The European Commission published in November 2023 a proposal for a recast of the Facilitation Directive, as part of a package destined to fight migrant smuggling. Just like the current directive, the draft recast risks criminalising migrants and civil society organisations (CSOs) and human rights defenders (HRDs) supporting them.

The SOLIDAR network strives for a world where human mobility is treated as a common reality and comes with rights. We have called since 2015 for the decriminalisation of humanitarian assistance, particularly at the EU borders. The recast of the Facilitation Directive is an opportunity to end this criminalisation of solidarity by inserting a strong humanitarian exemption. SOLIDAR has therefore contributed to the European Commission’s ‘Have your say’ public consultation on its proposal.

Anti-smuggling policies that conflate smuggling with trafficking and violence lead to criminalising both people crossing borders irregularly and mutually supporting each other, and CSOs and HRDs supporting them. It is in fact primarily the increased militarisation of borders that leads to expansion of smuggling, not the other way around. The creation and enhancement of safe and regular pathways for migration of the EU remains the most humane and the most effective way to protect people in migration.

The following recommendations on the proposal emerge from SOLIDAR’s experience advocating for fairer migration procedures and the end to criminalisation of solidarity:

1.            Delete the crime of “publicly instigating third-country nationals’’ to irregularly enter, transit and stay (art. 3(2)). Defined vaguely as it is in the proposal, there are high risks this national legislation could be used to criminalise the action of civil society and human rights defenders working to support refugees and other migrants, as well as any individual or organisation who simply shares information regarding access to fundamental rights.

2.            (Re)introduce and improve the humanitarian exemption as a binding measure. Present in a narrow and non-binding form in recital 7, the mention of non-criminalisation of humanitarian activities is not legally strong enough to effectively protect CSOs and HRDs. We recommend the following three concrete improvements to the humanitarian exemption:

a. Moving it to article 3 to make it binding;

b. Making it mandatory. The humanitarian exemption under article 1.2 of the current Directive falls short of imposing legal obligations on Member States by stating that ‘’Member States may not criminalise’’. As underlined by the UN Special Rapporteur on Human Rights Defenders, by leaving the humanitarian exemption optional, in 2020 only 8 Member States had included it in their national legislation when transposing the 2002 Directive. In a number of countries where this exemption has not been included in national legislation, cases of criminalisation of humanitarian assistance were reported such as in Latvia.

c. Broadening the scope of the exemption so that it exempts criminalisation of humanitarian activities beyond the ‘provision of basic needs’. A good reference for an extensive definition of ‘humanitarian assistance’ is the definition proposed by the Council of Europe’s Expert Council on NGO law: ’classic humanitarian assistance work as well as protection initiatives and the promotion of social cohesion. This encompasses both short and longer-term actions taken to save lives, alleviate suffering and maintain human dignity during and after natural or man-made crises and disasters, including actions to reduce vulnerabilities and promote and protect human rights.’

3.            Remove references to ‘instrumentalisation’ of migrants. Articles 9 and recital 14 of the proposal make allusions to instrumentalisation of migrants, a dangerous concept to legalise restrictions to the right to seek asylum and which made its way into to the Crisis and Force Majeure Regulation and the amended Schengen Borders Code. In both cases, as in the new directive proposal, the mention of exclusion of humanitarian activities from criminalisation is vague and present in a recital, so non-binding. There are high risks that the concept of instrumentalisation of migrants will be used by Member States to criminalise humanitarian CSOs operating at the EU borders and this is not acceptable. It should be deleted from the new directive.

4.            Not proceed with the adoption of this proposal without an ex-ante impact assessment. The Commission has released this proposal without such assessment despite important implications for human rights.

You can download SOLIDAR’s submission below and consult it on the European Commission’s website here.