Exploring the Function of Criminal Law in the Policing of Foreigners

Introduction

The convergence of immigration and criminal laws in recent years has created a system of juxtaposed controls over non-citizens (Albrecht, 2000; Miller, 2005; Stumpf, 2007; Legomsky, 2007; De Giorgi, 2010). In Britain, the increased criminalisation of immigration laws has expanded the alternative interventions that enforcement officers can follow against immigration offenders (Weber and Bowling, 2004; Zedner, 2010; Bosworth, 2011b). Nowadays almost any breach to immigration rules has a criminal sanction attached to it (Home Office, 2010b: p. 26). Hence, foreigners in breach of immigration laws may be subject to an array of overlapping enforcement mechanisms that include refusal of entry, executive removal, deportation on ‘conductive to public good’ grounds by the Secretary of State and criminal prosecution – which may include a recommendation for deportation. Furthermore, these strategies are not mutually exclusive but can work together. For those who fall foul of these rules, foreignness may trigger a ‘double sentencing’ (Wacquant, 2005): first, the criminal process for breaching the boundaries of their status; and second, the administrative action of removal from the country.

In this paper I examine the decision to prosecute suspected ‘immigration wrongdoers’. While the use of criminal powers to enforce immigration controls has increased since the early 2000s, most immigration offences are still dealt with administratively. So people in breach of immigration norms are usually subject to an often long administrative process that sometimes ends in their removal or expulsion from the country. Here, I concentrate on the cases that are criminally pursued and explain the reasons for these decisions. First, I briefly describe the methodology used for this study. Before analysing the criteria used in the decision to prosecute, I explain the political and institutional context in which the criminal law started to be used more systematically to police breaches to immigration laws when the ‘harm matrix’ was adopted to guide decision-making. The rest of the paper looks at the existing rules and guidelines to exercise criminal powers in cases involving immigration law-breaking and explains the decision-making process in practice. In the absence of clear rules, law enforcement officers exercise some margin of discretion and the decision to prosecute is usually based on factors that have little to do with the offence itself. In contrast to the official rhetoric that mandates the use of criminal powers against the most harmful immigration offenders, the main criteria for pursuing these cases in practice are not their seriousness but other more mundane factors, such as the removability of the accused, his or her nationality, the availability of resources to initiate a criminal investigation and local practices. As a consequence, prosecution is inconsistent and selective. I argue that this contradiction is not only a problem of policy implementation. Most importantly, it reflects the role that the criminal law is called to play in the enforcement of immigration rules. I explain that criminal law is used as an extension of immigration law, thus expanding the possibilities for intervention. As such, the criminal law as a distinctive mode of regulation which should be reserved to censure serious wrongs is distorted. I conclude that criminal law has no role to play in the regulation of immigration.

A Brief Account of the Methodology

This paper is based on semi-structured interviews with practitioners and officials at the UK Border Agency (UKBA), and the analysis of court cases. I combine different methods to provide a more comprehensive, balanced and reliable account of the decision-making process in immigration-crime cases (Denzin, 2009: p. 300). Interviewees were selected through purposive sampling and snowballing. Purposive sampling proved effective to select participants ‘on purpose’, that is, based on their knowledge and experience, rather than randomly, and ‘chain referral’ or ‘snowballing’ facilitated the identification of key actors and access to ‘elite subjects’ (Atkinson and Flint, 2001; Bachman and Schutt, 2007: p. 124; Harvey, 2010). Interviews were conducted between April 2010 and May 2011. In total, I interviewed 20 people, among them UKBA officials, solicitors and barristers, members of asylum and immigration organisations, and a legal adviser at the Crown Prosecution Service (CPS). While this is a small sample, it provides rich and illuminating accounts on the intertwining of immigration and criminal regimes from both sides of the immigration/criminal law practice. Interviews were subsequently transcribed and manually coded for analysis.

