Legalize / Ireland / Act

Criminal Justice (Smuggling of Persons) Act 2021

Type Act

Publication 2021-12-15

State In force

Source Irish Statute Book

Reform history JSON API

PART 1 Preliminary

1. Short title and commencement

1. (1) This Act may be cited as the Criminal Justice (Smuggling of Persons) Act 2021.

(2) This Act comes into operation on such day or days as the Minister may, by order or orders, appoint either generally or with reference to a particular purpose or provisions and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. In this Act—

“Act of 2004” means the Immigration Act 2004;

“designated state” means any of the following, other than the State:

(a) a Member State;

(b) the Republic of Iceland;

(d) the Kingdom of Norway;

(e) the Swiss Confederation;

(f) the United Kingdom of Great Britain and Northern Ireland;

(g) a Protocol state;

(h) a state that is declared under section 28 to be a designated state;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“immigration law”, in relation to a designated state, means a law which has effect in the designated state and which controls the entry into, transit across or presence in the designated state of a person who is not a national of that state;

“Irish ship” means an Irish ship within the meaning of section 9 of the Mercantile Marine Act 1955;

“Member State” means a Member State of the European Union;

“Minister” means the Minister for Justice;

“outer limit of the territorial seas” has the meaning assigned to it in section 83 of the Sea-Fisheries and Maritime Jurisdiction Act 2006;

“Protocol state” means a state, other than the State, that is a party to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000;

“ship” includes any vessel used in navigation, other than—

(a) a warship, naval auxiliary or other vessel in the service of the Defence Forces or the navy or military of another state, or

(b) any other vessel owned or operated by a government and used, for the time being, only on government non-commercial service;

“United Kingdom of Great Britain and Northern Ireland” includes the Channel Islands and the Isle of Man;

“vehicle” means a car, van, lorry, ship, aircraft, railway train or any other means of transport, mechanically propelled or not, used, constructed or adapted to carry or convey persons or goods by land, water or air and includes any container, trailer, tank or any other thing, which—

(a) is or may be used for the storage of goods in the course of carriage, and

(b) is designed or constructed to be placed on, in or attached to, any such vehicle;

“vessel” means a waterborne craft of any type, whether self-propelled or not, and includes an air cushion craft;

“warship” means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

3. Repeals

3. Subject to section 30, sections 2, 3, 4, 7 and 11 of the Illegal Immigrants (Trafficking) Act 2000 are repealed.

4. Expenses

4. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

PART 2 Smuggling of persons

5. **Interpretation (Part 2)**

5. (1) In this Part—

“assists”, subject to subsection (2), includes procures, organises or facilitates;

“company” means a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act;

“equivalent status” means, in relation to a designated state, a status under the law or administrative practice of that state that is equivalent to international protection;

“fraudulent travel or identity document” means any travel or identity document that—

(a) has been falsely made or altered in some material way by anyone other than a person or agency lawfully authorised to make or issue the travel or identity document on behalf of the State or another state,

(b) has been improperly issued or obtained through misrepresentation, corruption or duress, or in any other unlawful manner, or

“international protection” has the meaning it has in section 2 of the International Protection Act 2015;

“specified provision” means any of the following—

(a) section 4, 5 or 6 of the Act of 2004, or

(b) a provision that is the subject of an order under section 29;

“travel or identity document” includes the following:

(a) a passport or document which can be used instead of a passport;

(b) a document issued by or on behalf of a Minister of the Government and permitting or authorising a person to enter or remain (whether temporarily or permanently) in the State, or to enter employment or self-employment therein;

(c) a registration certificate issued under Article 11(1)(e)(i) of the Aliens Order 1946 (S.I. No. 395 of 1946) or the Act of 2004;

(d) a document, issued by the competent authority of another state, that is equivalent, under the law of that state, to a document specified in paragraph (b) or (c).

