Migrant smuggling: European Commission under investigation for disregarding human rights impact in current proposals

The European Ombudsman will investigate the European Commission’s failure to properly assess the impact of proposed new laws against migrant smuggling, following a complaint brought by NGOs European Digital Rights (EDRI) and the Platform for International Cooperation on Undocumented Migrants (PICUM) on behalf of the Protect Not Surveil coalition, whose mission is to challenge digital surveillance in migration contexts. The Ombudsman’s decision can be found here.

The new rules, proposed in November 2023 and currently being negotiated by the European Parliament and the Council, comprise a Directive on preventing and countering the facilitation of unauthorised entry, transit and stay in the EU (Facilitation Directive) and a Regulation to reinforce Europol’s role in the fight against migrant smuggling and trafficking in human beings (Europol Regulation). The new Facilitation Directive would replace current rules on migrant smuggling (the 2002 Facilitators’ Package).

As the coalition representatives highlight in their complaint to the European Ombudsman, the European Commission failed to conduct a proper impact assessment of the two instruments, despite a clear mandate to do so and despite a report – commissioned by the Commission itself – recommending such an impact assessment (see notes to the editors). This report was only made public months after the publication of the proposed Directive, following a request for access to information by PICUM.

Most importantly, the Commission’s failure to conduct an impact assessment overlooks flagrant  human rights violations linked to the two instruments.

The proposed Facilitation Directive introduces new offences with harsher penalties leading to more criminalisation of migrants and people who help them, without clearly protecting humanitarian acts from prosecution. A recent report by PICUM found that at least 117 people were criminalised in the EU in 2023 for helping migrants.

Silvia Carta, Advocacy Officer at PICUM, said, “The proposed revision of the Facilitation Directive will put people at risk of criminal prosecution simply for crossing borders or for helping others in need. The EU Ombudsman’s decision to open an inquiry against the Commission is an important recognition that this proposal risks violating fundamental rights and that the Commission didn’t take these risks seriously”.

The Europol Regulation massivelyexpands the agency’s surveillance capacities, budget and staff, aiming to bring data exchange among police forces to the next level without any consideration for fundamental rights impacts. This is the second reform in a row the Commission has proposed without providing solid evidence. It has also failed to carry out an evaluation of the agency’s original mandate from 2016, as required by the law.

“Europol is an opaque and unaccountable agency that, despite receiving constant wrist slaps from its regulator, continues its power grab. The European Commission’s decision to expand Europol’s powers is simply ignoring this reality and will cause disastrous impacts – especially for people on the move who will bear the brunt of inevitable privacy breaches and discriminatory surveillance.” said Chloé Berthélémy, Senior Policy Advisor at EDRi.

Overall, the current proposals seem to have been motivated by political considerations. Neither of the legislative proposals was part of the Commission’s 2023 work programme. The alleged urgency and importance of this legislative initiative need to be seen in the context of the 2024 European Parliament elections and immigration control as a leading election topic in recent years.

The results of the European Ombudsman’s inquiry are expected later this year.

Sarah Chander, Director at Equinox Initiative for Racial Justice, said, “An investigation into the Facilitators Package will reveal the European Commission’s complete disregard for the human rights of migrants. Both proposals mark yet another step toward codifying a violent, punishment based approach to migration that requires the militarisation of borders and the unjustified use of the criminal justice system toward people in dire need.”

NOTES TO THE EDITORS:

• The Protect Not Surveil coalition is a group of activists, organisations, researchers and more working to challenge the use of digital technologies at different levels of EU policies and advocate for the ability of people to move and to seek safety and opportunity without risking harm, surveillance or discrimination. Our advocacy aims at holding accountable the EU, Member States and private companies profiting from human rights violations at and within the EU borders.
• Requirements to assess impact: The European Commission is required to conduct an impact assessment prior to the proposal of new legislation likely to have significant economic, environmental or social impacts, as per the Commission’s own Better Regulation Guidelines and Toolbox (p. 30). In case C 482/17, the Court of Justice of the European Union established that “the preparation of impact assessments is a step in the legislative process that, as a rule, must take place if a legislative initiative is liable to have such implications” (para. 84).
• The Commission’s failure to conduct an impact assessment also disregards recommendations to do so included in a 2023 independent study by consultancy Milieu (p. 85) on the implementation of the 2002 Facilitators’ Package (to be replaced by the new proposed rules). To date, the Commission has not granted access to the national case studies at the basis of the 2023 Milieu study on grounds of “protection of public security” and “protection of the ongoing decision-making process”, without providing sufficient justifications.
• Past communications with the Commission: In a letter to EDRI sent on 3 September 2024 in response to questions around the lack of an impact assessment, the Commission failed to justify the decision not to carry out an impact assessment, in particular on fundamental rights, and instead produced an analytical document based on selective evidence. The Commission cited the urgency of presenting the proposals as justification for omitting an impact assessment but provided no evidence to support this claim, especially given that discussions on revising the 2002 Facilitators’ Package have been ongoing for nearly a decade. Most of the evidence presented in support of the proposal (but published six months after the proposal was published) dates back from 2017.
• The European Parliament decided to carry out its own impact assessment (non-public document) on the new proposed rules given the lack of such a commitment from the European Commission. This was confirmed by a Greens’ political advisor in a PICUM webinar.
• The Kinsa case: The proposed Facilitation Directive was presented four months after the Tribunale di Bologna (Italy) asked the EU Court of Justice (on 21 July 2023 in case C-460/23, known as ‘Kinsa’) whether the non-binding “humanitarian exemption” in the 2002 Facilitators Package is compatible with the EU Charter of Fundamental Rights. Since the humanitarian exemption is also non-binding in the new proposed Directive, there would be a risk that parts of the new Directive would have to be amended again to avoid being found incompatible with the Charter. The European Commission has not clarified whether it was aware of the court proceedings, and why it considered it necessary to introduce a legislative proposal without waiting for the Court’s interpretative guidance. The Court issued its judgment on 3 June 2025. While its analysis focused on the specific circumstances of the case, the ruling strengthens the argument for making humanitarian exemptions binding under EU law, particularly in cases involving family members, children, and people seeking international protection.
• Risks linked to the Facilitation Directive: Among others, the draft Directive:
  • Criminalises the facilitation of irregular entry, transit or stay, in very broad terms which could include humanitarian actors, lawyers, volunteers, migrants themselves and their family members;
  • Criminalises people for “facilitating irregular entry, transit or stay” when there is a risk of causing serious harm, even when the accused person hasn’t received, requested or accepted any financial or material benefit;
  • Criminalises people providing services traditionally offered in exchange for money (like landlords and taxi drivers) even when there is no element of exploitation or undue financial benefit;
  • Criminalises the vaguely defined “public instigation” of irregular entry, transit of stay, which puts organisations and people providing information at risk of prosecution;
  • Ups prison sentences and sanctions, including risks of severe fines and exclusion from public funding for NGOs;
  • Fails to protect humanitarian acts from prosecution in a clear and binding article.

More information on the human rights risks of the Facilitation Directive can be found in PICUM’s briefing How the new EU Facilitation Directive furthers the criminalisation of migrants and human rights defenders.