The Human Toll of Europe’s ‘War on Smuggling’

How new laws leave smugglers free while jailing thousands of migrants and asylum seekers on dubious charges

The Human Toll of Europe’s ‘War on Smuggling’
A boat carrying some 400 refugees and migrants docks at Paleochora, Crete, on Nov. 22, 2022. (Costas Metaxakis/AFP via Getty Images)

Osama Al Sahili first learned about the shipwreck from a video sent on WhatsApp. On Christmas Day, 2021, he was sitting in his living room in Finland when he received a message on his cellphone. The video, filmed the previous night, showed a small yacht, packed with 77 people, sinking off the Greek island of Paros in the Aegean Sea. His brother Kheiraldin, with a black beard and sunken, tired eyes, was among the passengers.

Several agonizing minutes later, a new video appeared: Passengers were disembarking from a fishing boat that had rescued some of the survivors. Kheiraldin was amongst them, shivering in a khaki T-shirt. “That’s how I knew he was alive,” Osama tells New Lines.

Osama and Kheiraldin Al Sahili had fled their home in Baniyas, Syria, in the early days of the country’s conflict. From Turkey, Osama made his way north through the Balkans, eventually reaching Finland, where he was granted asylum. But Kheiraldin remained stuck in Turkey. “Three times, after crossing the Evros River into Greece, the Greek border guards sent him back to Turkey,” recalls Osama.

Kheiraldin’s 3-year-old daughter had a deteriorating heart condition that required medical treatment in Europe. Frustrated by his failed attempts to cross the border on foot, he ultimately made contact with a smuggler in the hope of arranging a journey by boat, circumventing Greece to arrive in Italy — a trip of over 600 miles (1,000 kilometers). “He decided to risk his life to save his daughter. But the unfortunate happened,” says Osama.

After the video of the shipwreck, Osama had no further news of his brother until, days later, he began receiving phone calls from a Greek prison. On the other end of the line, Kheiraldin explained that he had accepted an offer to steer the boat himself, since he didn’t have enough money to pay for the trip. Now the Greek police were accusing him of being the smuggler who had organized the crossing, which had resulted in 18 passengers drowning. He was facing a life sentence in prison for each of the 18 victims.

Prison sentences like Kheiraldin’s are not uncommon. All over Europe, thousands of migrants are jailed on charges of association with smugglers, often for doing no more than holding the tiller of a boat or handing out a flotation device to a fellow passenger. Given the divergent judicial systems and procedures in place in different European countries, it is impossible to estimate the total number of people currently imprisoned for migrant smuggling across the European Union, but figures obtained by New Lines in three countries suggest it is in the thousands.

In Italy, an estimate by the Italian NGO Porco Rosso indicated that more than 2,500 boat drivers have been imprisoned since 2014. In Greece, New Lines was able to determine that over 2,200 people are currently imprisoned on charges of smuggling human beings or “facilitating the illegal entry” of people into the country, according to the Ministry of Justice. In the U.K., according to data obtained by New Lines through a freedom of information request, 912 people were sentenced for immigration facilitation offenses between October 2019 and October 2021 in the county of Kent alone, where most migrant arrivals take place. Sentences are often harsh, reaching dozens of years in prison. In the U.K., despite a new legal precedent against prosecuting asylum seekers as though they were smugglers, those who steer boats across the English Channel now face the possibility of life in prison.

The push to prosecute migrants as if they were smugglers began in earnest over the past decade. Europe found itself on the receiving end of a human displacement crisis that reached its peak with the raging war in Syria. Yet migration also had older and deeper roots in the economic and political turmoil following the 2008 global recession and the 2011 political uprisings in areas along the southern and eastern Mediterranean coastlines and Africa.

Europe passed a political tipping point after more than 800 migrants drowned in a shipwreck 60 miles off the Libyan coast on April 19, 2015, while trying to reach the Italian island of Lampedusa. With most people on board being refugees and migrants coming from Eritrea, Syria and West African countries, the scale of the tragedy shook policymakers to find a culprit for these recurring accidents.

