Crimmigration under International Protection: Constructing Criminal Law as Governmentality
This essay examines the Greek immigration control system, starting with a brief overview of crimmigration and enemy penology literature. It combines insights from these concepts to introduce the theory of “enemy under-criminalization” which emphasizes the inimical treatment of irregular immigrants without offering them the safeguards of criminal law. The study then identifies key pillars utilized by the Greek state in controlling human mobility at the border. These include immigration detention, pushbacks, and the criminalization of solidarity with immigrants. The essay examines how these mechanisms lack the protections of criminal law, directly treating irregular immigrants as enemies. It concludes by noting the challenges to democracy and the rule of law posed by these practices.
En marzo de 2024 se ha celebrado en Portland (EE. UU.) el quinto congreso global de estudios crimigratorios. A lo largo de los últimos tres lustros, la crimigración se ha convertido en una tesis fundamental para estudiar los procesos de criminalización de la movilidad irregular y, más en general, la creciente interrelación entre el derecho penal y el derecho migratorio. Este trabajo presenta las principales líneas de debate en torno a la tesis de la crimigración. Junto a ello, analiza un aspecto al que no se ha prestado suficiente atención por parte de la literatura internacional en la materia, a saber, la tensión entre los objetivos de control migratorio y los de control penal. Esa tensión, que se manifiesta tanto en el plano normativo como –más aún– en el de aplicación del derecho, ha dado lugar en diferentes países a diversos modelos punitivos, que en general suelen priorizar los intereses de control migratorio frente a los propios del derecho penal y del sistema penal.
This article examines state racism and structural violence inflicted upon Eritrean and Sudanese asylum seekers in Israel by surveying various exclusionary policies and their harmful effects. It situates exclusionary state practices of migration control in Israel’s racialized social dynamics, contextualized in Israel’s origins as a settler society and subsequent national ordering. Israel’s treatment of African asylum seekers is conceptualized as structural violence through an examination of unnecessary, preventable, or avoidable harms that were differentially inflicted upon this distinct, racialized migrant group both directly and indirectly. Claims in the article are based on ethnographic research conducted with asylum seekers who had been detained in Israel’s Holot detention facility. In contrast to Israel’s purported adherence to international commitments to human rights, including asylum protections, understanding asylum seekers’ destitution through the lens of structural violence enables us to place the onus and responsibility for human suffering upon the state.
Stateless persons, not recognized as citizens of any State, have restricted access to identification and travel documents. As they often also do not enjoy the right to enter, leave, or remain in any country, stateless persons can be at great risk of prolonged and arbitrary immigration detention. It is therefore crucial to identify stateless persons in or facing detention. Adopting an access to justice lens, this article explores aspects and legal challenges of the statelessness determination–immigration detention nexus in the United Kingdom. Despite the adoption of a national statelessness determination procedure, stateless persons still experience a plethora of problems. This is especially so for applicants who are in immigration detention. Statelessness is generally not acknowledged due to gaps in the legal framework and a number of interrelated objective, subjective, and physical barriers that prevent tackling the problem of statelessness and concomitant restriction-of-liberty problems. This situation sits uneasily with access to justice principles, which require the guarantee of an effective remedy and a fair solution to the legal problems of every individual. As such, the article ultimately shows that lack of access requires a holistic approach, whereby the special problems and needs of the users must always be taken into consideration.
The concept of crimmigration is said to represent the blurring of criminal and immigration law, producing a sui genesis form of law within which sovereign power operates free from constitutional constraints. First articulated in the United States, crimmigration theory is just as (if not more so) prescriptive as descriptive. Centuries of immigration exceptionalism have blocked the applicability of due process rights to detention and deportation proceedings. This fact requires advocates to persuade courts that an immigration measure is criminal in nature in order to vindicate rights. There is a risk that crimmigration theory rests on, and makes use of, faulty doctrine that banishes immigration law from constitutional terrain unless it can be absorbed into the substance of criminal law.
