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.

Between January and December 2024, at least 142 people faced judicial proceedings in the EU for helping migrants. The majority were charged with facilitation of entry, stay or transit or migrant smuggling (depending on how the crime is defined in the national legislation). The figures stem from media monitoring and research conducted by the Platform for International Cooperation on Undocumented Migrants (PICUM) throughout 2024.

This is most likely an undercount, as statistical and official data concerning those who are being accused, charged, or convicted for smuggling and related offences is often lacking. Many cases go unreported by the media or because people fear retaliation, especially migrants themselves. In addition, some cases reported by the media might not have been detected by our alert system.

Nonetheless, this data confirms a concerning, ongoing trend observed in previous reports. At least 117 people were criminalised in the EU in 2023. At least 102 in 2022, and at least 89 between January 2021 and March 2022.

Silvia Carta, Advocacy Officer at PICUM and author of the study, said: “This is the fourth year in a row that we document increasing levels of criminalisation of both migrants and people who help them. And what we’re able to monitor is just the tip of the iceberg.”

Our media monitoring found that most people criminalised were in Greece (62), Italy (29), Poland (17) and France (17). Other cases were found in Bulgaria, Cyprus, Malta, and Latvia.

Among those criminalised, 88 people were criminalised for rescuing or helping migrants in distress at sea. 21 were criminalised for providing food, water or clothing to migrants; 17 for protests and manifestations. For instance, in Poland, five people providing humanitarian aid at the Poland-Belarus border are facing potential sentences of up to five years in prison.

The average length of the proceedings recorded by our media monitoring is three years, but in several cases the actual length can be much longer. In one case that resulted in an acquittal in 2024, a woman faced nearly ten years of legal proceedings after being criminalised in 2014 for purchasing train tickets for a group of Syrian refugees in Sicily, Italy.

In 2024, court proceedings concluded for 43 of the 142 individuals criminalised. Among them, the vast majority of people (41) were acquitted or had their charges dropped. Even if a case may end in an acquittal, trials still have heavy consequences on people’s finances, personal life, and psychological wellbeing.

People criminalised for crossing borders irregularly

Not only solidarity with migrants is being criminalised under counter-smuggling legislation, but also the very act of migrating. According to our monitoring, between January 2024 and December 2024, at least 91 people in Italy, Greece and Spain were criminalised for the sole act of crossing borders irregularly.

People who are criminalised for migrating irregularly are punished twice: they face harsh legal proceedings and, in two thirds of cases, are imprisoned even before their trial begins. In Italy, Maysoon Majidi, a Kurdish-Iranian activist and filmmaker, spent 300 days in pre-trial detention on trafficking charges because she had distributed water to passengers on a boat.

This contrasts sharply with criminalisation of solidarity cases involving EU nationals, where pre-trial detention is rarely applied.

Silvia Carta said: “The criminalisation of solidarity with migrants is deeply tied with the criminalisation of migration itself. These are not two separate issues but are in fact a continuum of restrictive migration policies that make border crossing unsafe and create a hostile environment against those who are considered to have entered in an irregular manner.”

Most people facing criminal charges due to crossing borders irregularly (84%) are accused of steering a boat or driving a vehicle across a border, or of allegedly assisting in managing passengers on board. Often, the person was simply a passenger, or distributed food and water, used a phone and a map while at sea, or even helped others in difficult situations, for instance when a boat was about to capsize.

In Greece, an Egyptian fisherman and his 15-year-old child were charged with smuggling, simply because the father reluctantly agreed to pilot their boat to afford the journey. The father was placed in pre-trial detention and sentenced to 280 years in prison. Not only was the child separated from his father, but he now also faces the same charges in a juvenile court.

In both Italy and Greece, shipwreck survivors were prosecuted as smugglers.

The new EU Facilitation Directive

Criminalisation trends are likely to worsen due to a proposal to revise the current EU legislation on migrant smuggling (EU Facilitation Directive). The proposal from the European Commission, currently under negotiation in the European Parliament, leaves the door open to the criminalisation of humanitarian assistance and could expand the grounds for criminalising migrants.

