Carrier Sanctions

Not being able to acquire a visa does not in itself prevent a person from arriving at an international airport or seaport. States therefore have other complementary mechanisms in place, which make a visa a prerequisite for starting a journey. Carrier sanctions are the most important of these, imposing fines on private transport companies that carry persons who do not hold the necessary visas and/or travel documents to enter the territory of the EU.

Carrier sanctions had been in place in some countries since the mid-1980s, when common EU rules were introduced with the Schengen framework. The Schengen Convention explicitly stated that the imposition of penalties should be in line with obligations under the 1951 Refugee Convention, but countries interpreted it differently. For example France, Italy and The Netherlands waived the fines if a person was admitted to their asylum procedure, while Denmark, Germany and the United Kingdom (UK) fined carriers regardless of protection concerns.

At present, all EU countries have introduced provisions in their legislation to conform to the EU regime of carriers' liability, which removes the obligation to fine in cases where the person seeks international protection. However, given the discretion left to Member States by the Directive, there are substantial differences amongst them, with some States providing for exemptions only for those who are subsequently recognised as refugees and others providing for exemptions also when the third country national is granted a subsidiary form of protection. Often the relevant legislation is not applied consistently.

The adverse consequences of carrier sanctions on asylum seekers have been pointed to by many observers, most recently by a study carried out for the European Parliament. Yet the use of carrier sanctions continues across the EU. Moreover transport companies will continue to comply with the rules as long as it is more economically beneficial to avoid a fine by not allowing a passenger to travel rather than let a potential asylum seeker travel and risk making the wrong decision and incur a fine as well as the costs of repatriation.

ECRE objects in the strongest terms to the very existence of carriers' liability, which strips many refugees of the possibility to reach a country of asylum.

Also problematic is the way carrier sanctions confer on private actors responsibilities which by nature pertain to public authorities. They privatise functions in the field of migration control to non-state agents that cannot be held accountable for ensuring the rights of refugees under international law.