State Responses and Migrant Experiences with Human Smuggling: A Reality Check
Using Bigo's (2002) notion of “the governmentality of unease” this article reveals a shift in popular discourse around human smuggling in Western Europe and Canada since the 1990s towards increasing criminalization. To analyze this process of criminalization we have identified three recurring elements: boat arrivals; high fees and “bogus” asylum seekers; and the involvement of organized crime. The finding that smugglers today are generally perceived as “evil criminals” who undermine states' ability to manage migration and who need to be punished is contrasted with data derived from interviews with smuggled migrants in the Netherlands and Canada that offer an alternative, more socially embedded understanding of human smuggling. We posit that this reality check and a more nuanced understanding of human smuggling are needed for the protection of international migrants.
Framing events through a security lens has become pervasive in our society (Bauman 2006). Bigo (2002) and Huysman (2006) caution us to examine the process through which something is framed—often indirectly as well as explicitly—as a security threat. They argue that the popularity of this security prism is not an expression of traditional responses to a rise of insecurity, crime, and the negative effects of globalization, but rather the result of the creation of a continuum of threats and general unease in which many different actors share their fears in the process of constructing risk in society. Diverse institutions, including the media and even academics, are involved in this process. They not only respond to threats and sources of unease, but actively determine them. The movement of people is one of these constructed threats.
The unease that migration generates is to a large extent anchored in the fears of politicians about losing control over their territorial borders. Citing Bigo's notion of the governmentality of unease, the securitization of migration is “a transversal political technology used as a mode of governmentality by diverse institutions to play with the unease, or to encourage it if it does not yet exist so as to affirm their role as providers of protection and security and to mask some of their failures” (Bigo 2002:65). Proactive and pre-emptive border control strategies, transnational databases of foreigners, profiling of potentially threatening nationalities, and biometric control of borders are just some examples of states' attempts to create an illusion of control over their borders and over people's movements. In this line of reasoning, unsanctioned movement with the help of human smugglers is an even bigger threat. The general rhetoric around smuggling is that it has created migration possibilities for those immigrants whom receiving countries have classified as “aliens” rather than “guests” (Sassen 1999). Thus smugglers' activities explicitly undermine the nation states' power. They are the literal embodiment of a failing border regime because they bring in migrant bodies that states have classified as “unwanted” and as “illegal”.1
Bauman (2006) argues that when the expectation of “full security” is not fulfilled there is increasing frustration which “channels anxiety into a desire to locate and punish the culprits” (Bauman 2006:130). Criminalizing human smuggling is a clear example of this process. Discursive associations between smugglers and crime are continually made by politicians, the media and academics to justify the need for combating human smuggling (Andreas 2000; Collyer 2007; Mountz 2010). In this paper we argue that a narrow, state-centered focus on human smuggling does not provide any insight into the root causes why migrants may need human smugglers, and overlooks the possible side effects of the securitization of migration on the protection of refugee claimants. By examining real life experiences of smuggled migrants this article tries to fill a gap in existing scholarship on human smuggling (see also Black 2003 for this claim).
We begin by describing the empirical basis of this paper, and sketch a historical overview to reveal how human smuggling has been framed over time in Western Europe and Canada and how that discourse has sharpened since the 1990s. We deconstruct current discourse around human smuggling through three critical elements: boat arrivals; high fees and bogus asylum seekers; and the involvement of organized crime. These elements all come together in the following description of how concrete smuggling cases in Western Europe and Canada have impacted changes in policy and law and the criminalization of human smuggling. We finish the article by including migrants' perspectives in the debate on human smuggling.
Most data discussed in this article are drawn from a doctoral research project conducted in the Netherlands (Liempt 2007) and a master's thesis project conducted in Canada (Sersli 2009). Both projects investigated human smuggling and were based on interviews with smuggled migrants. The main reason for comparing our data is the limited empirical information on how immigrants experience and perceive human smuggling. Moreover, both the Netherlands and Canada are western countries that have taken increasingly punitive responses to human smugglers and asylum seekers. However, precisely because opportunities to compare original empirical material on smuggling are rare, there are important limitations to the data that need to be pointed out.
