Helping willing people overstay their visa, cross borders illegally, get work permits: which crime is this?

Question

I am trying to figure out what this type of crime is.

Some people immediately call this "human trafficking", but according to wikipedia, human trafficking involves some kind of coercion and victims:

Lets imagine the following people who are knowing or unknowing part of a scheme:

1. Guest worker from Asia, pays a sum to a recruiting agency in Asia
2. European recruiting agency is getting a cut from the asian agency, for finding work for their candidates
3. Hotel in Europe takes these seasonal workers to work for them, on short term legal work permits
4. Some shady person organizes these guest workers, who have Schengen visas to travel to another country (unclear if this happens legally or ilegally), which needs workers, another recruiting agency helps them get long term work permits in this other country.

I know this is happening for a fact and my question is, which of these parties is committing which crime? The end result is people having a real long term work permit. They also have real geographically unlimited schengen visas when they come as seasonal workers. Lets forget the intricacies of Schengen law and EU. Only focus on the question what this thing is called and can it be described as human trafficking?

I understand that people giving consent under threat is no real consent, but these people actively find a recruiting agency, pay them money, get to Europe, pay some other agency money, etc.

If this is not human trafficking, what kind of other crime is it?

Assume these people are not threthened or coerced, there is no forced or illegal labor, there is no prostitution, etc. There are cases of fraud, but its not systemic. I am also not involved with the workers directly, I do not make any promises to them, I do not take payments from them, etc. However I do get a payment from their agency.

Lets assume these people don't have Schengen visas, but cross the border illegally, then work illegally or overstay their visas. Would that make it human trafficking? Its still not coerced after all.

Answer 1

You did not highlight the words "for the purposes of exploitation" in the quoted passage, which are a vital part of the definition. And in the scenario described, that is what makes the difference between human trafficking versus simply using the immigration/visa system as intended.

The UK is not part of Schengen, but has implemented the Palermo Protocol in the Modern Slavery Act 2015 and the Human Trafficking and Exploitation (Scotland) Act 2015. MSA section 2 and HTE(S)A section 1 contain a similar definition of the offence of trafficking, in the same terms as in the Protocol. Both require that the recruitment, transportation, etc. be "with a view" to someone "being exploited". The definition of "exploited" (section 3 of both Acts) encompasses:

1. Being subject to slavery, servitude or forced labour - contravening Article 4 of the European Convention on Human Rights;
2. Being a victim of certain sexual offences, including being compelled into prostitution;
3. Being encouraged, required or expected to be involved in offences relating to the illegal removal of organs;
4. Being subject to force, threats or deception in order to provide services or benefits to another.

If these conditions are not met then the conduct is not trafficking. For the scenario in the question, the factual circumstances might or might not support the presence of force or deception, or characteristics of the work which bring it within the prohibition of Article 4.

Aside from this, it's possible that other immigration offences could be being committed. Some relevant ones are -

• illegal entry, overstaying, failure to comply with conditions (Immigration Act 1971 s. 24); illegal working (Asylum and Immigration Act 1996 s.8, Immigration, Nationality and Asylum Act 2006 s.21)
• deception (Immigration Act 1971 s. 24A(1)), failure to provide documents (s. 26(1)(b)), making a false statement (s. 26(1)(c)), fraud or forgery in general
• providing immigration advice or services as a non-qualified person, or offering to do so (Immigration and Asylum Act 1999 ss.91(1) and 92B(1))
• "facilitating the commission of a breach of immigration law" (Immigration Act 1971 s.25)

In the example of people who "cross the border illegally, then work illegally or overstay their visas", it's a given that the people themselves are committing certain offences as above. Someone in an agency who is helping them to do so, or is aware that this conduct is going on and continues to support it, is very much the target of the facilitation offence mentioned. Additionally, if an agency is acting as a sponsor, there are various regulatory requirements for provision of information and actually carrying out the sponsorship, with penalties for not doing so.

Answer 2

The crime (if any) is called people smuggling

If, as you say in the title, someone assisted someone else to cross an international border unlawfully, then the person who crosses is an illegal entrant, and the person who helped is a people smuggler. Human trafficking is a different crime.

In australia, there are various offences under the Migration Act 1958 that fall within the catch-all term.