers  of  humanitarian  or  legal  assistance  or 
persons  who  rescue  migrants  in  distress  at  sea. 
Landlords renting accommodation to migrants in an 
irregular situation may also risk punishment, par-
ticularly as laws often criminalise such support, if 
it is seen as an activity done for gain. A forthcom-
ing FRA report on severe forms of labour exploi-
tation will also examine the sanctions against per-
sons employing migrants in an irregular situation.

The UN Smuggling of Migrants Protocol supplement-
ing the UN Convention against Transnational Organ-
ised Crime, which has been ratified by all EU Member 
States except Ireland,48 requires states to criminal-
ise the procurement of irregular entry or residence 
to obtain, directly or indirectly, a financial or other 
material  benefit  (Article  6).  Aggravating  circum-
stances should be established if there is a threat 
to the lives or safety of migrants or in the case of 
inhuman or degrading treatment (Article 6 3 (a) and 
(b)).  The  reference  to  financial  or  other  material 
benefit for the perpetrator is intended to exclude 
family members49 or other support groups such as 
religious or non-governmental organisations (NGOs) 
from punishment.50

Concerning EU law, Article 27 (1) of the Convention 
implementing the 1985 Schengen Agreement (CISA) 
required Contracting Parties to impose “appropri-
ate penalties on any person who, for financial gain, 
assists or tries to assist an alien to enter or reside 
within the territory of one of the Contracting Par-
ties in breach of that Contracting Party’s laws on 
the entry and residence of aliens”.

In  2004,  the  EU  Facilitation  Directive  (Directive 
2002/90/EC)51  and  its  accompanying  Framework 
Decision 2002/946/JHA52 to combat smuggling in 
human beings entered into force. They replaced Arti-

48  United Nations (UN) (n.d).
49  See also, in this regard, ECtHR, Mallah v. France, 

No. 29681/08, 10 November 2012.

50  United Nations (UN), 3 November 2000, p. 469.
51  Council Directive 2002/90/EC of 28 November 2002 on 

defining the facilitation of unauthorised entry, transit and 
residence, OJ 2002 L 328/17. The directive does not apply to 
Ireland or Denmark.

52  Council of the European Union (2002), 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 328/1.

cle 27 of the CISA. The directive obliges EU Member 
States to punish anyone who intentionally assists 
a  person  to  irregularly  enter  or  transit  through 
a Member State (Article 1 (1) (a)). Member States 
may, however, refrain from punishment if the aim 
of enabling a foreigner to enter or transit through 
the country is to provide that person with human-
itarian assistance (Article 1 (2)). Indeed, failure to 
respect the duty to rescue is usually a criminal act.53 
The provision does not cover humanitarian assis-
tance enabling a foreigner to stay.

The  Facilitation  Directive  also  obliges  EU  Mem-
ber  States  to  punish  anyone  who,  for  financial 
gain,  intentionally  assists  a  foreigner  to  irregu-
larly reside within the territory of a Member State 
(Article 1 (1) (b)). Based on this provision, Member 
States  may  refrain  from  punishing  facilitation  of 
irregular stay, if this is not done intentionally and/
or for financial gain; the directive, however, does 
not require them to refrain. Thus, the directive does 
not encourage the punishment of people who pro-
vide emergency shelter, food and other necessi-
ties to migrants in an irregular situation, as long as 
this is not done for financial gain. At the same time, 
it does not explicitly discourage or prohibit them 
from punishing such people. In contrast to emer-
gency aid, renting accommodation involves a finan-
cial transaction. In some Member States, landlords 
risk punishment, under national law criminalising 
facilitation of stay, if they rent accommodation to 
migrants in an irregular situation (see Section 2.3). 

According to the accompanying Framework Decision, 
criminal penalties must be effective, proportionate 
and  dissuasive  and  may  entail  extradition  (Arti-
cle 1). Minimum penalties are defined only in those 
cases where facilitation is done for financial gain 
by a criminal organisation, understood as a struc-
tured association of more than two persons estab-
lished over a period of time,54 or where the crimi-

53  See for instance, Greece, 1974 Greek Code for Sea Law 

(Κώδικας Δημοσίου Ναυτικού Δικαίου), Art. 227; Italy, 
Royal Decree 1942 as amended in 2002 (Codice de la 
Navigazzione, Approvato con R.D. 30 marzo 1942, 
n. 327 (con succ. mod. e integr. sino al 2002), Art. 1158; 
Malta, Merchant Shipping Act, Cap. 234, Art. 305(1) and 
306(1); Spain, Penal Code – Omission of the duty to provide 
assistance (omisión del deber de socorro), Art. 195.
54  See Joint Action 98/733/JHA adopted by the Council on the 

basis of Article K. 3 of the TEU, on making it a criminal offence 
to participate in a criminal organisation in the Member States 
of the European Union, OJ L 351, 29 December 1998, p. 1, 
Art. 1.

