The EU Facilitation Directive is not aligned with human rights standards

© Oscar Vifer.

On 31 January the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs presented its study on the EU Facilitation Directive, focusing on the criminalisation of humanitarian assistance to undocumented migrants. Decriminalising Solidarity was one of Social Platform’s key campaigns last year. We have actively tried to influence decision-makers to revise the EU Facilitation Directive; our main recommendation is to rephrase the “humanitarian clause” of the Facilitation Directive to ensure that those who provide services of humanitarian assistance to undocumented migrants without a profit-making motive are not criminalised or punished (it currently states that they “may not” face sanctions). Among some of our advocacy activities we partnered with and delivered a petition of more than 133,000 signatures to the responsible European Commissioner Dimitris Avramopoulos, and organised a round table meeting in the parliament co-hosted by several Members of the European Parliament (MEPs) across the political groups.

“The deterrent effect of the EU Facilitation Directive and its impact on civil society must be taken seriously,” stressed Jennifer Allsopp, co-author of the parliament’s study.

There are gaps in implementation between the EU Facilitation Directive and the United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air (the UN Smuggling Protocol). As an example, the UN Smuggling Protocol explicitly exempts family members from being considered smugglers, while EU legislation does not make such a distinction. The EU Directive goes further than the UN Smuggling Protocol by sanctioning not only facilitation of entry and transit but also stay when there is financial gain, meaning, for example, that landlords could face punishment for letting to undocumented migrants (read more about landlords in the United Kingdom). Sanctions vary greatly across the EU – from one year to 14 years – and the lack of legal clarity leads to some civil society organisations that provide humanitarian assistance to undocumented migrants fearing sanctions and intimidation.

The study recommends the EU Facilitation Directive to be reformed in line with UN human rights standards, ensuring a mandatory humanitarian exemption. Facilitation of stay should only be punished when unjust financial profit is being made, in order to exclude well-meaning shopkeepers, landlords and businesses from sanctions. Furthermore, the Commission should monitor and assess enforcement and practical application of the Directive.

Several MEPs on the Committee welcomed the timely and important study. Cecilia Wikström MEP (from the Alliance of Liberals and Democrats for Europe group) referred to the petition about decriminalising solidarity that was presented to the parliament’s Petitions Committee a week earlier (read more). “Saving lives in the Mediterranean is a moral obligation that can never be considered a pull factor,” said Ms Wikström in response to an intervention by a member of the European Conservatives and Reformists group. Jean Lambert MEP (from the Greens-European Free Alliance group) called on the Commission to – if not proposing the Facilitation Directive to be revised – at least produce guidelines to Member States on how the legislation should be properly implemented, in line with human rights standards. A representative of the Commission replied that they will present their findings in the coming weeks, and that they have started a pilot project with Eurostat to address gaps in statistics in the area of smuggling.

While the Commission has already indicated that it will not propose a revision of the Facilitation Directive, we still hope that it will propose actions to address serious concerns raised by individuals, civil society actors, MEPs and media.