In addition I reviewed court-files of people charged with immigration offences at Uxbridge Magistrates’ Court and Isleworth Crown Court. These courts were chosen because they have jurisdiction over Heathrow Airport and, thus, they were likely to deal with immigration-offences cases. While the jurisdiction of the selected courts over a major port of entry influenced the type of immigration-related cases that form part of the sample and makes claims of generalisation questionable, a random selection of courts would have provided a much smaller sample of cases for analysis given the very small number of cases of interest at a national level. I conducted this search over files initiated during the period from 1 January 2008 to 31 December 2009 at both courts on people who were proceeded against for offences under immigration acts. At Uxbridge I reviewed 229 cases in which 232 defendants were charged with various immigration offences, such as entering without a passport (159 defendants); assisting unlawful immigration (40); failing to comply with a requirement of the Secretary of State (20); deception (eight); helping an asylum seeker to enter the country (three); and entering the UK without leave (two). At Isleworth, I reviewed 99 court-files of 106 people charged with various immigration offences: assisting unlawful immigration (58 defendants); entering without a passport (17); failing to comply with a requirement of the Secretary of State (14); deception (13); and helping an asylum seeker to enter the country (four).

In order to gain access to and support from participants, they were promised confidentiality and anonymity. Therefore interview notes and transcriptions were anonymised and research data was edited in order to remove all identifying information. Thus, when quoting them, some attributes of the interviewees – such as their professional background and institutional position – are mentioned, but not their names. Similarly, I omitted any personal information about the parties involved – including the reference numbers of the files – in the court-files reviewed as this was a condition for gaining access to them. When quoting them, I use a number that does not correspond to the real reference number given by the court.

The Criminalisation of Immigration in Context

While Britain has a long-standing tradition of using criminal legislation to regulate immigration, since the late 1990s there has been a substantive expansion of the catalogue of immigration crimes. Not only have more offences been introduced; in the mid-2000s they started to be used more systematically as prosecution and conviction rates in both magistrates’ and crown courts steadily increased during this period (Home Office, 2010a). The government was convinced that introducing more criminal offences and backing immigration norms with criminal law powers would strengthen public confidence in the immigration system at a time when the reputation of the Home Office was tarnished because of its inability to reduce the asylum backlog (Spencer, 2007; Düvell, 2007). Accordingly, when introducing the first asylum and immigration bill of the New Labour administration in 1999, then Home Secretary Jack Straw announced that ‘[e]nforcement must be backed by the criminal law’ (Hansard, HC Deb 22/02/1999, col 37) and the White Paper that preceded the Asylum and Immigration Act 1999 stated that ‘The criminal law has a role to play in stamping out abuse of immigration control’ (Home Office, 1998, ch. 11).

The foreign national prisoners crisis in April 2006 bolstered the use of criminal powers in immigration enforcement. The crisis was triggered by the revelation that over 1000 foreign national prisoners were released from prison before the Immigration and Nationality Directorate had considered them for deportation. The competence of Home Office officials was called into question and this prompted the resignation of Home Secretary Charles Clarke. This scandal also led to the institutional overhaul of the immigration department. It forced the government to boost the resources of the Immigration and Nationality Directorate’s Criminal Casework Department. It also prompted changes in the enforcement approach and priorities of the department, which was replaced in April 2007 by the Border and Immigration Agency and later on, in 2008, by the UKBA. Two documents set up the shape of the new immigration agency – Enforcing the Rules (Home Office, 2007) and Enforcing the Deal (Home Office, 2008). These documents define the abuse of the immigration system as criminal, and offer criminal prosecution and punishment as a response for many immigration breaches. Immigration enforcement seems in this context tailored to that of a crime control agency (Weber and Bowling, 2004; Bosworth, 2007). In fact, both documents give great importance to criminal powers. They announced an addition of prosecution staff in the immigration department to increase the rate of prosecutions (Home Office, 2007: p. 25) and established prosecution targets for immigration crimes at a rate of 1400 successful prosecutions for 2008 and 2009 (Home Office, 2008, Appex C; also Home Office, 2009b, 21).

The new enforcement agenda was translated into a series of measures aimed at differentiating levels of illegality and targeting those who cause the most harm. In policy papers (Home Office, 2006, 2007, 2008, 2010b), the agency distinguished between breaches to immigration laws in terms of their actual or potential ‘harm’ ¹ and tailored different ‘interventions’ to ‘minimise’ the harm caused by them. The ‘harm’ criterion has permeated many facets of UKBA work, including the decisions on who to take action against first, ² whether to prosecute (Home Office, 2010b), where to allocate foreign prisoners once their sentences have expired ³ and who to remove first (Home Office, 2009a).

