Visiting Professor at the Hertie School Centre for Fundamental Rights Violeta Moreno-Lax raises key concerns about reforms to the EU Commission’s Facilitation Directive.
With a proposed reform to the Facilitation Directive, the European Commission has recently aimed to modernise the EU’s legal framework on migrant smuggling by targeting facilitators of irregular migration by introducing two new legal packages. However, in a study for the European Parliamentary Research Service (EPRS), Professor Moreno-Lax at the Hertie School Centre for Fundamental Rights delivers a sharp critique of the proposed reform, which, she argues, "criminalises migrants and human rights defenders" instead, thereby "shrinking civic space and the well-functioning of democracy at large".
The study, published on 5 March, was presented before the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 19 March. It has prompted more than 100 signatories among NGOs Europe-wide, including UK-based Statewatch, to rely on her study in an open letter calling to reject the new legislative instrument.
Proposal is “ambiguous and lacks human rights safeguards”
In her research, Prof. Moreno-Lax underlines key issues with the EU’s reform proposal, including its misalignment with international and EU legal standards, key definitional ambiguities, and the lack of adequate human rights safeguards.
The study draws on extensive desk research, analysing legal texts, international treaties, case law, and policy documents from EU institutions and member states. It also incorporates insights from academic literature, NGO reports and media coverage, as well as findings from questionnaires and semi-structured interviews with 14 key stakeholders, including EU agencies, national authorities, civil society organisations, international bodies, and independent legal experts.
“The fact that smuggled migrants should not be criminalised for having been the object of smuggling and that actors that facilitate migrants’ entry, residence or stay for altruistic reasons should equally be exempt has not been reflected in the binding provisions of the draft directive,” said Moreno-Lax during the LIBE Committee hearing.
Moreno-Lax called for the “explicit exoneration of actions that protect, promote, or fulfil the rights of third-country nationals in provisions that have legally binding effect”. She added that “anything else will fall short of the EU’s founding values, generating a ‘chilling effect’ incompatible with democracy, rule of law, and fundamental rights”.
In November 2023, the European Commission proposed new legislation to combat migrant smuggling, including a revised Facilitation Directive and enhanced police cooperation measures. However, the absence of an impact assessment drew criticism, which the Commission’s release of an analytical supporting document in 2024 did not assuage. It was in response to ongoing concerns about the directive that the European Parliament’s LIBE Committee commissioned a targeted substitute impact assessment from the EPRS.
Moreno-Lax’s study informs debate at the European Parliament
German Member of the European Parliament Birgit Sippel, who serves as Rapporteur for the Facilitation Directive reform dossier and was present at the hearing, praised Prof Moreno-Lax for providing the European Parliament with “such a thorough analysis of the existing legal and policy framework, the objective of the current proposal, and the measures it proposes”.
“Clearly no one should be criminally held liable for helping people in distress in good faith,” stressed the Rapporteur.
As the EU moves forward with these legislative changes, Moreno-Lax’s research serves as a crucial resource for policymakers and advocates seeking to ensure that efforts to combat migrant smuggling do not come at the expense of fundamental rights. By shedding light on the risks associated with the proposed reforms, her work invites a deeper discussion on the balance between law enforcement objectives and humanitarian considerations.
Read Moreno-Lax’s full targeted assessment for EPRS here.