Drafting history of the Smuggling of Migrants Protocol and its definition

10 That a si ila l oad eadi g should e gi e to the te fi a ial o othe ate ial e efit as it is used i the P oto ol is affi ed an additional Interpretative Note, this one attached to the provision setting out the definition of migrant smuggling. The travaux préparatoires should i di ate that the efe e e to a fi a ial o othe ate ial e efit as a ele e t of the defi ition [of migrant smuggling] was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations. 28 The Legislative Guide elaborates on this theme, affirming that the reference to fi a ial o othe ate ial e efit as i deed i te ded to e lude g oups ith purely political or social motives. 29 The Legislative Guide further notes the concern of d afte s that the P oto ol should ot e ui e “tates to i i alize or take other action against groups that smuggle migrants for charitable or altruistic reasons, as sometimes occurs with the smuggling of asylum-seekers . 30 Th e UNODC Model Law against Smuggling of Migrants, released in 2010, adds little to this, affirming FoMB as a i teg al pa t of the defi itio of s uggli g of ig a ts ; referencing the two I te p etati e Notes ited a o e a d oti g that: payment or profit arising from smuggling of migrants can include non-financial inducements, such as a free train or airplane ticket, or property, such as a car. Thus, it is important to ensure that the defi itio of fi a ial o othe ate ial e efit is as oad a d i lusi e as possible . 31 A careful review of the travaux préparatoires provides little additional insight, beyond confirming the intention of the drafters of the Smuggling of Migrants Protocol to: i craft an instrument that would address organized criminal involvement in facilitation of irregular migration; ii ensure that application of this instrument does not extend to the actions of persons providing support to migrants – including through facilitation of unauthorized entry and unauthorized stay – on the basis of humanitarian motives or close family ties; and iii in accordance with Article 191 to preserve the applicability of existing international rules including those related to human rights and to asylum.

2.3. Fi a ial or other aterial e efit : regional insights

Much of the relevant literature on fi a ial o othe ate ial e efit in the context 28 Interpretative notes, A 55383Add.1, 3 November 2000, para. 88. Emphasis added. 29 Legislative Guide, p. 13, para. 26 30 Legislative Guide, p. 333,para. 19. 31 UNODC, Model Law against the Smuggling of Migrants 2010, p.13. 11 of ig a t s uggli g a ises i the o te t of the Eu opea U io s espo se. The EU legal framework around migrant smuggling comprises two instruments: Council Directive 200290EC defining the facilitation of unauthorized entry, transit and residence Facilitation Directive; 32 and Framework Decision 2002946JHA on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence Facilitation Decision. 33 Under Article 1 of Facilitation Directive 200290, EU Member States are required to adopt appropriate sanctions on: Any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens; Any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens. In short, the provision requires Member States to criminalise facilitation of unauthorised residence when conducted for financial gain. Member States can however criminalise the offe e i espe ti e of the fi a ial gai oti e. Also, according to the directive, Member States are required to criminalize facilitation of unauthorized entry or transit even when there is no financial gain. It is important to note that Article 1 of the Facilitation Directive preserves Member State discretion to not impose sanctions for the offence of facilitating unauthorized entry or transit in ases he e [t]he aim of the behaviour is to provide humanitarian assistance to the person concerned . A recent survey found that in most EU Member States, the base migrant smuggling offence requires only proof of facilitation of illegal entry, but not of additional physical or mental elements relating to profit or benefit obtained or intended to be gained by the perpetrator. In most EU States, the presence of a financial or material benefit serves to aggravate the penalty imposed. 34 It is notable that these findings generally reflect those of the country surveys, summarized in Part 3 and analyzed in Part 4 of the present Paper. The EU approach, which allows but does not require Member States to exclude activities that aim to provide humanitarian assistance Article 12 leaves open the possibility that persons involved in facilitating unauthorized entry and transit for humanitarian purposes will be prosecuted. Such criminalization can be extended to persons who render assistance to migrants in 32 EU Council Directive 200290EC of 28 November 2002 defining the facilitation of unauthorized entry, transit and residence OJ L23817, 5 December 2002 33 EU Council Framework Decision 2002946JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence, OJ L2381, 5 December 2002 34 Working Document: National Laws Relating to Smuggling of Migrants in Council of Europe Member States, 70 th Plenary Session, Strasbourg, 27 - 30 June 2016 European Committee on Crime Problems, 2016, p.6. 12 distress in a way that results in their unauthorized entry into a EU Member State. The table below provides information on the situation in EU Member States as of March 2014: Legislation at least partially excludes humanitarian assistance from punishment Legislation requires profit to punish the facilitation Legislation does not require profit to punish the facilitation Irregular entry IE, UK, BE, ES, AT, GR, LT, FI n=8 IE, PT, DE, LU n=4 UK, ES, FR, BE, NL, DE DK, SE, FI, EE, LV, LT, PL, CZ, SK, HU, SI, IT, HR, BG, RO, GR, CY n=22 Irregular stay UK, FR, BE, DE, AT, IT 35 , FI, MT n=8 IE, PT, ES, LU, NL, HU, SK, CZ, PL, SE, BG, CY, DE, AT, IT n=15 UK, FR, BE, DK, FI, EE, LV, LT, RO, GR, SI, HR, FI n=13 Adapted from: Criminalisation of migrants in an irregular situation and of persons engaging with them , EU Agency for Fundamental Rights, March 2014. Underline denotes a State surveyed for this Issue Paper. Research conducted by the Centre for European Policy Studies CEPS has confirmed that some civil society organizations fear sanctions for their work assisting irregular migrants in relation to both entry and stay. The report also notes that, while they would be protected from prosecution under legal regimes related to rescue at sea, fears of prosecution have deterred some shipmasters, particularly of fishing trawlers in the Mediterranean, from rescuing migrants in distress. 36 It is important to note that this and other studies have found that prosecutions for facilitation of entry, rescue or assistance for humanitarian purpose are rare, 37 but not unheard of. 38 At a policy level, various EU bodies have advocated against the criminalization and pursuit of those who are supporting migrants for purposes other than profit. In 2014 the Fundamental Rights Agency recommended that Member States should always 35 Practitioners explained that while the relevant legislative provision exempting humanitarian assistance from punishment efe s to a tio s ithi Ital , it has been interpreted to also apply to those who, in providing humanitarian assistance, facilitate entry into the country. 36 Michael Collyer, Cross-border cottage industries and fragmented migration in Sergio Carrera and Elspeth Guild, Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU CEPS, 2016, pp.17-18, 45-47. 37 Jennifer Allsop and Maria Giovanna Manieri, The EU Anti-Smuggling Framework: Direct and indirect effects on the provision of humanitarian assistance to irregular migrants in Sergio Carrera and Elspeth Guild, Irregular Migration, Trafficking and Smuggling of Human Beings: Policy Dilemmas in the EU CEPS, 2016, pp.88-89. See also Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants, Directorate-General for Internal Policies, Policy Department C: Citizens Rights and Constitutional Affairs European Parliament January 2016. 38 Gkliati, M. 2016 Proud to Aid and Abet Refugees: The Criminalization of Flight Helpers in Greece. Available at: https:www.law.ox.ac.ukresearch-subjectgroupscentre-criminologycentreborder- criminologiesblog201605proud-aid-and.