8

“Délits de solidarité” – criminalisation of persons engaging with migrants in an irregular situation

nals endanger the migrants’ lives. In these cases, 
the  punishment  should  be  a  maximum  sentence 
of not less than eight, or exceptionally six, years.

The  Framework  Decision  includes  a  safeguard 
related to international protection: it applies with-
out  prejudice  to  protection  afforded  to  refugees 
and asylum seekers (Article 6). This means that it 
should not be applied to punish facilitation of entry 
and stay for persons in need of protection if they 
come directly from a territory where their life or 
freedom was threatened and present themselves 
without delay to the authorities (1951 Convention 
relating to the Status of Refugees, Article 31). There 
is no general safeguard in the Framework Decision 
preventing the punishment of acts performed for 
humanitarian purposes, rescue at sea or emergency 
situations. There is a risk that domestic legislation 
aimed at addressing facilitation of irregular entry 
and stay may result in punishing rescue at sea, the 
provision of humanitarian assistance or landlords 
renting out accommodation.

Some EU Member States punish facilitation of entry 
and stay with fines or imprisonment, others with 
both in combination. The penalty scales vary greatly. 
The maximum fine for facilitating entry and stay is 
€78,000 in the Netherlands. In Spain, the fine for 
facilitating stay can be up to €100,000. In both the 
Netherlands and Spain facilitation of stay is pun-
ishable only if the motive is gain. In Greece, facili-
tation of entry prison terms can be up to 10 years 
and in the United Kingdom, 14 years for facilitation 
of entry and stay. 

Mitigating circumstances can influence the punish-
ment. In Sweden, when assessing the punishment, 
special consideration shall be given to whether in 
a particular case the crime was committed for rea-
sons of “strong human compassion” [“om brottet 
föranletts av stark mänsklig medkänsla”].55 

Under national criminal law, a person is not liable 
if the act was committed to avert danger, in other 
words keep someone from harm. This is the case, 

55  Sweden, Penal Code (Brottsbalk), Chapter 29, Section 3 (4).

for instance, in Hungary,56 Lithuania57 and Spain,58 if 
the danger could not have been averted by other 
means  and  the  damage  caused  is  less  than  the 
damage sought to be averted. Facilitation of irreg-
ular entry and stay could fall under such provisions. 
In Portugal “[t]he act is not criminally punishable 
when its unlawfulness is excluded by the legal sys-
tem considered as a whole”, for instance by exer-
cising a right or by fulfilling a duty imposed by law 
[“O facto não é punível quando a sua ilicitude for 
excluída  pela  ordem  jurídica  considerada  na  sua 
totalidade”].59

2.1. 

 Facilitating irregular 
entry

Facilitating  irregular  entry  is  punished  in  all 
28 EU Member States, as illustrates Figure 3. Legisla-
tion in 24 EU Member States does not require finan-
cial gain or profit for it to be a punishable offence.60 
In these countries, financial gain or profit is often 
considered an aggravating circumstance or subject 
to a separate provision. In Germany, Ireland, Lux-
embourg and Portugal alone does the law expressly 
require that facilitation is punishable only if proven 
to be for profit or gain. While the Smuggling Protocol 
requires the punishment of facilitation only if done 
for profit, the Facilitation Directive is silent on this.

The safeguard in Article 1 (2) of the Facilitation Direc-
tive,  which  allows  states  to  refrain  from  impos-
ing  sanctions  when  irregular  entry  is  facilitated 

56  Hungary, Criminal Code (Büntető törvény), Section 23 (1) 

(save his own person or property or the person or property 
of others from an imminent danger that cannot otherwise be 
prevented, or acts so in the defence of the public interest shall 
not be prosecuted, provided that the harm caused by the act 
does not exceed the peril with which he was threatened).

57  Lithuania, Criminal Code (Baudžiamasis kodeksas), Art. 31 
(attempt to avert the danger which threatens him, other 
persons or their rights, public or state interests, where this 
danger could not have been averted by other means and 
where the damage caused is less than the damage attempted 
to be averted); Code of Administrative Offences, Art. 17 
(committed in a state of necessity, attempting to avert the 
danger which threatens state or public order, property, 
citizen’ rights and freedoms or government order, where 
this danger, under this circumstances, could not have been 
averted by other means and where the damage caused is less 
than the averted damage).

58  Spain, Criminal Code (Código Penal), Art. 20 (in a state of 

necessity in order to avoid damage to himself of others […] 
the damage caused is not greater than the damage sought to 
be prevented). 

59  Portugal, Penal Code, Chapter III, Book I, Title II, Causes for 
Exclusion of Unlawfulness and of Guilt (Código Penal), 
Art. 31 (1).