“We have declared a war on smugglers,” announced the former EU Commissioner for Immigration, Dimitris Avramopoulos, five days after the shipwreck. That year, over 1 million people traveled to Europe to seek asylum. Since then, national authorities have tried to stop the arrivals by arresting thousands of people and charging them with belonging to organized criminal networks that smuggle migrants into Europe. The increased focus on border security can be seen clearly in the EU’s budget allocation. A report published by Statewatch in March of this year showed an unprecedented sum of money has been allocated for defense and security purposes: 43.9 billion euros for the period of 2021-27, more than double the 19.7 billion euros allocated for 2015-21. Within this overall security budget increase, specific increases related to border control and anti-smuggling have been granted to the Internal Security Fund (90% increase), the Integrated Border Management Fund (131% increase) and law enforcement agencies like Europol and Frontex (each gaining a 129% budget increase). So far, none of these efforts have stopped deaths at sea: Almost 2,000 people drowned or disappeared in the Mediterranean in 2021 alone, in what the UN’s International Organization for Migration (IOM) has described as the world’s deadliest border for migrants.

Among the thousands arrested as a result of this intensified war on smuggling are many asylum seekers like Kheiraldin Al Sahili, with no demonstrable link to organized crime.

New Lines has analyzed dozens of court cases across Greece, Italy, the U.K. and Spain, interviewing lawyers, authorities, activists and people accused of being smugglers. Among the findings of this analysis are that, on Europe’s Mediterranean borders, border police are under great pressure from the authorities to identify smugglers among the passengers of migrant boats.

Investigations and trials across Greece, Italy and the U.K. are frequently marred by irregularities and fast-tracked procedures. Very few witness statements are required to secure a conviction: In many cases examined by New Lines, a police or border guard officer was the only witness testifying against the accused at trials. The simple, desperate act of steering a boat to European shores, holding a GPS device or even making an SOS call can land a person in jail — sometimes for dozens of years.

Lawyers interviewed for this investigation in Italy, Greece and the U.K. all confirmed that, in many cases, those accused of smuggling activities do not fully understand the charges brought against them, as translation services are insufficient. Lawyers, who are mostly duty criminal solicitors with no specific experience in immigration law, may end up with little or no opportunity to properly debrief and advise their clients before a trial.

On May 5, 2022 — 137 days after his arrest — Kheiraldin Al Sahili appeared in court on the Greek island of Syros, along with two more defendants identified as co-drivers of the boat, Abdallah J. and Mohamad Bayassi. The three men, all from Syria, faced charges of having formed a “criminal association,” “causing a shipwreck” with 18 victims, and “facilitating the illegal entry” of the 59 survivors to Greece.

Sitting with their heads down in front of the three judges, the men waited anxiously for their turns to testify. They had only agreed to steer the boat because they couldn’t afford to pay between 7,000 and 10,000 euros for the trip, they argued. When they had seen the size and condition of the boat, they had refused to steer it and encouraged the passengers to leave, but the smugglers had threatened them at gunpoint, they claimed. During one of the trial’s breaks, they were overcome with emotion when shown videos of their children, wives and mothers by family members who had traveled to Greece to attend the trial.

In his closing argument, the prosecutor recommended they be acquitted of “criminal association” and “causing a shipwreck.” The responsibility for the deaths of that Christmas Eve, he said, was not theirs. The room breathed a sigh of relief when the judges ruled the three men were only guilty of “facilitating the unauthorized entry” of the asylum-seekers.

Under Greek law, however, helping irregular migrants enter the country is a felony that carries penalties of up to 15 years in prison for each person transported. Laws of this sort have existed in so-called “first-arrival” countries for a long time: Bills criminalizing the facilitation of irregular entry were drafted and approved in many European countries following the EU directive known as the “Facilitators’ Package” of 2002, which researchers commissioned in 2018 by the European Parliament evaluated as “a bad law that is not fit for purpose.” “As it stands, the Facilitators’ Package gives Member States permission to stretch the definition of smuggling as far as to criminalize acts without any criminal intent,” the study concluded. Among EU countries, Greece is one of the strictest when it comes to anti-smuggling legislations.

