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Foreigners’crime and
punishment: Punitive
application of immigration law
as a substitute for criminal
justice
Jukka Könönen
University of Helsinki, Finland
Abstract
Notwithstanding claims about the emergence of ‘crimmigration’systems, immigration
law and criminal law entail two different sets of instruments for authorities to control
foreign nationals. Drawing on an analysis of removal orders for foreign offenders in
Finland, this article demonstrates that significant administrative powers in immigration
enforcement are employed largely autonomously from the criminal justice system.
Immigration law enables the police and immigration officials to issue removal orders
based on fines or penal orders for (suspected) minor offences, without obtaining crim-
inal convictions. In addition to disproportionate administrative sanctions for foreign
nationals, removal orders involve a preventive rationale targeting future risks for the
society based on the assumed continuation of criminal activities. While criminal courts
adjudicate all severe offences, punitive application of immigration law enables authorities
to bypass criminal justice procedures and safeguards, resulting in a distinct, administra-
tive punitive system for visiting third-country nationals.
Keywords
criminal justice, crimmigration, deportation, police, prevention, punishment
Corresponding author:
Jukka Könönen, Institute of Criminology and Legal Policy, P.O. Box 16, 00014 University of Helsinki, Finland.
Email: jukka.kononen@helsinki.fi
Article
Theoretical Criminology
1–18
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13624806231171602
journals.sagepub.com/home/tcr
Introduction
‘The best criterion by which to decide whether someone has been forced outside the pale
of law is to ask if he would benefit by committing a crime’, Hannah Arendt (1973: 286)
famously wrote in The Origins of Totalitarianism. According to Arendt, by committing a
crime, even a stateless person can gain recognition from the state and be treated without
discrimination during criminal procedures: ‘Only as an offender against the law he can
get a protection from it’(Arendt, 1973: 286). Criminal law is assumed to be universal
in democratic societies, stipulating due process to define the guilt or innocence of the
accused. However, foreign nationals are situated at the intersections of universal and
exclusionary norms (Bosniak, 2006), even within the criminal justice system; thus, immi-
gration enforcement measures can exclude foreign offenders from criminal procedures.
Instead of receiving equal treatment and legal protection, foreign nationals without a per-
manent residence status, in particular, can face excessive and multiple administrative
immigration sanctions for minor offences that would result in either a notification or
fine for permanent residents—or non-prosecution. Whereas administrative immigration
sanctions for foreign nationals can take place outside the pale of criminal law, the crim-
inal justice system is nevertheless applied to everyone charged of severe offences, poten-
tially resulting in imprisonment.
In addition to empirical research on lived experiences of deportable foreign nationals
(e.g. Bosworth, 2014; Di Molfetta and Brouwer, 2020; Hasselberg, 2016), coercive mea-
sures imposed on foreign offenders and other unwanted non-citizens have been subject to
increasing theoretical discussion in criminology. Despite earlier work on the criminaliza-
tion of immigration law (e.g. Miller, 2003), the common reference point has become
Stumpf (2006) article ‘The crimmigration crisis’. Drawing on legal and policy analyses
on immigration enforcement reforms in the United States, Stumpf highlighted the conver-
gence of criminal law and immigration law, pointing to the overlap in their substance,
similarities in enforcement practices and procedural parallels. While acknowledging
the distinctions between immigration and criminal law measures (including limited con-
stitutional protection and broad powers to detain non-citizens), Stumpf (2006: 367) sug-
gested the merger of the two formerly distinct laws into ‘crimmigration law’:
‘Immigration law today is clothed with so many attributes of criminal law that the line
between them has grown indistinct.’Notwithstanding attention to the duality of coercive
systems concerning foreign offenders (Brandariz, 2022; Franko, 2020), many scholars in
Europe have highlighted the impact of criminal law measures on border controls and
immigration enforcement in the framework of border criminology (e.g. Aliverti,
2012; Barker, 2018; Bosworth, 2017). For example, Barker (2018: 6) argued:
‘Affluent and democratic societies have come to rely increasingly on the tools and
methods of criminal justice to manage, regulate, and ultimately punish unwanted migra-
tion.’However, other scholars have raised questions about the extent of crimmigration
policies in Europe, as the incarceration of foreign offenders as well as detention and
deportation rates have either not changed dramatically, or have even declined
(Brandariz, 2021; see also Ambrosini, 2016). Moreover, empirical research on immigra-
tion detention orders (Campesi and Fabini, 2020; Könönen, 2022a) and internal border-
ing practices (Moffette, 2020; van der Woude and van der Leun, 2017) in Europe has
2Theoretical Criminology 0(0)
demonstrated the primacy of the flexible administrative measures provided by immigra-
tion law in the governance of mobile populations. As Moffette and Pratt (2020: 16–17)
have pointed out, preoccupation with the convergence of criminal and immigration law
systems can result in oversimplifications and hide from view the different institutions,
legal instruments and administrative practices involved in immigration enforcement
(also Chacón, 2016: 763).