60  Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Greece, Hungary, Italy, 
Latvia, Lithuania, Malta, the Netherlands, Poland, Romania, 
Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

9

Criminalisation of  migrants in an irregular situation and of persons engaging with them

for humanitarian purposes, is often not reflected in 
national legislation. Leaving aside references to gen-
eral  criminal  law  provisions,  such  as  acts  commit-
ted  in  a  state  of  necessity  to  avert  a  danger,  the 
domestic law of only eight EU Member States con-
tains explicit language clarifying that certain acts car-
ried out to facilitate entry for humanitarian purposes 
are not to be punished. Austria rules out punishment 
for assistance provided to family members. Belgian 
law rules out punishment for assisting a non-EU cit-
izen to enter, stay or transit for humanitarian rea-
sons. In Spain, it is not an offence to transport an 
asylum seeker into the country if he or she has pre-
sented an asylum request without delay and it has 
been admitted for processing. Greece excludes the 
rescue of persons at sea and transport of persons 
in need of protection from punishment for facilita-
tion of entry. Under the Finnish criminal code, the 
motives of the person committing facilitation, and 
the circumstances pertaining to the safety of the for-
eigner in his or her home country or country of per-
manent residence, may lead to non-punishment. In 

Lithuania, violations originating in unforeseen circum-
stances, such as accidents, natural disasters, emer-
gency medical aid and rescue, are not punishable. 
The  legislation  in  Ireland  and  the  United  Kingdom 
states that facilitation of entry of an asylum seeker 
will be punished, but it also explicitly excludes from 
punishment a person acting on behalf of an organi-
sation which aims to assist asylum seekers and does 
not charge for its services.

In those EU Member States where facilitation of entry 
without profit may be punished, the duty to ensure 
that the migrant’s fundamental rights and in partic-
ular the right to asylum are respected lies with the 
administration and domestic courts. FRA could, none-
theless,  find  only  limited  case  law  on  this  matter. 
The Swedish Supreme Court has argued that assist-
ing someone for humanitarian reasons to apply for 
asylum may, in principle, be excluded from punish-
ment. This was also Sweden’s interpretation when 
transposing the EU rules on facilitation.61 This partic-
ular case, however, dealt with entry facilitated over 

Figure 3:  National legislation punishing facilitation of irregular entry and exceptions for 

humanitarian assistance, EU-28

Humanitarian assistance,  
at least in some form, 
explicitly excluded 
from punishment 

Legislation requires profit 
to punish facilitation of entry

Legislation does not require profit 
to punish facilitation of entry

Source:  FRA, 2013 based on national legislation outlined in Annex ‘EU Member States’ legislation on 
irregular entry and stay, as well as facilitation of irregular entry and stay’ (available online)

61  Sweden, Government Bill, 2003/04:35, available at:  

www.regeringen.se/content/1/c4/07/35/b23b338b.pdf.

10

“Délits de solidarité” – criminalisation of persons engaging with migrants in an irregular situation

an internal EU border; the persons in need of protec-
tion should have applied for asylum, under the Dub-
lin rules, in the Member State in which they arrived. 
The Court therefore convicted the accused of human 
smuggling, but, because he had helped close rela-
tives to cross EU internal borders to apply for asy-
lum in Sweden without financial gain, it reduced the 
penalty to that of a petty offence.62

EU Member States handle the punishment of facil-
itation  of  transit  in  different  ways.  According  to 
the Finnish Supreme Court, merely facilitating tran-
sit to help a person leave Finland is not sufficient 
to constitute the crime of facilitation. In this par-
ticular  case,  the  facilitators  were  aware  that  the 
migrants had entered irregularly, but they had not 
been involved in facilitating that entry. They only 
facilitated transit through Finland.63 In contrast, the 
Lithuanian Supreme Court argued in its case that 
the facilitator knew he was transporting persons 
who  had  entered  Lithuania  irregularly.  He  trans-
ported them from the border with Belarus to Kau-
nas, where they were accommodated in his friend’s 
apartment. He claimed that he was not aware that 
they had entered Lithuania unlawfully. The court 
punished him for facilitating transit.64

2.2. 

 Facilitating irregular stay

Facilitating irregular stay is punishable in all EU Mem-
ber States, except Ireland, which is not bound by 
the  Facilitation  Directive.  As  Figure  4  illustrates, 
legislation in 13 Member States does not require 
a profit motive for facilitation of irregular stay to 
be punished.65 This includes Estonia and Lithuania, 
where the provision of housing alone is punishable. 
In 14 Member States, facilitation of stay is punisha-
ble only if done for profit.66 Austria requires a “not 
[…]  insignificant  pecuniary  advantage”:  the  Aus-
trian Higher Administrative Court has established 
that an amount of €400 is sufficient to qualify as 
“not  […]  insignificant  pecuniary  advantage”,  as 
required by law.67

62  Sweden, Supreme Court (Högsta Domstolen), Case No. NJA 
2009 s. 424, 15 June 2009, available at: https://lagen.nu/dom/
nja/2009s424.

63  Finland, Supreme Court (Korkein Oikeus, Högsta 

Domstolen), KKO:2012:24, 27 February 2012, available at: 
www.kko.fi/57719.htm.

