In recent years, the criminalization of migration has become part and parcel of a policy of migration management, irreversibly altering the relationship between migration and crime, and ultimately leading to the (partial) merging of migration and criminal justice systems, with significant consequences for not only the migrants themselves, but also the wider public, and their opinion on migration.
Both the criminal law and immigration law are, at their core, systems of inclusion and exclusion. Both are centred around the idea of population control, and of distinguishing certain individuals from others based on specific criteria. The criminal justice system distinguishes between law-abiding and law-breaking citizens, whilst immigration regulation distinguishes between residents and non-residents of a specific territory. The criminal law is designed to punish individuals who harm other individuals or the society at large. Immigration law, on the other hand, does not have such a concrete goal. Rather, it is a form of administrative law and management, a part of bureaucratic process. Immigration and crime used to be two separate fields, which despite their similarities had distinct rules, targets, and institutions. These distinctions are no longer as obvious as they once were.
In the UK, the Home Office routinely blurs the lines between crime and migration by emphasising human trafficking and smuggling (crimes which can be prosecuted in court) instead of focusing on the migrants who are being trafficked. It is not a coincidence that although the migrants in question are not criminals, they are always mentioned in the same breath as the criminal traffickers. It is a conflation by choice, which happens on at least three different levels: enforcement, substance and procedure.
Firstly, immigration enforcement has come to resemble criminal law enforcement. One example where this is clearly visible is the transformation and increase of border patrols. In recent years, borders have become the subject of tight control and surveillance, with specialised teams and organisations trained for patrolling and deal with any issues that may arise in the process. Additionally, immigration checks are increasingly intrusive: they happen before, during, and after entry into the territory. Pre-entry, before crossing a border, border patrols might check the migrant’s documents or reasons for moving. Once the migrant enters the territory, they are controlled through detection of entry and data sharing. After entry to the territory, the migrant is monitored to ensure compliance with the relevant rules.
In the EU, organisations like Frontex have been created to deal with all these different checks, and more broadly to promote and co-ordinate the management of the EU’s external borders. Frontex is not a part of law enforcement, but rather a specialised group which co-operates with member countries and Europol to facilitate migration administration, including border control and returns of migrants to their home country. Frontex’ increased presence at the EU’s external borders and their police-like approach is not unique, but rather part of a broader trend to render administrative bodies more police-like, and giving them numerous executive and quasi-judicial responsibilities. Most recently in the UK, Home Secretary Priti Patel announced that extra patrols will be activated on French beaches to prevents migrants from crossing the Channel.
Secondly, the substance of immigration law and criminal law increasingly overlaps. On the one hand, immigration status has been playing a role in criminal law systems for a long time, and conversely, criminality may affect one’s migration possibilities. Immigration laws have long tended to place restrictions on immigration in a reflective manner, for example restricting the entry of people who had previously committed offences. More recent developments, however, shift attention from past crimes to present behaviour, with many immigration violations themselves being defined as criminal offences, and many crimes in turn resulting in liability for deportation. Simultaneously, organisations like Frontex which are supposed to be in charge of migration management for the EU have become important players in the prevention, detection and suppression of cross-border crime, specifically relating to the smuggling or trafficking of people. This double role for Frontex has significant consequences for migrants, as they are simultaneously treated as suspects and victims of migration-related criminal activities, merging both fields.
Lastly, procedural aspects of prosecuting immigration violations have taken on many of the trademarks of criminal procedure. The most obvious example here is immigration detention, where the host country can administratively detain people, depriving them of their liberty often with no judicial oversight, simply for being in breach of immigration rules. Effectively, being stuck in immigration detention is not dissimilar from a prison sentence. In fact, some of the UK’s immigration detention centres even used to be prisons, so that not only the process of detention resembles a custodial sentence, but the physical practice of immigration detention is also assimilated to the criminal justice system. A parallel move is the use of criminal law sanctions to punish businesses that engage with individuals whose immigration status is uncertain or unauthorised. Again, in the UK for example, the threat to employers or landlords, should they hire people without immigration status, is one of the pinnacles of the hostile environment.
