Problem 8 – Migrant smuggling
What is the smuggling of migrants?
What is the existent framework of smuggling?
What are the deficiencies in the framework?
FRA – Criminalisation of migrants in an irregular situation and of persons engaging with them
The EU is developing a common immigration policy to prevent illegal immigration (Article 79 TFEU). This policy must
respect the rights, freedoms and principles of the Charter of Fundamental Rights of the EU under Article 67 TFEU. The
Framework Decision 2002/947/JHA sets out the rules regarding anyone who assist a person to irregularly enter, transit or
stay in the territory of a Member State. FRA research has highlighted the risk that domestic EU Member State legislation
may lead to the punishment of those persons who provide humanitarian assistance.
Criminalisation of persons engaging with migrants in an irregular situation
Criminalisation harms not only the migrants themselves, but also those who support them, such as providers of
humanitarian or legal assistance or persons who rescue migrants in distress at sea.
The UN Smuggling of Migrants Protocol supplementing the UN Convention against Transnational Organised
Crime requires states to criminalise the procurement of irregular entry or residence to obtain, directly or indirectly, a
financial or other material benefit. Aggravating circumstances should be established if there is a threat to the lives or safety
of migrants or in the case of inhuman or degrading treatment. Article 27 of the Convention implementing the 1985
Schengen Agreement (CISA) requires contracting parties to impose an appropriate penalty for any person who, for financial
gain, assist an alien to enter of reside within the territory of the contracting parties. In 2004 the EU Facilitation Directive
(Directive 2002/90/EC) and its accompanying Framework Decision 2002/946/JHA to combat smuggling in human beings
entered into force. They replaced Article 27 CISA.
EU Facilitation Directive
The directive obliges EU Member States to punish anyone who intentionally assists a person to irregularly enter or transit
through a Member State (Article 1(1)(a)). Member States may, however, refrain from punishment if the aim of enabling a
foreigner to enter or transit through the country is to provide that person with humanitarian assistance (Article 1(2)).
Indeed, failure to respect the duty to rescue is usually a criminal act. The provision does not cover humanitarian assistance
enabling a foreigner to stay. The Facilitation Directive also obliges EU Member States to punish anyone who, for financial
gain, intentionally assists a foreigner to irregularly reside within the territory of a Member State (Article 1 (1)(b)). Based
on this provision, Member States may refrain from punishing facilitation of irregular stay, if this is not done intentionally
and/or for financial gain; the directive, however, does not require them to refrain.
Framework Decision 2002/946/JHA
According to the Framework Decision criminal penalties must be effective, proportionate and dissuasive and may entail
extradition (Article 1). Minimum penalties are defined only in those cases where facilitation is done for financial gain by
a criminal organisation, understood as a structured association of more than two persons established over a period of time,
or where the criminals endanger the migrants’ lives. In these cases the punishment should be a maximum sentence of not
less than eight, or exceptionally six, years.
The Framework Decision includes a safeguard related to international protection; it applies without prejudice to
protection afforded to refugees and asylum seekers (Article 6). This means that it should not be applied to punish facilitation
of entry and stay for persons in need of protection if they come directly from a territory where their life or freedom was
threatened.
There is no general safeguard in the Framework Decision preventing the punishment of acts performed for
humanitarian purposes, rescue at sea or emergency situations. So there is a risk that domestic legislation aimed at addressing
facilitation of irregular entry and stay may result in punishing these forms of assistance. Some EU Member States punish
facilitation of entry and stay with fines or imprisonment, others with both in combination. Under some national law a
person is not liable if the act was committed to keep someone safe from harm.
Facilitating irregular entry
Facilitating irregular entry is punished in all 28 EU Member States. Legislation in 26 EU Member States does not require
financial gain or profit. In these countries financial gain is considered as an aggravating circumstance. In the other two
Member States, Germany and Ireland, financial gain is required in order to make facilitation punishable. The safeguard in
Article 1(2) of the Directive is often not reflected in national law. In those EU Member States where facilitation of entry
What is the smuggling of migrants?
