Reforming EU Criminal Law on the Facilitation of Unauthorised Entry: The new Commission proposal in the light of the Kinshasa litigation

The current EU framework on the facilitation of unauthorised entry

A key feature of the EU policy to prevent migrants from reaching the EU external border has been the criminalisation – and in essence the overcriminalisation- of facilitation of unauthorised entry, transit and stay. The EU criminal law framework dates back from over twenty years ago, in the third pillar, pre-Lisbon era. This framework is known as the EU ‘facilitators’ package’ and consists of a (then) first pillar Directive on the facilitation of unauthorised entry, transit and residence ¹ accompanied by a (then) third pillar Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence confirming that the conduct defined as facilitation in the Directive will be treated as a criminal offence by EU Member States. ² The criminalisation of facilitation is very broad. In terms of the facilitation of irregular entry or transit, criminal sanctions will be imposed on any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens. ³

EU law thus has introduced a much broader framework of criminalisation of facilitation of unauthorised entry in comparison with international law. The main international law instrument in the field, the smuggling Protocol to the 2000 United Nations Convention on Transnational Organised Crime (the Palermo Convention) frames human smuggling firmly within an organised crime context and defines smuggling of migrants as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. ⁴ Criminalisation of smuggling must be based on intentional conduct with the aim of obtaining a financial or other material benefit. ⁵ The requirement of obtaining a financial benefit is not included in the EU criminalisation framework, which leads to the potential criminalisation of humanitarian aid towards asylum seekers, including activities of search and rescue at sea. A ‘humanitarian exception’ to criminalisation is not mandatory in the facilitators’ package, but an optional clause was introduced according to which Member States may decide not to impose sanctions for facilitation of irregular entry and transit for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned. ⁶

In reality, few EU Member States have introduced this humanitarian exception in national law implementing the facilitators’ package. ⁷ The divergence of EU law from international law means that the EU has introduced in the facilitators package a paradigm of preventive criminalisation of such a breadth that it can cover any form of assistance to enter or transit the territory of an EU Member State in breach of what is essentially administrative law. ⁸ Practice on the ground has resulted in the use of criminal law on facilitation of unauthorised entry by Member States to target civil society for humanitarian assistance, and even to target migrants themselves for their journeys. ⁹ The challenges that the overcriminalisation of facilitation of unauthorised entry has been posing on fundamental rights have led to calls for the reform of the outdated facilitators package. ¹⁰ Yet the Commission, in an evaluation conducted in 2017, declined to take up the opportunity to reform the facilitators’ package. The evaluation defended resolutely the status quo. ¹¹ While the Commission appeared to accept an organised crime framing of facilitation, by noting that the flows of irregular migration across borders are thought to be increasingly controlled by criminal networks, ¹² it declined to put forward proposals for law reform to expressly include a requirement for financial gain in the scope of the EU criminal offences on human smuggling. The Commission claimed that to date there was still limited intelligence available on the nature and extent of illicit financial flows associated to migrant smuggling, and noted that

“the cash intensive nature of the payment methods linked to smuggling makes it difficult to trace illicit financial flows and in turn to conduct investigations on the financial nature of the crime […] since the time of the adoption of the Facilitators Package and still today, the risks that such difficulties in tracing financial flows connected to migrant smuggling would disproportionately hamper the investigation and prosecution of this crime, affecting states’ legitimate interest to control borders and regulate migration flows, have been raised as a reason to avoid including a constituent financial gain element in the offence of facilitating irregular border crossing”. ¹³

The Commission claimed that it is difficult to disentangle the effects of the legal framework from the wider array of policy tools and enhanced operational cooperation to counter migrant smuggling, which have been triggered by the crisis’ ¹⁴ and therefore stated that ‘there is no sufficient evidence to draw firm conclusions about the need for a revision of the Facilitators package at this point in time.’ ¹⁵

By declining to adjust EU law, the Commission missed three opportunities ¹⁶ : to align EU law with international law on the criminalisation of human smuggling; to modernise (or ‘Lisbonise’) -as in the case of the “parallel” offences of human trafficking- ¹⁷ the EU legal framework on human smuggling, by taking more fully into account the human rights obligations of the EU enhanced after the entry into force of the Lisbon Treaty and the constitutionalisation of the EU Charter of Fundamental Rights; ¹⁸ and, fundamentally, the Commission missed a first class opportunity for decriminalisation in the field of EU criminal law. ¹⁹ This would have been the first time where decriminalisation appeared as a distinct policy choice by the EU legislator, rather than a result of the limitation of national powers to criminalise to EU law. ²⁰ The Commission’s inaction appeared to perpetuate the criminalisation of humanitarianism in EU law, by sustaining a paradigm of overcriminalisation and legal uncertainty, and sent a very strong preventative signal to anyone inclined to assist migrants- with the Commission’s evaluation stating generally and unconvincingly that there is limited evidence that social workers, family members or citizens acting out of compassion have been prosecuted for human smuggling. ²¹ The outcome of the evaluation was not the adoption of new legally binding measures, but rather the adoption on nonbinding Guidelines. ²²

