Carrier sanctions are penalties given to transport companies if they carry improperly documented passengers. While the literature on carrier sanctions grapples primarily with comparative legal and normative questions surrounding asylum-seeking and democratic accountability, the empirical material covering the implementation of carrier sanctions is more limited. None of the literature to date has examined the statistical trends in the enforcement of carrier sanctions by European states. This article fills this gap and provides the first comparative analysis of statistics on the yearly number and costs of carrier sanctions. Through a new dataset on the implementation of carrier sanctions in 10 European countries between 2000–2014, the data reveal a puzzling variation in carrier sanction implementation over time, with wide variation among states, due in part to the un-reliability of the data. These variations are discussed in the context of current legal, political, and migratory trends in Europe.
Carrier sanctions, whereby private carriers are sanctioned for transporting undocumented travellers, are a fundamental ‘remote control’ measure of states and are one of the leading examples of the privatization of migration management.1 Carriers are obligated to check whether passengers have the required documents for entry into state territory, and are fined when carrying passengers with inadequate documentation. Since checks are carried out in ports of departure, carrier sanctions remain a quintessential form of extraterritorial migration control.
Carrier sanctions are only one ‘flanking measure’ used to deter irregular migration to Europe. Other measures, forming a ‘buffer zone’, include visa policies, Immigration Liaison Officers posted in third countries, the criminalization of facilitation, active surveilling and policing of the external land, sea, and air borders, maritime interception, and cooperation and regional agreements with third countries and organizations.2 Carrier sanctions are one type of ‘passive’ non-arrival policy, related to visa regimes and pre-entry clearance, as opposed to ‘active’ non-entry policies such as maritime interception.3 Carrier sanctions are most closely related to visa regimes, as visa regimes are in part enforced through carrier sanctions, as private carriers impose more levels of screening documents.4
Research on carrier sanctions has filled a niche within migration studies, attracting the attention of scholars working on the privatization and externalization of migration controls. Research on carrier sanctions has focused on two main strands: (1) Comparative work on the privatization and out-sourcing of migration management to third parties and (2) Legal and ethical analyses focusing on international law and the human rights implications of externalization for international protection.
Comparative work has provided fruitful comparisons of the development of carrier sanctions in Europe;5 describing them as a type of third party liability system with implications for discretion and democratic control;6 placing them in the context of geopolitics of border controls and interception measures;7 understanding them in relation to globalization and state sovereignty;8 explaining their role in political economy and rising neo-liberalization;9 probing the rise of carriers as ‘experts’;10 and understanding shifts in sanctions with regulation and governance perspectives.11 The Determinants of International Migration (
In the literature on legal aspects of carrier sanctions, there is a general consensus among researchers that they are harmful to international legal and human rights obligations, a form of unjustifiable coercion, and overall contribute to increased risks to populations in search of protection.13 Carrier sanctions have had the effect of deterring asylum-seekers and restricting the rights of refugees.14 Feller argues that carrier sanction legislation is “fundamentally flawed” as it undermines basic principles of refugee protection.15
While these two strands of literature provide us with a solid ground on which to explain and scrutinize carrier sanctions in comparative contexts, none of these works have engaged in a comparison of carrier sanction data using available statistics of trends in fines, and trends in the amount of fines are often presented in isolation. Empirical studies explaining the development of carrier sanctions, their implementation, and their impacts suffer from limited data and small-n case studies. This article attempts to fill some of the gaps in the literature by analyzing a novel data set of trends from across Europe that is neither comprehensive nor unproblematic. The dataset is comprised of figures from 10 European countries on the number and amount of carrier sanctions levied. Given the difficulties in collecting the limited primary quantitative data available on the topic, the statistical trends are supplemented with qualitative interviews and socio-legal analysis of documents and secondary data. One of the major issues that arose from the work is the (un)reliability and variable quality of the data, which have impacted the discussion and results (see more below in the Methods section).
This article asks: How have carrier sanction trends changed between 2000–2014? What have been the causes of these trends? A number of sub-questions arise: How many fines are given each year? How much is paid? What do trends reveal about carrier sanctions in particular states, and do these trends tell us anything about the causes and effects of carrier sanctions?
The paper begins by outlining the methods used to gather the statistics on carrier sanctions and the main challenges faced during collection. It then describes the main statistics before turning to a discussion of the variation in trends. It concludes with theoretical and normative implications, providing suggestions for future research.