Silvia Carta said, “The proposed Facilitation Directive risks leading to more people being arrested or brought to trial for helping people in need, and to migrants themselves being accused of smuggling. As the negotiations advance, the European Parliament must push for the strongest safeguards so that no one faces prosecution simply because they crossed a border or helped people in need”.

NOTES TO THE EDITORS:

• The report is available here. It includes the full list of monitored cases, detail on the most significant cases and more information on counter-smuggling legislation.
• In addition to criminalisation cases against individual human right defenders, activists and people crossing borders, the report also includes additional cases of administrative sanctions and non-judicial harassment of NGOs.
• The draft EU Facilitation Directive is a set of measures announced by the European Commission in November 2023, which aim at countering migrant smuggling. The measures focus on criminalising and punishing so-called smugglers (often, migrants themselves) without tackling the root causes of smuggling (i.e. the lack of safe regular routes for people to come to Europe). The new proposal, largely validated by the EU Council in December 2024, fails to introduce a clear and binding exception from criminalisation for humanitarian assistance by NGOs, family members or migrants themselves. Our position on the proposal can be found here.

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

On 27th February, the research service of the European Parliament published a new study about the European Commission’s proposed rules to tackle migrant ‘smuggling’, which finds that they risk leading to increased criminalisation of migrants and those who help them.

The study focuses on the draft “Facilitation Directive”, which aims to criminalise the facilitation of irregular entry, stay or transit in the EU.

It is remarkable to note that the European Parliament conducted this study as a response to the Commission’s failure to assess human rights risks before proposing the new rules. At the time of this writing, the European Commission has failed to conduct a proper impact assessment of the proposed Facilitation Directive. The authors of the study recommend that the Commission withdraw the proposal until a proper impact assessment is carried out.

The study finds that the proposed Directive exacerbates the conflation of criminal law and migration control. The authors ask to refocus the proposal on combating organised criminal networks as required by international law – instead of expanding the definition of the crime of “smuggling” to activities not linked to organised crime, which would lead to the criminalisation of migrants and people who help them. The study reflects civil society’s concerns about the lack of a clear, binding clause that would exempt service provision and solidarity from criminalisation.

Silvia Carta, Advocacy Officer at the Platform for International Cooperation on Undocumented Migrants, said, “This study reflects what many human rights actors have been denouncing all along: the proposed Facilitation Directive risks leading to more people being arrested, fined or brought to trial for helping people in need, and to migrants themselves being accused of smuggling”.

The study came out after the EU Council voted its negotiating position on the draft Directive last December, also failing to exempt solidarity from criminalisation in a binding article. The European Parliament is expected to vote on its own negotiating position in June 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.
• Media inquiries can be sent to Gianluca Cesaro on gianluca.cesaro@picum.org

On 13th December 2024, the EU Council will vote on new EU rules about migrant smuggling which would leave the door open to the criminalisation of migrants and solidarity with migrants. The vote marks the Council’s position on the new draft Facilitation Directive, a European Commission proposal to counter migrant smuggling by expanding the crime definition and upping prison sentences.

The text set to be voted by the Council also fails to introduce a legally binding provision that would exempt acts of solidarity with people in an irregular situation from criminalisation. Instead, the Council will vote to simply invite member states not to criminalise humanitarian acts in a non-binding recital. Without a legal requirement that prohibits the criminalisation of migration and solidarity, there is genuine concern that member states will increase legal procedures against migrants themselves and people helping 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 text to be voted by the Council underlines that the Facilitation Directive only provides for minimum rules, hinting at the possibility for member states to increase the level of criminalisation under their national legislation if they wish so.

Marta Gionco, Senior Advocacy Officer at PICUM, said: “European governments have been increasingly cracking down on migrants and on people who help them. This vote goes in the direction of more criminalisation, with more people expected to face trials, fines and prison sentences simply for helping other people.”

The trend towards more criminalisation would also risk affecting the very victims of smuggling.

