New EU Council Directive Threatens Migrant NGOs

The EU Council adopted a new Directive last week.  The Directive is intended to give member states enhanced authority to prosecute human smugglers.  The problem, according to migrant rights organizations and a fair reading of the proposed Directive, is that it was written broadly enough to criminalize NGOs that provide assistance and legal advice to unauthorized migrants, including by an NGO’s internet presence.  Here is the provision:

Article 3 Criminal offences

Member States shall ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct, in order to obtain such a benefit or there is a high likelihood of causing serious harm to a person.

2. Member States shall ensure that publicly instigating third-country nationals to enter, or transit across or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals, constitutes a criminal offence.

The last sentence caused a great deal of angst.  It would probably not survive a vagueness or overbreadth challenge if it were enacted in the United States. It was removed from the final Directive but its initial inclusion fueled the perception that migrant NGOs are also intended targets.  That is a point made by international nonprofit migrant organizations:

The text . . . fails to introduce a legally binding provision that would exempt acts of solidarity with people in an irregular situation from criminalisation. Instead, the Council [voted] to simply invite member states not to criminalise humanitarian acts in a non-binding recital. Without a legal requirement that prohibits the criminalisation of migration and solidarity, there is genuine concern that member states will increase legal procedures against migrants themselves and people helping migrants.  The Platform on International Cooperation on Undocumented Migrants (PICUM) has been documenting a steady rise of criminalisation of solidarity with migrants in the past few years: at least 117 people were criminalised for helping migrants in 2023; at least 102 people in 2022, and at least 89 people between January 2021 and March 2022.

The Council’s new hard line is motivated in part by viral reports on X and Facebook that more than 7000 unauthorized migrants arrived on a small Italian island in a 36-hour period.  But Reuters fact-checked the reports and determined that they are false.

darryll k. jones