It looks first at the punishments used for irregular entry or stay, when persons enter or stay in a territory although they are not authorised to do so. It examines, in particular, the custodial penalties for irregular entry or stay for persons to whom the safeguards of the EU Return Directive should apply. It then examines the risk that those who help such migrants or rent out accommodation to them are punished for smuggling human beings, or facilitating their entry or stay. The paper compares EU Member States’ legislation and case law in this field, analysing the findings in light of relevant EU law. Based on this analysis, the paper proposes changes to policies against the smuggling of human beings, to render them more sensitive to fundamental rights.