Protecting people, not punishing them: the case for a humanitarian exemption in the EU Facilitation Directive

It has been over two decades since the EU adopted the Facilitation Directive, establishing a definition of migrant smuggling in EU law. While it aims to target organised criminal networks and harmonise counter-smuggling practices across Member States, the way that the Directive has been applied in practice has led to harmful consequences for people in migration, as well as for people acting out of humanity to support them. It's overly broad definition of ‘facilitation’ of entry, transit or stay, combined with the lack of a mandatory humanitarian exemption, has blurred the line between criminal smuggling activities and acts of solidarity or lifesaving assistance.

The ongoing review of the Directive offers an opportunity to bring EU law in line with international standards, prevent further harm, and reaffirm the EU’s commitment to human dignity and solidarity. By standing in favour of including a mandatory humanitarian exemption, the European Parliament could help to ensure that the act of helping is not treated as a crime. As discussions continue around the Parliament’s position on the Directive’s reform, decision-makers must preserve this safeguard and put an end to the undue criminalisation of migrants and those who support them.   

Doing so would not only help to upholding rights but would protect people who often have no other choice but to resort to the services of smugglers. It would also send a strong message of support for the EU’s civic space – a cornerstone of democracy and the wellbeing of society as a whole. 

Protecting people, not punishing them  

Research has shown that stricter counter-smuggling policies have not only been ineffective in stopping smuggling, but they amplify risks for migrants by making their journeys longer and more dangerous. People on the move are also exposed to increasingly hostile conditions along migration routes and within the EU. And some even face prosecution for facilitating their own journeys and those of their family members. 

A recent ruling by the European Court of Justice underlines just how important it is to set limits on the current overly broad definition of 'facilitation’ in the Directive, which leaves ample room for people to be criminalised for the wrong reasons. In the ‘Kinsa Case’, a woman had been prosecuted and was facing up to five years in prison for “facilitating unauthorised entry” for her daughter and niece to seek asylum. The Court ruled that assisting children under one’s care to enter the EU does not constitute a crime, as this would disproportionately interfere with the right to family life and the rights of the child – limiting the scope for criminalisation is crucial and should inform policy makers as the negotiations of the Directive go forward.

The truth is that for many people in migration, irregular pathways are the only viable option. While resettlement and family reunification exist as ways to reach safety, they remain extremely limited and slow. In 2024, only 116,000 refugees were resettled globally, and quotas dropped further in 2025 to just 30,000 — the lowest since 2003 — despite growing needs. Family, work, or study permits are more widely used, but administrative delays and eligibility barriers often make them inaccessible in practice. 

Despite the scarcity of safe routes to the EU, thousands of people are still being prosecuted for facilitating their own journeys. People affected by smuggling are not perpetrators, and the Directive must ensure they are not punished. 

Seas as humanitarian spaces

The Mediterranean Sea has long been a space of passage, a route for trade and cultural exchange. Today, however, it has also become a space of death and intimidation, with thousands of people missing every year, while the civil rescue fleet faces mounting state-hostility. For instance, state-level restrictions on responding to multiple distress calls, as well as the allocation of distant ports for disembarkation, have reduced the capacity to save lives. Search and Rescue (SAR) vessels have also been the target of confrontational practices and subjected to detention orders (see here and here). 

In this context, the sea is not only a body of water, or an international zone of transit, trade and security – it is also a humanitarian space where the humanitarian principles of humanity, neutrality, impartiality, and independence must be upheld. Saving lives in not a political act. It is a humanitarian imperative and a legal obligation under the international law of the sea. The Directive should explicitly exonerate SAR activities from criminalisation. 

Restoring our ability to help each other 

Regrettably, the Directive has also cast a shadow over people acting out of kindness and solidarity, as it has been used to prosecute and intimidate individuals and organisations providing humanitarian aid to people in an irregular situation. Undue criminalisation has significantly grown in scale according to the Council of Europe. Ordinary citizens from all walks of life have been facing legal repercussions for providing help; from activists and journalists to nuns, farmers, students, and countless others. This shows just how deeply mutual aid and solidarity are embedded in our societies, transcending professions, backgrounds, and beliefs.

Offering a hand, a smile, a meal, a word of kindness is what we’ve always done. At the heart of it, these everyday gestures reflect a basic human instinct that connects us all: helping each other is what makes us human. 

But upholding this spirit of solidarity requires a healthy and vibrant civic space that will, ultimately, benefit us all. EU policy makers must recognise its vital role in promoting participation in public life and take concrete steps to safeguard it against intimidation and criminalisation. By opting for a clear and binding humanitarian exemption, they can help reverse the chilling effect that the implementation of the Facilitation Directive has had on offering assistance to people without a valid status – a hesitation that not only risks leaving people in need without support, but undermines civil society and the well-functioning of democracy across the EU.  Social cohesion is built on our ability to care for one another.

As the EU enters a critical phase of negotiations on the Facilitation Directive, the path forward should be guided by greater clarity and consideration of the societal impact of this policy. We must ensure that people seeking safety and opportunity are not punished for their journeys, and that those who offer help are not criminalised for their humanity. By embracing this reform, the EU can reaffirm its foundational values of dignity, solidarity, and justice: helping others must never be a source of fear or punishment.