The Crimmigrant Other

Migration and Penal Power

Katja Franko

• Verlag: Routledge
• Jahr: 2019
• ISBN:
  9781351001427
• Auflage: 1
• Thema: Jura
• Thema: Einwanderungsgesetz

Western societies are immersed in debates about immigration and illegality. This book examines these processes and outlines how the figure of the "crimmigrant other" has emerged not only as a central object of media and political discourse, but also as a distinct penal subject connecting migration and the logic of criminalization and insecurity. Illegality defines not only a quality of certain acts, but becomes an existential condition, which shapes the daily lives of large groups within the society. Drawing on rich empirical material from national and international contexts, Katja Franko outlines the social production of the crimmigrant other as a multi-layered phenomenon that is deeply rooted in the intricate connections between law, scientific knowledge, bureaucratic practices, politics and popular discourse.

1

(DE)CONSTRUCTING THE CRIMMIGRANT OTHER

The crimmigrant body

An image associated with one of the first meetings between an asylum seeker and a European state is that of a dark-skinned hand being fingerprinted by a white-gloved police officer. The scene may take place in a refugee reception centre in Greece or Italy, in a police station in a European city, or on a rescue boat in the Mediterranean. At registration and identification centres termed “hot spots”, swift and more efficient fingerprinting procedures were one of the EU’s immediate responses to the so-called migration crisis in 2015. As the European Commission wrote in its characteristic style:¹

As part of the immediate action to assist frontline Member States which are facing disproportionate migratory pressures at the EU’s external borders, in the European Agenda on Migration presented in May, the European Commission proposed to develop a new Hotspot approach. The European Asylum Support Office (EASO), EU Border Agency (Frontex) EU Police Cooperation Agency (Europol) and EU Judicial Cooperation Agency (Eurojust) will work on the ground with the authorities of the frontline Member State to help to fulfil their obligations under EU law and swiftly identify, register and fingerprint incoming migrants.

Since 2000, fingerprinting has been the core element of the EU’s response to asylum, by means of the Eurodac database and the Dublin Agreement, which established that, as a principle, the first country someone arrives in is responsible for processing that person’s asylum claim. Eurodac authorises the fingerprinting of all individuals aged over 14 who apply for asylum in an EU country, or who are found illegally present on EU borders or in EU territory. A “positive hit” may thus result in the removal of an asylum seeker from a country solely on the basis of fingerprint identification.

It is important to note that the EU’s ambition to “identify, screen and filter” the migratory flows on its borders, and to achieve a “100% identification rate”, has been bound up with the use of force. Migrants often resist fingerprinting, since the Dublin Agreement essentially forces onto the southern states – which have the greatest migratory burdens and the fewest resources – the responsibility for the majority of asylum claims. Many migrants wish to move to wealthier countries further north. The EU Commission therefore suggested in May 2015 that, if migrants do not cooperate, “Member States should make use of specific and limited use of detention, and use coercion as a last resort.”² The suggestion drew criticism from actors such as the EU’s Agency for Fundamental Rights (FRA), which found it “difficult to imagine a situation where the use of physical or psychological force to obtain fingerprints for Eurodac would be justified”. The Civil Liberties, Justice and Home Affairs Committee (LIBE) also said that “coercive methods for securing fingerprinting raise serious legal, practical, and ethical concerns”. The proposal was, nevertheless, implemented and effectively lowered the threshold for the use of force and detention for identification purposes in a number of European countries. A year later, Amnesty International suggested that migrants attempting to pass through Italy without being identified were often exposed to “coercive methods used by the Italian police to obtain fingerprints, including alleged beatings, electric shocks and sexual humiliation”.³

However, the use of force and detention for the purpose of fingerprinting and identification is not new. Several European states have used such means to identify foreign citizens living in their territories. The Norwegian authorities (Politidirektiratet, 2010), for example, provide the following template to police officers for imprisoning persons whose identity is unknown:⁴

According to Immigration Act §37 sixth section, cf. §37c third section, cf. Criminal Procedure Act §170a, we determine apprehension of:

Name:

Citizen of:

Born:

Address:

• since there exist reasonable grounds to suspect that the person in question has provided false identity.

We point to the fact that he cannot provide any form of identity documents that confirm his stated identity and that his fingertips have been buffed, which makes fingerprinting difficult.

An imposition of a notification requirement or staying at a specific address seems based on the nature of the case and circumstances obviously inadequate cf. Immigration Act §37 sixth section.

*The individual in question was apprehended*

* This decision was orally conveyed (date and time)*

*Decision applies until*

The template reveals not only migrants’ strategies of resistance, but also how the establishment of their identity is fundamentally connected to the use of various forms of state-sanctioned force. One might ask why identifying them is so important to the state, and why it justifies the use of the most intrusive forms of state penal power, such as imprisonment. Furthermore, why are European states willing to prioritise the identification of migrants over their human rights record? The answers to these questions lie in the ways identity, penal power, and the body intersect with one another, and this can also help us to understand the creation of the crimmigrant other as a distinctive penal subject.

