James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to introduce this Bill to the Dáil following its passing in the Seanad. The purpose of this legislation is to strengthen Ireland's regime against the smuggling of persons and to implement several important international instruments in this area.

People smuggling is the facilitated, irregular movement of persons across borders for 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 and trafficking are inevitably closely linked. Those smuggled are particularly vulnerable to exploitation, often placed in mortal danger and left owing debts to organised criminal groups. The United Nations Office on Drugs and Crime, UNODC, estimates that 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 experienced the tragic consequences of people smuggling in the Wexford tragedy of December 2001, where eight people suffocated in a shipping container while attempting to enter the United Kingdom.

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 strengthen and modernise Ireland's regime and ensure we play our part in that response. It is important to emphasise, however, that the criminal sanctions in this Bill are only one part of a broader national effort to ensure we support those most at risk of exploitation. Over the past year, we have introduced significant measures to combat trafficking, create a more victim-centred approach to identifying and supporting victims, and raise awareness and provide training. An important element of this work was the approval by the Government earlier this year of a proposal to revise our national referral mechanism, NRM. The reform of the NRM is intended make it easier for victims to come forward, to be officially recognised as victims of human trafficking and to receive the appropriate supports. Work to advance this important initiative is under way.

In addition, other ongoing initiatives include the drafting a new national action plan on human trafficking; the development of training, through NGOs, for front-line staff in industries such as the hospitality, airline and shipping sectors who may come into contact with trafficked persons; the improvement of supports for victims through the implementation of the Supporting a Victim's Journey programme; the running of a new awareness-raising campaign, which launched in October, in partnership with the International Organisation for Migration, IOM, on human trafficking in Ireland; and the promotion of the supports that are available, which will build on the success of previous campaigns. There will also be an increase in funding to support victims of crime generally, as well as increased funding specifically dedicated to supporting victims of trafficking.

Turning to the Bill, Deputies will be aware that people smuggling is already an offence in Ireland under section 2 of the Illegal Immigrants (Trafficking) Act 2000. The introduction of this legislation is motivated by two goals: to extend those existing provisions in line with the relevant EU and UN instruments to ensure Ireland meets its shared international obligations, and to address the practical limitations of the 2000 Act which have hampered successful prosecutions.

The Bill reflects the provisions of three international instruments, namely, the EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence, the EU Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, which was adopted by the United Nations General Assembly in 2000.

The EU framework is composed of two instruments that were adopted together and which 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, extraterritorial jurisdiction and inchoate offences. These instruments were introduced in 2002, and at the time Ireland and the UK chose not to participate. In the context of closer links with the Schengen area, however, and particularly for the purpose of accessing the second generation Schengen Information System, we have committed to implementing these instruments by the end of this year. The UN Protocol, adopted by the General Assembly in 2000, was the first global instrument to contain an agreed definition regarding the smuggling of migrants. Countries that ratify this treaty must ensure migrant smuggling is criminalised in accordance with the protocol's legal requirements.

Taken together, the EU and UN instruments require criminalisation of the facilitating of smuggling into any member state or state party to the protocol. They also provide for the criminalisation not only of facilitating the act of unlawful entry into a state but also that of facilitating unlawful presence. The instruments also require the exercise of extraterritorial 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 it must be proved that the smuggling was done for gain. This requirement reflects the focus placed, and rightly so, on prosecuting for-profit smuggling. Nonetheless, the need 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. While the offence under the 2000 Act has been successfully prosecuted, in practice it is often simply impossible to meet this burden, even under circumstances where it is clear no humanitarian purpose of any sort exists. The main reasons are that the payment will usually take place outside the State and the smuggled persons may not co-operate with authorities for fear of the consequences for them and their families at home. These are well-known issues in respect of such prosecutions. 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.

In addressing issues of proving gain, it should be noted there are differences in approach between the UN protocol on one hand, which envisages an element of material gain in all cases, and the EU instruments on the other, which do not. However, these instruments set minimum standards for what must be considered criminal activity rather than prescriptively determining the elements of the offence. Within the requirements of these instruments, and recognising the vital imperative of actually being able to prosecute these serious offences, we have sought to strike an appropriate balance, one which reflects our intention to focus on for-profit smuggling while also ensuring those who are genuinely acting for humanitarian reasons do not face criminal penalties. To achieve this we have adopted a reverse burden approach which does not require proof of gain as part of the offence but instead provides a broadly applicable humanitarian assistance defence.

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 such 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 those providing goods and services in the ordinary course of their business, for example, a landlord, are not captured under the definition of assisting presence in the State. Arising from our discussions in the Seanad, I am giving further consideration to whether an amendment is appropriate to clarify that assisting a family member does not constitute a smuggling offence.

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 in 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 extraterritorial 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.

Section 9 provides the humanitarian assistance defence. It provides that it is a defence to prove on the balance of probabilities that the conduct was engaged in for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit. Provision is also made for those working for bona fide organisations.

Section 10 provides for penalties. Notably, it provides that 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 deals with enforcement measures, notably including powers in respect of ships at sea, and provides 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 that made submissions to the Oireachtas scrutiny of the general scheme of this Bill. These included Ruhama, the Migrant Rights Council of Ireland, the Bar Council and the Irish Human Rights and Equality Commission. The submissions made on the general scheme of the Bill have been considered in depth in the course of drafting the Bill and, where appropriate, are reflected in the 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.

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