Migrant smuggling: EU member states reach agreement on criminal law

The Council agreed its position on an EU law on preventing and countering migrant smuggling. The objective of this proposal is to bring member states’ criminal law closer together on issues such as the definition and sanctioning of migrant smuggling. The position agreed will serve as the basis for upcoming negotiations with the European Parliament.

The fight against migrant smuggling is a priority of the EU, and it is a crucial element in addressing irregular migration.

If we want to be serious about protecting our borders, we need to step up the fight against migrant smuggling. Criminalising this offence in a uniform manner across the EU would play a key role in this area. By taking a firm stance against smugglers, we can protect people from being exploited by criminals.

Bence Tuzson, Hungarian Minister of Justice

Criminal offence of migrant smuggling

In accordance with the agreed text, member states must ensure that in their national law, intentionally assisting a third-country national to enter, transit across or stay within the territory of any of the European Union member states in exchange for financial or material benefit constitutes a criminal offence.

Penalties

As regards penalties, EU countries must take action so that the offence of migrant smuggling results in a maximum term of imprisonment of at least three years. The maximum penalty levels should extend to at least eight years when smugglers operate as part of a criminal organisation or when they use serious violence against migrants. If the offence causes the death of a migrant, the maximum prison term should be at least ten years. Member states may decide to impose longer maximum penalties.

The text also provides rules on penalties that apply to legal persons: either a percentage of the total worldwide turnover, or a fixed amount, up to €40 million.

Humanitarian clause

Member states retained the Commission’s initial proposal of inserting a so-called humanitarian clause in a recital to the proposal. The purpose of the humanitarian clause is to specify that certain assistance to irregular migrants, notably assistance to close family members or support to provide basic human needs, may not qualify as the criminal offence of migrant smuggling.

Because this clause will be maintained in the recitals, it will be up to the member states to decide how to address this issue in national legislation. The text also accentuates the fact that member states are free to adopt or maintain national legislation that provides for stricter measures. 

Next steps

Today’s Council position will form the basis for future negotiations with the European Parliament, which is still in the process of defining its stance on the draft law. The Council and the European Parliament will have to agree on a joint text.

Background

Approximately 380 000 irregular border crossings were detected at the external borders of the EU in 2023. Europol estimates that more than 90% of the irregular migrants who reach the EU use the services of smugglers.

Migrant smuggling is also a very profitable criminal activity. Based on UN figures, smuggling networks earn annual profits of $4.7 billion to $6 billion.

• Directive laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the EU (general approach), 29 November 2024