Asylum-Seekers Prosecuted for Human Smuggling: A Case Study of Scafisti in Italy

Abstract

States increasingly prosecute irregular migrants – asylum-seekers included – for their (alleged) involvement in human smuggling during their own migration journey. Based on a literature review and interviews with lawyers, prosecutors, judges, and migrants on Sicily, this article provides insight into the nature and scale of this phenomenon in Italy and discusses the effects of criminal prosecution on these migrants’ asylum procedures. From 2015–2018, as a standard operating procedure, roughly 1,300 “captains” and navigators – scafisti (literally: smugglers by boat) – of small dinghies with migrants arriving in Italy have been arrested for suspicion of “aiding clandestine (or irregular) immigration”. Most scafisti are migrants themselves and there are strong indications that they were forced to steer or navigate the boat. These prosecuted migrants face many difficulties in proving duress and are often inadequately advised about the consequences of a criminal conviction on their subsequent immigration procedures. After a conviction, as well as after an acquittal, they are often excluded from official reception centres and have difficulties accessing asylum procedures. When they manage to apply for asylum, they will be denied international protection if they have been convicted. When they cannot be expelled, they may end up in a legal limbo, having to rely on a temporary humanitarian status with strict limitations.