This chapter examines how crimmigration is constructed and challenged in Canada, where constitutional rights are applicable to immigration law qua immigration law. Relying on analogy, courts are most directly concerned with whether an immigration measure deprives someone of high priority interests in life, liberty or security of the person, and not whether a measure is criminal in nature. Whether courts will intervene, however, is a separate matter. This question is also answered by analogy: that between migrants and criminals. Conceptions of risk and danger always inform conceptions of rights, which courts in practice decline to recognize in all but a handful of cases. The different form crimmigration assumes in Canada masks substantively similar results.
This article considers the future of punishment in a world shaped by competing and reinforcing forces of globalization and nationalism. In it, we call for a wider conversation about the growing interdependence between criminal justice and migration control and of its implications for many of the key concepts and approaches within the field of punishment and society. The article examines the renewed salience of defending borders and drawing boundaries between members and non-members, as well as the shifting focus of penal power from issues of imprisonment and morality, towards questions of immobilization and expulsion from the polity. By doing so, it also addresses the gaps in the existing theories and narratives about penality, which fail to take properly into account the implications of global connectivity, while overlooking enduring matters of racial and class inequity. Finally, the article points out how the progressive destabilization of citizenship and the precarity of membership and belonging are inimically linked to increasingly potent exhortations of penal power that affect us all.
Contrary to natural born citizens, migrants can have a variety of legal statuses depending on how they are classified by immigration law. Together, such legal or ‘civic’ statuses constitute a system of civic stratification, from high (privileged) to low (restricted). Recent scholarship highlights the relevance of immigration law for understanding crime patterns. We analytically synthesize this literature and extend it empirically by examining its usefulness in explaining the relationship between asylum migrants’ civic statuses in The Netherlands and their chances of being registered as a crime suspect. Logistic regression analyses were conducted using a unique dataset in which comprehensive administrative data from various governmental sources were combined. Four civic status groups were compared: naturalized citizens, residence permit holders, asylum seekers in the procedure, and former asylum seekers whose stay in the country had become unauthorized. The results suggest that strain theory and more constructionist stances are required in order to understand the complex relationship between civic stratification and crime. We discuss implications for other countries.
This article examines the intertwining of migration law and criminal law — termed ‘crimmigration’ by scholars — in Australia and the United States of America, and its implications for non-citizens who engage in criminal conduct. Our comparison of the two systems demonstrates that the laws and policies in both jurisdictions are similar to a significant degree. Both have strong exclusionary policies characterised by sweeping visa cancellation/removal powers, a heavy focus on enforcement, and limited review rights. In Australia, legislative amendments in 2014 have given the executive greater powers to cancel visas and remove non-citizens on character grounds as a means of ensuring national security and public safety. This has coincided with a new law enforcement body created within the Australian Department of Immigration. These changes reflect a repurposing of migration law as a tool for managing criminal threats based on the concept of ‘risk management’. Drawing on the experience of the United States — where such a ‘risk management’ approach is entrenched — we query the utility of this shift and highlight the potential pitfalls of pursuing such a policy for Australia.
This article interrogates whether a crimmigration frame could be used to assess immigration control in Italy. It argues that even if crimmigration laws are similar across European countries, the outcomes of European border control depend on the local context. It looks at the interaction between police, judges, and migrants at the internal borders in Bologna, Italy. The article is based on quantitative data (analysis of case files on pre-removal detention in Bologna’s detention centre) and qualitative data (one-to-one in-depth interviews with migrants and justices of the peace, and participant observation). The case study focuses on ‘differential inclusion’ of undocumented migrants informally allowed to remain in the Italian territory. Police manage illegality rather than enforcing removals, using selective non-enforcement of immigration laws as effectively as enforcement itself. The article’s main hypothesis is that, at the local level, the production of borders works as a provisional admission policy to include undocumented migrants, though in a subordinated position.
Although controlling risk has become a prevalent theme in contemporary penal development in the main English-speaking societies, the range and extent of these measures is limited and specific , indicative of new obligations and reciprocities between state and citizen following post-1980s restructuring. Individuals are exhorted to take care of themselves, but the state remains committed to managing risks thought beyond their control and likely to cause irreparable harm through innovative penal measures. The paper explains how these have coalesced around risks to community cohesion and sexual attacks on women and children; and how these measures have then been legitimated, given that they contravene previous long-standing rules, principles and conventions intended to prohibit or restrict their use.