In Kheiraldin’s case, the judges calculated a basic sentence of 10 years in prison, plus three years for each of the 59 survivors on the boats. They read out the sentences: 187 years in prison for Kheiraldin as the boat’s “captain,” 126 years each for the “assistants” Abdallah and Mohamad.

“Having your — innocent — clients convicted in a total of 439 years in prison and consider it a win! This is the madness of the draconian laws of Fortress Europe,” tweeted the lawyer for the accused, Dimitris Choulis, after the trial, announcing they would appeal the sentences. Choulis has defended dozens of similar smuggling cases in Greece. He was born on Samos, an island so close to neighboring Turkey that Turkish mountains can clearly be seen from its beaches looming on the horizon.

“For a long time, it was mostly Turkish boat drivers that were bringing people here,” he explains. After defending his first boat driver in 2010, the lawyer’s contact number started circulating in Greek prisons, and he found himself representing more and more people. “But after many Turkish drivers were arrested as smugglers, we saw a change of strategy,” he says. “Now, the people accused as smugglers are usually refugees themselves.”

Under Greek law, prisoners can only stay in jail for a maximum of 20 years, and can apply for probation after completing three fifths of that time. This means that, even if sentenced to over 100 years in prison, they might only serve 12. Still, Choulis believes these convictions are destructive, not only for the accused but also their families.

“Sometimes, people accept to steer the boat because they don’t have money to pay for the trip. Sometimes, they just happen to be sitting next to the engine, and the smuggler jumps out after a few minutes at sea. Sometimes, the Greek police just choose someone randomly and arrest them,” Choulis explains. “I never considered any of them smugglers, with the meaning that we give to the word smuggler, as in someone who is trafficking people.”

As he sips iced coffee, his phone pings with messages every few minutes. His clients in prison sometimes manage to get hold of a phone and message him on Facebook asking for money, phone data or to pass a message to their relatives. Out of dozens of cases he has worked on as a defense lawyer, only a handful have been released on parole, and only five acquitted. “We are completely destroying their lives,” says Choulis, “and no one cares.”

While Kheiraldin Al Sahili was returning to his Greek prison cell, facing the prospect of at least 12 years behind bars, on the other side of the continent, in the U.K., 31-year-old Fouad Kakaei was enjoying newfound freedom after more than two years in prison for a very similar accusation.

On April 14 of this year, the former British Prime Minister Boris Johnson announced a plan to fly asylum seekers to Rwanda to have their claims processed there rather than in the U.K. This arrangement was necessary, he claimed at the time, to stop “vile people smugglers … abusing the vulnerable and turning the [English] Channel into a watery graveyard.” Between the start of this year and Oct. 31, nearly 40,000 migrants crossed the stretch of sea separating the U.K. from mainland Europe aboard small boats, a sharp increase from 28,000 arrivals in 2021 and 8,000 in 2020. Johnson’s controversial new bill, which became law in April, restricted the right to seek asylum for those entering the Kingdom irregularly and even introduced the possibility of imposing life sentences in prison on those who drive boats across the English Channel.

Here, too, migrant rights groups believe the people jailed have little to do with the actual smuggling rings managing the crossings. “It is clear to everyone that smugglers are never present on the boats crossing the Channel, and that those being arrested are the unlucky refugees who were instructed to hold the tiller,” says Canel Halil, a duty solicitor and criminal lawyer based in Stratford and Kent.

Like Choulis in Greece, Halil has been at the forefront of pushing back against prosecutions of alleged smugglers by the British authorities. Throughout the pandemic, Halil acted as the duty defense solicitor of Fouad Kakaei, a 31-year-old Iranian man arrested by the U.K. Border Force on New Year’s Eve 2020, after being intercepted together with a group of asylum seekers crossing the Channel on an inflatable boat.

