Human Trafficking
People Smuggling
People smuggling is the facilitated, irregular movement of people across borders for a financial or other benefit. People smuggling 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.
The purpose of the Criminal Justice (Smuggling of Persons) Act 2021  is to strengthen the criminal justice aspects of the State’s regime in respect of the smuggling of persons, reflecting the provisions of three international instruments against people smuggling:
- EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence;
- EU Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; and
- UN Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (2000).
The legislation provides for the repeal and replacement of the provisions in respect of people smuggling contained in the Illegal Immigrants (Trafficking) Act 2000. Notably, it includes:
- the broadening of the scope of conduct encompassed by people smuggling offences to include facilitating transit or presence, as well as entry
- the replacement of the ‘otherwise than for gain’ exception to the offence with a ‘humanitarian assistance’ defence, for which the burden is on the accused
- the extension of the geographical scope of the offences to cover smuggling into EU Member States and parties to the UN Protocol
- the extension of extra-territorial jurisdiction
- incidental matters including in respect of enforcement powers
The transposition of the EU instruments is required for Ireland’s compliance with its obligations under the Schengen acquis. It is required for Ireland’s continuing access to the Schengen Information System (SIS II), which allows national border control, customs and police authorities responsible for checks at the external Schengen border as well as within the Schengen Area to circulate alerts regarding wanted or missing persons and objects such as stolen vehicles and documents.
Transposition of the EU Instruments
A ‘designated state’ includes Member States of the EU, the UK, states that are participating or cooperating parties to the Schengen Agreement and states that are party to the UN Protocol. The definition of designated state is used to determine the geographical scope of the offences. A ‘specified provision’  means provisions of the immigration law of the State it is an offence to facilitate the breach of.
A person does not ‘assist the presence’ of another person in a State or designated state by providing goods or services to that other person in the ordinary course of his or her business, trade or profession.
Assisting unlawful entry into State
It is an offence to assist unlawful entry into, transit across or presence in the State. A person commits such an offence where he or she intentionally assists (which includes procures, organises or facilitates) 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; 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
‘A Specified provision’ refers to the relevant provisions of Irish law governing entry into and presence in the State.
Sanctions
A person convicted of an offence under the provision is liable:
- on summary conviction, to a class A fine and/or imprisonment for up to one year;
- on conviction on indictment, to a fine and/or imprisonment for up to ten years.
There is a defence for a person charged with an offence under this section to prove on the balance of probabilities that the conduct was engaged in:
- in order to provide, in the course of his or her work on behalf of a bona fide organisation, assistance to a person seeking international protection in the State or equivalent status in another state if the purposes of that organisation include giving assistance without charge to persons seeking such protection or status; or
- for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.
The definitional provision above applies to this offence, to clarify for the avoidance of doubt that a person does not ‘assist the presence’ of another person in the State or a designated state by providing goods or services to that other person in the ordinary course of his or her business, trade or profession.
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. A person does not commit an offence by aiding, abetting, counselling or procuring his or her own smuggling.
Offences Abroad
There is extra-territorial jurisdiction in respect of the offences. A person commits an offence by engaging in conduct outside the State which would constitute an offence above had it occurred inside the State. Aiding, abetting, counselling, procuring or attempting an offence above outside the State constitutes an offence.
There is an offence of assisting unlawful entry into, transit across or presence into a designated state.It applies  in respect of designated states. The elements and penalties applicable for this offence are similar to those of an offence in respect of the State except that the ffences relate to entry into, transit across or presence in, the designated state rather than the State, and the relevant immigration law is that of the designated state rather than of the State.
There is extra-territorial jurisdiction where the conduct—
- occurs on board an Irish ship;
- occurs on an aircraft registered in the State;
- is engaged in by a person who is an Irish citizen or a person ordinarily resident in the State;
- is engaged in for the benefit of a company or any other body established under the law of the State;
- occurs on board a ship registered in a Protocol state (subject to the proviso noted below);
- occurs on board a ship not registered in any country or territory;
- constitutes an offence for which the person would be liable to extradition or surrender but such extradition or surrender has been
While extra-territorial jurisdiction extends to Protocol ships under this section, proceedings in relation to conduct occurring on a Protocol ship outside Irish waters are limited by section 17(3) and may apply only where the enforcement powers of Irish authorities have been exercised.
Fraudulent Travel or Identity Documents
There are  offences in respect of fraudulent travel or identity documents for people smuggling.
A person is guilty of an offence where he or she produces, procures, provides, possesses or controls such a document with the intention that it will be used for people smuggling. There is  extra-territorial jurisdiction in respect of the offences .
