Brussels, July 15, 2024 – A newly leaked draft of the European Union Council text, proposed by the Belgian Council presidency, has sparked significant concern among human rights groups and civil society organizations. Published by Statewatch, the draft text aims to amend the 2002 Facilitation Directive, intensifying the criminalization of irregular migration and raising potential legal threats for individuals and organizations aiding migrants.
In recent years there have been increasing calls from academics, civil society organisations and experts for the revision of the EU’s 2002 Facilitation Directive, to stop the ongoing criminalisation of migrants and people acting in solidarity with them.
The draft, which was presented to EU member states on May 31, outlines changes that could further criminalize the facilitation of irregular entry into the EU. The Belgian redraft serves as the foundation for ongoing discussions within the Council, currently under the Hungarian presidency, aiming to adopt a unified stance on the revised directive by the year’s end.
Key Proposals
- Criminal Sanctions Without Financial Gain: The redraft divides the facilitation offence into two categories. The first category targets those facilitating irregular entry or transit through EU member states, imposing criminal sanctions regardless of financial or material benefit. Financial gain in such cases would be an aggravating factor, warranting a minimum of three years imprisonment. The second category pertains to the facilitation of irregular stay, where criminal sanctions apply only if there is financial or material benefit, consistent with the current 2002 Directive.
- Humanitarian Exemption: The draft offers two options to protect humanitarian actions from prosecution. Both draw from the Council of Europe Convention against Trafficking in Human Organs. The first option excludes humanitarian activities aimed at meeting migrants’ basic human needs from the definition of facilitation. The second mandates that states ensure humanitarian assistance aimed at preserving migrants’ dignity and integrity is not criminalized. However, activities exceeding “basic human needs” remain at risk of criminalization.
- Restrictive Definitions: The redraft narrows the scope of exemptions by strictly defining “basic human needs” to include only food, personal hygiene, and shelter, preventing conditions that degrade human dignity. Additionally, the definition of “family members” eligible for exemptions is limited to spouses or stable unmarried partners, parents, children, and siblings.
- Removal of Public Instigation Offence: Responding to criticism, including from the UN Special Rapporteur on Human Rights Defenders, the draft removes the offence of “publicly instigating” irregular entry, transit, or stay. This proposal was seen as a threat to freedom of expression and potentially detrimental to the work of civil society organizations assisting migrants.
In 2023 alone, at least 117 individuals faced criminal or administrative proceedings for acting in solidarity with migrants in the EU, and at least 76 migrants were criminalised for crossing borders.
Reactions and Implications
Human rights advocates argue that the proposed changes could criminalize acts of solidarity and deter individuals from providing essential aid to migrants. Critics highlight the risk of these measures contributing to a more hostile environment for both migrants and those supporting them. The narrowed definitions and stringent penalties are seen as part of a broader trend of tightening migration policies within the EU.
Marta Gionco, Senior Advocacy Officer at PICUM, said: “This text goes in the direction of more, not less, criminalisation of migrants and those who help them. Sadly, we can expect that the final Council position will follow this trend”
The draft text will be subject to further debate among EU member states, with the goal of reaching a consensus on the revised Facilitation Directive. As discussions progress, stakeholders emphasize the importance of balancing border security with the protection of human rights and humanitarian principles.
The developments in this draft law underscore the ongoing challenges in EU migration policy, where the tension between regulation and humanitarianism continues to provoke debate and concern.
