Adding to concerns, the Hungarian government in June 2018 approved the so-called Stop Soros law, which criminalises people who help asylum seekers. The European Commission subsequently said on 20 July that the law is in breach of the EU charter of fundamental rights and launched a probe into the legislation.

But the legal risks for Non-Governmental Organisations (NGOs) and citizens who help migrants go way beyond Hungary, with uncertainties in numerous other countries around when exemptions for humanitarian assistance should kick in. ‘The purpose of a human trafficking law is to stop people from exploiting refugees,’ said Soroush Shahram, a lawyer at Sweden-based Adacta. ‘But Swedish courts, including the highest court, have judged that even if a citizen helps a relative cross the border illegally he should be convicted of people smuggling.’

In April 2018, Sweden’s High Court eased the sentences in two people-smuggling cases where the offender acted on humanitarian grounds rather than for financial gain. But Shahram wonders why the criminal charges remained. While a humanitarian exemption is not enshrined in Swedish law, the legislative history documents say such exemptions can be made in cases of illegal entry, he says.

Only eight EU Member States have banned the criminalisation of humanitarian assistance.

In France, the Constitutional Council ruled on 6 July 2018 that the principle of fraternity, enshrined in French constitutional law, should have prevented farmer Cedric Herrou from receiving a four-month suspended prison sentence last August for helping migrants cross the Italy-France border and housing them in south-eastern France.

The Council noted, however, that with regards to facilitating the illegal entry of a person into France, it is up to the legislator to ensure that there is a fair balance between the principle of fraternity and the safeguarding of public order – meaning it is still not entirely clear whether future, similar cases would result in no prosecution. French law states that ‘anyone who has, through direct or indirect assistance, facilitated or attempted to facilitate the entry, circulation or illegal stay of a foreigner in France shall be punished by imprisonment for five years and a fine of 30,000 euros’, which has been used against those assisting the entry of migrants for humanitarian reasons.

‘All citizens have the duty to assist a person in danger,’ said Karl Waheed, a lawyer and founder of Karl Waheed Avocats in France, and the Vice-Chair of the IBA Immigration and Nationality Law Committee. ‘The solidarity offence law tries to counter the civil duty.’

Herrou’s victory was hailed by civil right groups, who are hoping this will make it easier to contest solidarity offence accusations going forward. In addition, France’s proposed new immigration bill – while controversial – suggests more leniency regarding the solidarity offence.

This, alongside the recent efforts by the European Parliament to address solidarity offences, indicate a developing landscape.   

Claude Moraes, the MEP who drafted the Parliament resolution, tells the IBA: ‘We fully expect the Commission to [adopt] the guidelines and we’ll push very hard if that doesn’t happen.’

There are concerns, however, that guidelines will not be enough to prevent solidarity from being criminalised. ‘We welcome the resolution in Parliament, which is really trying to clarify the interpretation of the Facilitation Directive,’ says Carmine Conte, legal policy analyst at Brussels-based think-tank Migration Policy Group. ‘But the main problem is that [the directive] lacks an obligatory exemption for humanitarian assistance.’

Conte says it is unlikely the legislative debate around the Facilitation Directive will be formally re-opened in the current anti-immigration and populist political climate in Europe. Supporting this concern is the fact that the Commission said last year that a review of a Facilitators Package would ‘not bring more added value than its effective and full implementation’. 

Moraes says he would not rule anything out in the ‘dynamic’ and ‘highly sensitive’ debate on how to manage migration. ‘This is the moment [for] lawyers, especially in western countries where populism is on the rise, to use every possible lever and push every single legal avenue to get a more progressive solution,’ he says.

And lawyers can certainly look beyond the EU for guidance on solidarity and humanitarian assistance from a legal perspective. Definitions of humanitarian assistance and the principle of showing humanity exist in international treaties and laws, often guided by the Fundamental Principles of the Red Cross. ‘The challenge is that many states, because they want to take control over their immigration policy, are seeking to move away from those definitions,’ says Neelim Sultan, a barrister and head of family law at London-based 1MCB, and the Co-Chair of the IBA Human Rights Law Committee. ‘Criminalising acts of human solidarity runs counter to the shared jurisprudence of Europe, which gave birth to the Universal Declaration on Human Rights and the European Convention as well as long established ethical principles governing humane conduct.’