Lack of reliable and valid data plagues research on carrier sanctions, even while the practice has a significant impact on the rights of asylum-seekers and migrants. This section highlights the difficulties in collecting data on carrier sanctions in Europe.22 It also elaborates on difficulties in inferring from unreliable and incomplete data.
Why Compare Statistics on Carrier Sanctions?
First, there are no collated data available on trends in fines over time. Evidence for carrier sanction trends is severely limited, and researchers thus have limited understandings of how carrier sanctions are implemented over time. Collecting and analyzing such statistics gives insight into the implementation of migration control regulations and the privatization of control in Europe, an area hampered by limited transparency and accountability.23 Second, there are no
The lack of publically available statistics on carrier sanction trends stems from a number of factors. There is no legal obligation to collect carrier sanction statistics. According to
Carriers are not required to publicize their sanctions. According to the Association of European Airlines, carriers do not keep separate statistics on fines imposed by
Both governments and carriers are ‘reluctant’ to release such numbers to avoid a negative public image or identify those passengers who have been rejected from traveling.31 Annual reports of major airlines do not cover such statistics, as revealing sanctions may impact investor relations. For example, International Airlines Group, which owns British Airways, Iberia, and Vueling, in their 2014 annual report, published for the first time the value of fines and sanctions for non-compliance with existing laws, while mentioning that ‘historic data is unavailable’.32 While the types of fines are disaggregated in the report, none of them are very specific and none refer to carrier sanctions in particular.
A lack of clarity regarding the competent authority leads to variations in availability. The competence for handling the sanction is split amongst multiple authorities in some cases. For example, after an email requesting data, I received a phone call from the Greek police headquarters to inform me that they are only partially competent to answer my questions regarding carrier sanctions.33 I spoke with a managing officer who did not have practical experience, but said that he would forward my requests for an interview to Civil Aviation and to the Border Police at Athens International Airport. The guard informed me that the police report the undocumented migrants to Civil Aviation, and then Civil Aviation orders the fine to the airlines. After the police report the undocumented migrants to Civil Aviation, their role is finished. After some more emails and phone calls, I was able to contact the competent authority in the Hellenic Civil Aviation Authority, who granted me the statistics by email (see Table of Sources).
Selection of Case Studies
The data I sought were the yearly number and amount of fines for select
Collecting data on carrier sanctions requires personal communication with competent authorities and persistence in locating and extracting the appropriate data. A range of sources were used in this study: I approached the Commission and the Parliament (
Most organizations I contacted did not collect the data or referred me those authorities that did. I contacted competent authorities through Internet searches in multiple languages (English, French, Spanish, German, Italian) in order to identify the appropriate authority. I then trawled governmental websites for potential documents and publications which contained the appropriate data. Identifying the appropriate authority could be a hassle, as I would be referred to different authorities only eventually to be referred back to the original person I contacted. Once identifying the appropriate authority, I emailed them and/or made phone calls.
The data were not always complete, nor digitized (required the scanning of paper documents). The
After collection, the data were compiled to look for any patterns or identifiable trends. The data are patchy and incomplete, but the overall trends reveal that carrier sanction legislation is variably enforced across European countries: some countries see an increase in fines (like Germany), others a decrease (like the
Issues with Data Collection and Analysis
According to previous work by Guiraudon, a number of difficulties arise when trying to assess carrier sanctions:35
[C]ompanies are reluctant to give out information, government bodies rarely and parsimoniously release data on sanctions and seldom evaluate the implementation of the policy, even when required by law…. It is even impossible to see the penalties appear either as a credit in the state budget or as a debit in the companies’ financial statements.
Given the problematic nature of the data, there are risks of trying to explain unreliable and incomplete data. I have wherever possible supplemented the analysis with secondary sources and available academic analyses, but drawing conclusions from such un-reliable data is challenging. Are the trends described reliable representations of carrier sanctions in Europe or do the trends reflect more the ways in which states produce such data and how we as researchers collect such data? Do the trends reflect variable numbers of people entering Europe or do they reflect better reporting standards on behalf of the responsible authorities? Some data may be more reliable than other data due to variable reporting standards among countries, but it is difficult to make any conclusions about the reliability of the data without more detailed information. Answering the question whether some data is more reliable cannot be adequately addressed unless engaging in speculation. We can speculate that the
3 Description of Carrier Sanction Trends
Carrier sanctions statistics, however limited, cannot be judged in isolation. Contextual factors, such as volume of travelers and asylum-seekers, trends in routes, and alternative flanking measures help to place carrier sanctions within the European border control regime.
