Between 2015 and 2016, around 2 million people managed to open up Europe’s borders, entering the continent and moving collectively and autonomously across European territory. During that period, people were able to avoid the high costs and risks arising from the illegalization of their movement. Yet that brief window of free movement soon closed, as countries across Europe fortified their borders.
Since then, European governments have built migration control policies to restrict freedom of movement, based, as we will see below, on different forms of violence and criminalization. European migration policies have led to the death and disappearance of thousands of people, while having an enormous impact on the lives of all those who survive them, as well as on their communities. At the same time, the dehumanization of migrants, as well as the instrumentalization of the migration issue, has fuelled right-wing, anti-migration parties that continue to advance and gain political ground across the continent.
Ten years after the so-called “summer of migration”, we look back in order to better understand how the EU’s strategies to prevent freedom of movement have evolved. We focus primarily on the criminalization of “facilitation of unauthorized migration” as an instrument of the European border regime, and propose its decriminalization as an essential step towards a society that respects the fundamental rights of all.
Raising the Walls
Border security cannot exist if there are no casualties — and, to be clear, if there are no deaths.
—Athanasios Plevris, Greek Minister for Migration and Asylum, June 2025
In March 2016, the EU signed an agreement with Turkey to block transit across this section of the EU’s external border. The deal led to the construction of a detention system on a number of Greek islands, resulting in the creation of huge open-air prisons and veritable torture chambers such as the Moria refugee camp. In 2017, another agreement was signed between Italy and Libya, which involved funding for the financing and establishment of the so-called “Libyan Coast Guard” and detention centres in Libya, known for their particularly inhumane conditions.
The EU has since signed similar agreements with Tunisia, Morocco, and Niger, among others. These deals have several features in common. They all include European funding for equipment and technology that enables interception, detention, and pullbacks — a process by which authorities intercept and return to their territory those who try to leave it. They all enable deportations to non-EU countries where people’s lives and safety are at risk, along with designating non-EU countries as “safe” for asylum seekers in order to block future asylum claims within the EU.
The way in which the EU has hindered freedom of movement is founded on violating fundamental rights, including the right to life.
As these deals have been rolled out, systematic pushbacks — when authorities forcibly expel those who crossed the border to the country they just left — by European police forces have been consistently documented. Since 2020, Greek border guards have systematically and violently expelled migrants across the Evros River into Turkey or abandoned them at sea on inflatable rafts. Although this practice is not new, what was once a sporadic occurrence has become the norm. Along the so-called Balkan route, one of the heaviest-travelled migration routes in 2015, people on the move face beatings, theft, and unlawful expulsions at the borders of Croatia, Serbia, and Bosnia. In Spain, pushbacks on the enclaves of Ceuta and Melilla have included the use of razor wire, rubber bullets, and collective expulsions without due process.
At sea, European coast guards have grown increasingly reluctant to deploy rescue operations, while countries like Malta systematically ignore distress calls. In fact, it has been proven that both the European Border and Coast Guard Agency, Frontex, and national authorities share information about vessels to coordinate pullbacks with the so-called Libyan Coast Guard. Meanwhile, both Italy’s distant ports policy, which forces rescue ships to travel for days to disembark survivors, along with the recurring detentions of civilian rescue vessels hamper efforts by organized civil society and further endanger people in distress at sea.
At this point, the mountain of evidence is undeniable: the way in which the EU has hindered freedom of movement is founded on violating fundamental rights, including the right to life. Indeed, no less than the Greek Minister for Migration and Asylum Athanasios Plevris openly admits: Europe has established institutional border violence as a central pillar of its so-called migration policies in the decade since 2015.
Criminalizing Freedom of Movement
as the person responsible for the steering of the boat, who undertook the sea journey with full knowledge of the shortage of food and water, the overcrowding of passengers, and the structural deficiencies of the boat to undertake a long journey on the open sea, the detainee has created a situation of serious risk to the life, health, and physical integrity of the passengers, to the extent that, due to the poor conditions of the vessel and the circumstances of such a risky journey, XXX people died during the journey, and another XXX passengers had to be hospitalised upon arrival at the port.
—Excerpt from the indictment of a person accused of facilitating “unauthorized migration”, Canary Islands, Spain (anonymized to protect the accused)
Along with the aforementioned policies, the criminalization of what European states term the “facilitation of unauthorized migration” is a further pillar of Europe’s border regime. Under the Facilitators Package passed in 2002, EU legislation defines “intentionally assisting with entry or transit on European territory without authorisation” as a crime. This vague definition allows European states to exploit legal ambiguity and apply their own interpretations at the national level.
Unlike the UN Smuggling Protocol or the Geneva Convention, the Facilitators Package does not consider material or financial benefits for their actions necessary in order to be considered a crime, nor does it safeguard people on the move, their families, or those providing political or humanitarian support against prosecution. Quite the contrary: these laws, which supposedly are designed to combat so-called “smugglers”, have primarily led to the mass incarceration of people on the move themselves, as well as the prosecution of activists and organizations that defend their rights at the borders.