The Kinshasa litigation

A game changer in the reform of EU criminal law on facilitation has appeared in the form of a reference for a preliminary ruling to the Court of Justice by the Tribunale di Bologna in Italy. In the Kinshasa reference, ²³ lodged on 21 July 2023, the referring Court has asked the CJEU whether the criminalisation of the facilitation of unauthorised entry in EU law and in national law even where the conduct is carried out on a non-profit-making basis, without providing, at the same time, an obligation on Member States to exclude from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance is compatible with the Charter. The referring Court focuses on the principle of proportionality referred to in Article 52(1), read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17, as well as the rights to life and physical integrity referred to in Articles 2 and 3, the right to asylum referred to in Article 18 and respect for family life referred to in Article 7 of the Charter. The reference is welcome in stressing the potential adverse effect of the overcriminalisation of facilitation on a wide range of fundamental rights. One can add to the list provided by the referring court the principles of legality and proportionality enshrined in Article 49 of the Charter, with legality being linked to the broader rule of law deficit of the facilitation package. It is submitted that the latter does not meet the requirement of legal certainty, in introducing a very broad and elliptical text to impose criminal offences and sanctions and by not providing legal certainty regarding the extent or existence of a humanitarian exception to criminalisation.

The facts in Kinshasa lay bare the shaky normative foundations and adverse effects of overcriminalisation of facilitation of unauthorised entry in EU and Italian law. They involve the prosecution of a Congolese woman arriving at the air border of Bologna for the facilitation of the unauthorised entry of her minor daughter and niece. ²⁴ The referring court queries the compatibility of the national legislation, and the underlying EU law, with the Charter. It states that the offence of facilitation of unauthorised entry in Italian law is by its nature an offence of danger, in that the Italian legislature, in order to prevent in advance the infringement of a legal interest, already seeks to penalise the conduct in itself, on the sole ground that acts are carried out with the intention of procuring the unauthorised entry of non-EU nationals, irrespective of the reasons for those acts- with the need for a specific intention to make a profit from the offence not being foreseen. ²⁵ The Court adds that the offence is that it is “free-form”, in the sense that the offence may be committed in any way by the perpetrator, using any means. ²⁶ The criminal penalty also applies to those who have facilitated the unauthorised entry of a foreign national for humanitarian assistance purposes and even if the foreign national is in need. ²⁷ The referring court notes that the Italian legislation complies with the facilitators’ package ²⁸ and that in the present cases it is clear that the conduct of the accused objectively corresponds to conduct punishable for the offence provided for in domestic law. ²⁹ Yet the referring court questions the reasonableness of such criminalisation and its compatibility with fundamental rights enshrined in the Charter, noting in particular that in its view the protection of those fundamental rights must be taken into account in the balancing exercise which must form the basis of the common immigration policy; and that in both the EU regulatory framework and the Italian legislation, there is a lack of proportionality in favour of the protection of the interest in controlling migration flows, which also results in an unnecessary sacrifice of fundamental rights. ³⁰

The preliminary reference in Kinshasa is a game changer in giving a clear opportunity to the CJEU to engage fully with the compatibility of the facilitators’ package with the Charter, and arguably with the rule of law more broadly. The CJEU will have a number of options if it finds shortcomings in EU law itself- from annulling the facilitators’ package in its entirety (following the example of the ruling on data retention ³¹ ) to ‘re-writing’ the package in conformity with the Charter (following the example of the ruling on the EU PNR Directive ³² ), in order to limit criminalisation and to inject legal certainty into EU law and its implementation. In addition, it is for the Court to further stress the requirement for national legislators and national courts to implement EU law in conformity with the Charter. However, the Kinshasa litigation is a game-changer in a different respect: it has arguably prompted the European Commission, faced with the prospect of this litigation in Luxembourg, to table- notwithstanding its recent stance to the contrary- a legislative proposal reforming the facilitators’ package. Four months after the recording of the Kinshasa reference, in November 2023, the Commission tabled a proposal for a Directive aimed to lay down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, which will replace the existing facilitators’ package. ³³

