Crimes of Mobility

Criminal Law and the Regulation of Immigration

Ana Aliverti

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136736513
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Winner of the 2014 British Society of Criminology Book Prize

This book examines the role of criminal law in the enforcement of immigration controls over the last two decades in Britain. The criminalization of immigration status has historically served functions of exclusion and control against those who defy the state's powers over its territory and population. In the last two decades, the powers to exclude and punish have been enhanced by the expansion of the catalogue of immigration offences and their more systematic enforcement.

This book is the first in-depth analysis on criminal offences in Britain, and presents original empirical material about the use of criminal powers against suspected immigration wrongdoers. Based on interviews with practitioners and staff at the UK Border Agency and data from court cases involving immigration defendants, it examines prosecution decision making and the proceedings before the criminal justice system. Crimes of Mobility critically analyses the criminalization of immigration status and, more generally, the functions of the criminal law in immigration enforcement, from a legal and normative perspective.

It will be of interest to academics and research students working on criminology, criminal law, criminal justice, socio-legal studies, migration and refugee studies, and human rights, as well as criminal law and immigration practitioners.

1 Introduction

Background of the book

Being a foreigner today in a globalized world is perfectly normal. For many, it is much easier than it was decades ago to leave one’s own country, venture into other cultures and study, work and settle in a country different from that of one’s origin. It is estimated that around 214 million people currently live outside of their countries of origin, more than double the figure recorded in 1980 (United Nations 2008). In this context of global mobility, as Seyla Benhabib put it, ‘individuals no longer enter their societies at birth and exit them at death’ (1999: 719). As a consequence, receiving societies have not remained untouched. Along with the conflicts and tensions involved in the process of adaptation, they have become more open to accommodating newcomers and more cosmopolitan, incorporating elements of different cultures into their own (Benhabib 1999, 2002; Melossi 2003, 2005). For some foreigners, especially those who are well-off, educated and capable of quickly adapting to the vernacular society, this process is smoother than for others (Dauvergne 2004: 602). While the rapid expansion and modernization of the transnational transportation of people and goods, and the globalization of media outlets have brought different parts of the world closer and increased human mobility and communication dramatically, this process has not been equal (Aas 2011a). In fact, the experience of migration for some has become ever more difficult. While the ‘best and the brightest’ are still a sought-after category by countries imposing stringent controls on immigration – such as Britain¹ – many others struggle to reach the shores (Boswell 2003: 5). The images of people trying to cross the Mediterranean Sea in home-made boats, escaping political turmoil in North Africa in the first half of 2011, is but one example. Contemporary Western European societies enjoy relatively high levels of social and economic welfare and equality. Economic immigrants, refugees and expatriates are perhaps a constant reminder of an unequal world at Europe’s doorsteps (Sassen 2002).

Recent practices and policies in rich countries suggest that the international mobility of people from poor regions of the globe is regarded as undesirable and to be avoided (Bigo 1994; Anderson 2000; Torpey 2000; Bigo and Guild 2005). Stronger border controls have made these journeys increasingly hazardous, exposing people to death (Weber and Pickering 2011). Even if they are seldom broadcast, their experiences of exile are dramatic and distressing.² So too is the reality that some of them face once they arrive in Europe. For those who manage to reach the shores, the response is to block, detain and eject them through practices that resemble those deployed by the police to punish outlaws and disorderly sections of the population. In European countries, these exclusionary policies – including the criminalization of immigration violations – are in part the result of the process of harmonization and coordination of European immigration and asylum policies, particularly after the Schengen Agreement and the Maastricht Treaty in 1985 and 1992, respectively (Bigo 2005; Sciortino and Pastore 2004; Guild and Minderhoud 2006; D’Appollonia and Reich 2008). Poor, low-skilled immigrants are increasingly considered a new underclass. As a consequence, the mechanisms and practices of the criminal justice system are being transposed onto the treatment of foreigners. In what Loïc Wacquant called the ‘penal management’ of foreigners, non-nationals fill the space of seclusion centres in many countries of Europe and are over-represented in their prison populations (Wacquant 2005: 40; see also Wacquant 1999, 2006; Melossi 2003; De Giorgi 2010).

This book aims at understanding the devices introduced by the British government to control the entry and stay of immigrants in the country. It examines the system of immigration enforcement and the juxtaposition of different regulatory regimes – administrative and criminal – to control immigration. Because of the transposition of the vocabulary, strategies and tools used in the criminal justice system, immigration enforcement has become increasingly hybrid, operating in between the administrative and the criminal regimes. This is what some authors have named the ‘criminal administrative system’ (Albrecht 2000: 146), the ‘quasi-administrative, quasi-criminal’ system (Pratt 2005: 23) or the ‘hybrid crime/immigration system of social control’ (Miller 2003: 666). I focus on a particular aspect of this system: the criminalization of immigration breaches – so-called ‘immigration crimes’. ‘Immigration crimes’ is a category difficult to circumscribe because of its blurred contours. For analytical reasons, in this study I will consider immigration offences as those inserted in immigration and asylum legislation. These are offences purely related to one’s immigration status and can be committed both by citizens and non-citizens (Demleitner and Sands 2002). I will particularly address immigration offences that can only be committed by non-nationals.

