Feb 18, 2020

Written By David Carnes

Undocumented Deaths: Who’s Accountable?

Feb 18, 2020

Written By David Carnes

The deaths of 39 Vietnamese migrants in the back of a lorry in Essex highlights the tragic human dimension of global migrant smuggling.

A significant portion of the world’s 30 million or so illegal migrants have utilised the services of migrant smugglers at some point along their journey. Their journeys are perilous and, all too often, fatal. Unfortunately, law enforcement is frequently ineffective against the smugglers responsible for these deeds.

The Essex tragedy

The enormity of the human tragedy of migrant smuggling was laid bare for the world to see in October 2019, with the gruesome discovery of the bodies of 39 Vietnames migrants inside an abandoned lorry in Essex. The driver, Maurice Robinson, was charged with 39 counts of manslaughter, conspiracy and money laundering. Four other people were arrested in Ireland in connection with the crime, and all five are suspected of links with a migrant smuggling gang.

The truck’s GPS records prove that it stopped in Calais, Dunkirk and Zeebrugge, Belgium before being ferried to Purfleet in Essex, where Mr. Robinson collected the truck. The route of these migrants’ journey from Vietnam to Europe remains unknown.

Similar incidents involving lorries

The Essex tragedy is not the first of its kind and, unfortunately, it is unlikely to be the last. The facts of the case are eerily similar to an even more horrific incident that occurred in 2000, when 58 Chinese migrants were found dead inside a lorry in Dover. Their presence in the UK turned out to be the work of a network of migrant smugglers from Britain, the Netherlands, Turkey and China.

Nor is the carnage limited to the UK. In August 2015, for example, the corpses of 71 Middle Eastern migrants was discovered in an abandoned lorry in Burgenland, Austria. The journey from Africa to Europe is even more perilous—in fact, it is estimated that around 2,000 migrants drown in the Mediterranean every year.

Tabulating the body count

Official data on migrant smuggling deaths remains frustratingly incomplete and disorganised. In response, the Dutch NGO United for Intercultural Action (UNITED) has gathered newspaper articles, NGO records and coastguard reports to count the deaths of Europe-bound migrants since the early 1990s.

The results are beyond disturbing—deaths occur not only at sea and in the backs of lorries, but also in immigrant detention facilities and asylum units where crime and abuse are rampant. Hundreds of migrants have taken their own lives in response to unbearably harsh conditions, and hundreds more have been murdered.

As of May 2018, the total body count stood at 34,361, with thousands more being added each year. The most disturbing aspect of the report is that it is more than likely to represent a gross underestimation of the true scale of the tragedy, given the difficulty of documenting the deaths of people whose presence is supposed to be a secret in the first place and whose witnesses have every reason to avoid authorities.

Migrant smuggling vs. human trafficking

Migrant smuggling and human trafficking are different in important ways, although the two categories often overlap. An example of human trafficking would be the recruitment of child soldiers or the coercion of women into prostitution. Human trafficking can intersect with migrant smuggling when, for example, women are transported overseas with promises of a better life and then forced into prostitution once they arrive.

The three main elements that separate migrant smuggling from human trafficking are:

Consent: The “victims” of migrant smuggling consent to be taken abroad, whilst victims of human trafficking are coerced or decieved into compliance with the trafficker’s purposes.

Exploitation: In a migrant smuggling operation, the transaction usually ends once the migrant arrives safely at his or her destination, while in human trafficking arrival is only the beginning of the explitation. In some cases, however, migrant smugglers do help migrants remain in their destination country after they arrive.

Income: The migrant smuggler’s income is derived from payment by the migrant or his family, while the human trfficker’s income is derived from the exploitation of the victim.

The profit motive

Migrant smuggling is a lucrative business. The image of a penniless migrant hitching a ride abroad with a smuggler for a pittance is largely inaccurate—prices range from $4000 per person for passage from Mexico to the US to as much as $75,000 for an ocean voyage from China to Europe or the US. This amount is often paid by migrant’s families in the hope that the migrant will be able to send money back home once established abroad.

Migrants often handle much of their journey on their own, turning to smugglers only for certain tasks. As a consequence, migrant smugglers offer other services as well, including:

- Counterfeit passport: $10,000–$25,000

- Passport photo alteration: $3,000–$5,000

- Bribery at border checkpoints: $8,000

- Escort through problematic transit points: $4,000–$5,000

- Bribery of boat captains and port inspectors: $1,000–$5,000

- Introduction to a “spouse” for a sham marriage: $5,000–$30,000

- Law enforcement challenges

Safe passage abroad under the radar of law enforcement can be a complex operation that involves many legs to the journey, passage through various checkpoints, and the falsification of various legal documents. The complexity varies based on many factors, the most significant of which are distance traveled and the number of immigration checkpoints that separate the migrant from his destination. Skills required vary from document forgery to lorry driving.

The “underground railroad”

As a consequence of the varying complexity and broad spectrum of skills required from migrant smugglers, the industry as a whole can be characterised as non-hierarchical, specialised and decentralised. Market operators range from families to international syndicates, and a migrant may use the services of various smugglers during his journey.

