Les enfants de la Clarée: why the Facilitators package is incompatible with the Charter of Fundamental Rights

Guest post by Stefano Zirulia. Stefano Zirulia is associate professor of criminal law at the University of Milan. His main area of research is the relationship between criminal law and fundamental rights, with a special focus on immigration criminal law. 

Raphaël Krafft's beautiful inquiry-book “Les enfants de la Clarée” tells a disappointing yet instructive push-back story at the Italian-French border. In the evening of 11 November 2017, a group of rescuers found four young migrants on the Col de l'Échelle, a French mountain pass. Like many others, the young people had set out from the Italian municipality of Bardonecchia and were trying to reach Briançon, where a reception centre for migrants is run by local volunteers. The four people were inadequately dressed and had neither enough water nor food. As Krafft notes, along the same route there had been, over the years, a number of deaths and cases of severe frostbite, resulting in limb amputations. After feeding them and learning they were minors, the volunteers decided to drive them to Briançon, to entrust them to social services. On the way through the Vallée de la Clarée, however, they were intercepted by a Gendarmerie patrol, which took the migrants back to Italy, without checking their condition or age. The police ordered the volunteers to report to the Briançon police office the next day for questioning on the charge of facilitating irregular immigration. 

Although the charges were later dropped, the case is paradigmatic of the practices of criminalising solidarity with migrants in need that have been systematically implemented at the borders between Italy and France, and more generally between EU Member States. These practices are made possible, or rather imposed, by the European legal framework for combating migrant smuggling. The Facilitators Package (composed of Directive 2002/90/EC and Framework Decision 2002/946/JHA) requires States to criminalise all forms of facilitation of irregular entry, even if carried out for humanitarian purposes. Very few states have implemented the option, provided by article 1 § 2 of the Directive, to introduce a specific humanitarian justification. In France (and Italy), such a justification is provided, yet it only applies to facilitation of irregular residence and transit, but not of irregular entry. This arrangement is in line with the well-known French Conseil constitutionnel’s judgment which ruled that the principle of fraternité meets a limit in the need to protect public order threatened by irregular migratory inflows.  

This position is highly questionable. Stating that public order prevails over humanitarian needs means accepting the possibility that, to protect national borders, a number of fundamental rights protected by the Charter of Fundamental Rights of the EU will be systematically jeopardized, including life, physical integrity, the right to seek asylum and the rights of unaccompanied minors. This is one of the reasons why the Facilitators package has been the target of criticism from legal scholarship, calling for its comprehensive reform. For many years, however, the European Commission considered such a reform not necessary. 

Recently, the disproportionate suppression of migrants’ fundamental rights has been emphasised (see here work I published in 2021 and 2023) as a veritable cause for the illegitimacy of the Facilitators package. The argument is based on Article 52(1) of the Charter, allowing for the limitation of the rights provided therein, to the extent that the principle of proportionality is respected.  

To satisfy the proportionality test, it is not sufficient that the law limiting human rights is intended to serve a deserving interest, such as border protection: it must also do so effectively. The Facilitators package does not look fit to effectively protecting borders: by imposing to prosecute any kind of assistance, including humanitarian one, it prevents the authorities from concentrating resources more productively (e.g. by prosecuting the most serious forms of smuggling, which can even turn into trafficking).  

The proportionality test also requires that the law is “necessary”, meaning that the same purpose cannot be achieved by using less detrimental measures. Here again the Facilitators package does not meet the test, as migrant smuggling could be penalised through criminal law provisions with a narrower scope (e.g., limited to the facilitation perpetrated by criminal networks for the purpose of exploitation). Finally, the package cannot be considered “proportionate” in the strict sense: instead of striking a fair balancing of all conflicting interests at stake, it produces an overcriminalization which assigns an almost absolute precedence to border protection, over higher-ranking rights recognised by the Charter. 

The question of the compatibility between the Facilitators Package and Article 52(1) of the Charter of Fundamental Rights was recently brought to the attention of the EU Court of Justice by means of a reference for preliminary ruling. The referring court is called to judge, under Italian criminal law, a Congolese woman asylum seeker who had attempted to bring into Italy her daughter and niece, using false documents (see C-460/23, Kinsa, previously named Kinshasa). The case is still pending, with the Advocate General’s opinion expected on 5 November 2024.  

The case has prompted the EU Commission to propose a Directive aimed at replacing the Facilitators package with renewed rules on national legislations on migrant smuggling. However, as already pointed out by commentators such as Alagna and Sanchez and Mitsilegas, the proposal does not solve the critical profiles of the Facilitators package in terms of over-criminalisation. Therefore, the ruling on the Kinsa case will be important in orienting the negotiations that will lead to this new instrument in a Charter-compliant manner. 

Cases like that of the enfants de la Clarée highlight that the over-criminalising effects of the Facilitators package affect not only those who provide assistance to people in need, who risk being reached by criminal sanctions, but also migrants themselves. Repressing humanitarian activities generates insecurity among civil society organisations about the legal consequences of their actions, dissuading all those unwilling to take the added risk of criminal investigations from intervening. 

Moreover, these cases demonstrate the inconsistency of the argument evoked by the institutional parties in support of the legitimacy of the Facilitators Package. During the hearing of the Kinsa case on 18 June 2024, institutional parties argued that the criminalisation of solidarity can be avoided through the application of justifications of general scope, such as necessity, or by emphasizing the particular conditions of the migrant, including their age. The truth is that the exclusion of liability on these grounds remains at the discretion of the criminal judge, but it still presupposes that there has been a police investigation, enquiry and trial. And it is precisely these judicial activities that deter assistance and rescue activities, irrespective of the trial outcome. 

The chilling effect can occur in any context, from mountain rescues to those at sea, and poses a real threat to the life, physical integrity, and exercise of the right to asylum of undocumented migrants. In light of these findings, the current legislation should be abandoned, unless the sacrifice of human rights is consciously perpetrated as part of migration containment strategies, a solution that would be clearly unacceptable on ethical grounds. The time has come to rethink the whole discipline in such a way as to make it capable of distinguishing, with the clarity required by the principle of legality set out in Article 49(1) of the Charter, genuine criminal conduct from humanitarian conduct. In this perspective, the Kinsa case represents the greatest opportunity, since the Facilitators Package was introduced over twenty years ago, to restore the principles of proportionality and legality in the protection of European borders through criminal law.  

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