In the Netherlands 56 smuggled migrants were interviewed, and in Canada just seven. Another difference in the data is that interviewees came from different countries. In the Netherlands the majority of interviewees were asylum seekers from the Horn of Africa, Iraq, and the former Soviet Union. These were all countries high in the top ten of asylum requests at the time fieldwork started (2003), with substantial differences in border-crossing methods to allow space for comparison and contrast. Research assistants from those regions were trained to interview those who did not speak Dutch, English, or French. Working with (former) refugees on this topic made it easier to understand the social world of refugees and the role human smugglers play in it. In the Canadian project, five out of seven interviewees came from Colombia via the United States (where they did not have access to refugee protection), and the others from Afghanistan and Africa. Although our two research projects focused on different types of migrants and were conducted in different countries, commonalities were found in their narratives and experiences of human smuggling. In particular, both studies found a diverse range of actors involved in the smuggling industry and revealed a nuanced discourse around human smuggling that includes humanitarian types of smuggling.
In the context of this paper it is worth noting that there was skepticism towards our interviewing method, including from potential funders, and academic colleagues. It was assumed that people involved in human smuggling would never speak openly about such a sensitive topic and could potentially be still under threat from smugglers, making it unlikely that they would tell the truth. Consequently it was assumed that our research would not provide accurate information on the detailed characteristics of an illegal activity such as smuggling. This reaction illustrates the far-reaching impact of discursive practices linking human smuggling and security: even funding bodies and our peers have pre-determined notions about who smugglers are. These reactions strengthened our conviction that interviewing migrants about their experiences with human smuggling would be necessary in order to capture a broader understanding of this phenomenon and to reveal parts of a social world that would otherwise remain hidden. The desire to re-embody the effects of frequently disembodied policy rationales and discourses around human smuggling was the driving factor behind both projects and behind this collaborative article.
Human Smuggling over Time
If we look at how human smuggling has been framed in political dialogue, newspapers, and policy reports it is striking that it is often presented as a crime that first appeared in a new era of globalization and that is linked to an increasing demand for migration in poorer parts of the world. Smugglers are in this line of thinking referred to as the “dark side” or the “underbelly” of globalization (Moises 2005). However, others point to evidence that human smuggling has likely existed as long as borders have existed, as there have always been people who for all sorts of reasons were unable to travel via ordinary legal routes. Cameron (2005) notes that as early as the 1920s Japanese migrants sought human smuggling services to Canada to circumnavigate restrictive immigration measures aimed against them. Both Siener (2008) and Mar (2010) describe the role of smugglers in aiding Chinese migrants during the period of Canada's Chinese Exclusion Act, and again in the 1950s, Yuen (2009) describes how Chinese migrants sought human smuggling services to Canada to circumnavigate the 1947 Citizenship Act which restricted Chinese migration. People who came to Canada through this avenue are also known as “paper sons”, a term that acknowledges the document forgeries that were necessary to bypass what is now widely recognized as exclusionist and racist immigration policy.
Better known and celebrated examples from Europe are the many Jews who were helped by smugglers to escape the Nazi regime during the Second World War (see for example Fittko 2000), or the smugglers who helped people cross the Berlin Wall during the Cold War. Such well known and honored smugglers include Raoul Wallenberg, Oscar Schindler, and Irena Sendler, whose acts of courage have been marked in film (eg Schindler's List, The Courageous Heart of Irena Sendler), and by states themselves (eg Canada declared Raoul Wallenberg its first honorary citizen in 1985). We pose the question: “What exactly has happened to make today's migrants who use smugglers and those smugglers who helped rescue people (as during the Second World War or the Cold War) perceived so differently?”
It is striking that, today, human smuggling discussions have clearly shifted from the criminal regimes migrants are escaping to the “criminals” who bring in migrants whom states have defined as unwanted (Liempt 2007). The enemy is thus re-imagined from being a state (or faction of states) to a transnational network of private actors (ie organized crime). It no longer matters to a border guard if someone is escaping from a despotic regime; the inquiry will focus on how that person crossed the border, with whom, and whether their legal identity papers are in order. Since the events of September 11th, 2001, human smuggling has increasingly been framed as associated with terrorism. There is a concern that terrorists are being smuggled into western countries (Koslowski 2001) and the smuggling business is seen as a potential source of income for terrorist networks. Human smuggling is thus increasingly framed as a threat to the state rather than a reaction on restrictions posed by states (see also Kyle and Dale 2001; Kyle and Siracusa 2005).
How can the shift be explained? That immigration processes towards the West have become much more fragmented and unpredictable than they were during the colonial migration era, the Second World War, the guest worker era, or the Cold War (Böcker et al 1998) probably plays an important role in this shift. The numbers of “spontaneous” asylum applications—asylum applications by asylum seekers who are not explicitly invited by a government but make an appeal to international treaties once they arrive—have increased considerably. These “disruptive movements of people” (Ghosh 2000:221) from previously unrelated regions make it more difficult for states to manage migration. Decreasing confidence in states' ability to control migration further diminished when migrants not only started coming from previously unrelated countries but increasingly through irregular channels and with help from human smugglers.