Although criminalized activists and organizations tend to receive the most media attention, those most affected by facilitation laws are undoubtedly migrants themselves. Individuals are routinely accused of being at the helm or steering a vehicle, holding a compass or GPS, making an emergency call, or even distributing water or food during migratory journeys. Thousands have subsequently been charged and convicted of the crime of “facilitating unauthorized migration” or what is often referred to as “smuggling”. According to the European Multidisciplinary Platform Against Criminal Threats (EMPACT), between 2018 and 2021, almost 10,000 people were arrested as suspected “smugglers” in the EU. In Italy, the From Sea to Prison project estimates that around 106 people were arrested as “facilitators of irregular migration” in 2024 alone, most of them after disembarking from search and rescue vessels. In the same year, 224 people were arrested in Greece and 236 in Spain, including 100 in the Canary Islands.
The accusations often also include “manslaughter” or “causing injury” to passengers, which further increases the prison sentence. In this way, as the indictment cited above shows, prosecutors seek to hold the survivors responsible for the conditions under which they cross the border, as well as for the fatal consequences.
As if the vague definition and questionable legality of the “facilitation” offence were not enough, systematic violations of the right to due process have been reported during both investigations and trials undermining the legality of the proceedings themselves. Research on Greece, Italy, and Spain in particular reveals common patterns in the criminalization of people on the move at the EU’s external borders: concrete evidence is often scarce or entirely absent, witnesses are known to testify under coercion if they appear at oral hearings at all, and are often state employees or Frontex personnel, raising serious concerns around conflict of interest. Defendants and witnesses are frequently denied access to proper legal counsel and adequate translation or interpretation. Prolonged pre-trial detention is routinely imposed, damaging the psychological wellbeing of defendants and further weakening their ability to mount an effective defence.
These laws allow survivors to be blamed for the very violence that they themselves have endured, using them as scapegoats.
Along with people on the move, facilitation laws have also served to criminalize civil society organizations seeking to act in solidarity with them, creating an atmosphere of fear that impedes solidarity actions. The Platform for International Cooperation on Undocumented Migrations (PICUM) produces an annual report on the criminalization of solidarity. In recent years, the reports have shown that individuals or groups are criminalized for search and rescue operations, distribution of basic supplies, provision of accommodation, and medical or legal assistance. In 2024, there were 142 people with open judicial or administrative proceedings for their actions in solidarity with people on the move. These cases are intended to serve as a warning. Through lengthy legal proceedings, support actions have been restricted, directly impacting the access of people on the move to resources and services during migration.
The criminalization of people on the move and activists through facilitation laws is not a mere miscalculation or policy mistake, but rather the intended function of the border regime itself. Facilitation laws allow for the direct obstruction of so-called “unauthorized entries”. While unauthorized migration is not considered a crime as such, direct support for it is criminalized. This results in reduced access to resources for those planning to migrate, forcing them to move clandestinely, increasing the risk of violence along the journey, and paradoxically enhancing the need and importance of smuggling operations.
At the same time, these laws allow survivors to be blamed for the very violence that they themselves have endured, using them as scapegoats, as in the Pylos or Melilla massacres. Moreover, criminalizing humanitarian groups and organizations creates an atmosphere of fear that dissuades further action — the chilling effect. In a context of systematic border violence, this serves not only to restrict the actions of activists and organizations — which can result in serious injury and sometimes death for people on the move — but also to eliminate potential witnesses in border areas, thus helping to cover up state violence. This is painfully evident in cases of pushbacks in the Aegean Sea or the interceptions and kidnappings by the Libyan Coast Guard.
Secure Lives, Not Borders
As we have argued, facilitation laws are a fundamental element of the border regime, but it is also true that the evidence of their illegitimacy and illegality makes them a weak element. Some evidence of the above has been confirmed by various courts in recent years. In June 2025, ten of the 16 asylum seekers represented by the Samos-based Human Rights Legal Project (HRLP) were acquitted. This was a landmark ruling, not only because of the number of defendants involved, but also because the Court accepted the argument put forward by the defence; that “asylum seekers should not be punished for smuggling”. That same month, the European Court of Justice issued its ruling on the Kinsa case. After a woman entered Italy irregularly with her daughter and niece, both minors, the court ruled that those actions did not constitute “facilitation of unauthorized entry” under EU law if they were intended to protect minors and ensure family unity — two rights enshrined in the Charter of Fundamental Rights of the European Union. In doing so, the Court affirmed that fundamental rights must override facilitation laws, setting an important precedent.
While these rulings will not, on their own, halt the criminalization of “facilitation”, they establish principles that could and should serve as a basis for future changes, and came at a historically significant moment. In November 2023, the European Commission published a proposal to amend the Facilitators Package. The European Council, for its part, has pushed for a position very similar to the Commission’s proposal and plans to expand the criminalization of movement. The European Parliament is still working on its position, and a vote is expected by the end of September. In this context, and in spite of the limited scope for intervention in the EU’s legislative processes, a window of opportunity has opened to pursue changes that guarantee the fundamental rights of people on the move.
The recent rulings are in line with our proposal to decriminalize the so-called facilitation of migration, which would imply, at the very least, introducing the element of “undue material benefit” in the definition of the criminal offense as well as binding exemption clauses for people on the move, family members, and humanitarian and political actors. Decriminalization would not only stop the mass incarceration that has been in place for so many years, but would also destabilize one of the legal pillars supporting the border regime, and therefore the systematic violation of migrants’ fundamental rights. In the current context of a growing far right, it is vital to remember that free movement was once possible in Europe. Indeed, it is the only way to guarantee fundamental rights for all, and thus should be a non-negotiable element in our strategy to combat the advance of fascism in Europe.
