Decriminalise facilitation!

June 17, 2024

In recent years, Europe has seen a discernible trend in the overcriminalisation of any behaviour seen to ‘facilitate’ unauthorised entry, transit or stay in EU Member State territory. This trend is not only evident in court cases against NGOs carrying out search and rescue operations in the Mediterranean and against volunteers of all kinds who help migrants at EU borders. The horrendously high number of people imprisoned for helping themselves and others to reach the EU via illegalised escape routes are also an alarming sign of this development.

The urgent need to evaluate the legitimacy of the EU legal framework criminalizing the ‘facilitation’ of unauthorized immigration, the so-called ‘Facilitators Package’, and its related implementation at the national level in EU Member States has been pointed out by many lawyers, activists and human rights organizations.

In our proceedings, we have not succeeded in getting the legal bodies of the European Union to end a contradiction that has gone on for far too long and has damaged and often even destroyed the lives of thousands of people.

Thanks to our lawyer Francesca Cancellaro, this may now be achieved through the “Kinsa” case!

It’s time to challenge the whole discipline

Francesca Cancellaro, Lawyer

A single case has triggered one of the most far-reaching challenges to European (anti)migration laws to date.

The Kinsa case (formerly Kinshasa case) centers on the trial of O.B., a Congolese woman, who arrived at Bologna airport in August 2019 accompanied by her 8-year-old daughter and 13-year-old niece, using false passports to travel to Italy to seek protection. O.B. faces charges of facilitating the unauthorized immigration of the two girls, facing up to five years imprisonment.

O.B.’s lawyer, Francesca Cancellaro, identified a violation of a wide range of her client’s fundamental rights. Hence, in the course of legal proceedings in Bologna, she submitted a referall request for a preliminary ruling by the Court of Justice of the European Union (CJEU) to examine the EU legal framework mandating member states to criminalize the facilitation of unauthorized immigration (the ‘Facilitators Package’), assessing its compatibility with the EU Charter of Fundamental Rights (CFR). The presiding judge at the Court of Bologna accepted the submission and referred the matter to the CJEU. The Grand Chamber of the CJEU will hold a hearing on 18 June 2024 (C-460/23).

The outcome could have far-reaching implications for both EU and national legal frameworks. It could lead to a reassessment of national laws across the EU and impact hundreds of ongoing ‘facilitation’ cases as well as sentences in past cases.

The landmark review at the CJEU – triggered by the ‘Kinsa case’ – comes more than two decades after the enactment of the EU Facilitators Package in 2002, which has resulted in the prosecution of thousands for ‘facilitation’. Although these laws were purportedly designed to combat ‘smuggling’ by ‘criminal networks’ and ensure the safety of individuals in transit, they have, in practice, led to the prosecution of migrants themselves, who constitute the majority of those prosecuted on ‘facilitation’ charges, as well as those most concerned with their safety,  namely, family members and activists assisting out of solidarity.

Access relevant documents, studies, and legal texts scrutinizing the case and ‘facilitation laws’ in the EU. Uncover critiques, consequences, voices from affected individuals, lawyers, researchers, activists, and organizations.