It is impossible to know exactly how many migrants travel with help from human smugglers, although there are some indications that migrants have become more dependent on smugglers over time. An increase in the number of migrants who travel with the help of smugglers may have added to the image of smugglers as a threat to the state. Smugglers not only bring in migrants whom states have classified as unwanted, but the numbers of these migrants are also increasing. Research in the Netherlands (Engbersen et al 2002) found that the number of people smuggled into the Netherlands had increased in 2002 by 400% compared with 1994/1995 (Burgers and Engbersen 1999). These figures are based on police apprehension data and are not representative of all migrants who have entered the Netherlands. They do however point to a trend, quite plausible in an era when states have imposed more restrictions on mobility towards the West, that more migrants are using smugglers. Those who used to enter through regular migration channels may now be dependent on irregular migration channels. With regard to asylum seekers, research in other countries also confirms that the number of people dependent on human smugglers is considerable. Efionayi-Mäder et al (2001) conducted a study among asylum seekers in Switzerland and almost all their respondents claimed to have used the services of human smugglers for at least one stage of their migration process.
Themes in Popular Human Smuggling Discourse
Before examining the concrete changes in policy and law that have increased criminalization of human smuggling, we first examine common themes that underpin both European and Canadian human smuggling discourse. We identify three recurring elements that form the backbone of arguments to penalize human smuggling: boat arrivals; high fees and bogus asylum seekers; and the involvement of organized crime.
The Spectacle of Unexpected Boat Arrivals
A boat carrying irregular migrants is a media story. This is surprising because only a small minority of irregular migrants arrive this way. Most arrive by plane, likely with the help of smugglers. Yet human smuggling tends to be associated with the more visible (and thus more publicized) arrival of boatloads of unauthorized migrants (Haas 2007). This disproportional focus on migrants arriving by boat can be found both in Europe as well as in Canada, whereas Australia is probably the best known example with its massive detention, interdiction, and off-shore processing of boat-arrival asylum claims (Schloenhardt 2003).
The first media image of human smuggling in Europe dates from the beginning of the 1990s when a large ship, called Ararat, arrived in Calabria, packed with hundreds of Kurdish people (Godfroid and Vinck 1999). Two weeks before this incident Italy had entered the Schengen agreement and their responsibility for enforcing European borders was immediately put to the test. More recent stories concerning boat arrivals in Europe use metaphors of “waves” or “exodus” of “desperate people” fleeing poverty at home, in small shipwrecked boats, in search of the European “El Dorado” (Haas 2007; Pastore, Monzini and Sciortino 2006).
In the Canadian context boat arrivals are also at the center of media attention. Despite the fact that boats arrive rarely (about once every 10 years; Bradimore and Bauder 2011), and that the number of passengers is not statistically significant in overall refugee claims, these events have precipitated significant political reactions and, as we will argue further on, subsequent policy changes. It was the arrival of two separate ships in Atlantic Canada in the mid-1980s carrying unauthorized migrants from Sri Lanka and India that fuelled initial public outrage around the themes of illegality, fraud, deceit, “queue jumping” and exploiting the generosity of Canadians (Buchignani and Indra 1985; Lippert 2005).
Another significant event occurred in 1999 when four ships of migrants from China appeared off the coast of British Columbia (Mountz 2010). More recently in October 2009, and then again in August 2010, two ships (the Ocean Lady and the MV Sun Sea) brought 79 and 492 Sri Lankan asylum seekers to the West Coast of Canada. The majority of the ship passengers were detained immediately upon arrival. The “risk of flight” argument was used to legitimize their detention, and was clearly meant to send a message to both smugglers and future prospective migrants (Bradimore and Bauder 2011).
High Smuggling Fees and Bogus Asylum Seekers
In addition to the wave/invasion metaphors typically associated with unsanctioned boat arrivals, other disturbing insinuations persist. Often a direct link is made between paying a lot of money to smugglers and not being a genuine or deserving refugee. After a mission to a refugee camp in Thailand a Dutch politician suggested in an interview in a Dutch newspaper that asylum seekers who arrive spontaneously are unlikely to be legitimate refugees because they had to enlist the help of costly human smugglers to circumnavigate European borders: “We have increased the walls around Europe considerably. Without a human smuggler it has become very difficult to enter the European Union. And those who hire smugglers need to have thousands of Euros. I have severe doubts about the authenticity of most of these flight stories” (Stokmans 2008).
