Introduction

A central element in state border control strategies in recent years has been the generation of a hostile environment, targeting those who assist migrants in their journeys, primarily civil society and non-governmental organizations (NGOs) who conduct search and rescue at sea, and the legal profession providing legal advice to migrants. Civil society is targeted as it is viewed as a threat to state sovereignty, in attempting to resist state practices undermining the rule of law and human rights in the field of immigration control. The creation of a hostile environment has profound implications in a democratic society, in directly undermining the rule of law and the protection of the rights of migrants, by stigmatizing and criminalizing those who help migrants in following their constitutional duties and in addressing the rule of law deficit in state border control. This chapter addresses the rule of law challenges arising from the creation of such a hostile environment by focusing on the use of criminal and administrative law by the state to target those who help migrants. The analysis culminates in addressing directly the undermining of the rule of law through state efforts to stigmatize and criminalize the provision oflegal assistance and legal advice to migrants, through attempts to target the legal professions.

The criminal law of the hostile environment: the criminalization of facilitation of unauthorized entry and beyond

A key use of criminal law to generate a hostile environment towards NGOs who perform search and rescue at sea and assist migrants in the context of extraterritorial immigration control has been to prosecute civil society actors on the basis of broad offences of migrant smuggling/facilitation of unauthorized entry.