10 June 2024

Waiting for Kinsa

The Criminalisation of Facilitating Irregular Immigration before the CJEU

On 18 June 2024—just two days before the World Refugee Daythe Court of Justice of the European Union will sit as a Grand Chamber in a hearing addressing the compatibility of the so-called Facilitators Package which criminalizes the facilitation of irregular immigration with the EU Charter of Fundamental Rights (CFR). The case, previously entitled Kinshasa, has been renamed Kinsa (C-460/23).

Following a request for a preliminary ruling submitted by the Tribunal of Bologna (available in Italian; summary in English), the Court is asked to determine whether the Facilitators Package, consisting of Directive 2002/90/EC and the related Framework Decision 2002/946/JHA), as well as the Italian legislation implementing it (Article 12 of the Consolidated Law on Immigration), are compatible with the principle of proportionality set out in Article 52(1) CFR.

It might seem curious that the question is being raised now, more than 20 years after the legislation’s adoption. The reason for this timing is twofold. Firstly, the season of “criminalisation of solidarity” began in relatively recent years, through judicial initiatives such as the proceedings against NGOs carrying out search and rescue in the Mediterranean Sea and those against volunteers and activists assisting migrants and asylum seekers. This trend of (over)criminalisation is on the rise, making it particularly urgent to intervene in the regulatory bases that make it possible.

Secondly, most of the criticisms aimed at the Facilitators Package over the years (see e.g. Fundamental Rights Agency, 2014; Landry, 2016; Mitsilegas, 2019) have resulted in proposals for reform which have never materialized. Legal scholarship has only recently highlighted the Package’s incompatibility with the Charter (see Zirulia, 2020; Zirulia, 2022), and was quoted in the Tribunal’s referral order.

The Case and the Regulatory Framework

In August 2019, a woman of Congolese origin (O.B.) was arrested at Bologna airport while attempting to pass border controls by producing false documents for herself and for two minors travelling with her (her daughter and a niece). She was charged with the crime of facilitating irregular entry. Italian law criminalises any act aimed at facilitating the entry of an undocumented foreigner, even if entry does not actually occur. Nor need the act be carried out for profit, in line with the Facilitators Package (see art. 1 §1 lett. a) Directive 2002/90/EC). Those acting for humanitarian purposes can only rely upon a justification if the irregular migrant is already on Italian territory, i.e. in cases of facilitating someone’s irregular residence, not her/his irregular entry. This provision is also in line with the Facilitators Package, which leaves Member States free to decide whether to introduce humanitarian justifications and, if so, how to draft them (Article 1 §2 Directive 2002/90/EC). Therefore, the fact that O.B. and the two minors are asylum seekers did not prevent the arrest and the initiation of criminal proceedings.

The Referral to the CJEU

According to the referring judge, the criminalisation of facilitating irregular migration affects the rights to personal liberty, reputation, and property of the accused (Articles 6, 7, 17 CFR): this is true not only when they are sentenced to prison terms or fines, but even when they are reached by arrests (which was the case for O.B.), seizures, and precautionary custody, regardless of whether they are finally acquitted. These same measures, moreover, result in a widespread chilling effect on migrants’ assistance and rescue activities, and thereby also affect their rights to life and physical integrity, asylum, family unity and child protection (Art. 2, 3, 18, 7 CFR).

Against this background, the Tribunal argues that the criminalisation of humanitarian activities fails to comply with 52(1) CFR, whereby any limitation imposed to the rights provided by the Charter must comply with the limit of proportionality. For one, the restriction of those rights is not necessary for the purpose of protecting borders: this is revealed by the Directive itself, when it gives Member States the option of exempting humanitarian activities from responsibility, thus recognizing that their incrimination is not necessary for the control of migration flows. Secondly, the restriction of those rights is disproportionate in the strict sense, because it is based on the absolute prevalence of border protection, without carrying out a reasonable balancing of the interests at stake.