A comment made by a Canadian politician during a debate on proposed anti-smuggling legislation illustrates that such assumptions also exist in Canada: “We have heard anecdotes that individuals pay large sums of money to board these ships, and one becomes suspicious about how dire a person's plight can be who is able to pay $50,000” (House of Commons Debate 2010).
As these quotes illustrate it is oftentimes often assumed that people who can afford to pay large amounts for their journeys are not eligible for refugee protection. We argue that by emphasizing the amount of money people pay, an entrenched perception that wealthy refugees are not real refugees is reinforced. One's level of financial welfare does not say anything about one's need for refugee protection, just as the way someone has entered a country does not define them as a real or bogus asylum seeker.
The Organized Crime Rhetoric
Another important element in the discourse around human smuggling is that since the mid-1990s human smuggling has been increasingly associated with the profiteering and violent nature of smugglers, and linked to organized crime. At the 1996 G7 Summit in Lyon a separate working group expressly dedicated to examining the connections between organized crime and migrant smuggling was created. Two years later in 1998, a communiqué from the G8 Birmingham Summit stated that the purpose of this working group—known as the Lyon Group—was to develop, enact, and facilitate national and international principles, strategies and actions to prevent and counter human smuggling. In 2000 when the UN Protocol against the Smuggling of Migrants by Land, Air and Sea came into being, migrant smuggling was officially included in the definition of organized crime. This UN Protocol, also referred to as the Palermo Protocol, is part of the UN Convention Against Transnational Organized Crime. This event marked the framing of human smuggling as a global criminal business.
In reality there are few smuggling cases where organized crime is proven to be involved. These cases are, however, intensively picked up by the media and feature widely in policy reports. We argue that this feeds into a distorted image of the relationship between human smuggling and organized crime. Academic research shows that there is little organized crime involved in human smuggling (Neske 2006; Schloenhardt 2003; Soudijn 2006; Staring et al 2005). The fact that the smuggling market is a complex one with highly differentiated services such as guiding and/or transporting someone across a land or sea border, providing forged documents, offering shelter, or bribing officials (Icduygu and Toktas 2002; Zhang and Chin 2002) is often overlooked. Zhang and Chin (2002) interviewed 129 individuals working in the human smuggling business in New York, Los Angeles, and Fuzhou. They found that most smugglers were involved in all sorts of small-scale smuggling and that the smuggling industry was an opportunity to earn something extra. Similar results were found by Spener (2009) who interviewed smugglers at the Mexican–US border. According to his study nearly all smugglers were working class Mexicans, sometimes ex-migrants who helped relatives, friends, or acquaintances to leave the country. Empirical research in North Africa found that most of the Moroccan and Tunisian fishermen who now work in the smuggling business are doing so only after they have lost their jobs in the fishing industry, in part due to European legislations, and in part because their governments sold their fish quotas to Spain and Italy (Mabrouk 2003). This diverse and complex image of the smuggling industry, which also appeared in our interviews with smuggled migrants, is often overlooked when smuggling is discussed in policy documents and in the media.
Policy reports that rely on intelligence primarily gathered by government bodies emphasize the role of organized crime within human smuggling. These reports are often quoted uncritically by journalists. The authors of intelligence reports are part of what Bigo (2006:8) calls the “professional managers of unease”. These managers, neither homogenous nor unified, rely on and/or produce their own studies and statistics to determine threats. In the next section we will show that the way politicians, the media, and the public speak about human smuggling has not only impacted our understanding of the phenomenon, but has also shaped government legislation and official responses to smuggling. The Dover case in Europe and the more recent arrival of two ships carrying Tamil asylum seekers to Canada are used to illustrate this point.
The Dover Case and Criminalization of Human Smuggling in the EU
In Europe the Dover tragedy of 2000 attracted considerable media attention. On one of the hottest days of the summer of 2000 (18 June) customs officials of the British port of Dover found the dead bodies of 58 Chinese nationals in the back of a lorry. The Chinese migrants had suffocated, except for two survivors, in a sealed container filled with tomatoes. Politicians all over Europe were eager to share their views on this incident with the wider public. The Dover incident featured in almost all policy documents on human smuggling that appeared after 2000 and is still used as an example to show the inhumane character of human smugglers. Moreover, the Dover case played a crucial role in discussions around penalizing human smuggling in the EU context.