Across America today gated communities sprawl out from urban centers, employers enforce mandatory drug testing, and schools screen students with metal detectors. Social problems ranging from welfare dependency to educational inequality have been reconceptualized as crimes, with an attendant focus on assigning fault and imposing consequences. Even before the recent terrorist attacks, non-citizen residents had become subject to an increasingly harsh regime of detention and deportation, and prospective employees subjected to background checks. How and when did our everyday world become dominated by fear, every citizen treated as a potential criminal? In this startlingly original work, Jonathan Simon traces this pattern back to the collapse of the New Deal approach to governing during the 1960s when declining confidence in expert-guided government policies sent political leaders searching for new models of governance. The War on Crime offered a ready solution to their problem: politicians set agendas by drawing analogies to crime and redefined the ideal citizen as a crime victim, one whose vulnerabilities opened the door to overweening government intervention. By the 1980s, this transformation of the core powers of government had spilled over into the institutions that govern daily life. Soon our schools, our families, our workplaces, and our residential communities were being governed through crime. This powerful work concludes with a call for passive citizens to become engaged partners in the management of risk and the treatment of social ills. Only by coming together to produce security, can we free ourselves from a logic of domination by others, and from the fear that currently rules our everyday life.
This article considers Attorney-General v Tamil X, a recent New Zealand Supreme Court decision on refugee status determinations. Specifically, it considers the approach taken to art 1F of the Refugee Convention in decisions on the exclusion of claimants from refugee status. As claims are increasingly affected by art 1F considerations, it is imperative that the law in this complicated area is clear and just. This article traces Tamil X's advancement through the courts, and presents an analysis of the Supreme Court's judgment. The article also recommends some future developments for the jurisprudence on the exclusion clauses, specifically the adoption of a modified version of the ICTY jurisprudence on joint criminal enterprise.
Much scholarship underscores the exclusionary nature of crimmigration (the policy of criminalising infringements of immigration rules and imposing adverse immigration consequences as sanctions for criminal conduct), viewing it as a system of social marginalisation designed to prevent integration. This article, conversely, demonstrates crimmigration’s potential to contribute to the partial and symbolic acceptance of migrants. The article argues that crimmigration is characterised by a ‘paradox of exclusion’—a contradictory attempt to exclude undesirable migrants via the field of criminal law, which is designed primarily for citizens. Consequently, crimmigration regimes extend to migrants certain rights associated with membership and provide irregular migrants with various opportunities to gain admittance into the community. Two main processes contribute to this dynamic: the extension of principles typical of ‘citizen criminal law’ to migrants and the equation of law abidance with ‘good citizenship’, which informally confirms the right of certain migrants to remain in the country or their suitability for membership. The article discusses crimmigration’s consequent contribution to the process of civic stratification.
This book explores the ways in which the state and private security firms contribute to the direct and structural harm of asylum seekers through policies and practices that result in states of perpetual destitution, exclusion, and neglect. By synthesising historic and contemporary public policy, criminological and sociological perspectives, political philosophy, and the direct experiential accounts of asylum seekers living within dispersed accommodation, this text exposes the complex and co-dependent relationship between the state’s social control aims and neoliberal imperatives of market expansion into the immigration control regime. The title borrows from former Home Secretary Theresa May’s pronouncement that the UK government aimed to foster a ‘hostile environment’ in its response to illegal immigration. While the Home Office later attempted to rebrand its hostile environment policy as a ‘compliant environment’, this book illustrates how aggressive approaches toward the management of asylum-seeking populations has effectively extended the hostile environment to those legally present within the UK. Through an examination of the expanded privatisation of dispersed asylum housing and the UK government’s reliance on contracts with private security firms like G4S and Serco, this book explores the lived realities of hostile environments as asylum seekers’ accounts reveal the human costs of marketised asylum accommodation programmes.
Steven A. Hirschler is Lecturer in Criminology and Sociology at York St John University, UK. His research interests include the privatisation of UK asylum housing and the relationship between law, social inequality and social control practices. Steven has previously published on topics ranging from the 2011 UK riots to structural violence in video games. His teaching covers themes including criminological theory, victimology, asylum and immigration, and state violence.