Understanding the Disproportionality of the Facilitators Package

Contrary to what it might seem, the proportionality test does not replace the balancing of interests carried out by the legislature, in the exercise of its legitimate discretion, with that carried out by the judge. Rather, this test allows for the implementation of the principle that “democratic decisions must be justified as reasonable” (Poscher, 2021). On this basis, the judge (in our case, the EUCJ) is legitimized to assess legislator’s choices by comparing the curtailment of fundamental rights, on the one hand, and the realization of public interests, on the other.

As for the migrants’ right to life, it is common ground that it can never be sacrificed for the sole purpose of protecting borders. The European Court of Human Rights, whose judgments contribute to the formation of the law of the Convention and therefore integrate the fundamental rights recognised by the EU Charter (Art. 52 §3 CFR), has recently recognised the violation of Art. 2 ECHR with respect to the death by drowning of a Syrian migrant rejected by the Hungarian authorities while trying to cross a river at the border between Serbia and Hungary (Alhowais v. Hungary, 2023, §§131–145). The Facilitators Package does not strike a reasonable balance between the protection of European borders and the fundamental right to life, insofar as the criminalization of any form of assistance to undocumented foreigners may result in the chilling effect of activities such as rescuing boat migrants or other aliens in danger.

The Facilitators Package is also completely devoid of consideration of the right to family unity and the rights of children (Arts. 7, 24 CFR). This stands in stark contrast to  international and European law: both provide that in the management of migratory flows states must take into account the interests of the family and minors (see e.g. Art. 10 §2 and 22 §1 of the Convention on the Rights of the Child, as well as Art. 5 of Directive 2008/115/EC on return procedures).

The same is true with regard to the right to asylum (Art. 18 CFR). With the exception of the generic reference to the Geneva Convention in Art. 6 of Framework Decision 2002/946/JHA, no provision of Directive 2002/90/EC (whether with regards to the notion of facilitating, or the scope of the optional humanitarian clause) assigns legal value to the condition of the asylum seeker. Consequently, Member States are called to introduce rules criminalizing assistance to asylum seekers, even though the exercise of the right to asylum inevitably entails a phase of undocumented mobility (Hathaway, 2008; Costello-Zirulia, 2024). Such rules have a generalized deterrent effect with respect to the provision of such assistance, contrary to what the Court of Justice ruled in Commission v. Hungary (C-821/19).

The Possibility of a Different Approach by the EU Legislature

The European legislator could have configured the criminalisation obligations differently. Article 6 of the Palermo Protocol on Migrant Smuggling, to which the EU acceded in 2006, renders the purpose of obtaining an economic (or other material) advantage an element of the offence (Bernardini, 2024).  This is precisely to avoid the criminalisation of assistance between family members and more generally of humanitarian conduct (see Travaux Préparatoires, p. 469). Moreover, the financial gain purpose was both part of the offence of facilitating irregular entry under Article 27 of the Schengen Convention, repealed by the Facilitators Package, and still remains an element of the offence of facilitating irregular residence (Art. 1 §1 lett. b) Directive 2002/90/EC)

The European Commission tried to justify the choice to distinguish between the rules on facilitating irregular entry and those on facilitating irregular residence by emphasizing investigative needs. It suggested that tracing money is difficult whenever the conduct takes place at least in part in third countries, as it happens with irregular entry. This is both wrong and misleading: it ignores both that the purpose of making profit belongs to the mens rea, and can therefore be proven even if the money is not traced, e.g. on the basis of witnesses; and, as the UNODC pointed out, that the most effective investigations are precisely the money-focused ones, since they make it possible to discover the criminal smuggling networks that move the most significant numbers of migrants. More recently, the Commission recommended not to criminalize at least search and rescue activities. However, this has no substantive effect and indirectly confirmed the existence of a problem of overcriminalization (Marletta, 2020).

