As highlighted in Module 5, migrant smuggling is not equivalent to irregular migration. Smuggling refers to situations whereby someone procures the illegal entry or stay of another person in a country of which he or she is neither a national nor a permanent resident, for the purpose of obtaining, directly or indirectly, a financial or other material benefit. Irregular migration can be defined as a migratory movement that takes place outside the regulatory frameworks of the origin, transit and destination countries.
The Smuggling of Migrants Protocol is a criminal justice and not a migration management instrument. Migrant smuggling does not include the conduct of those that procure their own illegal entry, transit or stay in another country. As such, it does not criminalize migration, nor does it criminalize the actions of those facilitating the illegal entry, transit or stay of another person in a country for purposes other than obtaining a financial or other material benefit.
It is important to note that individuals escaping persecution, violence and conflict often need to resort to the services of smugglers. Their asylum claims should not be jeopardized in any manner as a result of being smuggled (article 19 of the Protocol against the Smuggling of Migrants and article 31 of the United Nations Convention on the Status of Refugees).
As noted previously, in some countries the financial or other material benefit element does not appear as a constituent element of the offence. This is beyond the scope of the Protocol and reflects an understanding of migrant smuggling as a specific crime type that is different from the Protocol.
Mere illegal entry may be a crime in some countries but is not recognized as a form of organized crime and is hence beyond the scope of the Convention and its Protocols. Procuring the illegal entry or illegal residence of migrants by an organized criminal group (a term that includes an element of financial or material benefit), on the other hand, has been recognized as a serious form of transnational organized crime and is therefore the primary focus of the Protocol.
Legislative guide for the implementation of the Protocol against the Smuggling of Migrants by Land, Sea and Air, part three, chap. II, para. 28, p. 340.