EU decision-makers – target smugglers, not humanitarian NGOs


The Justice and Home Affairs (JHA) Council is currently negotiating its position on migrant smuggling, to be adopted in March. This is a follow-up to a seminar organised by the Dutch Presidency of the Council of the European Union on 2 February, focusing on fundamental values, immigration and integration. The JHA Council’s draft position refers to the need for “multidisciplinary cooperation within […] and […] between Member States against migrant smuggling […] and where appropriate including NGOs.”

Statewatch, a non-profit group that monitors civil liberties in Europe, assessed that this could have negative consequences for non-governmental organisations (NGOs) by further criminalising and marginalising them and undermining the humanitarian clause of the EU Facilitation Directive, which determines that a state may or may not punish organisations or individuals that provide humanitarian assistance like food, shelter and health care to undocumented migrants.

Well-intentioned Member States could interpret the JHA Council’s recommendation as highlighting the importance of using all available resources to tackle organised criminal networks. However, the same words could be twisted by some Member States to deter NGOs from providing humanitarian assistance to undocumented migrants, or force them to act as immigration officers by reporting them.

Social Platform has two concrete recommendations to EU decision-makers:

  1. Revise Article 1(2) of the Facilitation Directive (2002/90/EC) to state that Member States “shall not impose sanctions” on those who provide humanitarian assistance on a not-for-profit basis to undocumented migrants. This Article currently gives Member States the option not to sanction providers of humanitarian assistance, but does not discourage them from doing so.
  2. Provide guidance to Member States to ensure that service providers are not obliged to report undocumented migrants they encounter when providing humanitarian assistance such as provision of emergency shelter, food, healthcare and other necessities, as also put forward by the EU Agency for Fundamental Rights. In cases of abuse and exploitation of undocumented migrants, systems for reporting should be developed that protect both the service provider and the undocumented migrant.

These recommendations will also be sent to the European Commission in response to a public consultation they are conducting on this topic.

We expect that the Commission will put forward a proposal after the summer to amend the EU Facilitation Directive so that it sets clear rules providing concrete guidelines to national authorities, civil society and migrants, including the full protection of those who provide humanitarian assistance to undocumented migrants from any negative repercussions.

The Commission’s impact assessment on the Facilitation Directive shows that migrant smugglers benefit from gaps and inconsistencies in the EU’s rules, and that some Articles of the Directive lack clarity, including the humanitarian clause. As a consequence, the work of organisations and individuals providing humanitarian assistance is impacted, having a knock-on effect on the protection of migrants’ human rights. The European Parliament’s Civil Liberties, Justice and Home Affairs (LIBE) committee has conducted a study resulting in similar conclusions, which you can read more about here.