This book sets out to explain the most foundational aspect of international law in international relations terms. By doing so it goes straight to the central problem of international law - that although legally speaking all states are equal, socially speaking they clearly are not. As such it is an ambitious and controversial book which will be of interest to all international relations scholars and students and practitioners of international law.
From Deportation to Prison traces the punitive turn in immigration and border policy to the Department of Homeland Security’s Criminal Alien Program (CAP), originally designed to purge noncitizens from jails and prisons and ushering in enforcement priorities that process immigrants according to criminal history and risk. Macías-Rojas argues that new enforcement priorities under the Criminal Alien Program, rooted in the post–civil rights era of mass incarceration and prison overcrowding, fundamentally transformed detention and deportation in ways that merged the immigration and criminal justice systems. Deportation and immigrant detention, then, are no longer merely vehicles to purge noncitizens from jails and prisons, as was CAPS’s original mission; they are now the chief mechanisms driving federal criminal prosecution and imprisonment for immigration offenses. From a political analysis of policymaking at the congressional level, Macías-Rojas turns to a street-level ethnographic account of how new enforcement priorities take hold on the Arizona-Mexico border, capturing the ways in which border agents, local law enforcement, activists, border residents, and migrants themselves contend with criminal enforcement priorities that distinguish between rights-bearing “victims” and rightsless “criminals.” Combining history and ethnography, this book shows how, when implemented on the U.S.-Mexico border, the Department of Homeland Security’s criminal enforcement priorities have created an enforcement context that recognizes rights for some undocumented migrants deemed “worthy” of state protection, while aggressively punishing and criminally branding others. In this post–civil rights enforcement context, criminalization goes hand in hand with “humanitarianism” centered on “victims’ rights.”
The past five decades have witnessed a dramatic growth in immigration controls. The external controls have expanded, but at the same time, there has been a proliferation of internal control measures. The British state has increasingly resorted to using penal machinery to punish people who violate immigration laws. Individuals can now be prosecuted under the criminal law and receive custodial sentences for immigration crimes. This article draws upon narratives, interviews and experiences of asylum seekers who were imprisoned for such crimes, in order to understand how their trauma is exacerbated and ways in which injuries are strategically and deliberately inflicted by the state and built within legal and policy frameworks. It draws attention to the racist nature of the crimmigration system and production of violence.
Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field's logic of practice and to bail industry profits.
In a contemporaneity of high mobility, porous borders, and harsher immigration laws, the great majority of illegalized migrants are not deported; they remain in the territory in a condition of legal non-existence. Through a case study of the interaction between illegalized migrants and police in Italy, this article demonstrates the utility of the
concept of “border performativity” for the research on border control. It reveals how “differential inclusion” operates in a particular site, and it uses Althusser’s concept of interpellation in its discussion of discipline and resistance in the mechanisms of internal bordering. Finally, my development (and use) of the term undeportability extends theory by urging criminologists of mobility to consider contexts in which choices are structured by the inability of officials to fully deploy the deportation regime.
In an era of mass mobility, those who are permitted to migrate and those who are criminalized, controlled, and prohibited from migrating are heavily patterned by race. By placing race at the centre of its analysis, this volume brings together fourteen essays that examine, question, and explain the growing intersection between criminal justice and migration control. Through the lens of race, we see how criminal justice and migration enmesh in order to exclude, stop, and excise racialized citizens and non-citizens from societies across the world within, beyond, and along borders. Neatly organized in four parts, the book begins with chapters that present a conceptual analysis of race, borders, and social control, moving to the institutions that make up and shape the criminal justice and migration complex. The remaining chapters are convened around the key sites where criminal justice and migration control intersect: policing, courts, and punishment. Together the volume presents a critical and timely analysis of how race shapes and complicates mobility and how racism is enabled and reanimated when criminal justice and migration control coalesce. Race and the meaning of race in relation to citizenship and belonging are excavated throughout the chapters presented in the book, thereby transforming the way we think about migration.