The smugglers, meanwhile, might work on a part-time or freelance basis while holding down “normal” jobs that lower their profile. Even the cooperative arrangements among the smugglers are often temporary or one-off. Networks may form, operate and dissipate too rapidly for law enforcement to keep up, only to be followed by the formation of yet another ad hoc smuggler network a short time later.

To make use of analogy, enforcement is not so much a matter of breaking up Microsoft and Apple, but of penetrating a diffuse network of freelance software programmers working from portable laptops. Two rare counterexamples where major international players participate in the international migrant smuggling industry are the Snakeheads and the Coyotes, organized to smuggle immigrants from China to the West and from Mexico to the United States, respectively.

The sobering truth

A 2018 report issued by the United Nations Office on Drugs and Crime (UNODC) found migrant smuggling networks to be as vibrant and robust as ever, due in large part to the flexibility and adaptivity of smuggler networks, as well as their ability to plot indirect and circuitous routes through countries with lax visa requirements while using varied means of transport. Add in the jurisdictional barriers among various countries, and the result is a law enforcement nightmare.

INTERPOL

INTERPOL works something like a global police force, although its activities are more limited to background support and interjurisdictional coordination than a local, front-line police force is. In terms of migrant smuggling, some of the support that INTERPOL provides the international law enforcement community includes:

- Specialised training for police officers in member countries, including the UK;

- Investigation resources for complex cases that span multiple jurisdictions; and

- The INTERPOL Specialized Operational Network of smuggling experts.

- The UK legal framework

- The UK legal framework for prosecuting migrant smugglers is more than adequate to the task—it is enforcement, not legal theory, where the problem lies. Causing migrant deaths can be prosecuted under ordinary criminal law, while migrant smuggling can be prosecuted under two separate Acts designed especially for this offense.

Manslaughter

Manslaughter, rather than murder, is the charge levelled against someone who causes the death of another person through negligent or reckless behaviour, without specifically intending to kill or cause grievous bodily harm. It is often used, for example, against drunk drivers who cause a road accident in which someone is killed.

Even without proof of negligent or reckless behaviour, however, a defendant can be prosecuted for deaths that occur during an unlawful and dangerous act such migrant smuggling. Furthermore, co-conspirators can be charged with conspiracy to manslaughter. Both manslaughter and conspiracy to manslaughter carry possible life sentences.

Assisting unlawful immigration to a Member State

It is illegal to facilitate unlawful immigration activities creates an offence of assisting unlawful immigration to any EU member state. The prosecutor must prove that the defendant knew of the illegal nature of the activities, not merely that he “should have known.” The law’s jurisdiction includes acts committed overseas, and the maximum sentence is 14 years in prison.

Facilitating entry by asylum seekers to the UK to gain

This law prohibits the intentional facilitation of illegal entry into the UK for profit if the defendant knows—or simply has reason to believe—that the illegal entrant is an asylum seeker. It applies to acts that take place anywhere in the world, and the maximum sentence is 14 years in prison.

Other legal tools

Other common migrant smuggling activities, such as the forging or alteration of passports and the bribery of officials, are covered by very specific offenses and are considered serious crimes for which years of imprisonment can be imposed.

The grey areas

Despite the UK’s relatively comprehensive migrant smuggling legal regime, however, ambiguities remain. How direct must a suspect’s involvement in migrant deaths be, for example, to justify conspiracy to manslaughter charges? Can the UK effectively assert jurisdiction over a non-UK suspect residing abroad? For these reasons among many others, law enforcement remains fragmented and largely ineffective.

Prosecutions

According to the Home Office, prosecutions for migrant smuggling by vehicle increased by 50% in 2015-16, for a total of a mere 88 prosecutions—irrespective of whether or not anyone died during the journey. Obviously, their figures are anaemic in comparison to the scale of migrant smuggling to the UK, and are inadequate even in comparison with the migrant death rate. One might expect the deterrent effect of these prosecutions to be virtually zero.

International laws

Each state maintains its own legal regime concerning migrant smuggling, and the countries that serve as the world’s most popular immigration destinations typically maintain the most detailed legal regimes, although not always the most rigorous enforcement. The major problem, as always, is international coordination.

At the global level, the United Nations Convention against Transnational Organized Crime includes a Protocol against the Smuggling of Migrants by Land, Sea and Air that went into force in January 2004. This protocol aims to harmonise the laws against migrant smuggling among the various nations, in order to facilitate the international cooperation that is needed to enhance enforcement efforts.

The Future

In the short-to-medium term, the demand for immigration is expected to increase further than the UK is likely to be willing to admit new legal migrants. This state of affairs will naturally result in an increase in the number of migrants seeking to enter the UK illegally. Ironically, the worldwide increase in per capita GDP is likely to exert upward pressure on illegal migration (and the inevitable body count that results), as more people are able to afford to pay smugglers.

In the long term, however, the equalisation of per capita GDP among the world’s nations is expected to put downward pressure on the demand for immigration sooner or later. How these factors play out in terms of number of illegal migrants depends largely on how aggressively the UK enforces its immigration laws, and how coordinated international law enforcement efforts become over the next decade or so. If present trends continue, optimism will not be justified.

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