Financial penalties on passenger carriers
Directive 2001/51/EC supplementing Article 26 of the Convention implementing the Schengen Agreement
This directive aims to combat illegal immigration by harmonising the financial penalties imposed by European Union (EU) countries on passenger carriers for transporting non-EU nationals who are not properly documented.
KEY POINTS
It supplements Article 26 of the Convention implementing the Schengen Agreement which requires the carrier to assume responsibility for non-EU nationals it brings to the external border by air, sea or land. In line with Article 26 of the Convention, the carrier must take all the necessary measures to ensure that non-EU nationals carried by air or sea, and groups transported overland by coach, have the travel documents required for entry into the Schengen countries.
In line with the directive, a carrier that cannot carry out the return of a non-EU national is responsible for finding the means for his or her onward transportation. If this transportation cannot be carried out immediately, the carrier must assume responsibility for the costs of the stay and return of the non-EU national.
The directive also requires EU countries to impose dissuasive, effective and proportionate financial penalties against carriers in breach of their obligations to ensure that persons travelling to the Schengen area have the documents required for entry. The directive sets out:
the maximum amount of the penalties is not less than EUR 5,000 per person; or
the minimum amount of the penalties is not less than EUR 3,000 per person; or
the maximum amount of the penalty imposed as a lump sum for each infringement is not less than EUR 500,000, regardless of the number of persons.
These financial penalties do not apply to cases where the non-EU national is seeking international protection.
EU countries may in addition adopt different types of penalties, such as seizure of the vehicle or withdrawal of the operating licence.
Carriers against whom proceedings have been brought for failure to fulfil their obligations have the right to defence and appeal.
DOCUMENTS
It has applied since 9 August 2001.
Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, pp. 45-46)
Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data (OJ L 261, 6.8.2004, pp. 24-27)
Illegal immigration – penalties for employers
Sanctions & measures against employers of illegally staying non-EU nationals – Directive 2009/52/EC
In order to counteract illegal immigration, it requires EU countries to prohibit the employment of non-EU nationals staying in the EU illegally.
It sets out minimum EU-wide rules on the penalties and other measures that can be applied against employers found to have breached this ban.
This directive does not apply to all EU countries – Denmark, Ireland and the UK (1) have opted out.
Employers’ obligations
Employers have to:
require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment
keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities
notify the authorities within the period set by the EU country when they employ a non-EU national.
EU countries may also:
use a simplified notification procedure if the employer is an individual who engages a non-EU national for private purposes
decide not to require notification when the non-EU national has been granted long-term residence status.
Penalties
EU countries must ensure that employers who break these rules are subject to effective, proportionate and dissuasive penalties, including:
fines based on each illegally employed non-EU national
paying for these nationals to be returned to their country of origin.
EU countries must also:
ensure that employers are liable for back payments, such as outstanding wages and social security contributions.
put in place systems to allow illegally employed non-EU nationals to claim any outstanding wages from their employers.
ensure employers are also – if appropriate – subject to other penalties, such as:
losing entitlement to some or all public benefits (including EU funding) for up to 5 years
having to repay any benefits received in the 12 months before the illegal employment was detected
being barred from participation in public contracts for up to 5 years
temporary or permanent closure of their business.
Criminal offences
An intentional infringement constitutes a criminal offence when the employer:
persists in not complying
employs a significant number of illegally staying non-EU nationals
employs such people in particularly exploitative working conditions
employs victims of human trafficking
illegally employs minors.
Complaints and inspections
Illegally employed non-EU nationals must be able to lodge complaints against their employers, either directly or through third parties. EU countries are required to carry out inspections based on regular risk assessments, to check whether employers are employing such illegal immigrants.
Implementation
Two main findings of a 2014 report on the application of the directive were that:
there are differences in the severity of the punishment in different EU countries
there is room for improvement in all areas offering protection to irregular migrants.
ACT
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (OJ L 168, 30.6.2009, pp. 24–32)
Corrections to Directive 2009/52/EC have been incorporated in the basic text. This consolidated version is of documentary value only.
