Criminalising Migration by Charlotte Rubin

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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