Penal power at the border relies on coercive tools such as expulsion, eviction, criminalization, and penalization to respond to mass mobility, which is perceived to be a social threat rather than a political expression of rights. By deploying its primal power, its material and symbolic violence invested in criminal justice, the state taps into unparalleled capacity to impose meaning on others, backed by the moral weight of censure and sanction. The criminalization and penalization of migrants are effective precisely because they bring moral weight to this sorting process, separating the worthy from the wrongdoer. This article develops conceptual tools to understand the structural and communicative capacities of penal power to reconstitute the nation state, to reset the national frame of reference, and reassert the state’s dominion over it.
The crimmigration landscape in the UK is much lamented. Reference is frequently made to the recent creation of dozens of new immigration offences and a sharp increase in the administrative detention of immigrants during the last two decades. In particular, the prison has recently become an acute site of crimmigration, with separate prisons for foreign nationals (Kaufman, 2013). Norway, on the other hand, has traditionally been regarded as an exception. The treatment of criminals and outsiders is described as inclusive and rehabilitative and focused on their successful return to society. However, here a distinction is also increasingly made between prisoners who will return to society and those who will not, most particularly foreign nationals. The UK and Norway are virtually the only countries in Western Europe with regular prisons that are exclusively reserved for foreign nationals. This article examines how the arguably most benign and the arguably most severe prison systems of Western Europe have come to mimic each other in this fashion. Wider implications for our theoretical understanding of the nature and loci of crimmigration policies are also considered.
Repatriation treaties permit noncitizens convicted of crimes in the United States to serve their sentences abroad. The reach of these treaties is vast: together, they provide for the transfer of tens of thousands of prisoners in American custody. In practice, however, repatriation is remarkably rare. This is not because people want to stay in American prisons. Instead, the critical feature of repatriation is resistance from prison bureaucrats, who often determine that prisoners are “too American,” or that their crimes are too severe, to license punishment in a foreign jurisdiction.
This Article examines bureaucratic resistance to repatriation. Drawing on doctrine, legislative history, statistics, and prison policies, I argue that prison officials’ reluctance to repatriate prisoners stems from a conflict between two theories of punishment: one in which the criminal sanction binds a person to the place whose laws he has offended, and one in which the location of punishment is severed from the authority to punish. Ultimately, resistance to repatriation reflects a concern about the legitimacy of extraterritorial punishment. Whether or not that concern should change repatriation law, its existence highlights a growing gap between the legal justifications for imprisonment and the actual practice of punishing people in the United States.
In the European Union the Return Directive aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals. An entry ban prohibits entry into and stay on the territory of all EU Member States (except the United Kingdom and Ireland) and Switzerland, Norway, Iceland and Liechtenstein. This instrument is intended to have preventive effects and to foster the credibility of EU return policy. The clear message is that those who disregard migration rules in the Member States will not be allowed to re-enter any Member State for a specified period. Furthermore, the entry ban is an instrument which can be used to prevent or to counter terrorism.
The use of criminal sanctions in the area of immigration opens the largely political debate on the legitimacy of the process of criminalizing foreigners. The merger between criminal law and immigration law has been classified as “crimmigration law”. The entry ban falls within the scope of crimmigration law. The relation between immigration law and criminal law and the compatibility of national penal measures imposed as a punishment for illegal migration is developed in the case law of the Court of Justice of the European Union.
There is well-established jurisprudence on the interplay between domestic penal sanctions and the effectiveness of return policy. The effectiveness of the return process would be compromised by the application of a criminal penalty for violating the entry ban, because the primary objective of the Directive is not to prevent illegal presence in the territory but rather to put an end to it.
The current issue is to determine to what extent the use of criminal sanctions by Member States is allowed in the situation that an entry ban is issued against an illegally staying third-country national. This research focuses on this issue.
The United Kingdom has taken an increasingly punitive stance towards ‘foreign criminals’ using law and policy to pave the way for their expulsion from the country. Imprisonment, then, becomes the first stage in a complex process intertwining identity, belonging and punishment. We draw here on research data from two projects to understand the carceral trajectories of foreign-national offenders in the UK. We consider the lived experiences of male foreign-nationals in two sites: prison and immigration detention. The narratives presented show how imprisonment and detention coalesce within the deportation regime as a ‘double punishment’, one that is highly racialised and gendered. We argue that the UK’s increasingly punitive response to foreign-national offenders challenges the traditional purposes of punishment by sidestepping prisoners’ rehabilitative efforts and denying ‘second chances’ while enacting permanent exclusion through bans on re-entry.