Defences
There are defences to the above  offences  for a person charged with an offence under this section to prove on the balance of probabilities that the conduct was engaged in:
- in order to provide, in the course of his or her work on behalf of a bona fide organisation, assistance to a person seeking international protection in the State or equivalent status in another state if the purposes of that organisation include giving assistance without charge to persons seeking such protection or status, or
- for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.
Enforcement
The below powers apply where an enforcement officer has reasonable grounds to suspect that an offence under section 6 or 7 is being committed. The enforcement powers may be used in respect of any ship within the territorial seas, or in respect of ships outside the territorial seas where the authorisation conditions are met.
The Minister for Foreign Affairs may give authorisation for a Protocol State to exercise enforcement powers corresponding to those outlined in section 14 in respect of an Irish ship that is suspected of participating in the smuggling of persons.
There are powers that may be exercised in respect of ships where reasonable grounds exist to suspect that a people smuggling offence is being committed. Such powers are exercised by enforcement officers ( including members of the Garda SÃochána, customs officers, relevant members of the Naval Service and Defence Forces, and immigration officers).
There are  powers,
- to stop, board, search and detain the ship, and to search a person on the ship or to require a person to give information concerning himself or herself, the ship or other persons or things on the ship. Where an enforcement officer suspects a people smuggling offence has been committed, he or she may arrest persons suspected of an offence, and seize anything on the ship which appears to be evidence.
-  to members of the Garda SÃochána to detain vehicles where a person has been arrested for an offence under section 6 or 7 and it is suspected that the vehicle has been used for the purpose of committing the offence.
- to the court, where a person is convicted on indictment of an offence under section 6 or 7, to order the forfeiture of any ship or other vehicle used in the commission of the offence.
Evidence
There are provisions for  evidence in respect of certain matters to be given by certificate. These matters include evidence in relation to whether:
- a person is an Irish citizen;
- the entry, transit or presence of a person in a designated state is in breach of the immigration law of that state;
- authorisation was given by the Minister for Foreign Affairs for theexercise of enforcement powers;
- a state is a designated state.
Human Trafficking Act
The Criminal (Human Trafficking) (Amendment) Act, extends the scope of exploitative activities under the Criminal Law (Human Trafficking) Act. This is required to comply with a 2011 Directive of the European communities. It provides for the commission of a human trafficking offence by a public official which is treated as an aggravating circumstance for sentencing purposes.
The definition of forced labour is based on the definition in the International Labour Organisation Conventions.
Where the offence of trafficking a child for exploitation other than sexual exploitation or trafficking an adult is committed by a public official during the performance of his duties, this is to be an aggravating factor for the purpose of sentencing.
National Referral Mechanism
Criminal Law (Sexual Offences and Human Trafficking) Act 2024 provides for the designation of certain registered charities as a Trusted Partner for the purposes of receiving and referring applications to recognise a person as a victim of human trafficking, by the Minister.
The 2024 Acr  provides that the Minister shall establish an Operational Committee which consists of an officer of the Minister as Chairperson, a Secretariat and at least one representative from each of the Competent Authorities and Trusted Partners. It provides for the functions of the Operational Committee, its  meetings and procedures.
It provides the criteria for identification as a victim of human trafficking. A person must have been trafficked by specific means including threat or use of force, for the purposes of exploitation.
Identification as Victim
An application for identification as a victim of human trafficking, may be made via a Competent Authority or a Trusted Partner. The application must include evidence of the trafficking. It provides that the parent of a child, the Child and Family Agency or another suitable person may make an application on a child’s behalf, or a person duly appointed can make an application on behalf of an applicant with a mental or physical incapacity.
The Act provides for referral or refusal by a Competent Authority or a Trusted Partner of an application, and referral of an application to the Operational Committee if there are reasonable grounds that the application is credible, in accordance with the operational guidelines and indicators. It provides for the reconsideration, granting or refusal of an application by the Operational Committee and on what grounds, in accordance with the operational guidelines and indicators.
Sharing of relevant information is permitted between Competent Authorities, Trusted Partners, the Operational Committee and Appeals Officers.
Designation
The 2024 Act provides for the basis for entry to the National Referral Mechanism. It provides that a person will exit the National Referral Mechanism if their appeal has been refused.
There are services that a person identified as a victim of trafficking or a presumed victim of trafficking may be entitled to (such as social welfare, assistance with accommodation, civil legal aid, access to education and training, assistance with voluntary return to their country of origin).
A person may appeal a decision of the Operational Committee.  The  Minister may appoint a panel of suitable persons to be Appeals Officers for the purpose of reviewing applications refused by the Operational Committee and that their terms and conditions will be determined by the Minister.
There is a prohibition on deportation in certain circumstances of a person who is a presumed victim of human trafficking or an identified victim of human trafficking. There is provision for e protection to certain persons from prosecution for certain offences, including for their role in their own trafficking.