Regulating Pro-Migrant CSOs in Europe: Between Crisis Management and Penal Populism

As right-wing populists have entered governments in a growing number of countries and European democracies had to cope with the refugee crisis of 2015 only to be followed by a new wave of migration since the start of the Ukraine war, the criminalization of migration and, relatedly, of support and solidarity towards migrants has become an important field of study. This paper contributes to this field by proposing a taxonomy – distinguishing types of legal provisions adopted in terms of their ‘punitiveness’ and ‘functional scope’ – to systematically map the evolution of the increasingly complex legal architectures that regulate governments’ relations with civil society organizations (CSOs) supporting migrants. Regulation affects pro-migrant CSOs’ ability to engage in a variety of activities ranging from accessing state resources or entering border areas to operating as legally recognized units in a country to allocating food or offering legal advice. Our taxonomy classifies legal provisions along two axes: first, whether they (directly or indirectly) criminalize CSO activities (“punitiveness”); and second, whether they focus on preventing facilitation of illegal entry or, relatedly, controlling border areas, or (also) try to disincentivize support for migrants post-entry or affect domestic operations of pro-migrant CSOs generally (“functional scope”). New data annually capturing legal change from 2000-2022 across twelve European countries reveal especially an expansion of provisions enhancing state-control over pro-migrant CSOs’ activities – both in border areas and domestically – complementing criminal law. Essentially, our analysis shows that the growing complexity of regulatory regimes increasingly ‘tailored to’ (but not necessarily targeted at) the activities of specific subsets of CSOs (working with migrants or other minorities) needs assessment through both a functionalist lens (as potential government tools to address problem pressures) and a political lens (as legal provisions might be instrumentalised for political purposes).