First, the volume of travelers to European territory is important for understanding the relative scale of sanctions. Passenger arrivals to
Second, trends in specific routes may provide clues as to the scale of sanctions. Passenger flow on entry to the
Third, the numbers of individuals applying for asylum in the
As Table 2 indicates, carriers face various levels of sanction for transporting improperly documented passengers. Unfortunately, the available statistics I collected are not disaggregated by nationality or origin of the carrier. Recall that the coverage of the statistics varies (see Table 1 above) and the numbers vary in part because of this differential coverage. We would expect carrier sanctions to go down, given that governments and airlines are working together more closely, but the trends vary, and the unreliability of the data adds to the aggravation in interpreting the trends. In this section I will describe the national trends, and in the next section I will discuss the possible reasons for this variability.
The German statistics reveal perhaps the most striking increase, with the number of fines increasing from 9 in 2007 to over 1200 in 2014. This rise occurs in the context of administrative restructuring within the police and new Memoranda of Understanding with airlines.49 Note that the coverage is unclear, but concerns primarily air carriers as discussed during communication with the Federal Police. The data for France have large gaps, but we can see a large increase between 2006 and 2014, and the data are inconsistent between respondents in 2014. The limited data from Greece indicate a rising trend, but a much more limited number of fines compared to Germany, France, and the
The costs of a sanction can vary. Directive 2001/51 obliges Member States “to take the necessary measures to ensure that the penalties applicable to carriers … are dissuasive, effective and proportionate” (Art. 4) (The Council of the European Union, 2001). Financial penalties shall be at minimum between 3,000–5,000
While we can see the costs of fines levied in Germany, France, Greece, the
The cost of individual sanctions is increasing according to the data, meaning that governments are attempting to gain compliance by increasing the severity of the cost of sanction. For example, while the number of sanctions are increasing in Germany, the cost per sanction is also increasing from 1000
The costs for transporters of implementing carrier sanctions are hard to obtain. Money is spent on “advising, monitoring, training, negotiating, and sanctioning”.54 Menz notes that “[a]nnual expenditure for major European airlines on this aspect of migration management is in the mid-double digit millions of euros”.55 Exact costs for these implementation efforts is not possible to calculate given the lack of data. However, we can make some rough estimates which should be treated with care. According to Scholten, in a discussion of the costs associated with the MoU, she cites respondents claiming that costs of implementation are roughly equivalent to the fines not imposed.56 If we subtract the number of fines given to
Finally, costs for re-transporting inadmissible passengers can also be high. Scholten gives the example of a stowaway transported from Rotterdam harbor to Amsterdam Schiphol, with costs totalling 1200
4 Discussion of Trends
The causes of carrier sanction trends are variable and mixed and difficult to untangle. Scholten identifies a number of factors which impact how carrier sanctions have been implemented.64 There has been (1) a shift from ‘government regulation’ to ‘governance’, reflecting “general trends in changing governing structures,” with a diversity of tasks shifted from the state to private enterprises; (2) historical involvement of carriers in immigration control impacts current trends; (3) political pressure to tighten borders and gain ‘access’ to mobile populations. I discuss other trends briefly below which may have an impact of the variability of carrier sanction trends.
The cross-national variations are not easily explained due to the problematic nature of the data. In this discussion we must remain critical to these interpretations of why carrier sanctions are variable, but I do offer some hypothetical factors influencing the data which I have identified through interviews, primary sources, and secondary readings of the literature. However, the inferences we can draw from comparison are limited because cases were selected according to convenience, variation on the dependent variable (trends in fines) may not be reliable, and thus multiple causal factors can only be explored but not fully determined. Finally, discerning the effects of carrier sanctions is equally challenging, and I point to the secondary literature on its harmful effects in the introduction and conclusion.
