The Criminal Justice (Smuggling in Persons) Act 2021 seeks to prevent and combat the smuggling of persons and to facilitate cooperation with other states in this regard. It gives effect to Council Directive 2002/90/EC on the facilitation of unauthorised entry, transit and residence and Council Framework Decision 2002/946/JHA on the strengthening the penal framework to prevent the facilitation of unauthorised entry, transit and residence. It also gives effect, in part, to the Protocol against the Smuggling of Migrants by Land, Sea and Air to the United Nations Convention against Transnational Organised Crime and it repeals certain provisions of the Illegal Immigrants (Trafficking) Act 2000.
Under the Act, section 6 makes it an offence for a person to assist in the unlawful entry into, transit across or presence in the State of another person, where that person’s entry/transit/presence in the State is in breach of a specified provision and the first-mentioned person knows or has reasonable cause to believe that such entry/transit/presence is in breach of a specified provision. This includes situations where such conduct is engaged in from outside the State. Section 7 creates offences for a person intentionally assisting unlawful entry into, transit across or presence in a designated state where that person knows or has reasonable cause for believing that such entry/transit or presence is in breach of immigration law in the designated state. A designated state is defined under section 2 to include a Member State, Iceland, Liechtenstein, Norway, Switzerland, the United Kingdom, and a state party to the Protocol against the Smuggling of Migrants by Land, Sea and Air. Under section 28, the Minister may also declare a state to be a designated state where the Minister is satisfied that the state has, by agreement between the state and the EU, agreed to implement and apply Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA, or an act or measure taken by the EU to amend or build on these acts.
Section 8 makes it an offence to produce, procure, provide, possess or control fraudulent travel or identity documents for the purpose of assisting entry into, transit across or presence in the State or a designated state. Section 9 provides two defences to any offence committed under section 6 or 7. First, in order to provide assistance to a person seeking international protection in the State or an equivalent status in another state in the course of one’s work on behalf of a bona fide organisation if the purpose of that organisation includes giving assistance without charge to persons seeking protection, or, second, for the purpose of providing humanitarian assistance.
Part 3 of the Act concerns enforcement measures against the smuggling of persons, including enforcement powers in respect of ships (section 14), the power to detain a vehicle (section 15) and the forfeiture of ships, aircraft or other vehicles (section 16).