In order to better understand the relation between immigration law and criminal law in
immigration enforcement, and to interrogate the extent of crimmigration practices, there
is a need for empirically grounded analysis of law in action in administrative removal
practices. As Van der Woude et al. (2017: 4) have noted, the discussion of crimmigration
in Europe has mainly addressed ‘securitization at the level of political and policy dis-
courses’and focused on ‘criminalization rather than on crime and concrete attempts to
deal with it’. In addition to the lack of empirical research on administrative decision-
making practices in removal procedures, the different legal definitions of ‘deportation’
in national immigration legislation further complicates comparative discussion. Despite
being frequently used in a general sense to refer to removals of non-citizens, ‘deportation’
brackets a host of different reasons for expulsion from rejected asylum or residence
permit applications to immigration violations and deportable offences. It can be
applied to foreign nationals with distinct legal statuses from permanent residents to tem-
porary visitors, with different legal protections for EU citizens and third-country
nationals. While removal policies are ultimately contingent on administrative decision
making and enforcement practices, immigration laws produce deportable ‘criminal
aliens’through different legal criteria that depend on legal status and criminal sanctions.
Therefore, immigration law interacts with criminal law in different ways in immigration
enforcement: not all foreign prisoners are deported after criminal sentences, whereas
other foreign offenders can be removed without any criminal convictions. As a result,
both foreigner (immigration law) and crime (criminal law) encompass different legal
implications for punishment.
In this article, I examine the relation between criminal law and immigration law in
removals of foreign offenders by drawing on 196 removal orders issued for Russian
and Gambian citizens who represent the two main groups of third-country nationals
removed from Finland for (suspected) criminal offences. In Finland, deportation orders
(karkotuspäätös) are a distinct legal category from removal orders (käännytyspäätös).
While the former concern only registered legal residents and involve a higher threshold
and legal protection against removal, the latter accompany negative residence permit or
asylum decisions. They may also be issued for visiting foreign nationals, suspected of
criminal activity. This article contributes to debates about crimmigration by drawing
attention to actual removal practices and to the relevance of foreign nationals’legal
status for criminal procedures. Instead of the convergence of criminal and immigration
law, the analysis demonstrates the primacy of immigration law in the removals of (sus-
pected) foreign offenders. In addition to the low threshold for their removals ultimately
based on the assumed continuation of criminal activities, this article offers concrete
examples of punitive application of immigration law for foreign nationals and the pre-
ventive rationale of immigration enforcement measures. Accordingly, this article
argues for the need to pay closer attention to the distinction between immigration and
Könönen 3
criminal law measures and to the differential inclusion of foreign offenders in the criminal
justice system, in order to better understand the dynamics of immigration enforcement
practices.
Policing foreign offenders through immigration law
Crimmigration and border criminology scholars have emphasized the impact of the crim-
inal justice system on the development of coercive immigration enforcement practices
drawing largely on the theoretical framework originating from analysis of the distinct
legal system in the federal government of the United States (Brandariz, 2022; van der
Woude et al., 2017). However, and notwithstanding the recent facilitation of removals
of foreign offenders and the expansion of enforcement capacities, ‘immigration law
and criminal law procedures have remained more autonomous and separated’in
Europe than is usually acknowledged (Brandariz, 2022: 290). Unlike the United States
and the United Kingdom, where deportations are meant automatically to follow prison
sentences of more than one year, in many European countries deportations remain a sep-
arate discretionary measure based on immigration law (e.g. Brioschi, 2020). Although
accounts of the criminalization of migration also often cover coercive and preventive
measures targeting irregular migrants beyond criminal law (e.g. Mitsilegas, 2015), to
be precise, criminal sanctions for immigration violations remain one of the only crimina-
lized immigration-related acts.
1
Indeed, criminal law measures have been largely second-
ary in immigration enforcement, as immigration violations mainly result in a criminal
punishment when the primary administrative sanction of removal cannot be enforced
(Aliverti, 2012). Likewise, it is worth recalling that immigration detention has a long
history as an administrative measure (e.g. Wilsher, 2014), despite its resemblance with
the coercive criminal law measures. In addition to Anglo-Saxon bias, the emphasis on
criminal justice measures in the crimmigration and border criminology discussions
involves a risk of what Velloso (2013) has called ‘criminocentric dogmatism’.
Accordingly, the tendency to label the punitive use of non-criminal-based normative
systems as criminalization acts as an epistemological obstacle to perceiving and examin-
ing administrative-based punitive systems, such as immigration law (Velloso, 2013: 171;
also Moffette and Pratt, 2020).
Immigration law and criminal law provide two distinct instruments to control mobile
populations and enforce social order (see Brandariz, 2022; Franko, 2020; Moffette, 2020;
van der Woude and van der Leun, 2017). In addition to constituting crime and criminals
‘by selecting when and against whom to apply coercion’(Aliverti, 2020: 9), the police
also make decisions whether to invoke criminal law or immigration law (or both) for
foreign offenders, consequently either processing the case following criminal procedures
or deciding to ‘change tracks’and select administrative deportation procedures based on
immigration law (Franko, 2020: 94). Drawing on Sklansky (2012) concept of ‘ad hoc
instrumentalism’—that is, the selection of the most effective and appropriate tools
from the available set of interchangeable legal procedures—Brandariz (2022) has identi-
fied ‘crimmigration instrumentalism’as the increasingly systematic adaptation of immi-
gration enforcement measures over criminal law procedures in Europe. For example,
Campesi and Fabini (2020) have demonstrated how immigration law provides the
4Theoretical Criminology 0(0)
police with a flexible administrative instrument to control and detain ‘dangerous’mobile
populations in Italy. Likewise, Moffette (2020: 270) has drawn attention to ‘jurisdictional
games’—when authorities use different laws, including public order regulations—in
policing migrants in Barcelona, concluding that ‘it is not the convergence but the distinc-
tion between different types of laws that allows a multiplicity of actors to deploy laws as
flexible sets of tactics in the everyday governance of urban life’(see also van der
Woude and van der Leun, 2017). The police can employ immigration law for punitive
and preventive purposes in a flexible manner when criminal law would not enable coer-
cive measures or only allow pecuniary penalties.
