The persisting challenges of the new European Commission's smuggling directive proposal

Guest post by Federico Alagna (Research fellow at the Faculty of Political and Social Sciences, Scuola Normale Superiore) and Gabriella Sanchez (Research fellow at the Collaborative on Global Children’s Issues at Georgetown University)  

On 28 November 2023 the European Commission announced the launch of the Global Alliance to Counter Migrant Smuggling during an international conference held in Brussels. At the same event, the Commission also presented a new anti-smuggling directive proposal (which would replace the 2002 Facilitators Package) and a regulation aimed to reinforce Europol's role at countering migrant smuggling, increasing inter-agency and third-country cooperation in the field. 

The Global Alliance and the proposed migrant smuggling directive and regulation are all part of a broader and long-standing interest in the issue by the European Commission to dismantle smuggling networks, most recently reiterated by von der Leyen’s 10-point plan for Lampedusa or by the Memorandum of Understanding with Tunisia. As von der Leyen explained in her 2023 State of the Union address, the EU ‘know[s] that migration requires constant work, and nowhere is that more vital than in the fight against human smugglers. They attract desperate people with their lies and put them on deadly routes across the desert, or on boats that are unfit for the sea. (...) We need stronger law enforcement, prosecution and a more prominent role for our agencies – Europol, Eurojust and Frontex. (...) It is time to put an end to this callous and criminal business!’ 

In this blog post, we critically examine three aspects of the proposal for a new directive against migrant smuggling: the way in which it continues to narrowly approach the facilitation of mobility as a criminal activity under the domain of transnational networks, the welcome but still limited introduction of the financial or material benefit component, and the growing role of law enforcement and border control agencies within the EU and in third countries. 

A uni-dimensional, limited understanding of irregular migration facilitation 

First, the Commission reaffirms its intention to continue approaching the facilitation of irregular migration as a criminal phenomenon solely pertaining to organised crime or unscrupulous smugglers. In the proposal, all facilitators continue to be portrayed solely as criminals ‘that put human life in danger and disrespect the dignity of people for the purpose of obtaining high profits, undermining fundamental rights’. 

Leaving its moralistic undertones aside, evidence has widely and consistently demonstrated the limited scope of this claim. As the UNODC 2018 report on migrant smuggling shows, the organisation and size of smuggling operations varies widely, often involving structures other than networks. There is mounting evidence suggesting that those at the punitive end of the counter-smuggling regime are in most instances individuals rather than criminal groups, and, in the specific case of Europe, people on the move seeking to offset smuggling fees.  

Most importantly, beyond the securitisation lens, data compiled by scholars and activists in countries like Italy and Greece has systematically shown that people on the move often take control of the boats or perform other navigational tasks in order to reach safety and save their lives and those of others, yet are frequently identified or labelled as members of criminal networks in the course of smuggling investigations (to mind comes the report From Sea to Prison, which shows that in Italy, since 2013, over 2,500 indictments have been filed against people on the move accused of having driven vessels while trying to reach safety). While the UN Smuggling Protocol calls for the non-criminalisation of those who rely on smuggling to leave situations of danger and risk, thousands of people on the move have found themselves at the crosshairs of EU’s counter-smuggling regime operations. 

It is concerning that the Commission once again has failed to recognise the complexities present in the facilitation of irregular migration. Rather than effectively providing protection for those seeking to reach the EU, the new directive proposal suggests longer mandatory sentences for anyone identified as engaged in smuggling. We are concerned that this tactic constitutes a ‘penal populism’ of sorts, where, in order to gain political support, governments impose harsher penalties against those found on board of boats, serving as guides, or facilitating segments of irregular journeys. Stiffer penalties, we fear, will far from reduce the incidence of smuggling, and instead lead to the growth of the numbers of people detained and charged with the crime.    

The financial or material benefit 

Second, one of the most important innovations of the proposed directive is the introduction of the ‘financial or material benefit’ (FOMB) as constituent element of the crime of smuggling,  directly responding to a long-standing request by experts, UN agencies, the European Parliament, lawyers, and civil society organisations. While the measure does not entirely and explicitly exempt acts of humanitarian assistance from punishment (as acknowledged by the Commission in its proposal), it de facto places them out of the scope of the offence. In doing so, the new directive builds upon the Commission Guidance issued in 2020. 

However, the language of the proposal suggests that those who provide humanitarian assistance will be the only ones to benefit from this reconfiguration of the offence, whereas other actors like the people on the move who contribute to the process of border crossing (such as boat drivers in the Mediterranean Sea), would still be held criminally liable. Even if it can be proved that they did not receive any FOMB, they might still be prosecuted under Article 3(1)(b) of the directive proposal on the ground that their actions pose ‘a high likelihood of causing serious harm to a person’. 

The international law definition provided in the UN Smuggling Protocol does not mention this exception, so it is hard to find the rationale of including this in the new directive, unless its real aim is to continue criminalising occasional facilitators and people on the move. As the work of the Captain Support Network and multiple other organisations shows, rescuers associated with the institutional humanitarian response – in their vast majority, white Europeans – will continue to face limited if any criminal liability, whereas racialised people on the move will continue being prosecuted in larger numbers for their attempts to reach safety. 

Greater involvement of EU agencies 

Last but not least, considering the new directive proposal jointly with the Europol regulation proposal and the Global Alliance, it seems that an even greater role is anticipated for Europol and Frontex. While some elements of the proposal point to a continuation of Europol’s role in the generation and sharing of data concerning smuggling cases (especially in light of the introduction – or rebranding – of the European Centre against Migrant Smuggling, codified by the proposed Europol regulation), the reference to a stronger cooperation with third countries suggests even greater involvement in counter-smuggling activities in countries across the EU neighbourhood and beyond. Our questions over the specific role envisioned for enforcement agencies and third countries are also derived from recent developments in Tunisia (the return of 60 million euro earmarked for migration enforcement) and Niger (which repealed the migrant smuggling legislation). 

In sum, the ‘new’ directive recently proposed by the Commission continues to reproduce monolithic understandings of irregular migration facilitation as solely pertaining to the domain of organised transnational criminal networks, dismissing the vast amount of empirical evidence pointing to the prevalence of small-scale facilitation processes – many of them devoid of criminal intent and not seeking FOMB. This process further eases the criminalisation of individual efforts on the part of racialised people on the move to reach safety. While the inclusion of the financial or material benefit as constitutive element of the offence represents a much welcomed addition, the proposed directive still poses a series of challenges, which make the promises for increasing safe and legal channels to access Europe purely rhetorical at best, especially in light of the recently agreed-upon CEAS reform. 

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