What is the existent framework of smuggling?
What are the deficiencies in the framework?
FRA – Criminalisation of migrants in an irregular situation and of persons engaging with them
The EU is developing a common immigration policy to prevent illegal immigration (Article 79 TFEU). This policy must
respect the rights, freedoms and principles of the Charter of Fundamental Rights of the EU under Article 67 TFEU. The
Framework Decision 2002/947/JHA sets out the rules regarding anyone who assist a person to irregularly enter, transit or
stay in the territory of a Member State. FRA research has highlighted the risk that domestic EU Member State legislation
may lead to the punishment of those persons who provide humanitarian assistance.
Criminalisation of persons engaging with migrants in an irregular situation
Criminalisation harms not only the migrants themselves, but also those who support them, such as providers of
humanitarian or legal assistance or persons who rescue migrants in distress at sea.
The UN Smuggling of Migrants Protocol supplementing the UN Convention against Transnational Organised
Crime requires states to criminalise the procurement of irregular entry or residence to obtain, directly or indirectly, a
financial or other material benefit. Aggravating circumstances should be established if there is a threat to the lives or safety
of migrants or in the case of inhuman or degrading treatment. Article 27 of the Convention implementing the 1985
Schengen Agreement (CISA) requires contracting parties to impose an appropriate penalty for any person who, for financial
gain, assist an alien to enter of reside within the territory of the contracting parties. In 2004 the EU Facilitation Directive
(Directive 2002/90/EC) and its accompanying Framework Decision 2002/946/JHA to combat smuggling in human beings
entered into force. They replaced Article 27 CISA.
EU Facilitation Directive
The directive obliges EU Member States to punish anyone who intentionally assists a person to irregularly enter or transit
through a Member State (Article 1(1)(a)). Member States may, however, refrain from punishment if the aim of enabling a
foreigner to enter or transit through the country is to provide that person with humanitarian assistance (Article 1(2)).
Indeed, failure to respect the duty to rescue is usually a criminal act. The provision does not cover humanitarian assistance
enabling a foreigner to stay. The Facilitation Directive also obliges EU Member States to punish anyone who, for financial
gain, intentionally assists a foreigner to irregularly reside within the territory of a Member State (Article 1 (1)(b)). Based
on this provision, Member States may refrain from punishing facilitation of irregular stay, if this is not done intentionally
and/or for financial gain; the directive, however, does not require them to refrain.
Framework Decision 2002/946/JHA
According to the Framework Decision criminal penalties must be effective, proportionate and dissuasive and may entail
extradition (Article 1). Minimum penalties are defined only in those cases where facilitation is done for financial gain by
a criminal organisation, understood as a structured association of more than two persons established over a period of time,
or where the criminals endanger the migrants’ lives. In these cases the punishment should be a maximum sentence of not
less than eight, or exceptionally six, years.
The Framework Decision includes a safeguard related to international protection; it applies without prejudice to
protection afforded to refugees and asylum seekers (Article 6). This means that it should not be applied to punish facilitation
of entry and stay for persons in need of protection if they come directly from a territory where their life or freedom was
threatened.
There is no general safeguard in the Framework Decision preventing the punishment of acts performed for
humanitarian purposes, rescue at sea or emergency situations. So there is a risk that domestic legislation aimed at addressing
facilitation of irregular entry and stay may result in punishing these forms of assistance. Some EU Member States punish
facilitation of entry and stay with fines or imprisonment, others with both in combination. Under some national law a
person is not liable if the act was committed to keep someone safe from harm.
Facilitating irregular entry
Facilitating irregular entry is punished in all 28 EU Member States. Legislation in 26 EU Member States does not require
financial gain or profit. In these countries financial gain is considered as an aggravating circumstance. In the other two
Member States, Germany and Ireland, financial gain is required in order to make facilitation punishable. The safeguard in
Article 1(2) of the Directive is often not reflected in national law. In those EU Member States where facilitation of entry