Soon after the Dover incident, in the summer of 2000, the French Presidency of the European Council drew up a legislative proposal for a “Framework Decision on Strengthening the Penal Framework for Preventing the Facilitation of Unauthorized Entry and Residence”. By doing so France effectively stripped the European Commission of its (shared) right of legislative initiative in this area (Aus 2007). Due to the poor quality of the hastily drawn up French proposal, the Council Legal Service deemed it appropriate to intervene in the decision-making process at an early stage. Following the Legal Service's advice, the French government agreed to divide its original proposal into two separate instruments: one draft Community Directive which defines what the “facilitation of unauthorized entry, transit and residence” actually means, and an EU Framework Decision that deals with the criminal law provisions sanctioning this practice.
In October 2000 the Brussels bureau of the United Nations High Commissioner for Refugees (UNHCR) intervened in this decision-making process by declaring that:
It is regrettable that, as a result of States' increasingly restrictive immigration policies, resorting to the services of human smugglers has been the only viable option for many genuine asylum seekers who seek sanctuary in the European Union … The Draft Directive and Draft Framework Decision do not attempt to reconcile the proposed measures to “prevent facilitation of unauthorized entry and residency” with States existing international legal obligations towards refugees and asylum seekers (Aus 2007, 32).
The UNHCR called upon the EU to insert a “general savings clause” for the protection of smuggled refugees and asylum seekers into the Draft Framework Decision. The definition of “help” in the Council Directive does not specify doing so for “financial gain”, meaning that anyone helping migrants to cross a border could fall into the classification of human smuggling, regardless of their motivations. What followed were discussions around the definition of human smuggling, carriers' responsibility, and who should count as a smuggler. It turned out that the European Council's delegations all had very different views on what constitutes humanitarian grounds for the smuggling of asylum seekers. Not all states agreed with the interpretation of “help”. The Austrian, Danish, Dutch, Finnish, and Swedish delegations decided to leave “financial gain” in their national definition of human smuggling in order not to affect work done by humanitarian organizations for refugees (ECRE 2001). For other states a humanitarian clause was adopted which allows people suspected of assisting others to enter a country illegally to evade prosecution under the law if they have done so for humanitarian reasons. The clause had a voluntary character and was formulated as “Member states may decide not to impose sanctions … where the aim of the behavior is to provide humanitarian assistance to the person concerned.”
Political agreement was also reached on common rules for economic sanctions to enforce carrier responsibility. The directive imposes economic sanctions on transporters who do not check that all passengers have the necessary travel documents. Discussions of carrier sanctions and who should count as a smuggler also dominated the discourse in the Netherlands after the Dover incident. The fact that the truck driver caught in Dover was Dutch made it a well known and widely discussed case. The truck driver was sentenced in the end, even though he kept denying his knowledge about the fact that there were people on board his truck. In 2005 it was finally decided to remove the profit-making element from the Netherlands' definition of smuggling. This was legitimized as increasing the opportunity for the police to detect smugglers, but clearly also influenced by lack of evidence in important high-profile smuggling cases. As a result of this change in the law, smuggling for humanitarian reasons is now punishable in the Netherlands, meaning that smugglers with political or religious motivations for transporting people across borders can be sentenced. This trend can be seen across Europe, where those who advocate for undocumented migrants and failed asylum seekers now often find themselves subject to criminalization (see also Black 2003).2
Boat Arrivals in Canada and the Criminalization of Human Smuggling
The recent smuggling cases in Canada in October 2009 and August 2010 with two ships bringing in 79 and 492 asylum seekers respectively from Sri Lanka to the West Coast sparked a series of proposed legislative changes regarding human smuggling. The first of these proposed changes, Bill C-49, was brought to Parliament in October 2010, and called for increasing smuggler penalties. Bill C-49 was then re-tabled in June 2011 as Bill C-4, entitled Preventing Human Smugglers from Abusing Canada's Immigration System Act, a name overtly describing its purpose. In February 2012 Bill C-4 was incorporated into the omnibus Bill C-31, newly entitled Protecting Canada's Immigration System Act.3 Although changes to Canada's immigration act in 2002 had already raised the maximum fines and prison terms for those convicted of smuggling to unprecedented levels, Bill C-31 now expands minimum mandatory sentences. It also expands the definition of human smuggling to make it easier to prosecute those accused of smuggling. It now includes anyone who would “organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be a contravention of this Act”. As the Canadian Bar Association (CBA 2012) points out, “recklessness” and its potential liabilities have not yet been defined.