Despite the fact that the ‘criminalization of immigration’ as a theme is current in recent scholarly research, the formal conversion of immigration breaches into criminal offences remains under-researched – particularly in the United Kingdom (UK). This is surprising given the enlarged scholarship on immigration studies and the significant expansion of these offences in British legislation since the mid-1990s. It is also curious because the formal criminalization of immigration law is perhaps the most apparent facet of the criminalization phenomenon. In fact, it is in the proliferation of immigration crimes that the convergence of administrative and criminal regimes is becoming more visible.

Further, some of the literature on the criminalization or securitization is backed by thin empirical evidence about this phenomenon. This is probably one of the reasons why the novelty and strength of the criminalization phenomenon are often exaggerated.³ In this research I demonstrate that while certain claims are undeniable – such as the deployment of criminal law control strategies and language in immigration enforcement – other assertions about the dramatic changes in the field of immigration and crime are quite overstated. Not only are immigration offences not new, but neither is this a generalized phenomenon. In fact, the use of criminal law against non-citizens is usually confined to specific cases, particularly when the option of executive removal is not available. Criminalization is, thus, an accidental, mundane, erratic and discretionary phenomenon rather than a planned strategy and a synchronized project to keep people behind bars.

This study is both a theoretical and empirical enquiry about the role of criminal law and the criminal justice system in the regulation of immigration. It sheds light on the unexplored field of ‘criminal immigration laws’ (Eagly 2010: 1297) by providing original empirical data on the decision-making process in cases involving people in breach of immigration rules and how these cases are dealt with by the criminal justice system. Theoretically, it critically analyses the function that the criminal law is called on to play in immigration enforcement. By examining immigration crimes in past and contemporary legislation, and the function they serve in present conditions, it assesses whether the justification for criminalizing immigration breaches is sound. In doing so, this study brings together recent criminal law theory and immigration studies in order to enrich the debate on criminalization in both fields.

Criminalization, immigration and ‘crimmigration’

Because immigrants – and undocumented immigrants in particular – have become the main targets of state control both in public rhetoric and policy, it is not surprising that the devices to control the outsiders and marginalized within the state are increasingly applied to immigrants – including the criminal law. In this context, a number of scholars have argued that a process of ‘criminalization’ of immigrants and immigration policies is taking place in Western, liberal democracies (e.g. Wacquant 1999, 2005, 2006; Aas 2007; De Giorgi 2010; Cecchi 2011) – or in Juliet Stumpf’s terms, ‘crimmigration’ (2007).⁴ These authors have claimed that states are increasingly deploying the penal system – or indirectly, the representations and strategies used by the criminal justice system and its agencies – in the treatment of unwelcome foreigners. In this sense, the policies and practices that have the effect of criminalizing immigrants are partly different from purely ‘restrictionist’ policies – understood as those which curtail the enjoyment of rights and liberties of a particular population – in that the former appeal to criminal justice imagery, while the latter do not necessarily do so. Often, though, these policies overlap. As Jennifer Chacón (2007: 1840) showed, measures that restrict immigrants’ access to health care, education and other welfare services are frequently backed by depictions of those immigrants as criminals and security threats, and are justified as crime prevention strategies (also Pratt and Valverde 2002).

Even though in strict terms the notion of ‘immigrant’ is broad, encompassing foreigners with different backgrounds (professional, ethnic, socio-economic, etc.), in public discourse and the media, it is increasingly circumscribed to a narrower category of non-citizens: non-white, poor, unskilled workers from developing countries. Robin Cohen (1994: 189) called this group ‘third world immigrant’ or ‘helots’; that is, those immigrants who, in addition to being deprived of many rights enjoyed by citizens – principally, the right to vote and be elected – are in a much worse situation than other foreigners in a given receiving country because they belong to an ethnic minority, are unskilled, and are poor. The difference between foreigners coming from poor and rich countries is also manifested in the enforcement of controls over borders: states do not distribute the burden evenly. Foreigners coming from different parts of the globe are treated differently concerning formal and informal practices – visa requirements, restrictions on the right to entry and stay, enjoyment of civil rights, and judicial and extrajudicial treatment (De Giorgi 2006: 112). Further, not all ‘third world’ foreigners are treated alike. Katja Franko Aas (2011a: 336) pointed to a further stratification within this group, between ‘crimmigrants’ (suspected terrorists, people with criminal convictions, undocumented immigrants, etc.) and ‘bona fide travellers’ (defined as the globally privileged population). This classification is rooted in the different functions that the European Union (EU) border surveillance systems perform: while they act as a ‘gate opening’ for frequent flyers, they block the entry to unwanted foreigners.

