Migrant smuggling: why we need a paradigm shift

Common narratives describe migrant smugglers as ruthless “criminals who take advantage of people’s vulnerability and naïveté”. Counter-smuggling policies – often based on limited empirical data and several misconceptions – focus on cracking down on smuggling through more policing and criminal sanctions. While they often refer to the violence that migrants suffer from the hands of smugglers, very little attention is paid to the major harm done by counter-smuggling policies themselves. More importantly, little attention is paid to the reasons why people decide to turn to smugglers – notably, the lack of any opportunities for many people to move and cross borders in a regular manner. As a consequence, several of these policies end up harming migrant communities and those who support them.

This can happen in three main ways.

1.  Counter-smuggling legislation is often used against migrants themselves

More and more people trying to cross to Europe are unfairly accused of being “smugglers”, and risk long periods of arbitrary detention and exclusion from accessing asylum and other regularisation procedures. This is in violation of articles 5 and 16 of the UN Protocol on Migrant Smuggling, which forbid the use of counter-smuggling legislation against migrant themselves, and article 31 of the Convention relating to the Status of Refugees, according to which asylum seekers should not be penalised for crossing borders without authorisation.

Often, the mere fact of having touched the wheel of the boat, or having turned on a GPS, is enough to be considered a smuggler. Testimonies from other people on the boat asserting that the person was only trying to save everyone’s lives, or the fact of having one own’s children or other family members on the boat, are not considered as sufficient counter-evidence to smuggling accusations. As a consequence, migrants often face decades of imprisonment. In many cases, asylum seekers have been charged of smuggling just after being rescued from a shipwreck.

Far from being isolated incidents, the criminalisation of boat drivers is a widespread phenomenon in several EU countries. Criminal proceedings, including when they end in acquittals, can have a life-long impact on migrants’ ability to live regularly in the EU. A first instance conviction, or even just reliable proof for suspicion, can lead to people being effectively prevented from applying for asylum and other residence permits. Even if acquitted, migrants who have been accused of smuggling often have difficulties accessing asylum procedures, and they are often excluded from official reception centres.

2.  Counter-smuggling policies make crossings more unsafe

Counter-smuggling policies are often justified by policy-makers with the need to protect migrants’ lives and safety. But this narrative contributes to hide the real harm that people are suffering as a direct consequence of counter-smuggling policies.Almost a decade ago, academic Hein de Haas highlighted that “smuggling is a reaction to border controls, not the cause of migration”. As counter-smuggling policies lead to the increased militarisation of borders, crossing becomes more and more unsafe, pushing more people into taking dangerous and expensive routes and having to rely on smugglers, increasing risks of extortion, debt bondage and other abuses. History could not be clearer: because of the progressive increase in border surveillance in the Mediterranean since the nineties, people have had no choice but to take increasingly risky routes. More recently, the militarisation of the English Channel led to the creation of “an infrastructure that completely revolves around smuggling”.

The frequent criminalisation of migrants who steer the boat before or during shipwrecks make crossings more unsafe because migrants fear taking the helm of the boat; they might also move away from the motor when the boat is intercepted by the authorities so not to be identified, which leads to even more imbalance on board. In other cases, migrants have thrown their satellite phone overboard when the authorities were approaching, so not to be convicted as “smugglers”, thus interrupting contact with the rescue mission.

Over 30,000 people have died trying to reach Europe between 2000 and 2015. Increased counter-smuggling efforts seem to have led to even more deaths: in only six years, between 2014 and 2022, nearly 24,000 migrants have died in the Mediterranean.

3.  Counter-smuggling policies are used to create a hostile environment and deter solidarity with migrants

The EU Facilitation Directive requires Member States to impose “effective, proportionate and dissuasive” sanctions on any person who facilitates someone’s irregular entry or transit across a Member State, even if they did not obtain any financial gain. Article 1(2) of the Directive permits Member States not to criminalise actions “where the aim of the behaviour is to provide humanitarian assistance to the person concerned”. Only eight Member States (Belgium, Greece, Spain, Finland, Italy, Malta, Croatia and France) have introduced this exemption clause.

As a consequence, people helping migrants risk being accused of “facilitating their irregular entry, transit or stay” even if they did not receive any financial or material benefit. Even where the “humanitarian exemption” was introduced, people have still been criminalised for acting in solidarity with migrants.

Between 2015 and 2019, at least 171 human rights defenders were investigated or convicted on grounds related to the EU Facilitation Directive in 13 EU Member States, including volunteers and search and rescue NGOs. This trend continues unabated: between January 2021 and March 2022, at least 89 human rights defenders were criminalised in the EU. In 88% of the cases, they were charged with facilitation of entry, transit or stay or migrant smuggling.

Migrants who help other migrants are disproportionally hit by criminalisation policies. Any involvement in criminal proceedings, including when it does not lead to a conviction, can have very harmful consequences on migrants’ life, including their ability to receive asylum or another residence permit in the EU. Migrants also often face harsher treatment during investigations, including lengthy pre-trial detention.

Besides having a chilling effect on solidarity with migrants, the excessively broad definition of smuggling also makes it hard or even impossible for service providers to cater services like housing or transport to undocumented people. In fact, under these provisions, service providers such as taxi drivers, landlords, and Airbnb owners are forced to verify their clients’ documents, as they are at risk of being considered “smugglers” if they provide services to undocumented people.

For instance, in nearly two thirds of EU member states, landlords who rent to undocumented migrants risk a fine or imprisonment. Provisions criminalising renting to undocumented migrants exclude people, including families with children, from the regular housing market. This pushes them into precarious, over-crowded and unsuitable housing, often at exploitative rent prices, where they face eviction, abuse and theft of rent and deposits.