(2) For the purposes of section 6 and 7, assisting the presence in the State or in a designated state of a person does not include the provision by another person, in the ordinary course of his or her business, trade or profession, whether for profit or otherwise, of a good or service to the person.

6. Assisting unlawful entry into, transit across or presence in State

6. (1) A person is guilty of an offence if he or she intentionally assists the entry into, transit across or presence in the State of another person, where—

(a) such entry into, transit across or presence in the State is in breach of a specified provision, and

(b) the first-mentioned person knows or has reasonable cause to believe that such entry into, transit across or presence in the State is in breach of a specified provision.

(2) A person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under subsection (1), is guilty of an offence.

(3) A person who, in a place outside the State, aids, abets, counsels, procures or attempts the commission of an offence under subsection (1) or subsection (2) is guilty of an offence.

7. Assisting unlawful entry into, transit across or presence in designated state

7. (1) A person is guilty of an offence if he or she intentionally assists the entry into, transit across or presence in a designated state of another person, where—

(a) such entry into, transit across or presence in the designated state is in breach of an immigration law in the designated state, and

(b) the first-mentioned person knows or has reasonable cause to believe that such entry into, transit across or presence in the designated state is in breach of an immigration law in the designated state.

(2) Subject to subsection (4), a person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under subsection (1), is guilty of an offence.

(3) Subject to subsection (4), a person who, in a place outside the State, aids, abets, counsels, procures or attempts the commission of an offence under subsection (1) or subsection (2) is guilty of an offence.

(4) Subsections (2) and (3) apply to conduct engaged in outside the State, where the conduct—

(a) occurs on board an Irish ship,

(b) occurs on an aircraft registered in the State,

(d) is engaged in for the benefit of a company or any other body established under the law of the State,

(e) occurs on board a ship registered in a Protocol state,

(f) occurs on board a ship not registered in any country or territory, or

(g) constitutes an offence for which the person would be liable to extradition or surrender and—

(i) a request for a person’s surrender for the purpose of trying him or her for an offence in respect of the conduct concerned has been made by a state in relation to which Part II of the Extradition Act 1965 applies, and that request has been finally refused (whether as a result of a decision of a court or otherwise), or

(ii) a relevant arrest warrant has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of the conduct concerned, and a final determination has been made that the relevant arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing state concerned.

(5) For the purposes of this section and section 8 a person shall be deemed to be ordinarily resident in the State if the person had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence.

(6) In this section and section 8, “relevant arrest warrant” and “issuing state” have the same meanings as they have in the European Arrest Warrant Act 2003 (as amended by the European Union (European Arrest Warrant Act 2003) (Amendment) Regulations 2021 (S.I. No. 150 of 2021)).

8. Provision etc. of fraudulent travel or identity document for purpose of assisting entry into, transit across, or presence in State or designated state

8. (1) A person is guilty of an offence if he or she produces, procures, provides, possesses or controls a fraudulent travel or identity document with the intention that it shall be used for the purpose of assisting the entry into, transit across or presence in the State of another person where—

(a) such entry into, transit across or presence in the State is in breach of a specified provision, and

(b) the first-mentioned person knows or has reasonable cause to believe that such entry into, transit across or presence in the State is in breach of a specified provision.

(2) A person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under subsection (1), is guilty of an offence.

(3) A person who, in a place outside the State, aids, abets, counsels, procures or attempts the commission of an offence under subsection (1) or subsection (2) is guilty of an offence.

(4) A person is guilty of an offence if he or she produces, procures, provides, possesses or controls a fraudulent travel or identity document with the intention that it shall be used for the purpose of assisting the entry into, transit across or presence in a designated state of another person where—

(a) such entry into, transit across or presence in the designated state is in breach of an immigration law in the designated state concerned, and

(5) Subject to subsection (7), a person who, in a place outside the State, engages in conduct that, if the conduct occurred in the State, would constitute an offence under subsection (4), is guilty of an offence.

