An Examination of the Criminal Justice (Smuggling of Persons) Act 2021: Are those Acting Under Humanitarian and Familial Motivations Lacking Protection?
The smuggling of migrants is a relatively new offence in international law yet faces fluctuating levels of criminalisation. Due to vagueness in the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) (the Protocol), which created the offence,1 its adoption is not standardised. Consequently, how signatures, including Ireland, have adopted the Protocol varies, due to political motivations. Immigration policies are not primarily based on migrant protection but a need to protect a State’s boarders and sovereignty.2 Flowing from this, inaccurate ratification of the Protocol occurs. The Irish Criminal Justice (Smuggling of Persons) Act 2021 is one such example of this.
Under the Protocol, it is an offence to gain illegal entry of a person, directly or indirectly, into a State which they are not a national or permeant resident of, for financial or other material gain.3 The need for financial or material gain is an essential element, allowing prosecution of international organised criminal groups who profit off smuggling migrants. It is not the Protocol’s intention to criminalise humanitarian aid by actors such as Non-Governmental Organisations (NGOs) or to criminalise activities carried out by family members aiding each other.4 However, despite the Protocol’s explicit intent not to criminalise such groups,5 Ireland’s legislation does not offer adequate protection in this regard and demonstrates insufficient ratification.
The Irish law is relatively new, with the enactment of the Criminal Justice (Smuggling of Persons) Act occurring in 2021. It updated the previous governing legislation, primarily aiming to improve successful prosecution.6 This was achieved by removing the need for material gain from migrant smuggling.7 The 2021 Act has significantly narrowed the limitations on migrant smuggling in Ireland and contravenes the Protocol’s requirement for material gain.
While the act offers some protection for humanitarian actors through a defence of providing humanitarian assistance or working for a migrant assisting bona fide organisation, it gives no protection to those who act under familial motivations.8 While it could be argued that the smuggling of family members could fall under a humanitarian aid defence, protection of these groups is clearly better achieved through explicit mention in legislation.9 Moreover providing humanitarian assistance as a defence in place of an exemption does not comply with international recommendations, as individuals are charged first before being given an opportunity to show such motivations.10
The lack of an immediate exemption for humanitarian actors is further concerning when considering increasing reports of crackdown on NGOs and individuals aiding migrants.11 With hundreds of individuals crossing the English Channel on dangerous small boats every day,12 it is clear that the work of humanitarian actors is increasingly important in trying to create a safer journey and providing supporting. However, removing an explicit exemption in legislation may discourage such work out of fear of prosecution. Individuals should not need to risk criminalisation when aiding those in need.
Even more concerning, as the 2021 Act fails to mention familial motivations as a possible defence, it is unclear if individuals could be prosecuted in Ireland for aiding their family members to illegally enter the State. If this is the case, Ireland will be in direct contradiction of the Protocol, punishing unintended individuals.
Undoubtably, migrant smuggling is an act which puts the lives of individuals at risk, often leads to numerous additional human rights violations and contributes to the greater scheme of global organised crime. However, it is important that in tackling it Ireland targets the correct and responsible organised crime groups. Accordingly, the Criminal Justice (Smuggling of Persons) Act 2021 is missing a ‘key component’ of the offence by excluding the necessity of material gain, thus removing a vital safeguard for individuals acting on humanitarian and familial motivations.13 This is further aggravated by the exclusion of familial actions as an explicit exemption and placing humanitarian motivations as a defence only. While unintentional, this may have the effect of discouraging humanitarian actors to aid migrants at a time when such support is needed most.
In order to achieve the Protocol’s true purpose and ensure adequate protection, it is clear that the legal framework on migrant smuggling needs to be clarified. Criminalisation should occur for those involved in organised crime, not NGOs actors or families.