64  Lithuania, Supreme Court (Aukščiausiasis Teismas), 
Case 2K-451/2011, 18 October 2011, available at:  
www.eteismai.lt/byla/121907635688307/2K-451/2011.
65  Belgium, Croatia, Denmark, Estonia, Finland, France, Greece, Latvia, 
Lithuania, Malta, Romania, Slovenia and the United Kingdom.

66  Austria, Bulgaria, the Czech Republic, Cyprus, Germany, 
Hungary, Italy, Luxembourg, the Netherlands, Poland, 
Portugal, Slovakia, Spain and Sweden.

67  Austria, Aliens Police Act, Article 104(1)), now Article 114. 

The Higher Administrative Court (Verwaltungsgerichtshof, 
VwGH), 2001/18/0128.

Leaving aside general criminal law provisions on acts 
committed out of necessity to avert a danger, legis-
lation in eight EU Member States expressly exempts 
from punishment at least some forms of human-
itarian  assistance  to  irregularly  staying  migrants. 
These include five Member States that do not require 
profit for punishing facilitation of stay (Belgium, Fin-
land, France, Malta and the United Kingdom) as well 
as Austria, Germany and Italy that require profit. 
Exemptions concern assistance provided to family 
members (Austria, France and Malta) and the pro-
vision of humanitarian assistance (Austria, Belgium, 
Finland, France and Italy). Germany exempts per-
sons who carry out “specific professional or hon-
orary duties” from punishment. France, in addition, 
expressly exempts the provision of legal advice. In 
the United Kingdom, persons who act on behalf of 
an organisation that aims to assist asylum seekers 
and does not charge for its services are exempted. 

This  leaves  eight  EU  Member  States  that  exempt 
neither facilitation of stay that is not for profit, nor 
humanitarian  assistance,  from  punishment.  Croa-
tia, Denmark and Greece punish facilitation of stay 
with a fine and/or imprisonment, and Estonia, Latvia, 
Lithuania, Romania and Slovenia with a fine. Depend-
ing on the Member State, the fine may be converted 
into imprisonment if the person is unable to pay. In 
these countries, profit is often listed as an aggravat-
ing circumstance. The intent to conceal or hide the 
migrant might also be an aggravating circumstance. 

A pending legislative proposal on irregular stay in 
the Netherlands would exempt from punishment 
humanitarian assistance to irregularly staying per-
sons.68 The Dutch Section of the International Com-
mission of Jurists has warned that a migrant who 
is repeatedly (three times) fined for the offence of 
irregular stay will be committing a crime (misdrijf). 
At that point, assistance of any kind may be seen 
as complicity, thereby criminalising humanitarian 
assistance as well.69

68  Netherlands, House of Representatives (Tweede Kamer der 
Staten-Generaal) (2012), Letter of the informants (Brief van 
de informateurs), Parliamentary Documents (Kamerstukken) 
(2012/2013), No. 33410/15, 29 October 2012, available at: 
https://zoek.officielebekendmakingen.nl/kst-33410-15.html.

69  Dutch Section of the International Commission of Jurists 

(Nederlands Juristencomité voor Mensenrechten, NLCM), 
Consequences of the legislative proposal on illegal stay for 
providing assistance to aliens by individuals or individual 
organisation (Gevolgen Wetsvoorstel illegaal verblijf bij 
het hulp bieden aan vreemdelingen door particulieren 
en particuliere organisaties) (2013), Letter to the House of 
Representatives, Leiden, 21 March 2013, available at:  
www.njcm.nl/site/uploads/download/515.

11

Criminalisation of  migrants in an irregular situation and of persons engaging with them

Figure 4:  National legislation punishing facilitation of irregular stay and exceptions for humanitarian 

assistance, EU-27

Humanitarian assistance,  
at least in some form, 
explicitly excluded 
from punishment 

Legislation requires profit 
to punish facilitation of stay

Legislation does not require profit 
to punish facilitation of stay

Note: 

In Ireland, facilitation of stay is not punished. Estonia and Lithuania punish only the provision  
of housing. Austria requires a not insignificant profit for punishment. Italy punishes 
only for acts taking unfair advantage of the migrant’s irregular situation.