(6) Subject to subsection (7), a person who, in a place outside the State, aids, abets, counsels, procures or attempts the commission of an offence under subsection (4) or subsection (5) is guilty of an offence.

(7) Subsections (5) and (6) apply to conduct engaged in outside the State, where the conduct—

(a) occurs on board an Irish ship,

(b) occurs on an aircraft registered in the State,

(d) is engaged in for the benefit of a company or any other body established under the law of the State,

(e) occurs on board a ship not registered in any country or territory, or

(f) constitutes an offence for which the person would be liable to extradition or surrender and—

9. **Offences under Part 2: further provisions**

9. (1) It shall be a defence in any proceedings against a person for an offence under section 6, 7 or 8 for the person charged with the offence to prove, on the balance of probabilities, that the conduct alleged to constitute the offence was engaged in by him or her—

(a) 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

(b) for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.

(2) Notwithstanding section 7 of the Criminal Law Act 1997, it shall not be an offence for a person to aid, abet, counsel or procure another person to commit an offence under section 6, 7 or 8 relating to the entry into, transit across or presence in the State, or a designated State, of the first-mentioned person.

10. **Penalties (Part 2)**

10. (1) A person guilty of an offence under section 6, 7 or 8 is liable—

(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or both.

(2) Without prejudice to any other enactment or rule of law, a court shall, in determining the sentence to be imposed on a person for an offence under section 6, 7 or 8, except where it considers that there are exceptional circumstances justifying its not so doing, treat as an aggravating factor any behaviour by the offender related to the commission of the offence—

(a) that endangered or was likely to endanger the life or safety of the person to whom the offence related, or

(b) that resulted in the exploitation or inhuman or degrading treatment of the person to whom the offence related,

and the court shall impose a sentence that is greater than that which it would have imposed in the absence of such an aggravating factor.

(3) The sentence imposed as a result of the application of subsection (2) shall not be greater than the maximum sentence permissible for the offence concerned.

PART 3 Enforcement measures against smuggling of persons

11. **Interpretation (Part 3)**

11. In this Part—

“enforcement officer” means—

(a) a member of the Garda Síochána,

(b) an officer of customs (within the meaning of section 2 of the Customs Act 2015),

(d) an immigration officer (within the meaning of section 3 of the Act of 2004);

“master”, in relation to a ship, means the person having, for the time being, the command or charge of the ship.

12. Exercise of enforcement powers in respect of ships

12. (1) This subsection applies to—

(a) an Irish ship,

(b) a ship registered in a Protocol state, or

(2) Subject to this section, where an enforcement officer has reasonable grounds to suspect that an offence under section 6 or 7 has been, or is being, committed on board a ship to which subsection (1) applies, he or she may, for the purpose of the detection of the offence or the taking of appropriate action in respect of any such offence, exercise the powers conferred on him or her by section 14.

(3) (a) An enforcement officer shall not exercise the powers conferred on him or her by section 14 outside the outer limit of the territorial seas of the State in relation to a ship registered in a Protocol state without the authority of the Minister for Foreign Affairs given in accordance with this subsection.

(b) The Minister for Foreign Affairs shall not give his or her authority to the exercise of powers referred to in paragraph (a) unless the Protocol state concerned has in relation to that ship—

(i) requested the assistance of the State for the purpose referred to in subsection (2), or

(ii) authorised the State to act for that purpose.

(c) In giving his or her authority under paragraph (b), the Minister for Foreign Affairs shall impose such conditions or limitations on the exercise of the powers as may be necessary to give effect to any conditions or limitations imposed by the Protocol state.

(4) (a) An enforcement officer shall not exercise the powers conferred on him or her by section 14 in the territorial seas of any state other than the State without the authority of the Minister for Foreign Affairs given in accordance with this subsection.

(b) The Minister for Foreign Affairs shall not give his or her authority to the exercise of powers referred to in paragraph (a) unless the state concerned has consented to the exercise of those powers for the purpose referred to in subsection (2).

13. Protocol state powers and Irish ships

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.