Migrants' Agency in Smuggling Routes: Criminalising Practices and Socio-Legal Implications in the EU

This chapter examines the increasing criminalisation of migrants within the European Union under human smuggling laws, focusing on the intersection of migrant agency and the complexity of smuggling networks. It analyses current legal and policy frameworks that adopt a binary view of migrants as either “objects” or “agents” of smuggling, resulting in their prosecution under laws designed for organised criminal groups. By exploring international, EU, and domestic legal systems, the chapter identifies protection gaps that expose smuggled migrants—particularly those who facilitate their own journeys—to criminal liability. Case studies illustrate how these frameworks merge migrants’ agency with that of smugglers, potentially undermining their rights as asylum seekers and their access to protection. The chapter explores the need for legal approaches to human smuggling that address both the vulnerability and agency of migrants and discuss potential reforms, including measures to prevent the criminalisation of smuggled migrants and asylum seekers.