Smuggling of migrants is no longer a marginal offence at the external borders of the EU, but a daily reality in inner-European border regions as well. In the German–Belgian–Dutch triangle around Aachen, investigations into alleged “smugglers” range from low‑level drivers who transport people for small sums to actors accused of involvement in structured international networks. For those affected, the stakes are high: prison sentences of several years, extensive asset seizures and, in cases with fatalities, even life imprisonment.
German criminal law addresses smuggling of migrants primarily through sections 96 and 97 of the Residence Act (AufenthG). These provisions have been tightened significantly in recent years, most notably by the “Act to Improve Return” in 2024. At the same time, case law of the Federal Court of Justice (BGH) and European law – including the Return Directive and recent decisions of the Court of Justice of the European Union – shape the limits and scope of criminal liability. Anyone facing such accusations needs a defence that understands both the dogmatic fine print and the realities of cross‑border enforcement practice.
Core idea: Assistance becomes perpetration
The special feature of section 96 Residence Act is that it elevates assistance to an immigration offence into an independent offence in its own right. In simple terms: what would normally be punished as “mere” aiding and abetting an illegal entry or stay is treated as full perpetration once certain additional elements are present – for example, payment, repeated activity or assistance for several migrants at once. This technique allows the law to focus on those who organise or profit from irregular migration rather than on the migrants themselves.
However, liability under section 96 presupposes that the migrant has committed an underlying immigration offence. The law uses a model of “limited accessoriness”: the main act of the migrant must be intentional and unlawful, but it does not have to be culpable. That is why even children or otherwise not culpable persons can be “smuggled” in a legal sense, as long as they objectively enter or stay without the required permit. For the defence, this is a key starting point: if the supposedly “smuggled” person actually had a valid residence title – for example a visa that still covered entry and stay – then there is no punishable main act and, consequently, no smuggling.
In practice, this means that the residence status of each individual migrant must be scrutinised carefully. In many proceedings, this has not been fully clarified in the investigation phase. A precise examination of documents, visa conditions and the purpose of stay is therefore often the first decisive step for a successful defence.
Typical constellations: Transport, organisation, money flows
In border regions, the classic scenario is the transport case: a driver picks up several foreign nationals in Belgium or the Netherlands and brings them across the border into Germany. Often, the driver earns a modest sum per person – not a “big fish”, but still accused of a serious immigration crime. Legally, this is typically treated as assisting with an illegal entry, i.e. smuggling under section 96 (1) Residence Act where at least one of the statutory “smuggler features” (payment, repeated activity, assistance for several migrants) is present.
Increasingly, the focus is also on the organisational and financial infrastructure behind such transports. Informal value transfer systems such as Hawala have come into the crosshairs of law enforcement. German courts have held that a Hawala banker can be criminally liable if he processes payments that serve to finance smuggling operations. In such constellations, the defence must examine very carefully what the accused actually knew about the purpose of the transactions, and whether the required intent to support illegal entry or stay can really be proven.
A further field of application is the facilitation of illegal stay and undeclared employment. Here, the law focuses on financial advantage: whoever enables an irregular stay in Germany and obtains a material benefit from this – for example by exploiting cheap, unregistered labour – risks prosecution under section 96 (1) no. 2 Residence Act. Recent case‑law has pushed the boundaries of this concept by accepting even saved social security contributions and payroll taxes as sufficient “advantage”. From a defence perspective, it is therefore crucial to challenge the alleged link between any economic benefit and the specific immigration offence.
Sharpened penalties and new qualifying elements
With the 2024 reform, penalties for smuggling of migrants have been raised significantly. The basic offence under section 96 (1) now carries a custodial sentence from six months up to ten years. In serious cases – for example if the act is committed on a commercial basis, by a criminal group, with weapons, under life‑threatening conditions or during a dangerous escape from police control – the minimum sentence is one year. This means that all these qualified forms are classified as felonies and trigger far‑reaching consequences, such as the applicability of criminal provisions on conspiracy and preparatory acts.
From the perspective of the accused, this has two main implications. First, custodial sentences are no longer the exception but the rule in many constellations, even for first‑time offenders. Second, investigations are increasingly wide‑ranging: telecommunications surveillance, data extraction from mobile phones, international legal assistance and financial investigations are standard measures in serious smuggling cases.
At the same time, courts have clarified that not every safety deficit automatically constitutes a “life‑endangering treatment”. The concrete circumstances of transport – route, speed, number of passengers, availability of seat belts and emergency exits, weather conditions – have to be assessed in detail. This is precisely where a defence rooted in the actual facts can prevent an automatic escalation into the most serious qualification levels.
Smuggling with fatal outcome
If migrants die in connection with a smuggling operation, section 97 Residence Act comes into play. This provision is structured as a result‑qualified offence: it builds on smuggling under section 96 but adds the death of a migrant as a particularly severe outcome. The law does not demand that the smuggler intended or even accepted the death. It suffices that the fatality is attributable as a consequence of negligent conduct related to the smuggling.
German high‑court case law has in recent years dealt with two main scenarios: fatal accidents during risky sea crossings, and deadly crashes when smugglers try to escape police on roads. The courts stress that the exact sequence of events does not have to be foreseeable; it is enough that the death manifests the typical risks inherent in the smuggling operation. For the defence, this raises complex questions of causation and “specific risk”: Did the accused truly create or increase a legally relevant danger, or was the death the result of an unforeseeable break in the chain of events?
The 2024 reform has further tightened the regime: the minimum penalty for smuggling with fatal outcome has been raised, and particularly grave forms now carry a sentencing range up to life imprisonment. In such cases, a meticulous reconstruction of the events and a precise analysis of the defendant’s individual contribution are indispensable.
European law and humanitarian assistance
Smuggling of migrants does not take place in a legal vacuum. EU law influences both the definition and the limits of criminalisation. Two developments are particularly relevant. First, the Return Directive ensures that administrative returns are prioritised for migrants; however, German courts have made clear that this does not shield smugglers themselves from criminal liability. Second, the Court of Justice of the European Union has restricted the criminalisation of purely humanitarian assistance. According to recent case law, unpaid support for family members may not be treated as criminal “facilitation” of unauthorised entry.
For defence counsel, these European guardrails offer important lines of argument in cases where assistance is driven by family unity or humanitarian motives rather than profit. At the same time, they underline the need to differentiate sharply between commercial smuggling on the one hand and solidarity‑based support on the other.
Why specialised defence matters
Smuggling cases are complex. They sit at the intersection of criminal law, immigration law and EU law. They often involve cross‑border investigations, digital evidence and language barriers. And they come with enormous personal consequences: for migrants who risk their lives, and for defendants who face years in prison and long‑lasting bans and entries in criminal records.
Anyone who is accused of smuggling of migrants, whether as a driver, organiser, intermediary or financial actor, should not face these proceedings alone. What matters is a defence that knows the case law on sections 96 and 97 Residence Act in detail, understands the investigative practices at borders and in transit hubs, and is familiar with the particularities of proceedings arising in the German–Belgian–Dutch border region.
As a criminal defence lawyer specialising in both criminal law and IT‑related issues, and with experience in numerous smuggling cases in the Aachen tri‑border area, the focus is on three goals: securing procedural rights from the very first police contact, rigorously testing whether the strict legal requirements of the smuggling offences are truly met, and mitigating the consequences wherever possible – from the choice of charges to sentencing and seizure of assets.
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