European Parliament study on the Facilitation Directive – an unfit law criminalising solidarity

The European Parliament’s committee on Civil Liberties, Justice & Home Affaits (LIBE) recently conducted a study entitled ‘Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants’. I had the opportunity to contribute to the study on the basis of input our members provided for our campaign against ‘Criminalising Solidarity’, and I am pleased that the conclusions of the study are in line with our observations and recommendations.

The report recommends to reform the EU Facilitation Directive so it complies with human rights standards and provides for “a mandatory exemption from criminalisation for ‘humanitarian assistance’ in cases of entry, transit and residence”. Secondly, it calls on Member States to monitor how the legislation is being enforced. Thirdly, it highlights the need for EU funding for civil society and cities to address human rights, destitution and humanitarian needs of irregular migrants, and the importance of using the ‘Partnership Principle’ in EU funding. Finally, it calls for a firewall protection system, meaning that public service providers should be able to assist undocumented migrants without any obligation to report them to the authorities.

The report shows that the Facilitation Package comes with legislative ambiguity, legal uncertainty and inconsistency. On top of this, there is an “implementation gap” between the United Nations Smuggling Protocol and the EU legal framework on people smuggling. The study shows that we know little about the practical use and effects of the criminalisation of entry, transit and residence. Some anecdotal evidence exists in terms of family members assisting refugees to enter, and countries such as Greece and Hungary apply the law more rigorously but at  the end of the day, due to minimal monitoring, we know little about its actual impact. What we do know though, is that the Facilitation Directive has unintended and indirect consequences that negatively impact social cohesion as whole; the study states that, “Some civil society organisations fear sanctions and experience intimidation of their work with irregular migrants, with a deterrent effect on their work.” Confusion about the law can lead to misinformation that may compromise undocumented migrants’ access to vital services.

There is a right now a great opportunity for anyone to have a say, because the Commission is consulting the public until 6 April on ‘Tackling migrant smuggling: is the EU legislation fit for its purpose?’ This is an important opportunity for individuals and civil society to call for the Facilitation Directive to be revised to allow for humanitarian assistance, protect service providers against sanctions and safeguarding undocumented migrants’ human rights.

Social Platform will contribute to the consultation and continue to follow the issue and influence decision-makers.

Read more about our overall work on access to services.