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Smugglers or refugees? The growing prosecution of refugees in Europe

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Written by Amanda Gray Meral

Hero image description: Ai Weiwei's Soleil Levant - migrants' lifejackets Image credit:Flickr/TeaMeister Image license:CC BY 2.0

Europe’s asylum agenda and its treatment of asylum-seekers has faced heavy criticism by human rights organisations and UN agencies. The increasing numbers of push-backs and serious human rights violations at borders, including violent pushbacks, have gone hand in hand with increasing efforts to push responsibility for international protection beyond the EU’s borders to states with extremely poor human rights records, most recently in North Africa.

The EU’s clampdown on migrant smuggling – and its human impacts – has received much less attention. European governments emphasise their commitment to tackling migrant smuggling as a central pillar of EU asylum and migration policy. But what if efforts to tackle smuggling are criminalising vulnerable migrants and those seeking international protection in Europe? How big is this problem and should we be paying more attention?

The sinking of the Adriana off the coast of Pylos

The most recent example is one of the most distressing. On 14 June a large, heavily overcrowded fishing vessel capsized off the Greek coast. The boat was carrying approximately 750 Pakistani, Syrian, Egyptian and Palestinian refugees and migrants. Only 104 people have been rescued.

While the Greek Coast Guard has denied any wrong-doing, serious concerns have been raised as to the handling of the disaster. The UN has called for a full investigation amid claims the authorities were aware of the distressed vessel for at least 13 hours prior to its sinking. Survivors have questioned the Coast Guard’s version of events, reporting that the ship’s crew had asked for help multiple times. Others have criticised the Greek authorities for using a rope to pull the vessel, causing it to capsize.

This tragedy comes at a time when the Greek government has already been roundly criticised for its violent pushback practices at both land and sea borders. For its part, the EU has faced criticism for complicity in shaping Greece’s approach to border control.

Prosecutions of migrants who travelled on the Adriana

While the sinking of the Adriana hit the headlines because of the large-scale – and entirely avoidable – loss of life, what is less well known is that nine Egyptians who were on the boat later appeared in court charged with smuggling, manslaughter and causing a shipwreck. All nine have pleaded not guilty, with one lawyer explaining that his client was not a smuggler but had ‘paid the smugglers to be taken to Europe‘. Survivors of the shipwreck have testified to being pressured to identify the nine Egyptian men.

Italy’s increasing prosecution of migrants as smugglers

This is not the first case of its kind. Across Europe, migrants are being charged with smuggling offences. In Italy, almost 1,400 people are currently being held in prison on smuggling charges. Over the last eight years, 2,559 people have been arrested for smuggling offences. Their ‘crime’: being the allocated driver of a rubber boat or even just holding a compass.

Interviews are often conducted aboard boats shortly after their arrival from sea, despite this being against Frontex guidelines. To secure a prosecution very little evidence is required, with a heavy reliance on witness statements. There is reason to believe that many of the migrants being arrested were forced to drive small boats under duress, even at gunpoint, or are independent operators often working on behalf of friends or relatives who are migrants themselves. When individuals are arrested, little regard is given to the violence and coercion they are likely to have experienced, and legal cases can drag on for years.

Children are not exempt. In Italy, a 15-year-old boy was jailed for a year for allegedly driving a boat; a 16-year-old was jailed for people smuggling and, despite his release from prison, remains in legal limbo six years after crossing from Libya.

Punishments can be severe, including lengthy prison sentences and hefty fines. Where people drown, manslaughter or unintentional bodily harm charges can be brought, carrying punishments as severe as life in prison. To keep sentences shorter, lawyers may ask for plea bargains. While these may lead to a shorter sentence, the effects of criminalisation on those seeking asylum extend well beyond the conclusion of the criminal proceedings. If found guilty, they can be prevented from accessing asylum procedures, constituting possible violations of the right to claim asylum.

A widespread practice

Such cases are not confined to Italy and Greece. In Malta, three teenagers face up to 30 years’ imprisonment if convicted. They are charged with hijacking a ship (and terrorism), after being told they would be returned to Libya, a country notorious for severe human rights violations towards migrants.

And this is not just happening in southern Europe. Earlier this year in the UK, a 19-year-old boy was charged with piloting a small boat and with the manslaughter of four migrants who died attempting to cross the English Channel. This followed the acquittal of Fouad Kakaei, who had appealed against his conviction for breaching immigration law and facilitating the breach by others after taking a turn steering a small boat. He had spent more than a year in prison. Since 2020 there have been 67 successful prosecutions in the UK related to piloting small boats.

Cracking down on smugglers or criminalising migrants?

It is well established that, without safe and legal migration pathways, demand for smuggling services will remain high. The EU’s neglect of this remains the fundamental issue. Without reforms to increase legal pathways, European politicians will continue to face significant challenges from widespread smuggling activities. However, while the EU’s stated policy is breaking the business model of smugglers and dismantling criminal networks, in practice states appear to be increasingly targeting individual migrants (including children), often simply for steering boats. Migrants are becoming scapegoats, contravening the UN protocol making clear that smuggled migrants should not be criminally prosecuted for the crime of smuggling.

Current laws require reform as to scope, and the entire judicial process needs much better oversight, to ensure migrants’ rights are protected. And while the EU’s Action Plan against Migrant Smuggling does have a small (though still unsatisfactory) focus on protecting those who provide humanitarian assistance from criminal prosecution, it does not include any safeguards to avoid the criminalisation of migrants themselves. Basic measures to prevent these criminal prosecutions are long overdue. The European Commission needs to re-evaluate its action plan with this glaring gap in mind.


With thanks to Lorenzo D’Agostino for his assistance in researching this piece.