Legal Basis at
eu and National Levels
Directive 2001/51 gives some discretion to states to apply different standards when implementing carrier sanctions legislation. In addition, court decisions have shifted the reasoning of authorities giving fines.70 For example the German Federal Administrative Court has overturned fines because of a lack of legal basis for the government authority to issue fines.71 In the Netherlands, some cases have been dismissed and others settled out of court.72 Sanctions may in some cases be waived if the passenger is found to be a refugee. In the case of France, new legislation means that carriers originating in
Administrative Structures of States
Changes in the administrative structure of the responsible government authorities or carriers can have effect on the number of sanctions given. For example, in Germany, the reform of the Federal Police in 2008 led to the creation of new headquarters, centralized competencies, and a new unit dealing specifically with carrier sanctions.74 The result has been an increase in staff and the ability to better administer sanctions, increasing the number and amount of sanctions. In Malta authorities needed time to cope with the introduction of sanctions, resulting in a number a learning curve for authorities which took months to address. In other countries cooperation between carriers and governments created new structures of enforcement (see below). In other cases, a multitude of competent administrative structures may exist, or administrative structures may pass competence on to others without clear guidelines, meaning that sanctions are recorded across organizations and get lost, are lacking, or not well recorded, as in Spain, Greece, or Italy. Furthermore, street-level discretion is also likely to have an effect on the number of sanctions as in Switzerland or Sweden.
The size of firms operating carriers may also impact the number of sanctions, with larger and smaller companies suffering more or less sanctioning depending on the characteristic of the firm.75 Since most of the national air carriers have gone through restructuring and/or privatization during a period of liberalization and unification of the airline market in Europe, these processes of firm-level restructuring have likely had an effect on the variability of sanctions as carriers shift tasks and responsibilities across the organization.76 New carriers entering the market, such as low-cost carriers, is also likely to have an effect on the number and amount of fines, as these carriers have more or less experience with dealing with undocumented passengers. For example, in Italy, the airlines most sanctioned are from Alitalia and Ryan Air.77
Business government relations in the context of carrier sanctions can have multiple effects on the number of sanctions given. For example, Memoranda of Understanding (MoUs) are important components of carrier-government cooperation. The 1944 Chicago Convention allows airlines to negotiate MoUs with states.78 The
Training of carriers can change the ability of carriers to be in compliance with government regulations and has likely led to variations in the amount of fines. The International Air Transport Association (
States’ Externalization Practices
Carriers are often assisted by Immigration Liaison Officers, or other officials from the destination state stationed in the departure state, who assist carriers and border agents in conducting checks on documents through trainings and other operations. Other private security actors play a role in checking documents which may be removed from the carrier and the government. The plurality of regulatory authorities checking documents and acting as privatized agents of migration control signify that pre-entry clearances obliged by carrier sanctions serve as a de facto form of exit control, or the criminalization of emigration.83 Alpes’ ethnographic material reinforces the hypothesis that pre-entry procedures, as obliged by carrier sanctions, block exit channels and push individuals towards irregular pathways. Variations in the discretion of migration control agents, whether public or private, lead to differing decisions during pre-entry clearance procedures, creating risks for vulnerable individuals. These pre-entry controls create real risks for individuals fleeing human rights abuses. Furthermore, her analysis suggests that the variability in numbers reflects discretionary practices of actors during pre-entry clearance, as people are prevented from flying from countries of departure where they may face abuse. New technologies of detecting fraudulent documents and stowaways is also likely to mediate the ability of governments to detected undocumented passengers, thus impacting the number of fines levied. Nevertheless, it is difficult to explain declining trends in carrier sanctions where privatization and externalization have increased.
Carrier practices which may impact the number and amount of sanctions relate to (1) heightened security measures and (2) discrimination towards certain social groups.
First, increased spending on security measures following 11 September 2001 attacks have impacted who participates in and how long check-in occurs. Guiraudon has shown how the blurring of public and private emerges in and through the hiring of former security forces by airlines: “the security agents hired by companies have either been trained by public agencies or are themselves former civil servants from the police forces, intelligence services or border police”.84 Heightened security measures, and the involvement of multiple new actors (both private and public), have increased enplanement processing times, leading to long minimum check-in times and delays in boarding.85 International passengers, who are usually boarding larger planes, thus require much more processing time than domestic passengers. Capacity shortages and other irregularities in airport operations will thus impact who and when sanctions are levied.86 These measures have had a likely impact on carrier sanctions by distributing ‘expert’ knowledge across employees and increasing the number of necessary checks on passengers, leading to higher costs and the need to reduce sanctions.87
Second, discrimination is likely to play a role in the case of carrier sanctions, as well as profiling of suspected irregular migrants, by both carriers and governments. For example, when a group of Czech Roma asylum-seekers were refused to enter the
Public opinion about migration is likely to shape the severity and amount of fines. In countries such as Sweden, which is publically more open to receiving migrants (78% of Swedish respondents have positive feelings towards immigration from countries outside the European Union), the number of sanctions was low.95 In the
Political pressure from domestic interests is also likely to affect the number of fines. Competent authorities face public pressure to reduce the number of undocumented travelers, leading to variation in fines. According to an unofficial position of the Minister of Justice of Sweden in 2015, following pressure from the Swedish Aviation Industry Group to lift sanctions so that airlines can transport asylum-seekers, it is “juridically impossible” for Sweden to lift sanctions, as the basis is an
Based on a novel data set this study details trends in carrier sanctions in 10 European states over the time period of 2000–2014. To deal with the unreliability of the data collected, in-depth interviews with key actors and readings of primary and secondary literature were used as additional sources. It is necessary to understand trends in carrier sanctions because of the implications such trends have for the privatization of migration management and effects on human rights. In relation to the number of sanctions levied and their growth or decline, the data indicate that carrier sanctions are variably implemented throughout Europe with differing trends across countries, and it is difficult to tease out the causes and effects of these trends.