Source:  FRA, 2013 based on national legislation outlined in Annex ‘EU Member States’ legislation on 
irregular entry and stay, as well as facilitation of irregular entry and stay’ (available online)

When punishment is not limited to acts carried out 
for profit and no exemption exists for the provision 
of humanitarian assistance, there is a risk that per-
sons  who  support  migrants  in  an  irregular  situa-
tion may also be targeted. Although FRA research 
has shown that authorities do not normally target 
NGOs for assisting migrants in an irregular situation, 
it also has revealed that NGOs may be uncertain 
whether or not they risk punishment when they 
provide support.70 At a Council of Europe roundta-
ble in 2012, NGOs active in migrant rights protection 
in Belgium, France and Greece reported instances 
of detention, prosecution or lack of protection by 
national authorities against harassment in the con-
text of their human rights protection activities.71

In 2007, the French police targeted humanitarian 
supporters and searched for irregular migrants at 

70  FRA (2011), p. 64.
71  See Council of Europe Commissioner for Human Rights (2013), 

pp. 6–8.

soup kitchens.72 The French national human rights 
institution (Commission nationale consultative des 
droits de l’homme, CNCDH) carried out a compre-
hensive study on the impact of punishing facilita-
tion of stay to persons providing humanitarian sup-
port. Although only a few convictions were found, 
the study reported on the practice of intimidating 
NGO activists with legal proceedings and arrests. 
The  legislation  was  amended  in  2012  to  exclude 
from punishment humanitarian assistance, such as 
food, accommodation, medical care or housing, pro-
vided it is not done for profit (“lorsque l’acte repro-
ché n’a donné lieu à aucune contrepartie directe 
ou indirecte”).73

72  FRA (2011), p. 41.
73  France, Law of 31 December 2012 (Loi n° 2012-1560 du 

31 décembre 2012 relative à la retenue pour vérification 
du droit au séjour et modifiant le délit d’aide au séjour 
irrégulier pour en exclure les actions humanitaires et 
désintéressées), OJ, 1 January 2013.

12

“Délits de solidarité” – criminalisation of persons engaging with migrants in an irregular situation

In some EU Member States, the judiciary has clar-
ified  how  to  deal  with  humanitarian  support  to 
migrants  in  an  irregular  situation.  The  Austrian 
Constitutional Court, for example, determined that 
providing humanitarian assistance “does not aim 
to prevent official measures over a longer time” 
and is not facilitation of entry.74 In Denmark, the 
High Court acquitted a father who had been found 
guilty of having facilitated his daughter’s irregular 
stay based on a general provision of penal law. The 
court noted that the daughter could no longer live 
with her mother or grandmother in Morocco and 
the father was only fulfilling his parental duties.75

2.3. 

 Punishment for renting 
accommodation to 
migrants in an irregular 
situation 

Article 6 (1) of the UN Smuggling of Migrants Proto-
col and Article 1 (1) (b) of the Facilitation Directive 
both require that assistance be punished only when 
“committed intentionally”. EU Member States do 
not, however, necessarily limit punishment to cases 
in which a person intentionally conceals a migrant 
to prevent his or her removal. Landlords may be 
punished for renting accommodation to migrants 
in an irregular situation, as a 2011 FRA report notes. 
As a result, migrants can rent flats only informally, 
which exposes them to a greater risk of abuse and 
exploitation.76 They may be forced to pay a high 
rent for substandard accommodation. In return for 
housing, migrant women in an irregular situation 
are  particularly  vulnerable  to  sexual  exploitation 
and abuse.

As  Figure  5  illustrates,  five  EU  Member  States 
(Cyprus, Denmark, Estonia, Greece and Lithuania) 
have legislative provisions explicitly punishing land-
lords for renting accommodation to migrants in an 
irregular situation, although the sanction in Estonia 
and Lithuania is a fine only. In addition, based on 
rules on facilitation of stay, under the national laws 
of  11  Member  States,77  landlords  renting  accom-
modation to migrants in an irregular situation may 
also  risk  a  fine  and/or  imprisonment.  In  another 
seven EU Member States – Bulgaria, Czech Republic, 
Finland, Latvia, Romania, Slovenia and Spain – the 

74  Austria, Constitutional Court (Verfassungsgerichtshof, VfGH) 

(2006), G11/06, 22 June 2006.

75  Denmark, the High Court upheld the District Court’s 

judgement to drop the punishment under Article 83 of the 
Danish Penal Code, U.2012.1974ø, 29 February 2012.

76  FRA (2011), p. 63. See also PICUM (2012), p. 82.
77  Austria, Croatia, Germany, Hungary, Luxembourg, the 

Netherlands, Poland, Portugal, Slovakia, Sweden, and the 
United Kingdom.

punishment is a fine. In aggravated circumstances, 
the punishment may be imprisonment.

Of the remaining five Member States, France and 
Malta both exclude punishing those who accommo-
date a close relative, although the Maltese exclu-
sion is limited to no more than seven days. Italy 
punishes landlords for renting accommodation to 
irregular migrants only if they take unfair advan-
tage of their vulnerable situation. Belgian law explic-
itly, and in an all-encompassing manner, excludes 
from punishment assistance provided for humani-
tarian reasons. Therefore, providing accommoda-
tion  to  migrants  in  an  irregular  situation  may  be 
interpreted as falling within the exception. As Ire-
land does not punish facilitation of stay, it also does 
not punish landlords for renting accommodation to 
irregular migrants. 