Criminalisation of Solidarity as a Political Choice

The truth is that the removal of the profit motive from the notion of facilitating irregular entry, together with the optional nature of the humanitarian justification, reflect the political choice to protect European borders (also) by criminalizing solidaristic conduct. This was recognised, implicitly, by the French Conseil Constitutionnel when, in its well-known judgment on the Herrou case, it stated that the principle of fraternité does not require the provision of a humanitarian justification for facilitating irregular entry. Unlike facilitating irregular residence and transit, the latter creates a new situation of irregularity, i.e. it undermines national borders.

Not all humanitarian conduct evidently contributes to the protection of fundamental rights recognised by the Charter. But that’s precisely why the reference to the Charter is paramount: referring to the fundamental rights recognized by the Charter serves to identify which humanitarian conduct must be considered by legislators, European and national, when criminalizing the facilitation of irregular entry, so that the scope of criminalisation is not disproportionate to the aim of protecting borders.

Possible Outcomes of the Preliminary Ruling Request 

The incompatibility between the Facilitators Package and Article 52(1) of the CFR could result in a declaration of invalidity of both the Directive and the Framework Decision of 2002.  The Commission has already formulated a proposal for a directive to replace the Facilitators Package, probably as a result of this reference for a preliminary ruling (Mitsilegas, 2024). As such, invalidation would not leave any legislative vacuum, except for the months necessary for the approval of the new directive.

The Court could also choose the path of interpretation in conformity with the Charter of Fundamental Rights. In following the Canadian Supreme Court’s reasoning in the Appulonappa judgment, the Court could rule that the obligation to criminalize must be interpreted as not including those courses of conduct whose criminalisation would be incompatible with the Charter. This would not just include humanitarian conduct “mandated by law” (such as search and rescue at sea, as suggested by the Commission in its already mentioned guidelines), but more extensively any conduct serving the protection of the fundamental rights to life, physical integrity, asylum and family unity.  While less drastic than full invalidation, this option would still go some way in interrupting the increasing criminalisation of people who are completely unrelated to the migrant smuggling network.

Beyond Disproportionality

A ruling amending the disproportionality of the Facilitators package would have further advantages. First, excluding humanitarian conduct from the scope of criminalisation would align the offence with the criminological distinction between mere facilitation and proper migrant smuggling, a distinction acknowledged as empirically well-founded by criminologists (Achilli, 2018), and also by the Italian Constitutional Court in its judgment no. 63/2022 (available in English). A clearer delineation of the boundaries of the criminal offence would bring the Facilitators package more in line with the principle of legality under Article 49(1) CFR. The law’s accessibility and predictability of the sanction are indeed particularly pressing in relation to a structurally transnational offence, the effects of which always affect, by definition, at least two different jurisdictions.

Limiting the scope of criminalisation would also allow investigative and judicial efforts to be concentrated on the most serious forms of organised crime, targeted by the Commission’s renewed Action Plan against migrant smuggling (2021–2025) in light of their structural capacity to affect irregular migration flows. The current criminalisation obligations (and the national criminal laws implementing them) only seemingly guarantee more effective border protection. In reality, they force authorities to deal with occasional conduct of little significance in terms of harm. The CJEU has already had occasion to censure national criminal laws whose excessive severity ended up frustrating the effet utile of border protection (see the El Dridi and Achugbabian judgments, which found the custodial sentence of irregular migrants dysfunctional with the purpose of efficient repatriation). In a not dissimilar way, the Facilitators package seems to fall into a sort of “catch-all” trap, where time and resources, both economic and human, are diverted from the goal of fighting the black market of mobility.

Finally, a ruling invalidating or at least interpreting the Facilitators package in the light of the Charter would represent a benchmark for the EU legislator in drafting the new facilitating directive. Indeed, the Commission’s proposal has already attracted scholarship concerns on the basis of its low consideration for human rights  (see Alagna-Sanchez, 2024;