The Commission proposal for a new facilitation directive and its shortcomings

The proposal is a response to Ursula von der Leyen’s State of the Union address of September 2023 and aims to update and modernise the existing EU criminal law rules of the facilitators package. ³⁴ The Commission frames the proposal in the context of fighting organised crime, by stating that tackling migrant smuggling is essential to dismantling organised crime networks that can cause human rights violations and death, and to countering the increase in irregular migration to the EU. ³⁵ The general objective of the proposal is stated as being to bring about ‘a modern EU criminal law instrument that clearly defines and effectively sanctions the offence of facilitation of unauthorised entry, transit and stay in the EU, in line with the provisions of Article 83 of the Treaty on the Functioning of the European Union and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air.’ ³⁶ The Commission refers to the REFIT evaluation, according to which the facilitators’ package has not been effective in creating clarity and legal certainty about the distinction between facilitation of irregular migration and humanitarian assistance, due to the broad definition of the offence and the absence of exemptions. ³⁷ It claims that the proposal brings clarity on which offences should be criminalised and that it clarifies that the purpose of the Directive is not to criminalise third-country nationals for the fact of being smuggled, assistance provided to family members, or humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations. ³⁸ The proposal also provides that the offence of facilitation can take place within the territory of any Member State, facilitating judicial cooperation between Member States and aims at improving the jurisdictional reach of the provisions. ³⁹

The legal basis of the proposal is Article 83(2) TFEU. According to the Preamble, the facilitation of unauthorised entry, transit and stay in the Union are criminal activities which contribute to irregular migration, undermining the migration management objectives of the Union. ⁴⁰ According to the Preamble, the commission of such criminal activities is driven by increasing demand and the high profits obtained by criminal organisations. ⁴¹ It is recognised that EU action should take into account the international commitments of the Union and its Member States, including in relation to the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on maritime Search and Rescue, the United Nations Convention on the Rights of the Child, as well as the work of the United Nations Office against Drugs and Crime. ⁴² The preventive aims of the proposal are clear throughout the text. The very title of the proposal refers to the prevention of facilitation, while the Preamble states that preventing and countering facilitation offences remains a priority for the Union. ⁴³ Preventive aims are used also to justify extension of criminalisation beyond the existence of a link with an actual or a promised financial or material benefit – according to the Preamble, it is necessary to establish a criminal offence in order to discourage the modus operandi of persons who publicly instigate, for instance through the internet, third-country nationals to enter, transit or stay in the Union without authorisation. ⁴⁴ Third country nationals who have committed facilitation offences should also be subject to entry bans. ⁴⁵

The Directive will indeed replace the facilitators package. ⁴⁶ It introduces the following criminal offences:

- intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit (Article 3(1)(a)) ⁴⁷

The Directive introduces a number of aggravated criminal offences including where: the criminal offence was committed within the framework of a criminal organisation; the criminal offence deliberately or by gross negligence caused serious harm to, or endangered the life of, the third-country nationals who were subject to the criminal offence; the criminal offence was committed by use of serious violence; the third-country nationals who were subject to the criminal offence were particularly vulnerable, including unaccompanied minors; and the criminal offence caused the death of third-country nationals who were subject to it. ⁵⁰ The Directive further introduces, in Article 9, a series of aggravating circumstances, including notably the fact that the offence entailed or resulted in the involvement of third-country nationals who were subject to the criminal offence in illegal employment; ⁵¹ the criminal offence entailed or resulted in the exploitation or instrumentalisation of a third-country national who was subject to the criminal offence; ⁵² and dispossessing the third-country nationals who are subject to the criminal offence of their identity or travel documents. ⁵³ Mitigating circumstances consist of collaboration with state authorities including the offender providing the competent authorities with information which they would not otherwise been able to obtain, helping them to identify or bring to justice other offenders or find evidence. ⁵⁴ The Directive introduces provisions on incitement, aiding and abetting and attempt, ⁵⁵ limitation periods, ⁵⁶ and penalties for natural and legal persons. ⁵⁷ Penalties for natural persons notably include entry bans. ⁵⁸ The provision on jurisdiction ⁵⁹ notably extends jurisdiction where the criminal offence results in the entry, transit or stay in the territory of a Member State of third-country nationals who were subject to the facilitation offence, ⁶⁰ wording that could be read as establishing extraterritorial jurisdiction for facilitation offences.

The Commission’s proposal to reform the EU criminal law framework on facilitation of unauthorised entry appears to be a response to the Kinshasa litigation which has highlighted the numerous fundamental rights challenges arising from the existing overcriminalisation paradigm inherent in the facilitators’ package. Moreover, the Preamble to the proposal appears to acknowledge the legality shortcomings of the current framework, stating that in accordance with the principles of legality and proportionality of criminal law, and in order to address criminal activities that put human life in danger and disrespect the dignity of people for the purpose of obtaining profits, it is necessary to provide a precise and detailed definition of the criminal offences that counter these criminal behaviours. ⁶¹ Yet the Commission proposal does not go far enough in addressing the fundamental rights and rule of law concerns arising from the current EU facilitators’ package in a number of respects:

- the focus of the new proposal remains predominantly preventive, with the aim remaining essentially to prevent access of migrants to EU territory and to prevent entry

The shortcomings in the Commission proposal render the Kinshasa litigation of ongoing relevance. The CJEU will have the opportunity, at a time when the proposal will be negotiated by EU institutions, to address directly the fundamental rights and rule of law challenges posed by the current facilitators’ package and thus potentially have a decisive influence the development of new legislation in the field.