Landlords appear to be at greater risk of punishment 
for  renting  accommodation  to  irregular  migrants 
than when FRA previously reported on the funda-
mental  rights  of  irregular  migrants,78  drawing  on 
research carried out in 2009. A number of Member 
States have in the meantime adopted new laws on 
foreigners, regulating facilitation of stay.

Case law on renting housing to migrants in an irregu-
lar situation appears to diverge considerably among 
Member States. In Italy, Article 12 (5) of the Immi-
gration Act specifies that renting accommodation 
is a crime only if the landlord takes ‘unfair advan-
tage’ of the migrant’s situation. The Supreme Court 
clarified the meaning, saying that, to be liable, the 
landlord needs to be consciously imposing partic-
ularly  onerous  and  exorbitant  conditions  on  the 
migrant.79  The  Dutch  Supreme  Court,  in  contrast, 
ruled that ‘gain’ need not be strictly interpreted as 
financial gain, but can also encompass in-kind ben-
efits, such as, in this particular case, baby-sitting in 
return for accommodation.80

In the United Kingdom, Parliament is debating leg-
islation which would hold landlords responsible for 
checking tenants’ immigration status.81 Such meas-
ures shift immigration law enforcement on to the 
general public, resulting in further reluctance to rent 
housing to migrants. This, in turn, increases migrants 
vulnerability to exploitation and the risk that they 
must accept substandard housing.

78  FRA (2011), pp. 59–61.
79 

Italy, Criminal Court of Cassation (Cassazione Penale, Sez. I) 
(2013), No. 26457, 18 June 2013 (24 April 2013).

80  Netherlands, Supreme Court (Hoge Raad), 

ECLI:NL:HR:2012:BX5419.

81  United Kingdom, Immigration Bill, 110, 2013-13, available at: 
http://services.parliament.uk/bills/2013-14/immigration.html.

13

Criminalisation of  migrants in an irregular situation and of persons engaging with them

Figure 5: National legislation punishing renting of accommodation, EU-28

Landlords excluded 
from punishment in some situations

Landlords not excluded 
from punishment 
for facilitation of stay

Landlords 
explicitly punished

Ireland does not punish facilitation of stay. 

Note: 
Source:  FRA, 2013 based on national legislation outlined in Annex ‘EU Member States’ legislation on 
irregular entry and stay, as well as facilitation of irregular entry and stay’ (available online)

2.4. 

 Carriers’ support 
for immigration law 
enforcement

Another  example  of  shifting  immigration  law 
enforcement tasks to third parties is carrier sanc-
tions  and  carriers’  liability.  According  to  Council 
Directive 2004/82/EC on the obligation of carriers 
to communicate advanced passenger data, airlines 
are obliged to share details of passengers with the 
border guards responsible for immigration control 
at the port of arrival. Airlines which have not trans-
mitted data, or have transmitted incomplete or false 
data, are penalised (Article 4).

According to the UN Smuggling of Migrants Proto-
col, commercial carriers may be held responsible for 
ascertaining that all passengers are in possession of 
travel documents to enter the receiving state (Arti-
cle 11 (3)). If the receiving state does not admit the 
passenger, international aviation law makes the car-
rier liable to cover the costs of the return and, if this 
is not possible within a reasonable timeframe, any 

costs related to the passenger’s stay including the 
provision of food and water.82 At the EU level, Arti-
cle 26 of the CISA and Council Directive 2001/51/EC 
both regulate the duty of carriers to return non-
admitted third-country nationals at their own cost, 
providing for sanctions against those who transport 
undocumented migrants into the EU. As a result, car-
riers check passengers’ travel documents and visas 
at check-in, refraining from carrying those passen-
gers who are not properly documented. 

82  See United Nations (UN), International Civil Aviation 

Organisation (1944), Convention on International Civil 
Aviation, Annex 9, Chapter 5, ‘Inadmissible persons 
and deportees’, with subsequent IATA agreements. 
See also Council Regulation (EC) No. 261/2004 of 
the European Parliament and of the Council of 
11 February 2004 establishing common rules on 
compensation and assistance to passengers in case of  
denied boarding and cancellation or long delays.

14

Conclusions and FRA opinions

Custodial sentences for 
irregular entry and stay

In almost all EU Member States, irregular entry and 
stay are offences, often punishable with imprison-
ment. At the same time, under certain conditions and 
provided certain safeguards are respected, EU law 
allows for the detention of a person being returned. 
The  CJEU  stated  that  imprisonment  of  a  migrant 
based on national criminal law sanctions punish-
ing irregular entry or stay must not take precedence 
over applying the Return Directive, including its fun-
damental rights safeguards. It noted that custodial 
sentences for the offence of irregular stay, before 
carrying out the removal, unnecessarily delay the 
return process. 

FRA opinion

Building on the CJEU judgments, guidance should 
be developed to assist EU Member States to 
treat migrants in an irregular situation in line 
with the Return Directive’s safeguards. As long 
as the Return Directive applies to them, they 
should not be subject to custodial penalties for 
irregular entry or stay. 

