The criminalisation of solidaristic behaviour towards irregular migrants by individuals and non-profit organisations is a relatively new phenomenon, both in Europe and North America, part of the broader ‘crimmigration’ landscape, where the parallel regimes of immigration law and the criminal justice system are merely nominally separate. An over-expansive reading of anti-smuggling / anti-trafficking provisions has led to ‘blaming the rescuers’ for their role in the unauthorised entry of unwanted migrants into national territory, ending up in the prosecution and penalization of several actors. In fact, human trafficking and migrant smuggling have been categorised as trans-national crimes and as (purported) threats to peace and stability of the international order, with UN sanctions being recently imposed on individual perpetrators as a ‘global first’. This degree of acceptance of ‘solidarity crimes’ has an impact on the ‘normalisation’ of a criminal law response to acts of humanitarian assistance, which conflicts with moral/legal duties of mutual aid and qualifies as ‘harm’ action that aims to preserve life and human rights. Against this background, it is crucial to map out this development in detail and to properly problematize it, so as to establish the contours of what constitutes an appropriate understanding of the Rule of Law in this situation, where the limits of legitimate or ‘fair’ criminalization are, why, who is entitled to determine them, and how. Can helpers be punished as criminals? How far can the ‘crimmigration’ net extend for it to remain compliant with the ideal of Justice? Can there be ‘solidarity crimes’? With this in mind, the normative justifications underpinning the ‘crimmigration’ response to ‘solidarity rescues’ will be examined to determine their adequacy, from both a formal and substantive Justice perspective, with a view to identifying the ultimate moral criteria constraining (or that should constrain) unjust criminalisation.
Dr. Violeta Moreno-Lax is Senior Lecturer (Associate Professor) in Law, founder of the Immigration Law programme, and inaugural co-Director of the Centre for European and International Legal Affairs (CEILA) at Queen Mary University of London. She is also Visiting Professor at the College of Europe, Legal Advisor to the Global Legal Action Network (GLAN), Coordinator of the Search and Rescue Observatory for the Mediterranean (SAROBMED), Senior Research Associate of the Refugee Law Initiative of the University of London, Co-Chair of The Refugee Law Observatory, and a member of the Steering Committee of the Migration Law Network. She has previously been a Lecturer (Assistant Professor) in Law at the Universities of Liverpool and Oxford and held visiting positions at the Max Planck Institute for Comparative Public Law and International Law and The Hague Academy of International Law, as well as the Universities of Macquarie, New South Wales, Oxford, and Nijmegen. She has published widely in the areas of international and European refugee and migration law, including her recent monograph: Accessing Asylum in Europe (Oxford University Press, 2017), and regularly consults for the EU institutions and other organisations active in the field. Her latest work on Humanitarian Visas has formed the basis of the Resolution adopted by the Plenary of the European Parliament in December 2018. And her research on extraterritorial jurisdiction and maritime rescue substantiates the reasoning of the case of S.S. and Others v. Italy, pending in front of the European Court of Human Rights, denouncing the ‘pull back’ policy of refoulement by proxy undertaken by Italy via the Libyan Coast Guard in the Mediterranean.