Bill ‘entirely silent’ on rights of smuggled people says IHREC

Ireland is ‘both a destination and source country for human trafficking’, warns commission

A proposed Government Bill geared at combatting the trafficking of human beings is "entirely silent on the rights and protections" of people smuggled into Ireland, the Irish Human Rights and Equality Commission (IHREC) has said.

The commission, which was designated Ireland's independent national rapporteur on human trafficking in October 2020, has outlined the shortfalls of the draft General Scheme of the Criminal Justice (Smuggling of Persons) Bill in its submission to the Oireachtas Committee on Justice published today.

The Bill, which aims to implement two EU and one UN legal instruments in the area of people smuggling, is currently with the State’s Office of the Parliamentary Counsel for drafting.

IHREC says the bill is “silent” on the need for an identification procedure for smuggled and trafficked persons and warns the lack of such a procedure risks leaving people in more danger of abuse and exploitation.

IHREC chief commissioner Sinéad Gibney underlined that Ireland was “both a destination and source country for human trafficking, including people trafficked for sexual exploitation, domestic work, fishing, agriculture, the hospitality sector, waste management and car washing services among others”.

IHREC’s recommendations make it clear that a “more robust, consistent and thoroughly-documented response system to smuggling of persons is required for us to be able to take on this scourge”.

“This proposed law needs to take a vital step in putting in place a system which is victim-centred, gender-sensitive and takes into account the experiences, support needs, and above all, the devastating impact of any related exploitation and abuse on the lives of those affected,” said Ms Gibney.

Although sometimes used interchangeably, human smuggling and human trafficking mean different things. Human smugglings involves a person being helped to illegally cross an international border for payment. Growing numbers of smuggling networks, particularly across North Africa, the Middle East and Central America, are making a profitable business out of migrants' needs in this area.

Human trafficking involves the recruitment, movement or harbouring of people for the purpose of exploitation including sexual exploitation, forced labour, slavery or organ removal.

Studies have found human smuggling and human trafficking are often interlinked as the crimes are often perpetrated by the same criminal network along the same route for profit.

In its submission, IHREC advises that the offence of people smuggling as currently drafted in the Bill must be revised “to ensure legal certainty” and that aggravating factors for sentencing purposes should include a wider range of categories, including offences that involve children, women and people with disabilities.

It recommends the bill include a provision that smuggled persons are not liable for an offence and says the identification process should be placed on statutory footing with clarity around a smuggled person’s rights and entitlements regardless of their nationality or immigration status.

More training should be provided for front-line officials to help with both prosecution and in identifying and providing humane treatment to smuggled people, says IHREC.

The State should accept and facilitate the voluntary returns of smuggled people while also collecting and publishing disaggregated data on trafficking and smuggling, it adds.

IHREC also recommends further examination of the range of penalties that can be imposed on a person, or body corporate, to ensure they are “effective, proportionate and dissuasive”.

Last year, Ireland was downgraded by the US department of state to its tier-two watchlist in the annual Trafficking in Persons Report. The State was also downgraded in the US report in 2019.

This lack of an effective criminal justice response to trafficking can lead to a “sense of impunity” for smugglers and criminal networks and can result in these groups viewing smuggling as a “low risk, high reward offence”, notes IHREC in its submission.