Human rights such as access to healthcare, accommodation, work and safe living are all impacted as a consequence of the increased overlap between criminal and immigration systems. The Council of Europe Commissioner for Human Rights has previously expressed that such methods of controlling international movements erodes human rights and weakens established international law principles. Yet, there is a steady advance of the discourse of ‘illegality’ in migration law and policy, with few indicators of change in the future.
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In March, the PM promised that destitute migrants would receive the necessary accommodation and funding during the coronavirus pandemic. Six weeks later, food banks are struggling to meet demands, asylum seekers are moved out of their flats without warning, and local authorities fail to offer guidance on how to offer shelter to rough sleepers during the crisis.
Under Theresa May’s “hostile environment” rules, individuals without immigration status in the UK do not have access to public funds. The hostile environment prevents them from accessing many benefits, ranging from healthcare to housing to public authority assistance of any kind.
In an open letter to the Government, the Jesuit Refugee Service (JRS) asks the Prime Minister to grant all immigrants who currently do not have status a period of Leave to Remain for the time of the pandemic, to avoid the hostile environment’s detrimental effect on public health. The letter is signed by over 30 organisations and charities who work with asylum seekers, refugees and other individuals with insecure immigration status, including Bail for Immigration Detainees, Women for Refugee Women and many others.
The JRS’ letter asks the PM to “to grant a period of leave to remain, with recourse to public funds and access to the labour market, to all those with insecure immigration status,” stating that “This is a vital step to protect public health during the Covid-19 pandemic. At a time when public health demands that everyone has ready access to housing and healthcare, insecure immigration status acts as a barrier and puts everyone’s health at risk.”
Although the government has made all COVID-19 treatment free of charge irrespective of the patient’s immigration status, many people with precarious status are reluctant to get help. They fear that data-sharing between the NHS and the Home Office, another pillar of the hostile environment policy, will lead to their deportation if they go to the hospital. If they think they might be sick, many migrants prefer staying under the radar so as to avoid the risk of getting into trouble, leading infected people to remain untested and at large.
In order to avoid a crisis of exploitation, destitution and homelessness on top of the coronavirus emergency we are already going through, all migrants should be encouraged to access public funds and especially healthcare.
As charities which normally support vulnerable asylum seekers have been forced to shut down, destitute and vulnerable asylum seekers have been left out in the cold. A #HumaneMigration system including temporary amnesty and leave to remain for migrants who are in the UK during the pandemic is the only viable solution not only to help all the people who are currently slipping through the cracks, but also to limit the spread of the virus in the wider community. Only unprecedented measures can reflect the unprecedented nature of this crisis, and ensure the health and safety of the nation as a whole.
The "Right to Rent" scheme was introduced as part of the hostile environment rules aimed at restraining illegal immigrants from entering and living in the UK, and came into force in 2016. The policy requires landlords to check the immigration status of prospective tenants. If they fail to do so, and end up renting out property to undocumented migrants, they can be charged unlimited fines or even a prison sentence.
The Joint Council for the Welfare of Immigrants (JCWI), a London-based charity, is challenging the lawfulness of this policy in court. Last year, the High Court ruled the scheme unlawful, racially discriminatory, and in breach of the European Convention on Human Rights. The Government appealed this decision, and on Wednesday, the Court of Appeal allowed the Secretary of State's challenge, finding that although the Right to Rent scheme does lead to discrimination against those who do not hold British passports and those who do not have traditionally ethnically-British attributes, it is an indirect consequence of the scheme’s otherwise legitimate goal to control and curb immigration, and therefore, the policy itself is not unlawful.
Lord Justice Hickinbottom stated: “The discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally because, in implementing the Scheme, as a result of the checks required by the Scheme and the possible sanctions for letting to irregular immigrants, landlords engage in direct discrimination on grounds of nationality; and section 33 and the Discrimination Code of Practice clearly recognise and seek to address that discrimination by landlords."
In short, the Court of Appeal agreed that the Right to Rent scheme causes discrimination but did not rule that that discrimination amounted to a human rights violation, because it is indirect, and only “some landlords” may participate in it. The court leaves it to the government to decide whether the racial discrimination is “greater than envisaged”.