Several scholars have highlighted the relevance of membership in the criminal justice
system and its consequent implications for foreign offenders, who often face ‘double pun-
ishment’when removal follows prison sentences ( Franko Aas, 2014; Stumpf, 2006;
Zedner, 2013). In this vein, Franko Aas (2014) refers to exclusionary practices targeting
non-members in criminal justice as ‘bordered penality’:‘The absence of formal citizen-
ship status also crucially affects the procedural and substantive standards of justice
afforded to non-members’(Franko Aas, 2014: 521). Likewise, Fekete and Webber
(2010) have argued that automatic deportation after a prison sentence, harsher sentences
and resections to citizenship and permanent residence constitute a separate criminal
justice system for foreign nationals. This underlining binary conception of members
and non-members risks idealizing the criminal justice system, as if membership would
guarantee equal treatment, despite extensive evidence of differential law enforcement
practices and criminal adjudications based on racialized practices and perceptions of
certain risk groups (Armenta, 2017; Fassin, 2013; Parmar, 2020). More importantly for
the analysis of removal measures, such debates overlook the fact that immigration con-
trols do not operate on the binary terms of inclusion and exclusion (e.g. Balibar, 2002)
but themselves produce differential inclusion in the sphere of rights (e.g. Könönen,
2018). The multiplication of legal statuses for foreign nationals—including the distinc-
tions between EU citizens and third-country nationals, and diverse temporary and per-
manent immigration categories among the latter—has generated different criteria for
removals with direct implications for criminal procedures (i.e. whether the same
offence results only in normal penal sanctions or it initiates the removal process).
While insecurity or ‘liminal legality’also characterize the position of many legal perman-
ent residents (Chacón, 2016), instrumentalized laws and procedures for foreign offenders
are contingent on the legal status and severity of offences. In short, despite the absence of
formal membership status, some foreign nationals are legally more foreign than others.
Although immigration enforcement shares similar coercive measures with criminal
justice (Barker, 2018; Bosworth, 2017; Stumpf, 2006) that are often experienced as puni-
tive, their logic and aims differ due to the different legal constraints and temporal hori-
zons. While the criminal justice system includes preventive rationales alongside its
primary post-crime orientation in sanctioning acts committed in the past, the pre-crime
logic characterized by ‘the temporal perspective to anticipate and forestall that which
has not yet occurred and may never do’(Zedner, 2007: 262) prevails in immigration
enforcement. In other words, coercive measures such as immigration detention and
removals operate in the security framework and aim to prevent potential disorders for
society based on estimations of probable actions in the future (see Campesi, 2020;
Könönen 5
Gundhus and Jansen, 2020). Likewise, entry bans accompanying removal orders aim to
prevent unwanted mobility back to Europe by rendering targeted individuals immediately
deportable if they are apprehended while returning during the sanctioned period
(Könönen, 2022b). Even if ultimately authorized due to their foreignness (or non-
belonging), removal orders for foreign offenders entail a conception of ‘criminal
aliens’who pose a threat to social order irrespective of criminal convictions. In this
way, the control of foreign offenders through administrative measures resembles the his-
torical idea of sanctioning ‘dangerous individuals’based on their assumed ‘behavioural
potentialities’, instead of ‘the actual violations of an actual law’(Foucault, 2000: 57).
Compared with the criminal justice system, immigration law provides significant
powers for the police to employ preventive measures to enforce social order—or eradi-
cate disorder—which has been the main aim of the police in modern societies
(Neocleous, 2021).
Data and methods
In Finland, the police have historically possessed significant powers in immigration
enforcement and continue to be the main actor in the removal and detention system. In add-
ition to enforcing removals, conducting immigration checks and operating immigration
detention, the police can issue removal orders for visiting third-country nationals based
on criminal offences or immigration violations under certain, limited circumstances: pro-
vided that they have not been residing in Finland for more than three months and that
their accompanying entry ban does not exceed two years. In other cases, the Finnish
Immigration Service (hereafter Migri, following the commonly used abbreviation) makes
removal orders based on proposals by the police or border authorities. The overall share
of removal orders based on criminal offences remains difficult to estimate due to
varying categorizations in official statistics. Recently, for example, Migri has issued
around 100 deportation orders each year for registered foreign residents due to criminal
offences. They have also issued 650 removal orders for other reasons, including criminal
offences, irregular residency and other immigration violations. Around half of these
removal orders concerned EU citizens. Additionally, each year, the police make a few
hundred removal orders.Of these crime-related removals, the share of Gambians is particu-
larly high relative to their population size in Finland, while that of Russians is relatively
very low. Like the Russians visiting Finland with Schengen visas, most Gambians arrive
in Finland legally with residence permits obtained in Spain or Italy (see Könönen, 2022b).
This article is based on 196 crime-related removal orders for Gambian and Russian
citizens that were obtained from Migri and the police.