International law is clear that migrants who are victims of smuggling should not be criminalised. The current law already fails to provide any protection, and the new text only mentions this in a non-binding recital, effectively leaving the door open to the criminalisation of migrants themselves, and their family members.

The European Parliament is expected to discuss its own position on the draft Facilitation Directive at the start of 2025. The Parliament and the Council will then have to reach an agreement between their respective positions, before a final text is approved.

On 26^th November 2024, the Swedish government presented the findings of a public inquiry outlining how a potential new law could oblige some public sector workers to denounce undocumented people they come in contact with to the immigration authorities.

According to the inquiry, the Swedish government should oblige the following governmental agencies in Sweden to automatically report undocumented people to the Police Authority as they come in contact with them: the Public Employment Service, Social Insurance Agency, Prison and Probation Service, Enforcement Agency, Pensions Agency and Tax Agency. The Swedish police may then pass on the information to the Migration Agency or the Security Service. It also proposes that the Swedish Economic Crime Authority and the Prosecution Authority should be obliged to provide information upon request from an enforcement agency.

The inquiry proposes exemptions for health services, schools and social services.

The government’s initiative to launch this public inquiry (included in the government’s coalition programme) had been heavily and widely criticised by several actors, including university teachers, welfare professionals, health care workers, teachers, municipal workers and library staff.

All denounce that mandatory reporting would lead to discrimination and stigmatisation, and fuel growing racism. Public workers would have to act as border guards and compromise their professional independence and integrity.

The public inquiry may form the basis of a new law proposal by the Swedish government in the next months.

Michele LeVoy, Director of the Platform for International Cooperation on Undocumented Migrants, said: “Contrary to the inquiry’s claims, reporting obligations always have significant and harmful consequences for both individuals and society. At a minimum, they foster a climate of fear and hostility, undermining trust in public institutions, while violating Sweden’s human rights commitments. Exemptions will not mitigate these harms. We stand with national partners in urging the Swedish government to reject this reporting obligation and protect the principles of human rights.”

John Stauffer, acting Executive Director at Civil Rights Defenders, said, “Despite exemptions, this proposal risks fueling the fear of being reported, which is already today prevents undocumented migrants from accessing their rights. Rights must be accessible in practice. Realising the right to health, education, housing, protection, and an adequate standard of living requires that people feel able to claim their rights without fear.”

Hannah Laustiola, Executive Director of Doctors of the World Sweden, said, “While we are relieved that there is no proposal of a reporting obligation for health care personnel, the risk for negative consequences of a reporting obligation remains as long as there are institutions bound by the obligation. On the one hand, there is a risk that undocumented migrants, who already live in fear of deportation, will not be reached by the information that their right to health care is unchanged, and on the other hand, we see that the mere proposal of such a law has rendered public servants prone to act in violation of existing laws of classified information and the right to health.”

Ulrika Modéer, Secretary General of the Swedish Red Cross, said, “We welcome that schools, healthcare, and social services are not included in the obligation to provide information in the presented proposal, but some damage has already been done. But we must analyse further what it means that the Swedish Tax Agency will be obliged to provide information to the Police Authority, and what the Agency’s relationship to local social services will mean for victims of domestic violence. The government’s earlier lack of clarity in specifying the directives of the investigation has created fear among undocumented individuals, undermining trust in public institutions and civil society. Many avoid seeking help, which particularly impacts already vulnerable women and children.”

Jacob Lind, Postdoctoral researcher in international migration at Malmö University, said, “Much harm has already been done as the proposal has impacted the trust undocumented migrants have in society. A handful of public authorities, such as the tax and pension authorities, will now have a duty to report and this can still have implications for migrants’ access to their human rights. The main problem is that this new proposed legislation makes it easier to extend the list of authorities at a later stage with less work. The most positive takeaway from this is that collective mobilisation works. The politicians were telling the unions, civil society and other critics to wait for the investigation and then come with their criticism. But if the critics had listened to this and not resisted already before the investigation was published, it could have had a very different outcome.”