Published in January 2019.
This module is a resource for lecturers
Offences under the Protocol
Smuggling of migrants is defined in article 3 of the Protocol against the Smuggling of Migrants:
(…) the procurement, 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.
Article 6 sets out conduct to be criminalized in accordance with the Protocol:
Article 6 Protocol against the Smuggling of Migrants
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:
(a) The smuggling of migrants;
(b) When committed for the purpose of enabling the smuggling of migrants:
(i) Producing a fraudulent travel or identity document;
(ii) Procuring, providing or possessing such a document;
(c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means. (…)
4. Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its national law.
The Protocol against the Smuggling of Migrants criminalizes not only the basic offence of migrant smuggling - that is, the facilitation of illegal entry for a financial or other material benefit in accordance with the definition in article 3 - but also facilitation of illegal stay and document fraud offences aimed at enabling the illegal entry or stay of another person in a country other than his or her State of nationality or permanent residence. Hereinafter, the expression 'SOM-related offences' will comprise (i) smuggling of migrants, (ii) enabling illegal stay, and (iii) document fraud offences perpetrated for the purposes of enabling smuggling of migrants and/or illegal stay.
Each of the offences listed in article 6 requires two key elements. First, that the conduct is committed intentionally and, second, that the offence is committed with the purpose of obtaining a financial or other material benefit. This purpose element is described further below.
Smuggling of migrants
"Procurement", the term used in the definition of migrant smuggling, is not defined in the Protocol. According to the Oxford Dictionary of English, "procuring" means "obtaining something or causing a certain result by effort". Its broadness could per se comprise a number of specific actions, such as organizing, directing, facilitating, enabling (i.e. giving someone the authorization or means to do something), promoting, inducing, or otherwise materially supporting (which aims at providing coverage for all conduct aimed at somehow promoting the illegal entry of another person into a country of which the latter is neither a national nor a permanent resident). However, national laws often specify the actus reus in some detail and identify one or more of the terms mentioned above. "Illegal entry" is defined in article 3(b) to mean "crossing borders without complying with the necessary requirements for legal entry into the receiving State". The requirement of illegal entry is integral to the offence of migrant smuggling and includes any form of such entry, whether it is dangerous and clandestine, or involves document fraud.
It is further important to assess whether transit through international airports should be included under the scope of procurement of illegal entry and, consequently, migrant smuggling. In several States, legislation and or jurisprudence clarify that persons in airport transit zones are not deemed to have entered the country. Thus, the State concerned may lack jurisdiction to act. Providing for jurisdiction over acts intending to facilitate such illegal transit has been useful:
In Belgium, the law previously referred only to "helping a non-national to enter into or reside on the territory of the Kingdom". In 1999, the Court of Appeal of Brussels ruled that the presence of non-nationals in the transit zone of the airport, with the intention of travelling to another country, was not within the meaning of "helping a non-national to enter into" the Kingdom. Subsequent to that judgement, it was impossible to prosecute smugglers who were using Belgium simply as a transit point. A similar issue arose again in 1999, when the Court of Cassation of Belgium ruled that the material element of the smuggling offence had not been established in a situation where a non-national was intercepted at a border checkpoint. The Court ruled that the offence could be committed only once the person "entered" the Kingdom, which had not in fact occurred, as they had been stopped before entering. Following these decisions, the concept of "transit" was explicitly added to the definition of the offence of smuggling of migrants in Belgian law.
Belgium, The Act of 28 November 2000 on the Penal Protection of Minors (M.B.), 17 March 2001; UNODC, Model Law against the Smuggling of Migrants
Finally, because the analysis of this Module is based on the Protocol against the Smuggling of Migrants, it is to be noted that, while articles 3 and 6 refer to the procurement of illegal entry or stay in "another State Party", from the perspective of national law it might be more effective to mention "any other State". Otherwise, issues may arise (especially in countries of origin and transit) with respect to the double criminality requirement often necessary to ground extradition and mutual legal assistance requests.
Enabling illegal stay
Enabling illegal stay may be pursued through different means, including fraudulent documents (such as residence permits and marriage certificates). The boundaries between facilitation of illegal entry and enabling illegal stay may not be obvious. For instance, when smugglers assist migrants in obtaining valid temporary visas whereby migrants intend to exceed their legal period of stay, enabling illegal stay will be the applicable offence. Situations where smugglers provide authentic documents (belonging to a third party) to irregular migrants so that they use them as if they were the legitimate owners will fall under facilitating illegal entry (through abuse of legal means). However, categorization will ultimately depend on the specificities of national laws. The key concern is that domestic legislation does not leave lacunae that might be used to the advantage of smugglers.
Document fraud offences
In the terms of the Protocol against the Smuggling of Migrants (article 3), fraudulent documents include travel and identity documentation that has been:
- Falsely made or unduly altered by someone other than the entity or person legally authorized to that effect;
- Improperly issued or obtained through mis-representation, corruption or duress or in any other unlawful manner (for example, documents obtained following sham marriages, fake adoptions or deceitful application for family reunification); or
- Used by a person other than the rightful owner.
Given that many smuggling operations are carried out on the basis of or with the assistance of fraudulent work documents (for example, work permits, offers of contract or medical certificates), it might be appropriate to also include these kinds of documents in national legal definitions.
Figure 1: Document fraud offences
Figure 1 highlights the acts at the core of document fraud offences: producing, providing, procuring or possessing a fraudulent document for the purpose of facilitating the illegal entry or stay of another person in a country of which he or she is neither a national nor a permanent resident.
The term "producing" is deemed to include the alteration of information in an authentic document. A broad/extensive transposition of article 6(1)(b) of the Protocol against the Smuggling of Migrants should be adopted to encompass the acts of "offering and distributing"; such acts are essential to smuggling processes utilizing document fraud. It is worth noting that, consistent with article 5 (see below), the definition does not include "acquiring" fraudulent documents to procure one's own illegal entry or stay.
Document fraud offences cover a vast range of situations, such as:
- A person uses another person's legitimate documents without making any changes to those documents. In the context of smuggling of migrants offences, this occurs in relation to the so-called 'look alike' modus operandi whereby the user closely resembles the owner of the documents;
- Data (for example, names and photographs) in legitimate documents that has been illegally altered;
- Entirely forged documents;
- Documents that are authentic but have been obtained fraudulently (for example, incorrect information is provided on the application form or other fraudulent documents are used to obtain the document in question).