The unprecedented U.S. system of mass incarceration and the intensifying merging of criminal and immigration law have devastated individuals, families, and entire communities, especially poor communities of color. Noncitizens who come into contact with the criminal justice system are too often stripped of even the slightest chance of reintegration; returning home means removal to their countries of origin. Removal is often impossible to fight post conviction and is thereby virtually inevitable. And civil immigration legal service providers are not equipped to meet the immense need for immigration representation. Therefore, public defenders are usually the first and last line of legal defense for indigent noncitizens charged with crimes. Indeed, in light of recent U.S. Supreme Court decisions, including its groundbreaking decision in Padilla v. Kentucky requiring that counsel provide affirmative advice on the immigration consequences of criminal dispositions, public defenders must provide effective immigration defense. Padilla can be an opening for public defender offices committed to serving all their clients-citizens and noncitizens alike- to proactively fight for equality and racial justice and defend immigrants' rights. This Comment provides the first in-depth exploration of the holistic model of immigration defense within public defender offices. It does so by presenting case studies of two public defender organizations that have developed more holistic models: The Bronx Defenders (Bronx County, New York) and the Office of the Alameda County Public Defender (Alameda County, California). By introducing original information, the case studies emphasize insights and best practices both for immigration defense within public defender offices and for strategies to develop more holistic models. The holistic model of immigration defense is three-fold. First, immigration defense attorneys are embedded within the public defender office, working seamlessly alongside criminal defenders to avoid or mitigate negative immigration consequences. Second, offices provide full services, including direct representation in immigration court, to address clients' underlying immigration needs. Third, offices organize and advocate for structural reform to roll back mass incarceration and sever the criminal-immigration link. Ultimately, this Comment argues for public defender offices to launch and build more holistic immigration practices.
This article makes a contribution to the general theory of citizenship. It argues that there is a need for a supplementary concept of ‘denizenship’ to illustrate changes to and erosion of postwar social citizenship as famously described by T H Marshall. The first aim is to construct a more theoretically developed idea of what the concept of a ‘denizen’ means in sociological terms. In its conventional meaning, this term describes a group of people permanently resident in a foreign country, but only enjoying limited partial rights of citizenship. I label this Denizenship Type 1. By contrast, Denizenship Type 2 refers to the erosion of social citizenship as citizens begin to resemble denizens or strangers in their own societies. The argument then is that there is a general convergence between citizenship and denizenship. As such, Denizenship Type 2 provides a possible supplement to the various terms that have recently been proposed, such as flexible citizenship, semi-citizenship, or precariat to describe the attenuated social and economic status of citizens under regimes of austerity and diminished rights and opportunities. As the life chances of citizens decline, they come to resemble denizens. One illustration of this basic transition is to be found in the changing nature of taxation. This observation also allows me simply to observe that the political economy of taxation has been somewhat neglected in the recent literature on citizenship where questions about identity and subjectivity have become more dominant. As a result of these socio-economic changes, the modern citizen is increasingly merely a denizen with thin, fragmented, and fragile social bonds to the public world. The corrosion of the social, economic, political, and legal framework of citizenship offers a new slogan: ‘we are all denizens now.’
Deporting “criminal aliens” has become the highest priority in American immigration enforcement. Today, most deportations are achieved through the “crimmigration” system, a term that describes the convergence of the criminal justice and immigration enforcement systems. Emerging research argues that U.S. immigration enforcement is a “racial project” that subordinates and racializes Latino residents in the United States. This article examines the role of local law enforcement agencies in the racialization process by focusing on the techniques and logics that drive law enforcement practices across two agencies, I argue that local law enforcement agents racialize Latinos by punishing illegality through their daily, and sometimes mundane, practices. Investigatory traffic stops put Latinos at disproportionate risk of arrest and citation, and processing at the local jail subjects unauthorized immigrants to deportation. Although a variety of local actors sustain the deportation system, most do not see themselves as active participants in immigrant removal and they explain their behavior through a colorblind ideology. This colorblind ideology obscures and naturalizes how organizational practices and laws converge to systematically criminalize and punish Latinos in the United States.