In addition to penalizing smugglers Bill C-31 also introduces further penalties for migrants themselves who engage the services of smugglers. It does this through the creation of a new designation called “irregular arrival”. The Minister of Public Safety will have broad powers to designate a group as irregular based on one of two criteria: if the Minister determines that examinations to establish identity or determine inadmissibility cannot be conducted in a timely manner; or if the Minister has reasonable grounds to suspect that the vessel in which the group arrived is engaged in human smuggling. Bill C-31 will impose multiple penalties on claimants and refugees who are designated as part of an irregular arrival. Notably, irregular arrivals will be subject to extended periods of mandatory detention. Once released, they will also face new extended restrictions on the ability to apply for temporary or permanent residency, as well as applications to remain in Canada on humanitarian and compassionate grounds. Those who receive refugee status will be denied the right to travel documents for at least 5 years (CBA 2012).
Bill C-31 has been vehemently opposed by refugee advocates and opposition parties because the new designations create a two-tier system that discriminates against those who use smugglers, particularly those who arrive by boat. It also breaches Articles outlined in the Convention Relating to the Status of Refugees, including Article 31 of the Geneva Convention that entitles refugees to enter a country unlawfully (CBA 2012). Article 31 states:
The contracting state shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
In practice it may be difficult for migrants to convince authorities of the good cause for their illegal entry. Since fraud, organized crime, and doubts about peoples' identities are now the center of attention, the credibility of asylum seekers' stories is under severe threat.
Smuggling and Suspicion towards Asylum Seekers
Regardless of the exception made in Article 31 of the Geneva Convention, the emphasis on legal identity for refugee claimants has increased considerably in the last two decades, offering less space for migrants to find access to legal protection (see also Nadig 2002). In the Canadian context it goes back to the 1990s with Bill C-86, which contained a provision that “required Convention refugees to produce ‘satisfactory’ identity documents in order to be landed” (Aiken 2007:78). The rationale for this, the government argued (and currently argues to justify detention provisions set out in Bill C-31), was that without identity documents, Canadian immigration authorities could not determine who was a war criminal or terrorist. Canada's current immigration law continues this focus on identity and proof of identity, as does immigration law in the Netherlands.
Smugglers often work with forged documents, informing people which story is best to tell to authorities and which to hide. In this sense the “border game” (Andreas 2000) between immigrants and officials has become professionalized on both sides, and the way smugglers operate has made it (more) difficult for immigration officers to distinguish between different types of migrants. The consequence for asylum seekers is that the burden of proof is now often on their side and they are treated with suspicion from the start. In the current context “no gaps, contradictions, vague statements are allowed in order for someone's story to be positively persuasive” (Doornbos 2003:83). This suspicion is increased when asylum seekers have entered the country without, or on forged, documents.
Beyond an increasing emphasis on legal identity in the last two decades, more attention has also been given to asylum seekers' travel stories and the role of smugglers within the migration process. Since the beginning of the 1990s when it became increasingly apparent that asylum seekers were using human smugglers on a large scale to enter the Netherlands, the Immigration and Naturalisation Service (IND) started to collect data on travel routes. However, asylum seekers who enter a country with help from smugglers are often told not to give too much information on how they traveled in order to prevent the smugglers/smuggling routes from being revealed. This renewed focus on travel routes during asylum interviews combined with the “weak” travel stories provided to migrants by smugglers damages the credibility of asylum claims.
States are also increasingly collaborating, notably through Safe Third Country Agreements, both within the European Union as well as between the United States and Canada in the field of asylum. These collaborations have resulted in claims about whose responsibility it is to offer protection to refugees. In the context of “burden sharing” it has become crucial to know exactly where people have entered the country. As a result there has been a remarkable shift in asylum interviews from reasons for flight to how and where people have crossed the border (Crépeau and Jimenez 2004). Dauvergne, Angeles and Huang (2006) note that eligibility screening interviews at ports of entry are becoming longer and more detailed as a result of increased suspicion as to how migrants have managed to cross the border. They posit that during screening interviews more emphasis has recently been put on what migrants know about the smuggler rather than assessing why they came and whether they need protection. A Canadian refugee lawyer interviewed in 2007 noted that questions asked during these screening interviews are supposed to relate to eligibility, but in practice, the interviews cover much more, and that this extended scope of examination has been intensified since September 11th, 2001 (Sersli 2009). The Canadian Border Service Agency's scope includes not only border enforcement activities, but also intelligence gathering about current trends in migrant smuggling (Treasury Board of Canada Secretariat 2006). Similar trends are noticeable in the European context where FRONTEX is not only tasked to coordinate operational cooperation between European Member States in the field of border security, but also is clearly intelligence driven. Migration officers located around the world work to “push the border out” through interdiction and intelligence efforts.
