Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a Comparative Perspective

• Date: 01 January 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00309.x
• Author: Matilde Ventrella McCreight
• Published date: 01 January 2006

Smuggling of Migrants, Traff‌icking in

Human Beings and Irregular Migration on

a Comparative Perspective

Matilde Ventrella McCreight*

Abstract: The European Union aims to develop a European criminal justice to combat

cross-border crimes of smuggling of migrants and traff‌icking in human beings.This article

focuses its attention on European Community/European Union (EC/EU) law and on two

Member States, Italy and the United Kingdom (UK). The f‌indings show that there are

diversities and ambiguities in the def‌inition of irregular migration. On the contrary, the

EU and Member States should concentrate their efforts on the two crimes of smuggling

of migrants and traff‌icking in human beings rather than criminalising irregular migration.

I Introduction

This article def‌ines smuggling of migrants, traff‌icking in human beings and irregular

migration by comparing international criminal law, EU law and the laws of two

Member States, Italy and the UK.

First, the purpose of this article is to demonstrate that smuggling of migrants and

traff‌icking in human beings are transnational crimes and that traff‌icking in human

beings can also be considered an international crime. The difference between transna-

tional crimes and international crimes is very important because the approach in com-

bating them in the EU should be different. Indeed, international crimes should be dealt

with international cooperation, whilst transnational crimes should be dealt with creat-

ing supranational structures specif‌ically to tackle them. Transnational crimes start out

being domestic in nature and when they become transnational because they are com-

mitted in more than one nation, European supranational institutions such as Eurojust

should deal with them in order to avoid conf‌licts of jurisdiction. On the other hand,

when international crimes are committed, conf‌licts of jurisdiction might be resolved by

the universal jurisdiction. International crimes are so serious and committed on so large

a scale that no matter where they have been committed, as they can be punished in any

state. Transnational crimes, although they are very serious, are not committed on such

a large scale, which is why in the EU they should be approached by supranational insti-

tutions rather than international cooperation.

European Law Journal, Vol.12, No. 1, January 2006, pp. 106–129.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ,UK

and 350 Main Street, Malden, MA 02148, USA

*School of Law, University of Birmingham. I am very grateful to Julian Lonbay for his useful

suggestions.

Second, this article aims to demonstrate that only smuggling of migrants and traf-

f‌icking in human beings should be considered crimes. Irregular migration, on the other

hand, should be classif‌ied as a situation not to be punished, because it is caused by

poverty. Therefore, the phenomenon of irregular migration should be distinguished

from smuggling of migrants.

Bade distinguishes four forms of illegal immigration.1The f‌irst form of illegal immi-

gration starts with a regular entry of a person as tourist, seasonal worker or asylum

seeker. The regular entry becomes illegal when the person remains for longer than the

time allowed. This phenomenon is quite widespread in Euro-Mediterranean countries

such as France, where these people are known as sans-papiers (over-stayers, lit. ‘without

papers’). According to Bade, a second form of illegal immigration includes entry or

crossing borders with false documents and continuing to stay in a country without

being registered and by obtaining undeclared work. There is then a third form, Bade

points out, consisting of international smuggling of human beings carried out by inter-

national organisations

which serve a feeder and bridging function for would-be immigrants lacking any other option.2

Economic irregular migrants, people escaping from war or poverty, people who want

to be reunited to their families who already live legally or irregularly in other countries

might be potential victims of smugglers of migrants. The reason is because they are

vulnerable people and thus, an easy target for criminals.

Lastly, Bade distinguishes a fourth form of illegal immigration, called criminal

migration for the purpose of avoiding criminal prosecution. The author of this article

thinks that only the last two forms of immigration could be def‌ined as criminal activ-

ities punishable by imprisonment. The other forms of ‘unwanted’ immigration can be

def‌ined as irregular migration. Indeed, this latter phenomenon could lead migrants to

commit certain forms of irregularity such as the presentation of forged documents to

the authority of the country where these persons seek entry because of a state of neces-

sity such as poverty or war. This is why illegal behaviour such as the use of false doc-

uments which, in other circumstances could be considered a crime, should be regarded

as an administrative infringement in the case of irregular migration. Furthermore,

administrative sanctions should not be applied against irregular migrants as they are

in the state of needing to emigrate and to commit administrative irregularities. Thus

they deserve protection and support in order to improve their economic conditions.

Indeed, irregular migrants represent a threat to themselves, not to public order and

security. The European Commission pointed out that

the presence of large numbers of illegal residents has a negative inf‌luence-as a source of cheap labour,

liable to exploitation and in the long-term preventing necessary structural reform and thereby con-

tributing to the ineff‌iciency of the labour market.3

Consequently,return policies including expulsion of irregular migrants and border con-

trols should be rejected by Member States. A greater level of solidarity should be

adopted and Member States should concentrate their efforts on developing European

transnational criminal law and justice against smugglers of migrants and traff‌ickers of

human beings. Furthermore, Member States should focus on economic agreements

January 2006 Smuggling of Migrants and Human Traff‌icking

© 2006 The Author 107

Journal compilation © Blackwell Publishing Ltd. 2006

1See K. J. Bade, Legal and Illegal Immigration into Europe: Experiences and Challenges (Ortelius-lezing,

2003) 15.

2Ibid., at 16.

3Op. cit. note 1 supra.