Facilitators’ Package: Discretion in a Time of Challenge

The provisions of the so called Facilitators’ Package require Member States to sanction a wide range of conducts which, having human smuggling at their core, can be broadened up to even include humanitarian assistance. They do so in a very ambiguous way, thus leaving a wide margin of appreciation to the single States in their application. Inside this elbowroom the conditions for the increasing criminalization, within national legislations, of behaviours of facilitation of entry, transit or stay of migrants have been created, making the work of those trying to respond to the needs of refugees more arduous, at constant risk of being equated to human smuggling – and punished as such. The sensitivity of this issue emerges forcefully against the backdrop of the current migration crisis which sees, within an increasingly hostile and militarized context, hundreds of thousands of people waiting at the gates of Europe and ready to cross its borders even without permission. It is used the implementation of the Facilitators’ Package as an example to analyse the scope and content of States’ discretion in a time of challenge, investigating how this room for manoeuvre can become one of the main elements of States’ resistance to the welcoming and integration of refugees and discussing whether limitations to such margin of appreciation may emerge as a first step to respond to the present crisis in a more efficient, yet humane, way.