Context of this study
6 FoMB in that definition. A brief survey of other sources of insight and authority is
then made before drawing some initial conclusions on the applicable international legal and policy framework.
Part 3 summarizes and analyzes the results of the survey of national law and practice as it relates to FoMB with a view to establishing the foundation for a broader
consideration of issues and trends in the following part. The thirteen surveyed States are divided into two broad groups: i States that have included FoMB as an element
of the base smuggling offences;
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and ii States that have excluded FoMB as an element of the base smuggling offences. It is important to note that this latter group
includes States that have incorporated some variation of FoMB into their legal framework outside the base offences
– for example, as a factor aggravating penalties.
Part 4 draws together a series of findings from legislation, case law and the views of practitioners relating to legislative approaches, scope of FoMB and other key issues.
Part 5 provides some initial guidance, in the form of a set of conclusions, developed by participants in the Expert Group Meeting.
The Issue Paper includes three annexes. The first of these sets out a list of key questions and points of possible agreement that were used as the basis for
discussions at the Expert Working Group meeting. Annex 2 contains the survey instrument that guided the country studies. Annex 3 provides a list of individuals
consulted for the Issue Paper.
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As discussed later on, for the purposes of this pape the te ase s uggli g offe es o ase
offe es refers to stand-alone offences related to facilitation of irregular entry and in some cases also irregular stay. It covers offences that are different from: i related offences such as production
or use of fraudulent documentation; and ii aggravated offences whereby one or more factors such as profit or involvement of multiple migrants or risk of death or serious injury operate to increase the
severity of the punishment attached to the base offence.
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PART 2. THE CONCEPT OF FINANCIAL O‘ MATE‘IAL BENEFIT
WITHIN THE DEFINITION OF MIGRANT SMUGGLING
This Part of the Issue Paper considers the fi a ial o othe ate ial e efit
FoMB concept from the perspective of international law and policy: what does the drafting history of the Smuggling of Migrants Protocol
– and most particularly of the definition of migrant smuggling
– tell us about the intention of States with regard to conduct they wished to include and exclude? To what extent do materials including
the travaux préparatoires
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shed light on the scope and substantive content of the FoMB concept as it is used in the Protocol? What information on the
implementation of the concept is provided by secondary sources of guidance and insights from regional law, policy and practice?