Following on from the right to asylum enshrined 
in Article 18 of the EU Charter of Fundamental 
Rights,  EU  Member  States  must  not  impose 
penalties  on  refugees  who  enter  without 
authorisation  if  they  come  directly  from 
a  territory  where  their  life  or  freedom  was 
threatened.  This  should  be  made  explicit  in 
domestic law.

Access to justice for migrants 
in an irregular situation

Migrants  in  an  irregular  situation  rarely  report 
a  crime  to  the  police,  either  as  a  victim  or  as 
a  witness,  as  they  are  afraid  of  detection  and 
return. This effectively bars their access to justice, 
leading  to  perpetrator  impunity.  EU  Member 
States’ experts and the European Commission, in 
collaboration with FRA, have developed practical 
guidance  on  apprehension  of  migrants  in  an 
irregular situation. It suggests ways to increase 
access to justice for this group of persons, such 
as  introducing  anonymous  or  semi-anonymous 
reporting. Member States are encouraged to use 
this guidance.

Destitute migrant women in an irregular situation 
and those employed in the domestic work sector 
are at heightened risk of exploitation and abuse. 
They  may  be  forced  to  provide  sex  in  return  for 
housing and food. A particular concern is that the 
residence  permit  of  the  victim  may  be  depend-
ent on the perpetrator, namely a family member 
or the employer of persons hired to do domestic 
work. This further discourages them from reporting 
crimes. A destitute migrant woman in an irregular 
situation may at the same time be a victim of traf-
ficking in human beings and thus entitled to spe-
cific protection measures.

FRA opinion

To  promote  access  to  justice,  third-country 
nationals who are victims of exploitation and 
abuse would require a residence permit which 
is  not  dependent  on  the  perpetrator.  This  is 
particularly  important  for  victims  of  gender-
based  violence.  EU  Member  States  should 
favourably  consider  granting  such  permits 
beyond what is already provided for in various 
EU legal instruments, and as provided for in the 
Council  of  Europe  Convention  on  preventing 
and  combating  violence  against  women 
and  domestic  violence,  building  on  existing 
promising practices existing in some Member 
States. Police should be sensitive to the gender-
based aspects of the abuses the victim may 
report.

Introducing fundamental 
rights safeguards into the 
Facilitation Directive

The Facilitation Directive raises a number of fun-
damental rights challenges. The directive fails to 
remind EU Member States of their obligation under 
international  law  to  assist  persons  in  distress  at 
sea, regardless of their immigration status, nor that 
those who do so should not be punished under the 
directive.  About  a  quarter  of  the  Member  States 
have  national  legislation  that  reflects,  at  least  in 
some form, the safeguards in Article 1 (2), allow-
ing  states  not  to  impose  sanctions  when  irregu-
lar entry is facilitated for humanitarian purposes.

The rules on facilitation of entry may also under-
mine respect for Article 31 of the 1951 Convention 
relating  to  the  Status  of  Refugees,  which  states 
that refugees should not be penalised for entering 

15

Criminalisation of  migrants in an irregular situation and of persons engaging with them

unauthorised, if they come directly from a territory 
where their life or freedom was threatened. The 
reference to international protection in the Coun-
cil Framework Decision 2002/046/JHA only affects 
punishment; it does not eliminate the offence of 
facilitating entry as such.

The directive punishes facilitation of stay done for 
profit, but it does not prevent Member States from 
also punishing acts not undertaken for profit, such 
as provision of humanitarian assistance to facilitate 
stay. More than a quarter of the Member States fail 
in their national legislation to exempt non-profit acts 
or humanitarian assistance from the rules on facilita-
tion of stay. Provision of housing against rental pay-
ments could be interpreted as intentionally assist-
ing a person to unlawfully reside and, therefore, be 
punished as an act done for profit. As explained, in 
most EU Member States landlords risk punishment 
for housing under such rules. The interpretation is 
reinforced by a few Member States where legis-
lation  explicitly  punishes  provision  of  housing  to 
migrants in an irregular situation.

FRA opinion

To  ensure  a  fundamental  rights  compliant 
implementation  of  the  Facilitation  Directive, 
FRA’s report on Fundamental rights of migrants 
in an irregular situation in the European Union 
proposes  a  rewording  of  the  directive.  In 
the  meantime,  practical  guidance  to  support 
EU Member States to implement the directive 
in a fundamental rights compliant manner should 
be considered. Such guidance should explicitly 
exclude punishment for humanitarian assistance 
at entry (rescue at sea and assisting refugees 
to  seek  safety)  as  well  as  the  provision  of 
non-profit  humanitarian  assistance  (e.g.  food, 
shelter, medical care, legal advice) to migrants 
in  an  irregular  situation.  It  should  also  make 
clear that renting accommodation to migrants 
in  an  irregular  situation  without  the  intention 
to prevent the migrant’s removal should not be 
considered facilitation of stay, while ensuring that 
the legal system punishes those persons who rent 
accommodation under exploitative conditions.

