Migrant Smuggling Data and Research

In particular, the understanding of the notion of migrant smuggling in
Europe derives in large from the international Smuggling Protocol, which defines
migrant smuggling as “the procurement, in order to obtain, directly or indirectly,
a financial or other material benefit, of the illegal entry of a person into a State
Party of which the person is not a national or a permanent resident”. The UN
Protocol has been ratified by all European countries but also the European Union
as a legal entity (Council of the European Union, 2006; United Nations, n.d.).
European countries that are also Member States to the European Union
find further guidelines on the definition of migrant smuggling in Directive
2002/90/EC and Framework Decision 2002/946/JHA, aptly referred to as the
Facilitators’ Package, which seek to harmonize the penalization of migrant
smuggling in the region. The above-described documents prohibit the following
types of behaviours in the context of migrant smuggling:
• Assisting a non-European Union country national to enter or transit
through a European Union country, in breach of laws; and
• Assisting intentionally, and for financial gain, a non-European
Union country national to reside in the territory of a European
Union country, in breach of laws.
Optionally, an exception can be made if the aim is to provide humanitarian
assistance to a person in distress.
At the scholarly level, the above-described framework has been rather
critically received both on account of legal ambiguity and its great divergence
from the UN Protocol standards. Among the most important differences is the
requirement of financial profit; while the UN Protocol necessitates the element
of financial gain for the conduct to be punishable, the Facilitators’ Package does
not (Alssopp and Manieri, 2016). Other controversial aspects include the nonbinding
nature of the “humanitarian assistance” clause, but also the omission
of any reference to the role of family and personal relations (Carrera and Guild,
2016). Next to this, the Facilitators’ Package grants Member States a wide
discretion to frame their national laws. In practice, European countries have
followed diverse and at times inconsistent approaches towards criminalizing
migrant smuggling.
Austria, France, Greece, Italy, the Netherlands, Spain, Switzerland and
the United Kingdom follow a broad definition and penalize the facilitation of
entry irrespective of the financial gain involved; Germany and Belgium, however,
necessitate the element of “financial gain” as an additional requirement (Carrera
et al., 2016; Federal Aliens Law of Germany (AufenthG), 2004; Federal Aliens Act
Migrant Smuggling Data and Research:
A global review of the emerging evidence base
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