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  • Writer's pictureSaar van Ommen & Alexandra Theodorou

Helping Undocumented People Could Soon Be a Crime

Evicted Migrant Camp © Wouter van Leeuwen

“I walked the streets for a long time. I know how it is to be out there, how it feels when there is harsh winter cold; when you don’t even have a blanket over your head. So I cannot accept seeing someone outside with no support, without giving some help.”

Khalid Jone works with undocumented people, some of whom he welcomes in his own home. He fled war-torn Sudan in 2001, sought asylum in the Netherlands and was eventually rejected. Left with no way to return to Sudan and no place to stay, Jone became undocumented and homeless. He knows the struggle all too well.

Khalid Jone © We Are Here

Now, as part of his organization ‘We Are Here’, he wants to inform - create visibility for others like him and create a support network.

“If you have gone through something, then you have created your own tools to survive those times. So if you meet someone who is going through the same thing, of course, you will be there for them.”

But, a new European Union directive could make his work illegal. The proposal made in November 2023 is part of the EU’s effort to combat migrant smuggling.

Many activists and aid organizations warn that the directive would have far wider consequences.

For example, PICUM is an NGO advocating for the rights of undocumented migrants. As part of their efforts, the group examines European legislation. They recently published a report raising concerns over the new directive which could criminalize, not only smuggling but humanitarian aid and migration itself.

The directive is an updated version of the 2002 'European Facilitators Directive'.

While the 2002 document only criminalized helping with cross-border migration, the new version would criminalize far more:

  1. Helping undocumented people remain in the EU.

  2. Encouraging illegal migration online or otherwise.

  3. Encouraging people to help those without papers.

Aid at Risk

The 2002 directive included a humanitarian clause that protected aid from being penalized. In the revised document, this stipulation is no longer binding.

Instead, the initial proposal included a financial benefit clause. This caveat was meant to protect migrants from financial exploitation by smugglers and criminal organizations. It stated that providing transportation or shelter would only be punishable if it was in exchange for financial or material gain.

However, objections to this directive were already voiced within the walls of the European institutions. Greece and Cyprus, among others, argued that proving financial or material gain could be challenging, making the directive difficult to enforce. This feedback led to the removal of the financial gain requirement from the proposal.

So, the latest version includes neither a binding humanitarian clause nor a financial benefit clause. Without these articles humanitarian aid could also be criminalized, warns Rian Ederveen, a representative of Dutch aid organization LOS, (National Support Centre for Undocumented People):

“Everyone who helps those without a residency permit upon entry, with transit or stay would be punished. Period.”

Debates about the specific clauses are still ongoing. Some form of protection will likely be established around providing humanitarian support, but the degree of this protection is uncertain, and so is, by extent, its effectiveness.

Typically, when proposing new legislation, the commission requests an 'impact assessment', which was notably absent in this case. The concern is that parliament doesn't understand the actual impact on migrants and volunteers doing humanitarian work.

"Often it is counter-smuggling legislation itself that harms, rather than protects, migrants’ safety and their rights," says Silvia Carta, advocacy officer from PICUM.

Volunteers and organizations worry particularly in light of the success of the right-wing in recent European Parliamentary elections, and the upcoming Hungarian presidency of the Council of the European Union. The phrasing of the humanitarian clause could make or break their ability to legally do their work.

The Fight for Medical Care

Ankie van den Broek, is a volunteer with Dokters van de Wereld (Doctors of the World). She provides care to undocumented people in Amsterdam, from a bus which they move around the city. They will often park near churches, community cafés, or other organizations frequented by undocumented people.

To Dr. van den Broek, it seems unlikely that all medical aid would be criminalized, even under the most conservative interpretations of the directive.

In a life-threatening situation, a doctor must provide medical care. “It's in your oath,” she says.

However, there is still a notable grey area. Even under current legislation, there are already clear tendencies to defund and discourage humanitarian care for undocumented people.

In the past, so-called ‘bed-bath-bread’ care was provided to undocumented people by municipalities. But, following the latest elections, the newly formed right-wing government intends to stop funding such programs.

This could hurt the collective efforts and the network established between different organizations. The erosion of such networks could have bad consequences for the quality of care humanitarian workers can provide.

Dr. van den Broek says that her work with Dokters van de Wereld is made better through cooperation.

“I regularly go back and forth with social workers. I tell them: 'Gosh, this man needs to soak his feet for 15 minutes'; Or, 'This woman has to go to the mental health centre this afternoon but I won't be available, can she stay here in the meantime?' and they will usually help me.

Hindering Medical Workers

This trend of reducing support and imposing restrictions on humanitarian care has even manifested in the penalization of medical workers in other parts of Europe.

One such case took place in northeastern Poland, near the border with Belarus. Dr. Paulina Bownik was forcibly removed from a hospital for trying to assist a sick migrant with paperwork and taken to court for 'disturbing the peace'.

“The fact is that the doctor did something which was completely consistent with their mission of keeping the person safe was, indeed, criminalized,”

comments PICUM advocacy officer, Silvia Carta.

Impact on Shelter

Housing is another aspect threatened by this new directive. Providing shelter could soon be criminalized as 'facilitating illegal stay' in the EU.

Many undocumented people already have to live on the streets. It is hard to say the precise numbers, as official estimations of homelessness do not account for people without papers.

Undocumented people rely on help from friends, volunteers, and aid organizations to find a roof over their head. Khalid Jone disapproves of the notion that he would no longer be allowed to take people in.

“I want to welcome somebody in my house, what is your problem with that?”

The efforts of individual volunteers are under threat, but so are the missions of larger institutions. For some, solidarity and charity are foundational ideals.

Rooted in the tradition of the church as a sanctuary and the principle of loving one’s neighbour - throughout history, churches have provided refuge to those in need.

In the Netherlands, Christian communities have harnessed this expertise to organize small-scale shelters for undocumented people as well as refugees. The PKN church in Roden, for instance, converted their old parsonage to house migrants from the nearby registration centre in Ter Apel.

“I’d sooner go to prison”

Nettie Kramer is scriba for the PKN church and she works with the undocumented people who found themselves in Roden.

The church accepted more people than it could accommodate, so she took in a mother and her four children. Eventually, after a lengthy legal process, the family was denied asylum.

Kramer finds it hard to say exactly how a directive like this would impact her work but, she would never tell someone to “just figure it out”. She goes on,

“I hope I would be able to stand for justice.”

Rian Ederveen from LOS, thinks the church could play an important role in the future.

“I spoke with people from the Council of Churches this week, and they said, 'We churches, we are proud. We stand for humanitarian action, and this is the core of our identity. We’d sooner go to prison.'”

Ederveen recognizes that not everyone has the luxury to be so steadfast. “Some people are certainly scared, not everyone can afford to say 'I’ll go tor prison for my principles.'”

What's next?

It could take anywhere from a few months to a few years before the directive is finalized. With negotiations ongoing, there is still a chance that the updated directive will effectively protect humanitarian aid.

However, with the growing anti-immigration sentiments in Europe reflected in European institutions, neither volunteers nor activists seem hopeful.


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