Meetings between strangers and societies are, as Sarah Ahmed (2000) points out, embodied meetings. Strangers become of interest to a society once their bodies materialise at its doorstep. The political technologies of the body can, as Michel Foucault powerfully argued, serve as a useful starting point for “read[ing] a common history of power relations and object relations” in a society (1977: 24). The history of punishment and the various uses of penal power should not be read simply in the light of moral ideas and legal structures, but rather against the background of a “history of bodies”, or what Foucault termed the political economy of the body (ibid.: 25). The docile body of disciplinary power, described by Foucault (1977), is thus a historical construction, created at an intersection of truth and power. Although the disciplinary logic described by Foucault has largely been superseded (Simon, 2013), the bodies of those who are subject to penal power today are still caught up in a system of knowledge, truth, and control. A closer look at these knowledge practices reveals how immigrants are met by state authorities and what kind of subjectivity this gives rise to. By “following the body” (Simon, 2013), this chapter will begin to uncover the processes involved in constituting the crimmigrant other and the regimes of truth that he or she is inscribed in.

The example of fingerprinting reveals the central importance of biometrics and the body in the so-called management of migration. Migrants’ bodies are – like the bodies of convicts in the past – deeply connected to sovereignty and the production of truth. From the first meeting, the state sets out to take hold of the crimmigrant’s body and subject it to a series of technologies, such as fingerprinting, and dental and skeleton records, designed to control movement and uncover fraud. In several EU states dental and skeleton records are used to determine the age of asylum applicants, but biometric technologies are used primarily for identification purposes. According to Heinemann et al. (2016: 2), at least 17 European countries have incorporated DNA testing into decision making on family reunification in immigration cases. As we have seen, the Dublin system for assessing asylum claims, with its aim to prevent unwanted movement and so-called “asylum shopping” and “refugees in orbit”, has resulted in the mass biometric surveillance of migrant populations that is demonstrated by the growth of the Eurodac database. By the end of 2016, the number of fingerprint datasets stored in its central system exceeded five million, which was a 25 per cent increase on the four million records stored over the previous reporting period.⁵ Also, the EU’s VIS system for visa applications has experienced a remarkable growth and is now one of the world's largest biometric database. By September 2017, the VIS database stored over 49 million visa applications and almost 42 million fingerprint sets.⁶

The crimmigrant body is mediated by technology. Today, the exercise of power, including in the penal domain, is essentially technological. Contemporary border control systems aim to create bodies which are fused with technology (Aas, 2006). This is the case for both the privileged and the disadvantaged (Aas, 2011). All travellers are subjected to increasing technological surveillance of their mobility. However, the effects of state surveillance on various social groups are quite different. While for privileged Western citizens technological surveillance can indeed enable faster, more seamless border crossing, for disadvantaged groups such as asylum seekers and irregular travellers such technological systems often mean more intrusive and coercive control.

By the technological coding of bodies which are moving across borders, migrants are inscribed in the state-created production of truth about human movement. The bodies of young asylum seekers thus become the ultimate source of knowledge about their true age and, consequently, determine the rights and protection they will receive. Similarly, the bodies of asylum seekers fingerprinted by the police become a vital source of knowledge about their movements across Europe and, ultimately, may determine which country will process their application and become the designated end point of their journey. In their capacity to reveal the “truth” about migrants’ identities and movements, the crimmigrant body represents a point where state power gains a grip over the individual and uses their body for its own purposes – namely, the strengthening of control of mobility. To borrow Giorgio Agamben’s (2005) expression, bodies become marked by “biopolitical tattoos”, which distinguish between good and bad citizens. The body emerges as a source of instant truth, unlike the crimmigrant, who the authorities always assume to be potentially untruthful. In Foucault’s history, bodies are seen as unruly and disorderly, things that have to be trained and disciplined by military procedures and institutional routines. Now, with the help of technology, bodies are seen as a source of unparalleled accuracy and precision. The coded body does not need to be disciplined, because its natural patterns are in themselves a source of order (Aas, 2006).

However, state surveillance of the body does not simply involve finding information about individuals’ identities; it also creates identities. As van der Ploeg points out in her analysis of the Eurodac: “rather than determining any preexisting identity, these practices may be better understood as ways to establish identity, in the sense that ‘identity’ becomes that which results from these efforts” (1999: 300, emphasis in original). With the help of technology, immigration authorities, faced with immigrants and asylum applicants who possess nothing but their stories, are able to produce an identity “that is independent of that story, and yet undeniably belonging to that person” (1999: 300). Identity, therefore, is not established on the basis of self-knowledge and a biographical narrative that an individual can present about him/herself. Rather, it is non-verbal and implemented through symbols that are completely empty of meaning (Aas, 2006).