16

References

BBC (2013a), ‘Mediterranean “a cemetery” – Maltese PM Muscat’, 12 October 2013, available at:  
www.bbc.co.uk/news/world-europe-24502279.

BBC (2013b), ‘Migrant boat capsize leaves 27 dead in Mediterranean’, 11 October 2013, available at:  
www.bbc.co.uk/news/world-europe-24499890.

Council of Europe Commissioner for Human Rights (2013), The protection of migrant rights in Europe, 
round-table with human rights defenders, Paris, 5 October 2012, report of 18 April 2013, available at: 
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet 
&InstranetImage=2341138&SecMode=1&DocId=2049674&Usage=2.

FRA (European Union Agency for Fundamental Rights) (2011), Fundamental rights of migrants in an 
irregular situation in the European Union, Luxembourg, Publications Office of the European Union 
(Publications Office).

FRA (2013), Fundamental rights at Europe’s southern sea borders, Luxembourg, Publications Office.

FRA and European Court of Human Rights (ECtHR) (2013), Handbook on European law relating to asylum, 
borders and immigration, Luxembourg, Publications Office.

PICUM Platform for International Cooperation on Undocumented Migrants (2012), Strategies to end double 
violence against undocumented women protecting rights and ensuring justice, Brussels.

United Nations (UN), Human Rights Council, Crépeau, F., Special rapporteur on the human rights of 
migrants, (2013), ‘Regional study: management of the external borders of the European Union and its 
impact on the human rights of migrants’, A/HRC/23/46, 24 April 2013.

United Nations (UN) (n.d), Protocol against the Smuggling of Migrants by Land, Sea and Air, 
Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 
Treaty Series, vol. 2241, No. 39574, list of State Parties, available at: http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en.

United Nations (UN) (3 November 2000), Interpretative notes for the official records (travaux 
préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime 
and the Protocols thereto (A/55/383/Add.1, paras 88–90), reproduced in the Travaux Préparatoires of the 
Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime 
and the Protocols thereto (UN publication, Sales No. E.06.V.5).

United Nations (UN), United Nations General Assembly and Economic and Social Council (2013), Report of 
the Secretary-General on Violence against women migrant workers, A/68/178, 23 July 2013.

17

This paper examines the sanctions applied to counteract irregular migration, building on previous work by the European Union 
Agency for Fundamental Rights (FRA) on the rights of migrants in an irregular situation. It looks first at the punishments 
used for irregular entry or stay, when persons enter or stay in a territory although they are not authorised to do so. It 
examines, in particular, the custodial penalties for irregular entry or stay for persons to whom the safeguards of the EU 
Return Directive should apply. It then examines the risk that those who help such migrants or rent out accommodation to 
them are punished for smuggling human beings, or facilitating their entry or stay. The paper compares EU Member States’ 
legislation and case law in this field, analysing the findings in light of relevant EU law. Based on this analysis, the paper 
proposes changes to policies against the smuggling of human beings, to render them more sensitive to fundamental rights.

Further information:
For the annex providing an overview of EU Member States’ legislation on punishing 
irregular entry and stay, as well as the facilitation thereof, see:  
http://fra.europa.eu/en/publication/2014/criminalisation-irregular-migrants. 

The following FRA reports examine various aspects of and case law related to asylum, 
borders and immigration into the EU:
•	 FRA-ECtHR	(2013),	Handbook on European law relating to asylum, borders and 

immigration, available at: http://fra.europa.eu/en/publication/2013/handbook-european-law- 
relating-asylum-borders-and-immigration;

•	 FRA	(2013),	Fundamental rights at Europe’s southern sea borders, available at:  

http://fra.europa.eu/en/publication/2013/fundamental-rights-europes-southern- 
sea-borders;

•	 FRA	(2011),	Fundamental rights of migrants in an irregular situation in the European 

Union, available at: http://fra.europa.eu/en/publication/2012/fundamental-rights-migrants- 
irregular-situation-european-union;

•	 FRA	(2011),	Migrants in an irregular situation employed in domestic work: Fundamental 

rights challenges for the European Union and its Member States, available at:  
http://fra.europa.eu/en/publication/2012/migrants-irregular-situation-employed- 
domestic-work-fundamental-rights-challenges; 

•	 FRA	(2010),	Detention of third country nationals in return procedures, available at: 

http://fra.europa.eu/en/node/1220.

An overview of FRA activities on asylum, borders and migration is available at:  
http://fra.europa.eu/en/theme/asylum-migration-borders.

FRA – EUROPEAN UNION AGENCY FOR  FUNDAMENTAL RIGHTS

© European Union Agency for Fundamental Rights, 2014
Photo: © Italian cost guard; iStockphoto

Schwarzenbergplatz 11 – 1040 Vienna – Austria
Tel: +43 158030-0 – Fax: +43 158030-699
fra.europa.eu – info@fra.europa.eu
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