To advocates and immigration lawyers, it is clear that whatever was envisaged, any amount of racial discrimination is unacceptable. The Home Office’s own research has shown that 25% of landlords would not be willing to rent to anyone without a British passport, whilst the Residential Landlords Association found that more than half of landlords were less likely to rent to those with limited time to remain in the UK. Effectively, the Right to Rent scheme turns landlords into border patrol, as they are forced to evaluate who does and does not have the right to be in the country. Needless to say, landlords are not properly trained or qualified to do so.
Chai Patel, the JCWI’s legal policy director, said that, “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.” The JCWI has said that they are planning to appeal the decision to the Supreme Court. In the meantime, however, the policy is still in place, and the people affected by it remain at risk.
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A year has gone by since the Stansted 15 were convicted of terrorism offences for blocking the take-off of an immigration removal charter flight at Stansted airport. Where are they now, what has happened since, and how has the law changed?
On 28 March 2017, a group of nine men and six women cut a hole in the perimeter fence of Stansted Airport, and used lock-on devices to secure themselves around a Titan Airways Boeing 767 chartered by the Home Office to remove 60 undocumented immigrants to Nigeria, Ghana and Sierra Leone.
Initially, the Stansted 15 were charged with aggravated trespass, but four months later these charges were upped to “endangering safety at aerodromes”, a serious terrorism-related charge which can lead to a life sentence. As a consequence, on 10 December 2018, the 15 were convicted under this rarely used anti-terrorism legislation and faced a potential sentence of life in prison.
The verdict was criticized by many human rights organisations, including Amnesty International, as it was seen as a blow to non-violent human rights activism. It was said that by charging peaceful public dissenters with such heavy crimes, the prosecution effectively threatened the future of peaceful protests as well as the legitimacy of public dissent in the UK.
The 15 were protesting Theresa May’s hostile environment policy, introduced in 2013. The idea behind that policy is that by making life for undocumented individuals difficult in the UK, they will leave the country or report to the relevant authorities, allowing the Home Office to curb and control immigration more effectively. Amongst other things, the hostile environment policy requires immigration checks to be carried out before anyone can open a new bank account, be issued with a driving licence, rent a flat, or access routine health treatment. The judgment against the 15 seemed to reflect the government’s hostile approach to immigration generally
One of the people who had a seat booked on the mass deportation flight which the Stansted 15 managed to stop, said:
“Migration and deportation targets suck humanity from a system whose currency is the lives of people who happen to be born outside the UK. Such is the determination to look “tough” on the issue that people are rounded up in the night and put on to brutal, secretive and barely legal charter flights. Most take off away from the public eye – 60 human beings shackled and violently restrained on each flight, with barely a thought about the life they are dragged away from, nor the one they face upon arrival.”
After months in detention and years facing the hostile environment, he won his appeal, which he was only able to attend thanks to his flight being cancelled. He has now regularised his status in the UK, enabling him to live with his partner and three young children.
The Stansted 15 were sentenced in February 2019. The sentencing judge accepted they were motivated by “genuine reasons,” and as a consequence, all 15 avoided immediate prison sentences, with three set to be given suspended sentences and 12 set to be given community service. A year after their conviction, it is worth reflecting upon the state of the laws they were protesting against, and the cause for which they were willing to take such serious risks.
Both Labour and the Liberal Democrats have vouched to end the hostile environment, stating that making landlords and banks perform immigration checks instead of investing in the immigration system is an inhumane and ineffective way of policing migration. Dianne Abbott, Labour MP for Hackney North and Stoke Newington, has argued that mass deportation on chartered planes is a brutal way of responding to the current immigration panic, as it allows people to be bundled out of the country when they have not yet exhausted all their avenues of appeal and without due process. This was no different on the aircraft which the Stansted 15 managed to stop: today, at least two of the 60 passengers who were to be forcibly deported that day live legally in the UK. At least nine other claims remain outstanding.
The Stansted 15 stated that although they consider saving these 11 people’s lives a partial victory, there is still a long way to go. In the meantime, they have appealed their conviction, and are waiting for it to be listed in the coming months, as they refuse to accept their guilty verdict. One of 15, Benjamin Stoke, states,
“We were charged with endangering life, but we took the actions at Stansted to try to protect life.”