As the foregoing analysis suggests, not all foreigners are ‘immigrants’. Those so designated are often represented in the tabloid media as a ‘dangerous’ class and their social, cultural and sometimes ethnic differences in the receiving society render them as ‘outsiders’. However, the link between immigration and crime is not new (Melossi 2000). As I will show in Chapter 2, in Britain, immigrants have been in many instances linked to criminality, social unrest and public disorder. Elsewhere, in the late nineteenth and early twentieth centuries, large flows of immigration – mainly Jewish, Southern European, Irish and Chinese people escaping from hunger and wars – became a great concern for receiving countries in South and North America, not only because of their numbers but also because of their origin. They were accused of bringing disorder and crime to the ‘new continent’, and anarchist and socialist ideas to agitate the masses. Early criminological research in countries that hosted the newcomers both in the North and the South – such as the United States (US) and Argentina – addressed this relationship, sometimes reinforcing it, at other times disputing it (Park 1928; Burgess [1925] 1967; Melossi 2002; Valier 2003; Rodriguez 2006).

Perhaps because of the long history of linking immigrants to disorder and crime, it is not surprising that current immigration policies enacted in receiving countries – particularly in the ‘advanced West’ – are increasingly resorting to strategies traditionally used by law enforcement agencies to deal with offenders and crime in order to control immigration (Bosworth 2007). According to the criminalization thesis, economic migrants, refugees and asylum seekers are increasingly portrayed by the media and politicians in Europe, North America and Australia as dangerous and criminal; and as cheats and unscrupulous, seeking jobs that are scarce and benefits that they do not deserve (Pratt and Valverde 2002; Pastore 2004: 90; Pratt 2005; Broeders and Engbersen 2007: 1594). Such characterizations are being institutionalized through legislation, policies and administrative practices that seek, on the one hand, to strengthen the external borders; and on the other, to introduce ever more intrusive controls on those who manage to cross them. The first set of measures pre-emptively targets migrants before they even reach the external borders by making entry more difficult, while the second aims to ensure a smoother and easier process for spotting, punishing and removing undocumented immigrants (Weber and Bowling 2004; Weber 2007; Bosworth and Guild 2008; Bosworth 2008, 2011a).

According to Loïc Wacquant (2006: 99, italics in original), what characterizes the criminalization of immigration is ‘the vastly greater capacity and propensity of the state to deploy its penal resources at both the national and the supranational levels to “resolve” the problems they pose or embody’ and this phenomenon is crystallized in three features of contemporary immigration practices: limited legalization schemes, expanded border control, and mass deportation. He also related the over-representation of ‘extra-communitarians’ behind bars in European prisons in comparison to the share of foreigners in those societies to the criminalization phenomenon. This disproportion, he suggested, cannot be solely explained by higher crime rates among minority groups. In addition, other factors are at play. First, law enforcement agencies differentially target immigrants and courts apply legal standards that make it difficult for foreigners to obtain bail – such as the requirement of a stable job and residence. Second, a large number of crimes for which immigrants are confined can only be committed by non-nationals – the so-called ‘immigration crimes’ such as unlawful entry or overstay (Wacquant 2006: 88; see also Wacquant 2005). Likewise Alessandro De Giorgi (2010: 158, italics in original) referred to the ‘unusual intensity of penal practices’ deployed against immigrants by European states through, for example, the criminalization of immigration status.

In terms of how this ‘criminalization’ phenomenon concretely works, other authors have gone further by showing the different intersections between immigration and crime-control fields. Mary Bosworth (2007), for example, drew striking parallels between the confinement of immigrants and offenders in Britain. She observed that the borrowing by the British Immigration and Nationality Directorate (IND) of practices and staff from the criminal justice system ultimately reveals that immigrants are considered as actual or potential criminals. Further, both prisons and immigration detention centres operate as ‘exclusionary zones’ that mark the physical and symbolic borders of British society. Jonathan Simon (1998: 590) examined the systematic imprisonment of immigrants in the United States from the 1980s onwards as a response to the massive population flows from Latin America. He suggested that the use of imprisonment – a ‘specialized penal system’ – was a governmental strategy to regulate the global flows of people in a flexible, cost-efficient way. In what she calls ‘crimmigration’, Juliet Stumpf (2007: 14) noticed an overlapping of immigration law and criminal law, both in terms of substance (the type of wrongs sanctioned and the measures imposed), and in terms of the procedure followed to enforce those norms.

