GAP, FRANCE—In a wood-paneled courtroom in this small town in the French Alps, a local judge dealt a hefty setback last week to the European Union’s treasured principle of open borders, one that has underpinned the bloc. And to do it, she fell back on a law that dates back to one of the darkest periods in European history.
In sentencing two immigrants’-rights activists to jail time and handing suspended sentences to five others, Isabelle Defarge, the judge, concluded a case that has pitted volunteers from a shelter for immigrants and asylum seekers against an anti-immigration group. To do so, she relied on a provision of French immigration law—based on a 1938 decree on “the policing of foreigners”—that makes it a crime to help a foreigner enter, circulate, or reside in France illegally. In the process, the case has come to symbolize a wider tension across the continent between advocates of open borders and far-right populists pushing countries to close in on themselves.
The story began in April, when the anti-immigrant group Génération Identitaire kicked off “Defend Europe,” a protracted effort to police France’s border with Italy and prevent immigrants from crossing the frontier. Wearing matching blue windbreakers with Defend Europe written on the back, around 100 activists patrolled mountain trails in trucks, surveilled the woods via helicopter, and placed a massive banner on the mountains that read, in English, Closed border. You will not make Europe your home. No way. Back to your homeland.
Local residents said Génération Identitaire activists posed as police officers to intimidate and forcibly return immigrants to Italy—which could constitute a violation of the law criminalizing “interference with a state function.” Five asylum seekers interviewed by a researcher with La Cimade, an advocacy group, even claimed that police had collaborated with Génération Identitaire. An investigation into the allegations against the group is underway, but no charges have yet been filed. The police have denied all of the claims made against them.
When volunteers at a shelter for immigrants and refugees in Claviere, a small Italian city on the border with France, caught wind of Génération Identitaire’s plans, they decided to act. The day after Defend Europe began, at least 100 pro-immigrant activists, some of whom were shelter volunteers, marched across the border to Briançon, a critical entry point for the more than 7,000 immigrants and refugees who have arrived from Italy since July 2017, according to Refuge Solidaire, the only welcome center in Briançon. “We’re going to liberate the border!” they yelled as they headed past a police post in a peaceful rally.
Soon afterward, French police and the local prosecutor in Gap opened an investigation into the demonstration; the prosecutor charged seven of the volunteers, who would become known as the “Briançon Seven,” with violating the ban on helping foreigners enter the country illegally.
By upholding an antiquated law and pursuing legal action premised on the idea of a closed border between France and Italy, officials are sending a signal that “it’s legitimate to, in a situation on the border where fundamental rights are being violated, side against the people trying to defend those rights,” Vincent Brengarth, one of the defense attorneys for the Briançon Seven, told me. More broadly, he said, the case hints at the idea that Europe can “reestablish border [controls] in order to undermine solidarity with migrants.”
The very fact that the trial took place at all is a victory for the popular far-right political movements that have used migration and, critics allege, systematic racial profiling to further their cause across the European Union. Far-right parties have been vaulted into governing coalitions in Austria, Hungary, and Italy, while centrist governments elsewhere have moved to the right. This has been the case in France, where many on the left fear that President Emmanuel Macron, despite his image as a guarantor of liberalism, is advancing a rightward agenda on immigration.
In the courtroom in Gap, those anxieties—over the widening gap between French law and values and the mainstreaming of far-right views in Europe—were palpable.
In April, the prosecutor, working with the police, opened an investigation into whether the Briançon Seven had used the rally to help immigrants enter France illegally. Although during the trial he alleged that they had shepherded in approximately 20 people—a number based on media reports from the march and videos taken by locals—his own investigation did not corroborate that number. The police were only able to confirm that one of the participants had entered the country illegally under the shield of the protesters. The defense argued that the allegation and the inflated estimate were grounded in racially profiling the demonstrators.
The defendants argued that Defend Europe was part of an ongoing hardening of police practices around the border, notably in Briançon, where officers regularly conduct identity checks at the train station, on public transportation, and around town. They maintained that their goal was not to facilitate the illegal entry of undocumented immigrants, but to protest the growing militarization of the border. “We couldn’t just let Génération Identitaire parade like that in our mountains,” Benoît Ducos, one of the defendants, testified.
The Briançon Seven are not the first to face criminal charges for assisting immigrants under the provision based on the 1938 law. In February 2017, a court convicted a farmer, Cédric Herrou, for allegedly helping immigrants reside in France illegally. But in July, France’s highest constitutional court ruled that because Herrou had acted for humanitarian purposes, charging him—even for an illegal act—would violate the French constitutional principle of fraternity. On December 12, additional charges against him were dropped on this basis.
Although Herrou was originally prosecuted under the same law as the Briançon Seven, the dropped charges were limited to facilitating residency and circulation; the humanitarian exemption does not yet apply to helping someone enter the country. In the case of the Briançon Seven, the defense argued that the progressive softening of the law should influence their sentencing, and that even if the prosecutor could prove they used the rally to bring in immigrants, the situation on both sides of the French-Italian border would have given them humanitarian reasons to do so.
Much of the increased enforcement the Briançon Seven were protesting was spurred by the terrorist attacks on the Bataclan music hall, a soccer stadium, and bars around Paris in November 2015. Following those assaults, the government declared a state of emergency and reintroduced border controls. Although the state of emergency has since been lifted, border controls have remained in place, and were in place during Defend Europe. But those enhanced security measures, which were recently extended through April 2019, were a response to terrorism—not a measure to control immigration. Absent a clear link between immigration and terrorism, the defense argued, recent border controls should not justify a strict application of the law penalizing those who help immigrants enter illegally, particularly in light of the constitutional court’s decree on humanitarian exemptions earlier this year. (European citizens, not immigrants or refugees, were behind the majority of attacks committed on French soil since 2015, including the recent attack in Strasbourg.)
Much of this tightened border enforcement, however, has impacted immigrants and asylum seekers. The Briançon Seven’s attorneys referenced a report published by Amnesty International in October that documents routine violations of immigrants’ rights by French police at the border. This includes the theft of valuables from immigrants, high-speed chases on dangerous mountain roads that often lead to serious injuries or even death, and a practice known as “migrant dumping,” in which French police routinely return immigrants to Italy, including minors, without examining individual cases. This can undermine an individual’s right to seek asylum or access child-protection services.
Immigrant and refugee advocates fear that Macron is fostering a political environment conducive to these practices. A controversial new immigration law, which takes effect in January, will make it tougher to apply for asylum and curb rights to appeal rejected claims—provisions the far-right National Rally party (previously the National Front) supported. The law is among other moves on immigration that have earned Macron, who defeated the far-right firebrand Marine Le Pen in last year’s election, few friends in the disillusioned left. This year, the center-left magazine L’Obs published a controversial cover showing the president behind barbed wire, with the caption “Welcome to the country of human rights.” The issue featured prominent writers and intellectuals denouncing the government’s asylum policy.
Since the charges against the activists were upheld, Génération Identitaire, for its part, considers Defend Europe a success. Romain Espino, the group’s spokesman, said it is considering a similar operation on the southern border with Spain—now the preferred route for immigrants into France, with Italy’s border all but walled off and winter compounding the risks of a journey through the Alps.
“When the state sees a group of young people who have the courage to block the border and prevent illegals from passing,” Espino told me proudly, “they see what’s possible.” By the end of Generation Identitaire’s two-month operation, he recalled, border police had received more robust reinforcements that they had been requesting for months, and “thanked” the group for its assistance. “We successfully pressured the government,” he beamed. “For us, that’s a victory.”
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