Communication from the Commission to the European Parliament and the Council on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals (COM(2014) 286 final of 22.5.2014)
EU measures to prevent the facilitation of illegal immigration
Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence
Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence
Both aim to strengthen the system of sanctions preventing the facilitation of illegal immigration.
Directive 2002/90/EC provides a common EU definition of what facilitation of illegal immigration is.
Framework Decision 2002/946/JHA harmonises EU countries’ laws regarding:
penalties;
the liability of legal persons; and
jurisdiction for infringements relating to the facilitation of illegal immigration.
Infringements
Facilitation of illegal immigration consists in:
1.intentionally assisting a non-EU country national to enter or transit through the territory of an EU country in breach of laws; or
2. intentionally assisting, and for financial gain, a non-EU country national to reside in the territory of an EU country in breach of laws.
However, in the first case, when the aim is to provide humanitarian assistance, EU countries are not obliged to impose sanctions.
Penalties
EU countries must adopt effective, proportionate and dissuasive criminal sanctions which may entail extradition. The criminal penalties may be accompanied by other measures, such as:
confiscation of the means of transport used to commit the offence;
prohibition to practice the occupational activity in which the offence was committed; or
deportation.
Infringing or instigating infringement must be punishable by custodial sentences with a maximum sentence of at least 8 years:
if committed for financial gain;
if committed as part of the activity of a criminal organisation; or
if the lives of the subjects of the offences were endangered.
Liability of legal persons
EU countries must also adopt effective, proportionate and dissuasive sanctions against legal persons* for aiding illegal immigration committed for their benefit, in any of the following circumstances:
the infringement is committed by someone with a leading position within that legal person;
the infringement is committed by someone under the authority of that legal person and over which the person with a leading position neglects to exercise supervision or control.
The sanctions must include criminal or non-criminal fines and may include other sanctions, such as:
exclusion from public benefits;
a temporary or definitive ban on commercial activities; or
a judicial supervision or dissolution measure.
Jurisdiction
EU countries must ensure their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. If an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside its territory.
When an EU country becomes aware of infringements breaching another EU country’s immigration law, it must inform the country concerned. If one EU country requests another to prosecute an infringement of its immigration law, it must provide it with an official report or certificate describing the law that was breached.
Territorial application
Denmark does not take part in the application of the directive or of the decision under EU law but it is bound by its rules on the basis of Protocol 22.
The directive and the decision were initially applicable to the United Kingdom but it chose to opt-out of the framework decision with effect from 1 December 2014 on the basis of Article 10(4) of Protocol 36. Therefore, only the directive applies to the United Kingdom.
The facilitators package does not apply to Ireland yet.
The directive and the decision constitute a development of the Schengen acquis and therefore applies to Iceland, Liechtenstein, Norway and Switzerland.
Both acts have applied since 5 December 2002 and had to become law in EU countries by 5 December 2004.
BACKGROUND
The directive and the decision contribute to the development of an area of justice, freedom and security by developing common action among EU countries in the fields of police and judicial cooperation in criminal matters. They supplement the following acts:
Directive 2009/52/EC on illegal employment;
Directive 2011/36/EU on trafficking in human beings; and
Directive 2011/93/EU on the sexual exploitation of children.
DOCUMENTS
Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 17-18)
Council 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, 5.12.2002, pp. 1-3)
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, pp. 1-14)
Successive amendments to Directive 2011/93/EU have been incorporated in the original text. This consolidated version is of documentary value only.
Directive 2011/36/EU of the European Parliament and of the Council 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 L 101, 15.4.2011, pp. 1-11)
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ L 168, 30.6.2009, pp. 24-32)
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, pp. 20-23)
Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, pp. 43-47)
Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Final act (OJ L 176, 10.7.1999, pp. 36-62)
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two states with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, pp. 31-33)
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol on the position of Denmark (OJ C 340, 10.11.1997, p. 101)
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts — Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community — Protocol integrating the Schengen acquis into the framework of the European Union (OJ C 340, 10.11.1997, p. 93)