2
The decisions obtained from
Migri were extracted from their electronic database, whereas the police departments col-
lected the decisions from their own paper archives. Because most removal orders for
Gambians were issued by the Helsinki police department and for Russians by the
South-East Finland police department, the decisions were requested from these respect-
ively. A majority were from 2018 and 2019, although the data from Migri included older
decisions. Almost all the Gambians in the analysed files were young men suspected of
selling marijuana. By contrast, the Russians represented a more heterogeneous group
in terms of their gender and age as well as their offences: around half of their removal
6Theoretical Criminology 0(0)
orders were related to smuggling cigarettes from Russia, whereas the rest mainly con-
cerned property offences and traffic violations. Despite the lack of geographically and
temporally equivalent data—and the fact that the same removal grounds involved differ-
ent criminal cases, as it turned out—the removal orders provided an opportunity to
examine actual removal practices and the relation between immigration and criminal
law in immigration enforcement.
Table 1 summarizes the main information from the data analysis, which focused on the
applied legal grounds, criminal offences, criminal sanctions and argumentation for
removal orders.
3
Overall, the removal orders consisted mainly of short paragraphs cover-
ing the person’s criminal offences, and their lack of social ties and an address in Finland.
Table 1. Main information in the analysed removal orders.
Gambian Russian
Police Migri Police Migri
Decisions 48 48 50 50
Place of apprehension
At the border 2 1 20 31
Inland 46 47 30 19
Invoked removal grounds (Alien Act)
Earning income by dishonest means (148.5) 36 1 41 10
Suspected criminal offences (148.8) 44 41 40 40
Criminal conviction (148.9) 5 13 6 18
Main criminal offences
Drug offences 42 46 0 3
Smuggling 0 0 23 25
Traffic violations 0 0 12 4
Property offences 0 1 11 10
Immigration violations 5 0 4 4
Other 1 1 0 4
Criminal sanctions
Fine (police) 17 3 9 0
Penal order (prosecutor)
Unspecified 1 0 13 0
Fine 19 9 12 1
Suspended (conditional) 3 3 9 8
Imprisonment 0 1 0 0
Criminal conviction (court)
Suspended (conditional) 0 8 0 15
Imprisonment 0 4 0 3
N/A 8 20 7 23
Individual responses
Objection to removal 6 9 6 11
Objection to entry ban 13 17 10 16
Könönen 7
They included little information on the specific individuals, their duration of residence or
their criminal records. The format of removal orders differed somewhat between the two
authorities. Migri quoted the applied sections verbatim from the immigration law,
whereas the police ticked boxes for the applied sections in their own format. In the con-
clusions, Migri repeated the legal sections for the removal. The police usually just con-
cluded that foreign nationals would be removed and subject to an entry ban due to
endangering public order and security or because of their repeated offences. Based on the-
oretically informed data analysis, the following sections will focus on the production of
removable ‘criminal aliens’, punitive application of immigration law and the preventive
rationale of immigration enforcement.
Producing removable ‘criminal aliens’
The Finnish Alien Act (301/2004) leaves considerable discretion for the authorities to
issue removal orders, as it does not specify deportable offences or stipulate automatic
removal for criminal offences. Whereas deportation orders for foreign nationals who
have acquired a residence permit require criminal conviction of an offence ‘punishable
by a maximum term of imprisonment of at least one year’or convictions of repeated
offences (Sec. 149.2),
4
removal orders can be issued on the basis of one or more
rather speculative grounds concerning criminal activities or noncompliant behaviour
(Sec. 148)
5
and the subsequent failing to meet the conditions of entry by endangering
public order and security (Sec. 11.5). Most of the removal orders in my dataset
invoked Section 148.8 concerning potential future offences (‘on the basis of an earlier
sentence of imprisonment, or on other reasonable grounds, there is reason to suspect
that he/she may commit an offence that is punishable by imprisonment in Finland, or
there is reason to suspect that he/she may commit repeated offences’). The police often
applied this together with Section 148.5 (‘there are reasonable grounds to suspect that
he/she may earn income through dishonest means’) for supposed drug selling and smug-
gling offences. Only a minority invoked Section 148.9 (‘he/she was sentenced for an
offence during his/her stay in Finland’), including convictions from previous years.
Owing to the speculative formulations like reasonable grounds to suspect that a
foreign national may commit offences, even minor suspected activities can result in a
removal order without criminal convictions. ‘Punishable by imprisonment’is likewise
a hypothetical precondition, because the Finnish Criminal Code includes an option of
imprisonment as the maximum punishment for most minor offences; for example,
offences of drug use, endangering traffic safety and drunk driving are punishable by a
fine or imprisonment of up to six months.