It should be pointed out, though, that establishing reliable identification is a central, indispensable task and a perennial challenge for modern states. As James Scott’s (1998) seminal work has demonstrated, the creation of a “legible people” has in the past greatly enhanced the state’s grasp over its territory – be it for the purpose of taxation, conscription, health, or other purposes – and has become a hallmark of modern statehood. From the imposition and recording of permanent surnames to the eventual development of portable identity documents, states worldwide have devised methods to enhance the legibility of society. These efforts also include “the need to identify and track those who had wandered or traveled beyond the circle in which they were personally known” (Caplan and Torpey, 2001: 2).

Identification efforts directed at cross-border movement today, therefore, belong to a long tradition of state identification for the purpose of controlling mobility where, as John Torpey points out, passports became not only a vital technique for identification and control of mobility, but also a building block in the process of constructing national identity.

[T]he historical development of passport controls as a way of illuminating the institutionalization of the idea of the “nation-state” as a prospectively homogenous ethnocultural unit, a project that necessarily entailed efforts to regulate people’s movements. Yet because nation-states are both territorial and membership organisations, they must erect and sustain boundaries between nationals and non-nationals both at their physical borders and among people within those borders.

(Torpey, 2000: 1)

“Identificatory logic”, therefore, plays an especially important role in the construction of national identity (Caplan and Torpey, 2001: 47). Because of their reach over the state’s entire territory, identification processes have been a powerful factor in the process of national integration and a central precondition for universal citizenship and equal access to rights. Identity documentation has always had, in varying measures, both emancipatory and repressive aspects, which have been richly documented in scholarly literature (Caplan and Torpey, 2001). It has not only enhanced state power and citizens’ access to welfare and other rights but also, for example, enabled the Nazis to use population registers and identification documents to track Jewish populations.

Although the identificatory logic is deeply engrained in the bureaucratic practices of states in the global North, it can by no means be taken for granted. According to the World Bank estimates, 1.5 billion people worldwide lack a government-issued and -recognised document as a proof of their identity.⁷ There are deep global inequalities in terms of identification, which make the efforts of contemporary mostly Northern states to identify vast globally mobile populations all the more ambitious (and perhaps futile). During our empirical investigation we visited the Norwegian ID Centre, an administrative body whose purpose is to assist Norwegian authorities in establishing identities of foreign nationals.⁸ There we were shown around a room with a large filing system containing samples of passports and ID documents from around the world. While exhibiting historic continuities, such efforts also represent a certain departure, or a leap forward, from the early days of the passport. They are directed not only within the state territory for the purpose of constructing national identity and making legible the state’s own citizens, but also outwards, towards citizens of other states. Northern states devote considerable resources to identifying which country a person belongs to, in order to determine their rights of residence and entitlement to protection and, ultimately, so that they can deport them. Through systems such as Eurodac, the Schengen Information System, and VIS, and by the use of national and international policing registers, states in the global North are ascribing individuals to a global system of standardised identification and seeking to create the global intelligibility of populations. Ultimately this ascription also enables states to relieve themselves of unwanted populations (Walters, 2010). Unless they establish which sovereign state an individual “belongs to”, this goal cannot be achieved.

This rationale indicates why the identification of other states’ citizens becomes of such vital importance that it is seen as requiring criminal penalties and even imprisonment. As Elspeth Guild (2009: 121) points out, “Ascertaining the correct identity of the individual, and in particular the foreigner, is increasingly accepted as a security issue.” Similarly, representatives of the Norwegian police have spoken about the great dangers of “identity-less asylum seekers”. As one Norwegian police officers’ union representative put it: “Police officers are particularly frustrated by all the identity-less asylum seekers of various ethnic origins, who are totally out of control” (Aas, 2006). Lack of appropriate identification is seen as harbouring possibilities for “double identities” and avoidance of criminal prosecution. Of course, the ideas of identity-less asylum seekers, of identity loss and identity theft, would sound almost absurd to a neutral observer. Describing asylum seekers as “identity-less” means that they do not have the kind of identity required by state bureaucracy: one that is stable, objective, and unambiguous.

Such concerns result in exhaustive searching for documents to pin down the identities of strangers and connect them to their national identities (Weber, 2013; Gundhus, 2016; Van der Woude and Van der Leun, 2017). Identification has always been a vital preoccupation of the modern state, and is exemplified by the rise of the biometric ID card and passport, the “enhanced” driving licence, DNA databases, RFIDs, fingerprinting and iris scans, and related databases all of which are “identification efforts aimed at making citizens more ‘legible’ within the ‘embr...