The European Commission’s proposal for a revised Facilitation Directive, released in 2023, is raising deep concerns among human rights advocates across Europe. Instead of addressing the well-documented harms caused by the existing 2002 Facilitation Directive, this new version threatens to expand the criminalisation of migrants and those who support them, according to the latest analysis by the Platform for International Cooperation on Undocumented Migrants (PICUM).
Silvia Carta, Advocacy Officer at PICUM, warns:
“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.”
Criminalising Migrants and Mutual Aid
PICUM’s findings demonstrate that the new proposal maintains and even intensifies criminal penalties for migrants and those assisting them. Under the proposed Directive:
- Migrants crossing borders irregularly, including those forced into dangerous journeys with their families, remain at risk of severe prison sentences.
- A vague definition of “financial or material benefit” opens the door for criminalising mutual aid, where individuals provide assistance without profit, or migrants contribute small services in exchange for help.
- Family members offering help to relatives face potential prosecution, as the proposed exemption for familial support remains non-binding.
These broad and ambiguous legal definitions mean that people providing basic services like transportation or housing, particularly to racialised communities, could become targets of criminal investigations.
Threatening Human Rights Defenders and NGOs
Far from protecting those who support migrants, the new Facilitation Directive could increase the prosecution and harassment of human rights defenders and civil society organisations. PICUM’s monitoring identified at least 117 individuals and several NGOs facing legal action in 2023 alone for solidarity work.
Key threats include:
- No binding protection for humanitarian activities like food distribution, legal aid, or search and rescue operations. The Directive’s language limits protections to narrowly defined “legal obligations,” excluding many vital support actions.
- Harsh penalties for NGOs, including heavy fines and exclusion from public funding if any member is accused of facilitation.
- Expanded surveillance powers, including covert monitoring and interception of communications, which could violate privacy rights and hinder humanitarian work.
Silencing Information and Facilitating Censorship
Alarmingly, the proposal introduces new provisions that could criminalise the sharing of vital information:
- The offence of “publicly instigating” irregular migration risks targeting those providing legal advice, resources, or support to migrants, both online and offline.
- Online platforms could be forced to delete content or block accounts that publish information deemed as facilitating irregular migration, under the guise of implementing the Digital Services Act.
Instrumentalising Migration and Ignoring Impact
The Directive also introduces the concept of “instrumentalisation” as an aggravating factor, reinforcing narratives that weaponise migration for political purposes. Combined with an absence of any prior impact assessment—despite the European Commission’s own guidelines requiring one—the proposal disregards evidence showing that criminalising migration harms people rather than protecting them.
Unresolved Harms and New Risks Ahead
Rather than correcting the harms of its predecessor, the new Facilitation Directive entrenches them further, risking even more arrests, prosecutions, and social exclusion of both migrants and those who stand with them. Without significant amendments, this Directive threatens to deepen the EU’s criminalisation of migration and solidarity at a time when protection and compassion are most needed.
