Smuggling of migrants is
“an activity undertaken for a financial or other material benefit by
procuring the irregular entry of a person into a state where the
person is not a national or a permanent resident”. Irregular entry
refers to crossing an international border with another state without
fulfilling the necessary requirements to enter the state legally.
United Nations Protocol against the smuggling of
migrants by land, sea and air, supplementing the United Nations Convention
against transnational organized crime, 2000, Article 3 (a) and (b).
The Directive 2002/90/EC
defining the facilitation of unauthorised entry, transit and residence requires
Member States to adopt appropriate sections 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”, and “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”. The
Directive leaves a margin of discretion for Member States to not to impose
sanctions for this this conduct, where it aims to provide humanitarian
assistance to the person concerned”.