The New Facilitation Directive, proposed by the European Commission, aims to prevent unauthorised entry, transit, and stay in the EU, replacing the previous legislation from 2002. It has five main goals: 1) stop criminal networks facilitating unauthorised entry in the EU; 2) have consistent penalties for doing so across EU countries; 3) allow EU countries to prosecute for acts committed outside the EU, like in international waters; 4) give more resources to countries to punish facilitation crimes; and 5) improve the collection and reporting of data on “migrant smuggling”. 

These goals show a strong connection to the New Pact, echoing the EU discourse of indiscriminately “fighting smuggling”. At the same time, the proposed Directive lacks an impact assessment, meaning it doesn’t consider how it might affect the rights of people on the move and those acting in solidarity. The proposed Facilitation Directive has a very strong criminal law focus, labelling activities like intentionally helping POM with a high chance of causing harm, as criminal offences. This undoubtedly increases the risk of criminalising people on the move and those working with them. With an increased focus on surveillance and investigation, concerns also arise regarding digital rights and data protection. 

The Commission contends that the rationale behind the legislation is to enhance legal clarity concerning facilitation-related offences, delineate jurisdictional boundaries among Member States, safeguard humanitarian assistance from criminalization, and prevent individuals in transit from becoming inadvertent targets of this legislation. We demonstrate that the proposal achieves the opposite and provides EU MSs with the legal tools to further criminalise people on the move, civil society organisations (CSOs), journalists, and other actors supporting respect for the fundamental rights of migrants.