Smuggling and Detention
As noted earlier, penalizing people on the basis of how they arrive is in violation of Article 31 of the Geneva Convention, which permits refugees unlawful entry in the country of refuge. Article 5 of the Smuggling Protocol (criminal liability of migrants) also sets out that smuggled migrants themselves should not be prosecuted for the specific crime of smuggling. Although it is technically not illegal to use the services of migrant smugglers to reach a country to ask for asylum, in practice one can still be detained for not holding credible identification. The argument put forward for doing this is that states need credible identity documents to establish identity for security purposes. Despite assurances from Canadian parliamentarians that detention is not aimed at people seeking refugee protection, asylum seekers without the right documents increasingly run the risk of being detained. Lacroix (2006) points out that in 2003 refugee claimants were being detained by Canadian government authorities in higher numbers than before, mostly on the basis of insufficient documentation. Something similar is argued by Crépeau and Nakache (2006) who note that the state was making greater use of its power to detain refugee claimants without adequate identification. A similar trend is visible in Europe. Previously detention was only used as an emergency measure and as a security issue, but it has slowly become a central element of Europe-wide immigration law (Schuster 2004).
An important change is that the administrative function of detention, which is to establish migrants' identity, is openly identified by the state as the most important function of detention. Identity is important for determining admissibility to enter a country and for population management, including the possibility of future removal in the event of a failed refugee claim. Detention is, however, also meant as a punitive measure. It is meant to serve as a deterrent for those who would use smugglers. Yet at the same time the image of smuggled migrants as victims who need to be rescued from unscrupulous smugglers also figures in the discourses around detention. The mass detention of smuggled Chinese migrants in British Columbia in 1999 was, for example, rationalized on the premise that detention “saves” migrants from a life of misery and human slavery (Sersli 2009). As Watson (2009) points out, the federal government in power at that time portrayed these asylum seekers as victims of smugglers, and emphasized that smugglers had to be stopped to protect migrants. Mountz (2006) noted that in the past detention has also been used as a means of preventing smugglers from collecting their payments. In the specific case of the detention of Fujianese migrants who arrived by boat in 1999, detention also served as an opportunity to gather further intelligence: officials monitored phone calls, mail, and those who posted bail to learn more about to whom, and where, detainees were connected.
Migrants' Perspectives on Human Smuggling: an Alternative Explanation
The literature on human smuggling is dominated by a business way of thinking about the relationship between the smuggler and the migrant. Salt and Stein (1997) were the first to develop a very influential theoretical model around human smuggling. This economic model is, however, not based on empirical evidence and generally lacks the voice of the migrant. As a result of this particular way of framing human smuggling processes, migrants are usually seen as passive actors, recruited by smugglers who have little to say over their destiny (Liempt and Doomernik 2006).
The few studies which have centered around smuggled migrants' perspectives (Bilger, Hofmann and Jandl 2006; Efionayi-Mader et al 2001; Koser 1997; Liempt 2007; Sersli 2009; Spener 2009) show that migrants actively seek out the services of human smugglers as part of their journey, and that it is not a one-way process at all. Migrants put their lives in the hands of smugglers and, within the limited opportunities available, they try to get the best deal out of it. Similar findings have been found in the few studies that have centered around trafficked migrants' perspectives (Andrijasevic 2010; Augustin 2007).
A remarkable finding from studies that take migrants' perspectives on human smuggling into account is that there is often very little stigma attached to the smuggling business from migrants' point of view. Migrants who have used the services of smugglers often describe them as “helpers”, as people who “save lives”, or as a “necessary alternative” in a world with many restrictions on mobility (Liempt 2007). Moreover, smugglers can be familiar people, usually friends of friends, but sometimes also family members. Those participants who were helped by family members or friends usually had brighter memories of the smuggling process and spoke in a more positive way about smugglers than those who traveled with unknown, anonymous people.
When asked if he ever had any concerns about his smuggler, one research participant replied:
No actually, it looks like they are also a refugee family. So it looked like they were in the same situation I was. So actually, I guess first they helped me by principles, and after that, by an economic … an economic … an incentive. That's better. Actually, I offered the economic incentive before they asked me (male Colombian refugee interviewed in Canada).
Some participants even used cultural arguments to motivate their smugglers' behavior: “He was a friend of the family, he is not a smuggler. He just helped us, that is something you do in our culture” (male Iraqi refugee interviewed in the Netherlands).
The fact that there are few migrants willing to testify against their smugglers supports this view of smugglers as helpers. Fieldwork with smuggled migrants also revealed that personal relations may exist between smugglers and smuggled migrants and that many people find smugglers through relatives and/or friends who often also help them with the financing (Liempt 2007; Sersli 2009). This indicates that smuggling may be a risky affair but is still something people advise friends or relatives to do, simply because there is no alternative.
