Migrant smuggling: European Parliament to start debating new rules

On 8th April, MEPs of the civil liberties committee LIBE are set to start debating the European Commission’s proposed rules to tackle migrant smuggling (proposed EU Directive on the facilitation of irregular entry, stay or transit).

The MEPs will discuss the draft report led by socialist MEP Birgit Sippel, which will form the basis of the Parliament’s negotiating position when entering final negotiations with the Commission and Council.

The draft report includes a legally binding provision that would exempt humanitarian assistance from criminalisation. This element is particularly welcome as both the Commission’s proposal and the Council’s negotiating position confined this exemption to a non-legally binding provision, de facto leaving the door open to the criminalisation of solidarity with migrants.

PICUM has been documenting a steady rise of criminalisation of solidarity with migrants in the past few years: at least 117 people were criminalised for helping migrants in 2023; at least 102 people in 2022, and at least 89 people between January 2021 and March 2022.

The LIBE draft report also removes problematic provisions included in the Commission’s proposal, including:

• references to the “likelihood of causing serious harm” as a constitutive element of the facilitation crime, even when the accused person hasn’t received any financial or material benefit. This means that parents who have to undertake perilous journeys with their children would be at risk of prosecution, just as survivors of a shipwreck, if they had accepted to steer the boat out of necessity.  
• a new offence of “publicly instigating” irregular entry, transit, or stay, which was sharply criticised by the UN Special Rapporteur on Human Rights Defenders, amongst others, for the serious risk that this provision would be used against civil society organisations and have a chilling effect on the much-needed provision of information and services to migrants.

Despite these welcome elements, the current LIBE draft report :

• while clearly exempting ‘humanitarian assistance’ from criminalisation, still de facto leaves the exact definition of what can be considered a humanitarian act to member states. The current text only provides a non-binding definition, which encompasses various acts like assistance to family members and people in distress, or the provision of legal and medical assistance. As a result, member states would still be able to criminalise migrants, people acting in solidarity and service providers;
• fails to clearly protect people from criminalisation if they obtained a licit financial benefit when helping someone in an irregular situation. This means that landlords, taxi drivers and other people providing services traditionally offered in exchange of money would still risk being criminalised, similar to migrants who accept to steer a boat to obtain a reduction on their passage;
• does not clearly protect migrants accused of smuggling themselves, often because they simply were on a boat, distributed food and water, or even helped others on a boat at risk of capsizing;
• does not rule out the criminalisation of irregular stay.

Silvia Carta, Advocacy Officer at the Platform for International Cooperation on Undocumented Migrants, said, “This text is a first positive step forward in the protection of solidarity actions, but more could be done to prevent the criminalisation of migrants themselves. We stand ready to work with the European Parliament so that no one faces prosecution simply because they crossed a border or helped people in need”.

The European Parliament’s plenary is expected to vote on its negotiating position in summer 2025.

NOTES TO THE EDITORS:

• The new proposed Facilitation Directive is a redraft of proposed changes to the law criminalising the facilitation of irregular migration (2002 Facilitation Directive), which has also been used to criminalise migrants and people acting in solidarity with them.
• Our position on the new proposed Facilitation Directive can be found here. This briefing includes a table comparing provisions of the 2002 Facilitation Directive with those included in the new draft Facilitation Directive.
• A recent study by the research service of the European Parliament about already found that the Commission’s proposal risks leading to increased criminalisation of migrants and those who help them. More information in our press release.
• Media inquiries can be sent to Gianluca Cesaro on gianluca.cesaro@picum.org