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On 24-25 March the Centre for European Policy Studies (CEPS) had a small expert seminar on “Addressing Irregular Migration, Facilitation and Human Trafficking: Towards Evidence and Trust-Based Policy”. I had the honour of facilitating one of the discussions on humanitarian assistance to undocumented migrants, which is also the topic of our current campaign to revise the Facilitation Directive. As the meeting was held behind closed doors to allow for open discussions, I will share some general thoughts without names.

When looking at the Facilitation Directive we see that the number of prosecutions does not tell the whole story of its impact. For example, while the national immigration law in the UK can give up to 14 years in prison for facilitating an irregular migrant’s stay, this severe punishment is not enforced, and most cases turn out to be brought about by family members helping individuals to claim asylum rather than the result of smuggling network activities. This gives rise to questions of how families are defined and why the Family Reunification system is not working as a legal means of entering the EU. Criminalising migration affects whole communities and friends and families that may already be marginalised.

Solidarity is a core value that the 28 member states have signed up to, and the Nobel Peace Prize in 2012 praised the EU for advancing human rights within our borders. At the same time the humanitarian “may” clause of the Facilitation Directive has only been implemented by seven member states, with different exemptions; the clause states that those who provide services of humanitarian assistance to undocumented migrants without a profit-making motive “may” not be criminalised or punished, rather than stating they “shall” not.

Resistance against national laws takes place at regional and local level, where authorities and civil society organisations develop alternative systems so migrants can access health care. Unlike national decision makers, they have realised that inclusion costs less than exclusion and by allowing irregular migrants to access services, they can tackle issues around public health, social cohesion and homelessness. Consequently they engage with migrants to resolve their irregular status.

While the EU Facilitation Directive definitively criminalises smugglers and not irregular migrants, member states create a hostile environment for undocumented migrants. This brings up questions of how to shift the focus to ending smuggling activites, and how to create an enabling environment for legal channels of entry to the EU. The biggest question of all is whether we want to catch the big fish or avoid the elephant in the room – to deter unwanted migrants from entering the EU.