Notwithstanding the assumed connection between irregular migration and crime, most
removal orders concerned legally arrived third-country nationals who were not remov-
able without a separate decision. While the legal production of deportable aliens
through tight legal criteria for entry and residency (De Genova, 2002) is commonly dis-
cussed in migration research, it is administrative practices in the application of immigra-
tion law that produce deportable criminal aliens. In addition to ‘proactive policing’
targeting foreign nationals in traffic controls, immigration checks or crime control
(Armenta, 2017), the police can actively use the opportunity to issue removal orders
8Theoretical Criminology 0(0)
for foreign nationals suspected of minor offences (see Franko, 2020). In the documents I
analysed, even a single drug use offence, shoplifting or deception worth a couple of euros
resulted in a removal order. Almost all the Gambian cases related to drug offences in the
Helsinki region: the police usually invoked charges for purported drug selling based on
possession of a few or a dozen grams of marijuana, although a few individuals received
fines for drug use offences only. Notwithstanding some smuggling cases of considerable
amounts of marijuana, Migri decisions likewise concerned relatively minor drug
offences, often connected with immigration violations. In addition to five police decisions
solely based on violations of entry bans, at least 25 other removal orders for Gambians
involved immigration violations alongside drug offences. By contrast, most Russians
had been just visiting Finland and were caught either inland in traffic and crime controls
or directly during arrival at the eastern border. Around half of the Russian cases (N =48)
concerned smuggling of cigarettes and consequent tax evasion; their crimes range from
dozens up to hundreds of cigarette cartons hidden in the structure of their vehicle. Other
charges against Russians mainly included property offences and traffic violations. While
the former ranged from shoplifting of groceries and consumer goods worth tens or hun-
dreds of euros to attempted burglaries and stolen cars, the latter included speeding,
driving under the influence and endangering traffic safety, sometimes involving also
drug use offences. Finally, eight of the 100 removal orders for Russians concerning immi-
gration violations covered unauthorized employment, overstaying the 90-day limit and
counterfeiting visa stamps. While some Russians were charged with more than one
offence and a few convicted of severe offences, overall a majority of cases represented
minor subsistence-based criminal activities.
What was notable in the data was that most of the removal decisions were based on
police reports and fines or penal orders by the prosecutor, instead of on the people’s crim-
inal convictions. The police may order fines for minor offences, such as traffic violations,
shoplifting and drug offences, with a maximum number of 20-day fines, provided that the
offender gives consent for this procedure.
6
In the case of rebuttal or more substantial pen-
alties, the police transfer the case to the prosecutor to issue penal orders, which the district
court adjudicates within a few months. For example, the standard penalty for minor drug
offences concerning less than 10 grams of marijuana was a 10-day fine, accounting for 60
euros for penurious persons, whereas penal orders by the prosecutor for smuggling of
cigarettes ranged from 60–100-day fines up to short, suspended sentences. Even if pro-
cessing removal orders concerning more serious offences, only 30 Migri decisions men-
tioned criminal convictions, of which just seven involved prison sentences; almost half
the Migri files did not include any information on criminal sanctions or penal orders.
As the collection of fines is practically impossible from penurious persons (although
the police confiscate assets claimed to be acquired through ‘criminal gain’, when pos-
sible), removal and the entry ban become the main punitive measure in response to
minor offences in most cases.
Removal orders and the length of accompanying entry bans are also subject to overall
assessment (Sec. 146). Consequently, the authorities are meant to take into account non-
citizens’residence time and social ties in Finland, as well as the severity of their offence
and the damage it causes to public or private security. According to the responses from
foreign nationals—though not systematically recorded—most did not oppose the removal
Könönen 9
and entry ban, which might reflect their absence of social ties in Finland or the inevitabil-
ity of the outcome. Most Russians had been just visiting Finland or were caught at the
border, although some had relatives or family members in the country, and even a
second house. Although Gambians usually had been residing in Finland for some
weeks—a few had stayed irregularly for up to three years—they often expressed their
hopes for a quick removal to Spain or Italy. However, many Gambian men (16 of the
96) reported having a girlfriend in Finland; three additionally claimed their girlfriend
was pregnant. Such matters, however, appeared to have little effect on the immigration
decision, since the authorities took into consideration only information on family rela-
tions or cohabitation listed in the official population registers. Consequently, the deci-
sions included a standard sentence: ‘The person does not have a permanent address,
job or family ties in Finland within the meaning of the Alien Act.’Nevertheless, a few
people received removal orders and entry bans despite demonstrable family ties.
Despite varying situations, the authorities concluded with a statement that they have con-
sidered all relevant factors and ‘there do not exist any factors with more weight’counter-
balancing the removal, thereby demonstrating perfunctory reasoning in the removal
orders.
Punitive application of immigration law
Although removal was trigged by (suspected) criminal offences and consequent criminal
sanctions or penal orders, criminal law appeared to be largely irrelevant to the cases I
examined. Indeed, only 21 of the 196 decisions included references to the Criminal
Code, all of which were made by the North-East police department.
7
Instead, the author-
ities relied on immigration law to expel these foreign nationals. Such administrative
powers are a normal part of criminal investigation; by default, the police investigate sus-
pected foreign offenders’conditions of entry and residency. For permanent foreign resi-
dents, minor offences result only in fines, yet these same offences can initiate the removal
process for foreign nationals without a residence permit. However, criminal procedures
also reflect the severity of the offence. In practice, criminal courts adjudicate all
charges for offences that can result in a sentence of at least two years’imprisonment,
which is the precondition for pre-trial police custody as well as the threshold for an
unconditional sentence; in Finland, criminal sentences under two years are issued as con-
ditional (suspended) sentences for a first-time offender, if there are no aggravating cir-
cumstances.
8
In other words, in addition to citizens (see Zedner, 2013), criminal
justice exists for foreign legal residents as well as including those charged with severe
offences, even if they are removed after serving their criminal sentences (in Finland,
this is subject to a separate decision issued based on immigration law).