Others scholars have called attention to the institutional parallels in the contexts of immigration and crime control. Border patrols and other immigration authorities, which have acquired powers to detain and arrest non-citizens, are frequently involved in criminal investigations and overlap with criminal law enforcement agencies (Miller 2005: 1116; see also Tumlin 2004). Similarly, the police perform tasks that go beyond crime control and include immigration controls (Bigo 2005: 83). Other authors (Bloch and Schuster 2005; Gibney and Hansen 2003; Gibney 2008) have documented the extensive use and the ‘normalization’ of deportation and detention to control immigration, and the ‘outsourcing’ of these controls to private actors. For instance, in the US, Huyen Pham (2008, 2009) noted that a number of laws make the requirement of proof of legal immigration status paramount not only for crossing the borders, but also for enjoying a range of rights and benefits once inside the country. Concomitantly, they impose on private parties a duty to check entitlement to these rights and benefits, thus burdening transportation companies, employers and landlords with immigration enforcement tasks.

As part of the criminalization of immigration, other authors have discerned a link between tougher immigration regulations and anti-terrorism measures. They state that the terrorist acts in Western countries – notably in New York, Washington, DC, London and Madrid – and the measures put forth afterwards reinforced this relationship (Tumlin 2004; Miller 2005; D’Appollonia 2008; D’Appollonia and Reich 2008). In the same line, Aas (2007: 288) explained that the link between immigration and terrorism was reinforced after the 9/11 attacks with the consequence of an increase in deportations of foreigners and the extensive use of cross-border surveillance networks on immigrants (Aas 2011a, 2011b). With specific reference to the European Union, Didier Bigo (2005: 75) considered that the measures to close the borders and to keep out third-country nationals illustrate the attempt by European bureaucrats to control what is considered a chaotic outside. Immigrants from the ‘third world’ are depicted as potential offenders and thus those measures seek pre-emptively to eliminate the risk they embody (Bigo 2005: 88). These measures, Bigo explained, were toughened by post-9/11 counterterrorism policies as terrorism, organized crime and illegal immigration were placed together as a continuum of security threats (Bigo 1994: 164).

The impact that counter-terrorism measures has had in recent legislative reforms and public debates on immigration in Western Europe should not be overstated, though. Since the 1980s, such countries have sought to limit immigration – a trend reinforced by the ‘Europeanization’ of immigration policies. Restrictive policies, then, have not been solely generated after the attacks, but rather there has been continuity in the line of policies enacted by these European states.⁵ Neither at the public discourse level nor at the policy-making one is there enough evidence to affirm that terrorism has had an impact on how states deal with immigrants (Boswell 2007, 2008; see also Neal 2009). Further, the control of immigrants is mostly exercised through measures that are not directly linked to counter-terrorism. At least in Britain, there is a greater concern reflected in the government’s policy papers about law breaking (particularly immigration law violations) and social disorder, the abuse of welfare services by those who do not contribute to the tax system, and the disruptive impact that the arrival of large groups of migrants may have in local communities. In their analysis of parliamentary debates on immigration policies after the terrorist attacks, Jef Huysmans and Alessandra Buonfino (2008) found that immigration is often linked to security through a more mundane and managerial discourse about deviance, incivilities and minor offences in order to justify restrictions on immigration (also Huysmans 2006). In the American context, where the link between immigration and terrorism seems clearer, Chacón (2007, 2008) considered that post-9/11 immigration measures merely continued restrictive measures of the preceding decade. While attempts to strengthen border controls allegedly for national security purposes after the attacks did not result in an increase in the removal of noncitizens on security grounds, they boosted the removals related to crime and immigration controls (Chacón 2007: 1875; see also Demleitner 2004: 567).

The body of work reviewed above has encouraged a fruitful debate about the different ways in which immigration and criminal regimes are converging to police non-nationals, in what Leanne Weber and Benjamin Bowling (2004: 195) have called an ‘emerging punitive regulatory system’. While some of this literature is rich with rhetoric, it falls short on a detailed, legal analysis of the ‘sy...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• List of statutes and legislation
• List of cases
• List of figures
• Series editors’ preface
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Tracing the history of immigration controls in Britain (from the late 1700s to the mid-1990s)
• 3 The Labour years: contemporary contours of immigration policy and enforcement from 1997 to 2010
• 4 The use of criminal law powers against immigration offenders: the decision to prosecute
• 5 Practices of punishment: immigration defendants before the criminal courts
• 6 Explaining the role of criminal law in the control of immigration
• Conclusion
• Appendix: brief account of the research process
• Notes
• References
• Index