We are aware of the fact that smuggled migrants have good reasons to portray their smugglers in a positive way, not necessarily because they fear repercussions (none of our respondents was attached in any way to their smuggler after the journey), but perhaps because they might need this smuggler again in the future, either for themselves or for their family. As such it is in their interest not to see him/her end up in prison. We also do not want to underestimate the fact that migrants are sometimes betrayed, maltreated, or even physically harmed by their smuggler. Our data show a few examples of betrayal by smugglers. A man from Iran for example reported that he had paid his smuggler to bring him to Sweden where he had family members, but was left behind at a gas station in the Netherlands.
The guy just disappeared, I felt terrible, I still can't believe what happened. For money they do everything. Money is dirty. They betrayed me. I knew I had paid too much, but I did not want to take any risk, so I had paid him. But now, I regret, the fact that he was after my money should have warned me. That guy ruined my whole future (male Iranian refugee interviewed in the Netherlands).
This quote illustrates the distinction migrants make between smugglers who are in the business for profit and those who are not. It also shows how dependent migrants can be on smugglers. This man ended up in the Netherlands and because his procedure took such a long time he never managed to go to Sweden to be reunited with his family.
These insights into the smuggling industry make it easier to understand how people have traveled, under what circumstances, and with what intentions, without specifically labeling them or their journeys as illegal. Many people today travel under a given category, but with other intentions, thus complicating the separation of legal from illegal forms of migration. Moreover, a growing imbalance between the social organization of irregular migration and the logics of migration control has resulted in less understanding of migration processes (Collyer 2007). We argue that it is necessary to go beyond state-defined categories of who and what is defined to be criminal or non-criminal if we want to understand how migration processes with the help of smugglers evolve (see also Kyle and Siracusa 2005).
Although many academic studies show that the smuggling industry includes a diverse range of actors, many of whom have no connection with organized crime, the discourse that is created around human smuggling since the 1990s leaves little room for understanding the diversity that exists within the smuggling industry. In this article we use Bigo's concept of a “governmentality of unease” to explain the process of securitization of migration that is taking place. We trace a process in recent years where public dialogue has shifted from criminal regimes asylum seekers were escaping, to the criminals who assisted their escape. At a time when travel is increasingly monitored, and identities are continuously tracked, smuggled migrants represent an unpredictable and unidentifiable category which poses “threat”. We examined the intersection of media and political discourse that helped construct this threat and traced how spectacular events and media discourses around human smuggling translate directly into policy. Policymakers, politicians and security institutions often argue that threats such as organized crime and migration must be managed through new transnational networks without paying attention to processes behind these types of migration. We highlighted the important role that intelligence gathering plays in establishing a “scientific discourse on migration” (Bigo 2002:78), necessary to justify the resources, technologies, and practices implemented to respond to the threat of human smuggling.
Another way in which we examine “threat” is by drawing on original empirical research with smuggled immigrants themselves. Comparing smuggled migrants' experiences between a European and a Northern American country lays bare the contradiction between popular discourse and asylum seekers' experiences. We posit that this reality check and a much more nuanced understanding of human smuggling that includes the concept of social acceptability is strongly needed in the criminal discourse that currently defines human smuggling. The simple lack of legal migration opportunities leaves many migrants no other choice than to travel with the help of human smugglers, even those who deserve legal protection under international law. This reality check is something that often is still forgotten when smuggling is discussed.
Moreover, criminalization of human smuggling has several serious side effects for migrants concerned. First of all it has resulted in greater caution from western states regarding the identity of migrants. In particular, there is greater emphasis than ever on legal identity, and the quality of identity documents considered acceptable. This has led to increasing levels of suspicion and to greater numbers of migrants being detained, and for longer periods of time. Second, the increasing emphasis by authorities on finding out who the smugglers are, rather than determining whether migrants need protection, makes smuggled migrants a group that is confirmed as implicitly dangerous rather than a group that may need protection.
Following the practice of migration scholars Bridget Anderson, Richard Black, Nandita Sharma, and Cynthia Wright, we initially place terms such as “illegal” in quotation marks to question the social context in which they are used.
See Coutin's (1993) work on the Sanctuary Movement for an analysis of similar processes of criminalization of humanitarian workers in the field of migration in the United States.
Bill C-31 passed a third reading in the House of Commons on 11 June 2012. It is expected to receive Royal Assent and come into effect in 2012.
The authors would like to thank the editors and two anonymous reviewers for their insightful comments on previous drafts. We would also like to express our gratitude to all the migrants who shared their stories with us both in the Netherlands as well as in Canada. Without them this article could never have been written.