In many cases, immigration enforcement measures replace criminal justice processes
for visiting third-country nationals by excluding them from criminal adjudication. In my
analysis, the authorities considered foreign offenders to be guilty based on police reports,
displaying a presumption of guilt that contrasted sharply to the presumption of innocence
inherent to criminal law. While guilt was obvious for those apprehended for driving under
the influence or smuggling cigarettes—several Russians also confessed to previous
imports—charges for drug offences were less clear cut; in particular, removal orders
10 Theoretical Criminology 0(0)
provided only vague circumstantial evidence for the purported selling purpose, mainly
possession of one-gram ‘selling packages’. Although their responses were not systemat-
ically recorded in the analysed data, at least some of the Gambians either rejected the
charges altogether or denied the selling charge, stating that they had bought marijuana
for personal use. The police seemed to consider Gambian men as particularly likely to
be involved in the drug business, reflecting familiar racialized practices of crime
control and guilt by association. While Russians were often charged with more serious
offences, the police also issued removal orders based on shoplifting or single traffic vio-
lations. Migri sometimes used phrases such as ‘the systematic nature and frequency of
criminal activity’,‘disregard towards laws and regulations’or that the person ‘had
entered the country to commit crimes’. However, the same arguments were invoked
for minor property offences as well, or when the previous offence was committed a
long time ago. The application of standard formulations such as these thus appeared to
represent administrative ‘legitimation work’(Coutin et al., 2002) to justify removal
orders, rather than concrete evidence (see also Borelli and Lindberg, 2020).
While criminal adjudication always involves some inconsistencies regarding propor-
tionality and application of the penalty scale based on the Criminal Code, punitive appli-
cation of immigration law results in excessive and disproportionate sanctions for minor
(suspected) offences. In the removals of foreign offenders, only the length of the entry
ban is tied to the severity of the offence(s) based on an administrative scale made by
Migri. Owing to their residence permit in another EU member state, most Gambians
received only a national entry ban to Finland, whereas the removal orders for Russians
included a Schengen entry ban as well as the annulment of the existing visa. Here,
too, however, practices varied, as for example, seven Russians in possession of residence
permits or with family members living in other EU member states received only a
national entry ban to Finland. So, too, the police usually issued the maximum period
of a two-year ban, although sometimes they settled on one year for single drug use
offences; six Russians charged with unauthorized employment or minor property
offences received a removal order without an entry ban. Migri processed removal
orders for more severe offences, resulting in entry bans that usually ranged from two
to five years; however, eight Gambians and nine Russians received entry bans ‘until
further notice’due to their criminal convictions, including suspended sentences.
Indeed, entry bans issued by Migri often seemed disproportionately harsh; for
example, one Russian citizen received a four-year entry ban due to ‘the systematic
nature and frequency of criminal activity’based on a ‘theft’accounting for a hundred
euros and another unsubstantiated offence that had taken place more than a year
earlier. The fact that some foreign nationals did oppose their entry ban, even if they
accepted being removed, or considered the length of the ban to be excessive, indicates
the significance of these sanctions for their future mobility and for their ability to maintain
family or other social relations (Könönen, 2022b).
Significant administrative sanctions such as these, for minor offences, undermine fun-
damental criminal justice principles, including the presumption of innocence, the burden
of proof for charged offences, the right to defence and the proportionality of criminal
sanctions. Matters are compounded by the fact that removals can also be implemented
even if foreign nationals deny charges and appeal the decision, unless the administrative
Könönen 11
court issues an implementation ban. Rapid decision making, in otherwise slow immigra-
tion bureaucracy, indicates the priority of removing foreign offenders. Most removal
orders were issued in the days following the suspected offence, sometimes even on the
same day. According to the Migri files, Gambians were removed to their residence coun-
tries of Italy or Spain within a week, while Russians were often returned to the other side
of the border on the same day. In contrast to the speedy administrative decision making,
criminal hearings at the district court were often organized a few months after removals.
While, in theory, the defendants can return to criminal trial, the court can adjudicate the
case without their presence. Thus, and despite the fact that foreign nationals do commit
offences and many did admit to their charges, the administrative removal process
involves significant risks of excessive or even unfounded criminal and immigration
sanctions.
Preventive policing of dangerous mobile populations
In addition to the low threshold for removals without criminal convictions, crime-related
removal orders deviate from normal criminal justice practices in one more fashion: they
constitute anticipatory penalties targeting the continuation of criminal activities. Indeed,
removal orders are explicitly based on ‘reasonable grounds’to suspect that foreign
nationals may commit (or repeat) offences in the future, and, as such, involve a concep-
tion of pre-crime (Zedner, 2007). Removal orders for crime prevention are in accordance
with the Alien Act, yet the decisions lacked detail on what were the ‘reasonable grounds
to assume’that foreign nationals would commit repeated offences or offences punishable
by imprisonment. While committing several offences in a short period or new crimes after
returning to Finland despite an entry ban may indicate a person is continuing in their
criminal activities, most analysed decisions were based on a single, minor offence.
Instead of criminal justice adjudicating committed past acts, removal orders (together
with entry bans) as preventive measures connect crime prevention and border control
with the enforcement of public order and security (see Gundhus and Jansen, 2020). In
particular, the police regularly invoked a threat to public order and security as the
reason to deny the period for voluntary departure (often together with criminal offences)
and as conclusive justification for removal measures. Ultimately, ‘reasonable grounds to
assume’that foreign nationals will commit repeated offences entails a prejudiced concep-
tion of a ‘criminal alien’as someone with tendencies to engage in criminal activities and
who consequently needs to be subjected to preventive measures.
