Criminal Justice (Smuggling of Persons) Bill 2021
29 September 2021
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I welcome the opportunity to present this Bill to the Seanad. Its purpose is to strengthen Ireland’s regime against the smuggling of persons, and to implement several important international instruments.
People smuggling is the facilitated, irregular movement of people across borders for a financial or other benefit. It is distinct from human trafficking, in that smuggling occurs with the consent of the person, while trafficking involves the recruitment, transportation and exploitation of a victim. However, smuggling is inevitably closely linked to trafficking and exploitation, often leaving those smuggled owing huge debts to the smugglers, and, of course, often placing those being smuggled in mortal danger.
The UN Office for Drugs and Crime estimates 2.5 million people are smuggled every year. Catastrophic loss of life is all too common, and everyone in the House will recall the horrific deaths of 39 Vietnamese men, women, and children in Essex two years ago. Ireland has experienced the tragic consequences of people smuggling in the Wexford tragedy of December 2001, where eight people suffocated in a container while attempting clandestine entry into the United Kingdom. People smuggling is a highly profitable criminal activity and one that is difficult to prosecute given its inherently complex and cross-border nature.
A co-ordinated international response, including effective and dissuasive criminal sanctions, is vital, and this Bill will ensure Ireland plays its part in that response.
However, criminal sanctions are one part of a broader national response, particularly in respect of how we support those most at risk of exploitation. I draw the House’s attention to the approval by Government earlier this year to revise the National Referral Mechanism to make it easier for victims of trafficking to come forward, be identified and access advice, accommodation and support.
Other parts of the ongoing work on trafficking include:
• The drafting of a new National Action Plan on Human Trafficking;
• The development of training, through NGOs, targeting front line staff in industries such as hospitality, airline and shipping who may come into contact with trafficked persons;
• The work being undertaken to provide dedicated accommodation for female victims of sexual exploitation; and
• Increased funding dedicated specifically to supporting victims of trafficking.
As Senators will be aware, people smuggling is already an offence in Ireland under section 2 of the Illegal Immigrants (Trafficking) Act 2000. The legislation before the House is motivated by two goals – to extend those provisions in line with the relevant EU and UN instruments, ensuring that Ireland meets its shared international obligations – and to address the practical limitations of that Act which have hampered successful prosecutions.
The Bill reflects the provisions of three international instruments:
- EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence;
- EU Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; and finally
- The UN Protocol (of 2000) against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime.
The EU framework is composed of two instruments that were adopted together and are commonly referred to as the “Facilitators Package”. Together they set a baseline against people smuggling across the EU, providing for the essential elements of offences and their geographic scope, minimum maximum penalties, corporate liability, extra-territorial jurisdiction and inchoate offences.
These instruments were introduced in 2002, and at the time Ireland and the UK chose not to participate in them. However, we have committed, in the context of closer links with the Schengen Area, and in particular, for the purpose of accessing the second generation Schengen Information System, to implement them by the end of this year.
The UN Protocol was adopted by General Assembly in 2000. It was the first global instrument to contain an agreed definition of smuggling of migrants. Countries that ratify this treaty must ensure that migrant smuggling is criminalized in accordance with the Protocol’s legal requirements.
Taken together, the EU and UN instruments require criminalisation of facilitating smuggling into any Member State or State Party to the Protocol. They also provide for the criminalisation of facilitating not only the act of unlawful entry into a state, but also that of facilitating unlawful presence. The instruments also require the exercise of extra-territorial jurisdiction on a broader scale than is currently provided for.
As I noted, significant practical issues have arisen in respect of the offence under section 2 of the 2000 Act. The most important of these is that it is an element of the existing offence that must be proved that the smuggling was done for gain.
Investigations conducted to date have been largely intelligence led, and prior preliminary investigative actions will usually have been conducted in advance of an arrest.
The requirement to prove the “for gain” element of the offence places a difficult burden on investigators, particularly when an offence is discovered at the point of entry rather than through prior intelligence gathering. This is a well-known issue in respect of these offences. The European Commission, for example, in its analysis, stated:
“In this context, it is useful to recall that payments to migrant smugglers tend to occur in third countries of origin and transit. These are often done in cash [or] with the use of intermediary brokers operating largely without a paper trail and often outside the law”.
While the offence under the 2000 Act has been successfully prosecuted, in practice it is often simply impossible to meet this burden of proving gain, even under circumstances where it is clear that no humanitarian purpose of any sort exists.
Accordingly, a reversed burden approach has been taken, which provides that it is a defence to prove on the balance of probabilities that the conduct was engaged in for the purpose of humanitarian assistance rather than for material benefit. It also expressly includes in the scope of the defence those working on behalf of bona fide organisations giving assistance without charge to those seeking asylum.
A central provision of the international response to people smuggling is to avoid criminalisation of smuggled persons, and the Bill makes express provision to ensure that criminalisation does not occur.
A person does not commit an offence by virtue of being smuggled. The primary offence under this section must be in respect of another person, while section 9(2) provides that a person does not commit an offence by aiding, abetting, counselling or procuring his or her own smuggling.
To avoid any doubt or 'chilling effect', the Bill also makes express provision in Section 5(2) to ensure that those providing goods and services in the ordinary course of business (for example, landlords) are not captured under the definition of assisting presence in the State.
I will briefly mention the specific provisions of the Bill.
Part 1 contains preliminary provisions including the short title, commencement, expenses, repeals, and definitions.
Part 2 forms the heart of this Bill and creates the new criminal offences.
Section 6 provides for the offence of assisting unlawful entry into, transit across or presence in the State.
The essential ingredients of the offence are that a person intentionally assists entry into, transit across or presence in, the State of another person, where:
- the entry, transit or presence of the other person is in breach of a specified provision of Irish immigration law; and
- the perpetrator knows or has reasonable cause to believe that the entry, transit or presence of the other person is in breach of a specified provision.
A person convicted of an offence under this section is liable, on conviction on indictment to imprisonment for up to ten years.
Section 7 provides for the offence of assisting unlawful entry into, transit across or presence into a designated state. The elements and penalties applicable for this offence are similar to those of an offence in respect of the State under section 6(1), except that the section 7 offences relate to entry into, transit across or presence in, the designated state rather than Ireland, and the relevant immigration law is that of the designated state rather than of Ireland. More limited extra-territorial provision also applies in these cases.
Section 8 provides for additional offences in respect of the fraudulent documents used or intended to be used for people smuggling. These provisions complement those of Part 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
As I have already mentioned, Section 9 provides a humanitarian assistance defence.
Section 10 provides for penalties. Notably, it provides the Court shall treat as an aggravating factor any behaviour by the offender:
• that endangers the life or safety of the person being smuggled; or
• that resulted in the exploitation or inhuman or degrading treatment of the person to whom the offence related.
Part 3 of the Bill deals with enforcement measures, notably including powers in respect of ships at sea, and providing for the confiscation and forfeiture of vehicles and vessels used in the commission of smuggling offences.
Part 4 deals with miscellaneous matters, including provisions for liability for corporate bodies, while Part 5 addresses incidental amendments arising to other enactments.
I am indebted to several organisations who have made submissions in respect of Oireachtas scrutiny of the General Scheme of this Bill – these have included Ruhama, the Migrant Rights Council of Ireland, the Bar Council and the Irish Human Rights and Equality Commission. These submissions, made on the General Scheme, have been considered in depth in the course of the drafting Bill, and where appropriate, reflected in Bill before the House. I know there are many details that will merit debate, and I look forward to working constructively with members as the Bill progresses.