Migrant Smuggling Data and Research

of Austria (FPG), n.d.; Federal Act on Foreign Nationals Act (FNA), n.d.; Greek
Code on Migration or Greek Law N.4251/2014); a similar approach is followed
by the former Yugoslav Republic of Macedonia (European Migration Network,
2014). The so-called humanitarian clause, absolving from criminal liability
those who assist persons in distress, is only foreseen in the Greek and Spanish
legislation. The United Kingdom has transposed an analogous provision but
has restricted its scope to persons acting pro bono on behalf of a human rights
organization (Carrera, 2016).
Even wider disparities are present when it comes to criminalizing the
facilitation of unauthorized “stay” in the country. A 2016 survey of national laws
revealed that France, Greece and the United Kingdom do not require financial
gain to punish facilitation of stay; the opposite approach is followed by Germany,
Hungary, Italy, the Netherlands and Spain. Likewise, France, Germany, Italy and
the Netherlands exempt from criminal liability those who facilitate unauthorized
stay for humanitarian purpose; France only exempts those who assist family
members, while Germany entails exemptions only for those who conduct specific
professional duties (Carrera, 2016).
As regards the type and severity of punishment, also here a great
variety of sentences have been identified, ranging from a fine and 1–2 years
imprisonment (such as Austria, Germany and Spain) to 10 years in the case of
Greece and 14 years in the United Kingdom. Some national orders, such as Italy,
entail different sentences for facilitation of unauthorized stay and entry carry
different sentences, while others, such as Greece and the Netherlands, do not
make such a distinction (AufenthG, 2004; FPG, n.d.; FNA, n.d.; Greek Code on
Migration; European Migration Network, 2014).
Finally, the territorial scope of the definition also varies. Some European
countries sanction not only the facilitation of movement and stay in their own
country but also in other Member States. Even then, the approaches differ.
Hungary, for instance, sanctions only the facilitation of transit and stay in another
Member State. Italy only sanctions the facilitation of entry and transit. Spain
and the United Kingdom sanction all three categories (Carrera, 2016). Germany
punishes the facilitation of entry into, transit and stay in any other Schengen
country, while the Netherlands sanctions the facilitation of entry, transit and
stay in any country that is a party to the UN Protocol against Smuggling (Carrera,
2016).
Once theory is translated into practice and in the absence of standardized
procedures, there are significant divergence across national jurisdictions in the
way situations are interpreted and data registered, the precise extent of which is
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5. Europe