Reforming EU Criminal Law on the Facilitation of Unauthorised Entry: The new Commission proposal in the light of the Kinshasa litigation
| Published date | 01 March 2024 |
| DOI | http://doi.org/10.1177/20322844241235714 |
| Author | Valsamis Mitsilegas |
| Date | 01 March 2024 |
Editorial
New Journal of European Criminal Law
2024, Vol. 15(1) 3–11
© The Author(s) 2024
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DOI: 10.1177/20322844241235714
journals.sagepub.com/home/nje
Reforming EU Criminal Law on
the Facilitation of
Unauthorised Entry: The new
Commission proposal in the
light of the Kinshasa litigation
The current EU framework on the facilitation of unauthorised entry
A key feature of the EU policy to prevent migrants from reaching the EU external border has been
the criminalisation –and in essence the overcriminalisation- of facilitation of unauthorised entry,
transit and stay. The EU criminal law framework dates back from over twenty years ago, in the third
pillar, pre-Lisbon era. This framework is known as the EU ‘facilitators’package’and consists of
a (then) first pillar Directive on the facilitation of unauthorised entry, transit and residence
1
ac-
companied by a (then) third pillar Framework Decision on the strengthening of the penal framework
to prevent the facilitation of unauthorised entry, transit and residence confirming that the conduct
defined as facilitation in the Directive will be treated as a criminal offence by EU Member States.
2
The criminalisation of facilitation is very broad. In terms of the facilitation of irregular entry or
transit, criminal sanctions will be imposed on any person who intentionally assists a person who is
not a national of a Member State to enter, or transit across, the territory of a Member State in breach
of the laws of the State concerned on the entry or transit of aliens.
3
EU law thus has introduced a much broader framework of criminalisation of facilitation of
unauthorised entry in comparison with international law. The main international law instrument in
the field, the smuggling Protocol to the 2000 United Nations Convention on Transnational Or-
ganised Crime (the Palermo Convention) frames human smuggling firmly within an organised
crime context and defines smuggling of migrants as the procurement, in order to obtain, directly or
1.Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence
[2002] OJ L328/4 (hereinafter Facilitation Directive).
2.Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to
prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1 (hereinafter Facilitation Framework
Decision).
3.Article 1(1)(a) of the facilitation Directive combined with Article 1(1) of the facilitation Framework Decision.
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