In addition to a racialized and gendered preconception of foreign men as a particular
risk group and social danger (see Ahmed, 2000), preventive immigration enforcement
measures also involve a class-based dimension in that they predominantly target
mobile poor people. A few police decisions explicitly mentioned the person’s limited
financial resources or a lack of return ticket, whereas all removal orders invoked circum-
stantial factors, such as a lack of permanent accommodation and registered address and
recognized social ties in the country. Above all, most (suspected) offences resulting in a
removal order—property offences, drug selling and smuggling of cigarettes—represent
subsistence-based criminality or crimes of survival (De Giorgi, 2017). Visiting third-
country nationals face a ‘differential opportunity structure’(van der Leun, 2003: 63–
12 Theoretical Criminology 0(0)
64) because the Schengen visa or a residence permit in another EU member state do not
entitle them to work legally elsewhere; a few removal orders involved unauthorized
employment in Finland. Many West Africans move from Southern Europe to Northern
European countries to look for more favourable opportunities, with the help of informal
support networks providing accommodation; for many, intimate relationships provide the
best opportunity for regularization (Könönen, 2022b). In addition to shopping and
tourism, significant price and income differences across borders create opportunities
for informal border economies; removal orders concerned also several elderly Russians
living near the border who acted as intermediaries, transporting cigarettes to third
parties for a moderate remuneration. That said, a few decisions based on traffic violations
also concerned middle-class Russians who came for shopping or to visit relatives; one
Russian citizen even received a two-year ban for driving under the influence, despite
owning property in Finland.
Immigration law provides a flexible instrument for the police to control supposedly dan-
gerous mobile populations outside the criminal justice system (Campesi and Fabini, 2020).
While the police can only issue fines or transfer a case to the prosecutor for more substantial
penal orders based on criminal law, immigration law enables them to issue removal orders
and entry bans, as well as to decide on immigration detention as a preventive administrative
measure. While explicitly mentioned only in some of the decisions I analysed, immigration
detention is a routine part of the removal process: around half of the detention orders have
been related to crime prevention and the enforcement of removals of foreign offenders in
Finland (Könönen, 2022a). Like the removal grounds connected to crime prevention, the
Finnish Alien Act stipulates as one specific legal ground for immigration detention that
‘the alien has committed or is suspected of having committed an offence and the detention
is necessary to secure the preparations for or the enforcement of a decision on removal from
the country’(Sec. 121.3). Under these circumstances, and in contrast to pre-trial criminal
detention that requires charges for severe offences, the police may detain foreign nationals
suspected of minor offences under the immigration law until removal. Consequently, immi-
gration detention provides a convenient administrative instrument to facilitate removals and
to prevent criminal offences and other unwanted conduct regarded as a risk for public order
and security. As the police have powers to order detention and issue removal orders and
entry bans, the whole process—from suspected offences to enforced removals—can take
place without judicial supervision in Finland due to the quick enforcement practices.
9
Conclusions
The Finnish Alien Act enables the police and immigration officials to issue removal
orders based on fines or penal orders for (suspected) offences, without criminal convic-
tions. As a result, the threshold for removals is low, as even minor suspected drug or
property offences resulted in a removal order and entry ban without information about
prior crimes. While different migration trajectories and criminal charges among
Russians and Gambians complicate estimations of the extent of racialized and gendered
practices in crime and immigration controls, the harsh policies for minor drug offences
for Gambians, in particular, reveal excessive and discriminatory practices. Instead of pro-
viding evidence of the propensity for repeated future offences, the authorities applied
Könönen 13
standard formulations regarding putative lack of social and family ties and an absence of
funds to justify the removal orders, indicating a conception of dangerous mobile indivi-
duals who acquire income through dishonest means and commit criminal offences. The
removal order narratives were largely characterized by foregone conclusions: a foreign
national charged with an offence is not only guilty without a criminal hearing but is
regarded as a recidivist by default, being inherently likely to commit new offences and
endanger public order and security. Overall, this administrative removal process for visit-
ing third-country nationals took place largely autonomously from the criminal justice
system, as the authorities relied on coercive measures stipulated in immigration law to
target and remove ‘criminal aliens’as a preventive action.
The findings of this research demonstrate the primacy of immigration law measures in
policing foreign offenders. Notwithstanding their resemblances and similarities, immigration
law and criminal law provide separate instruments for the authorities to control mobile
populations (see also Franko, 2020; Moffette, 2020). While the crimmigration and border
criminology literature often refers to the criminalization of immigration violations or to
the over-representation of foreign nationals in prisons as examples of the punitive turn in
immigration policies, ‘the criminalization dimension of the crimmigration turn is not the
centre of gravity of recent shifts’in Europe (Brandariz, 2022: 290). Migration and deport-
ation scholarship tend to be dominated by theoretical frameworks and concepts developed in
Anglo-Saxon countries, yet their analytical usefulness may be limited in Europe—not to
speak of other continents—due to different historical and institutional frameworks, migra-
tion patterns, racialized and other social hierarchies, immigration enforcement practices
and varying national crime control and penal policies. Crimmigration practices also
matter ‘more for certain categories of migrants’and more in certain circumstances than
others (Ambrosini, 2016: 154). In addition to different disciplinary frameworks, limited
attention to the details of immigration law and administrative practices in immigration
enforcement may have contributed to the overemphasis on criminal law measures. Owing
to broad discretionary powers among enforcing authorities, empirical research on the
police and other security agencies (e.g. Armenta, 2017; Moffette, 2020) and administrative
decision-making practices (e.g. Campesi and Fabini, 2020) are valuable for understanding
the operationalization of different laws in immigration enforcement and the formation of
crimmigration practices from the bottom.