A tall man with piercing dark eyes, Kakaei first claimed asylum in Denmark, but his application was rejected. He then made his way to northern France, whence he tried to reach the U.K. three times. On his first try, he paid smugglers to hide him in a lorry. When this failed, “a smuggler told me, ‘If you steer the boat I will send you tonight’ … So I accepted,” he said. Upon arriving in the U.K., he was detained and sent back to Denmark. On his second attempt, he paid to hide on a cargo ship leaving the French port of Dunkirk. He was found by the ship’s personnel and locked into a cabin. “When the ship docked in England, the Border Force entered, took our fingerprints and then told the crew to take us back to France.”

The third time, in December 2019, Kakaei paid to embark once again on a small rubber boat, “but this time, no steering.” The passengers soon found themselves in distress in the middle of the sea. “Other people on the boat were taking turns steering, but didn’t know how to. We were in a dangerous situation and I knew how to do it better,” he says — so he grabbed the tiller. He was charged with having facilitated the illegal entry of the others. After spending a year in custody on remand, he was sentenced in January 2021 to 26 months in prison.

People accused of being smugglers are usually advised to plead guilty in the hope of getting a lower sentence. Yet Kakaei stuck to his insistence that he was no smuggler, and had only held the tiller at a crucial point of the journey, when the boat was in distress. “I did nothing else but try to save my life and the lives of the other people on board. Anyone in my place would have done the same,” he said.

Because the U.K. functions under common law, where judges are obliged to consider precedent, Kakaei’s lawyers realized his case had the potential to challenge the whole system of criminalizing boat drivers. “My lawyer told me that if I appealed my conviction and won the case, this would help many other innocent people in prison for the same thing,” said Kakaei. “By then, I had already been in prison for one year and a half. If staying in prison a few more months would help others get a fair trial, then why not?”

On May 13, 2021, Kakaei’s case went to retrial, and his conviction was finally overturned. More than a year later, in June 2022, he received a positive answer for his asylum application in the U.K. But his imprisonment still weighs on him. “I found nothing here. Yes, I am safe — but I exchanged safety for everything I had,” he told New Lines.

Kakaei’s case paved the way to further appeals by many others wrongfully convicted in the U.K. for being smugglers. Eleven people have since had their previous convictions overturned, and similar charges have been dropped against at least 10 other defendants. The Crown Prosecution Service, a government body setting the principles to be followed by U.K. prosecutors, had to amend their protocols to specify that asylum seekers with no proof of involvement in organized crime groups should not be prosecuted for driving a boat. “All credits need to go to Kakaei really,” insists Halil.

Yet successes of this sort are exceptions to the wider norms of Europe’s war on smuggling. From Oct. 17-21 of this year, back on the island of Samos, Dimitris Choulis was once again in court. Jassim Jawish, a Syrian man convicted for driving a dinghy to Greek shores, was appealing his sentence of 55 years in prison. This time, the Court of Appeals judges recognized he had only facilitated the entry of other migrants in order to apply for asylum himself, and lowered his sentence to three years suspended. Having already spent over five years in prison, he walked out of the courtroom free.

“This time, the judges recognized the human factor. But in most cases, they only act like calculators, counting 10 years for each person transported,” said Choulis, pleased — if surprised — by the court’s clemency. “We need a change of legislation, in order not to rely only on having a good judge,” he said. “We need to be able to rely on the law, so asylum seekers who drove the boat don’t end up in prison.”

Ten days later, on Nov. 1, Greece was once again waking up to the news of two deadly shipwrecks in the Aegean. At least 26 people were confirmed dead, with 31 still missing. Among the dozen survivors, two men were arrested, suspected of having steered the shipwrecked sailboat to Italy.

“What we are actually doing, both as a country and as the European Union, is stealing the most valuable thing that someone has: time,” said Choulis. “We are stealing time away from their lives.”

This investigation was funded by the Investigative Journalism for EU (IJ4EU) fund, with additional support from Lighthouse Reports and collaboration by Frag Den Staat.

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