These findings raise a number of implications relevant for future work. First, trends in number and amount of sanctions are uneven, and by extension the implementation of legislation is somewhat haphazard and in some cases lacking. The variation is an expression of diverse local policy outcomes (which may be unintended), giving the impression that the implementation of carrier sanctions is incoherent and haphazard.101 Such ‘incoherence’ lends support to the hypothesis that carrier sanctions are in some cases a mostly symbolic control policy (as in Sweden or Switzerland, and in earlier years in Germany), whereas in other cases carrier sanctions are vigorously enforced and have real material value for states, not only symbolic (such as the
Second, the availability and transparency of carrier sanctions data are severely lacking. Existing sources are hard to obtain, may not be complete, and are not reliable, making it hard to draw a fully comparable and accurate picture of the evolution of carrier sanctions. The lack of statistics is evidence of larger deficiencies in carrier sanctions.104 In order to carry out more accurate analyses of carrier sanctions, we need more reliable data. Following Singleton’s review of issues related to migration statistics in the
- Based on the current study, the available data is not reliable or comprehensive, and thus of poor quality. Improving the quality of carrier sanctions data is needed to assess their relevance for research, policy, and advocacy purposes.
- Collection of carrier sanction data at the national level should be improved.
- Carrier sanctions data should be regularly recorded, updated, and shared publically at the
- Evaluations should be carried out based on the new data in order to assess the implementation and effects of carrier sanctions.
Carrier sanctions legislation is described by many studies as having detrimental effects on fundamental rights and international protection, supporting a near consensus in the literature that carrier sanctions are harmful to asylum-seekers and those in need of international protection (see Introduction). The re-shaped relations between states, firms, and individuals represent a decline in the moral, ethical, and legal obligations of states and firms towards populations in need of protection, blurring the lines of who is responsible when abuses occur. Recent work by Gammeltoft-Hansen shows that refugees have a difficult time accessing complaint procedures when harms occur.106 Abeyratne argued that while airlines do have responsibilities, states have greater obligations under refugee and international law.107 Rodenhauser similarly argues that the activities of carrier personnel can be attributable to the state.108 There is also very little transparency and availability of data and practices, making it difficult to determine who is responsible when things go wrong, muddying the ability to determine accountability for abuses. Since “prospects for repealing carriers’ liability legislation are poor”,109 alternative mechanisms to hold harmful state and non-state actors accountable must be developed. ‘Lifting the corporate veil’ is one way to improve transparency in carrier practice,110 but according to the secondary literature and the interpretation of the evidence here, much more needs to be done in order to address the inconsistencies in policy implementation and harms towards those in seek of protection produced by carrier sanction legislation.
Based on key questions raised by industry and humanitarian organizations about carrier sanctions, updated quality data can assist in determining:111
- Whether carrier sanctions are an appropriate policy tool;
- The degree of diligence expected from carriers;
- Who is responsible when harms occur;
- If carrier sanctions are compatible with states’ obligations.
Finally, this study raises a number of concerns. Understanding the dynamics of carrier sanctions is important, as carrier sanctions are known to have effects undermining fundamental rights and refugee protection. Decision-makers in European countries are unable to diagnose the effects of carrier sanctions policies due to limited and unreliable data.112 Explaining when and where carrier sanctions may play a role can help service providers in identifying how to approach carriers and states in order to improve standards of protection and respond to the potentially harmful effects of carrier sanctions.