Considering the preference for coercive immigration law measures to criminal justice
procedures among the authorities, it may be more precise to speak of punitive application
of immigration law, rather than of crimmigration or the criminalization of migration. In
addition to identifying deportable foreign offenders or unauthorized residents (see
Armenta, 2017), the police in Finland also actively produce deportable ‘criminal
aliens’by making removal proposals or even issuing removal orders themselves based
on immigration law. Preoccupation with the merger of immigration and criminal law
obscures the role of the different institutions and legal instruments employed in policing
mobile populations (Moffette and Pratt, 2020), as well as the different legal criteria for
removing foreign nationals depending on their legal status. Instead of the binary division
between citizens and non-citizens, the multiplication of legal statuses with different
removal grounds entails the differential inclusion of foreign offenders in criminal
justice. Whereas all charges for serious offences potentially resulting in imprisonment
14 Theoretical Criminology 0(0)
are subject to criminal adjudication, punitive application of immigration law enables
bypassing of criminal procedures and safeguards for visiting third-country nationals sus-
pected or charged of minor offences. Consequently, removal and entry bans based on
immigration law represent an excess of punishment and indicate a disentanglement
between crime and punishment compared with the proportionality principle in criminal
justice. In addition to undermining the legal protection of foreign nationals, punitive
application of immigration law results in derogations from the criminal justice system
and the separation of powers that constitute fundamental legal principles in democratic
societies. Immigration enforcement measures differ significantly from those of the crim-
inal justice system due to broad administrative powers and their preventive rationality. In
this regard, they represent equally, if not more so, a long history of coercive and prevent-
ive practices targeting mobile and marginalized populations (e.g. Foucault, 2015), as well
as the broad police powers to enforce the social order through different legal or admin-
istrative instruments (Neocleous, 2021).
In Finland, as in many other countries, harsher punishments for ‘criminal aliens’are
regularly propagated by anti-immigration and conservative parties. Contrary to popular
assumptions, removals of foreign offenders often are based on fairly minor offences,
which, if committed by citizens would result only in fines or non-prosecution.
Ultimately, administrative and preventive immigration law sanctions (removal, entry
ban, detention) are based on the foreignness of the offender, because these measures
cannot be imposed on citizens. Although care must be taken to avoid exaggeration, the
treatment of foreign offenders evokes Arendt (1973: 290) warning of the wider conse-
quences for society caused by the inability to treat ‘stateless people as legal persons’
and the temptation to rule foreign nationals ‘with an omnipotent police’after the
Second World War. Nevertheless, the removal practices discussed in this article demon-
strate significant administrative police powers in immigration enforcement and a separate
punitive system for foreign offenders, who are not treated as legal persons entitled to the
due process in the criminal justice system.
Acknowledgements
The author would like to thank the anonymous reviewers, editors of the journal, José A Brandariz
and Lea Sitkin for their valuable comments on the manuscript.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or
publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/
or publication of this article: This work was supported by the Academy of Finland under grant
323149.
ORCID iD
Jukka Könönen https://orcid.org/0000-0002-4843-7741
Könönen 15
Notes
1. In addition, providing assistance to irregular migrants has been criminalized in most European
countries (Tazzioli and Walters, 2019).
2. The research permit processes included the ethical review at the university, informing the data
security ombudsman, committing to use the data only for research purposes and complying
with very strict data storage requirements. The deviation from the requested 50 decisions
for Gambians is due to two decisions in the police data being the same, whereas Migri
removed two decisions without explanation just before releasing the data.
3. The authorities often invoked more than one legal ground for removal, whereas criminal sanc-
tions were not systematically recorded in the removal orders. Only the main criminal offences
are listed in the table, although some parties were charged with several offences.
4. Even foreign nationals who have obtained a residence permit can be deported without a prison
sentence, as the section only refers to the maximum term of imprisonment for the charged
offence.
5. The other grounds for a removal order include failing to meet the entry criteria, refusing to
reveal one’s identity, using false information to obtain a visa or residence permit, rendering
oneself incapable of sustaining him/herself, crossing borders outside official border stations
and selling sexual services (which is not a criminal offence in Finland).
6. The pecuniary amount of the fine depends on the offence and the financial standing of the
person. The amount of the day-fine is the 60th part of the average net monthly income of
the person in question, subject to certain fixed deductions. Additionally, the police can
order a victim charge of 40 euros, which is used to fund the support services for victims of
crime.
7. In this regard, the only detailed information in the removal orders concerned calculated tax
losses for the state from smuggled cigarettes.
8. On the Finnish criminal justice system, see Lappi-Seppälä (2012).
9. Immigration detention is subject to ex post judicial review within 96 hours limited only to the
legal grounds of detention and the preconditions for the extension of detention.
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Author biography
Jukka Könönen works at the Institute of Criminology and Legal Policy at the University of Helsinki.
His research has focused on immigration controls, migrant labour, irregular migration, the
European border regime, and immigration enforcement. He has conducted long-term research on
the immigration detention and deportation system in Finland, including a recent project on
crime-related removals.
18 Theoretical Criminology 0(0)