According to this new approach, criminal law should be used against the most serious offences, particularly those involving organised criminality. The government prioritised offences that cause most harm, particularly, terrorism, drug and human trafficking, other forms of organised criminality, facilitation and knowingly employing illegal workers (Home Office, 2007, 2008, 2010b). The categorisation of immigration crimes according to the harm they cause is based on the ‘harm matrix’, which breaks down offences into three main categories (high, medium and low) (Home Office, 2006b: p. 14, 2010: p. 46). Following the harm matrix, prosecutions should be reserved for serious offences, while low-level offences are supposed to be dealt with by caution and removal (Home Office, 2010b). For these latter offences – especially those involving document fraud, in December 2010 the government carried out a six-month pilot to divert these cases from the criminal justice system through the use of caution and then removal. Yet very few cases were diverted: of 109 eligible cases, only five of them were considered for caution. ⁴ The justification for the introduction of the ‘harm matrix’ was that criminal prosecutions and proceedings are more expensive and less expedient than administrative ones leading to summary removal. Further, as a UKBA official at the Crime Directorate (I1) told me, the prosecution of low-level offences did not have an important impact on driving down illegal immigration, and so it proved ineffective for achieving the agency’s main goal.

By tackling those who cause the most harm, the government intends to achieve a number of public protection objectives, including removing the incentives for illegal immigration; protecting public services and private businesses from immigration fraud; and protecting the immigrant herself. As it is articulated in policy papers, the crackdown on organised immigration crimes is aimed at protecting, among others, the ‘victims’ of them from being exploited by smugglers, traffickers and unscrupulous employers (see e.g. Home Office, 2002: p. 76, 2007: p. 12; also Goodey, 2003). The emphasis on preventing harm attempts to reconcile the task of enforcing the law, that is, keeping people out or expelling them, with the goal of protecting and doing good (Black, 2003: p. 39). Doing ‘good’ is an appealing goal particularly in the context of immigration controls. Unlike crime control, which has as its ‘positive side’ protecting the public and individuals from crime, immigration enforcement lacks this aspect and is seen by many as illegitimate and ethically problematic. The prerogatives of the state to limit the access of certain people to its territory and to exercise its controls over them by imposing conditions on their residence, detaining and excluding, are subject to contestation not only from academics and activists (Gibney, 1988; Hayter, 2003; Carens, 2003), ⁵ but also from those who are in charge of enforcing these measures (Bosworth, 2011a).

In this regard, the recent appeal to the concept of harm in British immigration policy strives to legitimise this policy. Enhanced immigration controls are justified in terms of public protection and, particularly, the protection of the individual subject to them. However, Bridget Anderson (2012) points to a problematic aspect of the ‘harm reduction agenda’, which is the role that the state has in producing and reproducing harm by imposing barriers for legal migration and creating the grounds for illegality and thus exploitation. The state is then captured in a contradictory position when charged with the task of protecting those whom it aims to exclude (Weber and Grewcock, 2011).

This tension is reflected in the practice of prosecuting illegal immigrants. The former are generally not seen as victims to be protected, but as perpetrators to be punished and expelled. In this context, the immigrant is the ultimate target of immigration enforcement, not those who take advantage of her illegality – or ‘victimise’ her. The apparent tension between, on the one hand, enforcing immigration controls by not allowing people in and pushing them out of the country and, on the other hand, protecting them from their traffickers or smugglers is also present in the actual practice of immigration enforcement.

In this regard, the cases that continue to crowd the criminal justice dockets are what the UKBA calls ‘low-level’ ones: people accused of immigration offences are most frequently prosecuted for the offences of arriving to the country without a passport and deception. While assisting unlawful immigration to the country is the second most frequently prosecuted immigration offence, the cases that predominantly reach the courts involve individual criminality, rather than organised criminal networks. This pattern seems to contradict UKBA’s priorities. In the rest of this paper I examine the existing criteria to guide the decision to prosecute and how this decision is exercised in practice. In the last section, I confront prosecution practices with UKBA’s policy priorities.

Rules and Rulers in the Decision to Prosecute

The criteria on when to pursue a criminal case remain largely unclear and vague. The CPS guidance on immigration offences states that ‘The fact that a defendant is to be administratively removed by the immigration authority does not, in itself, justify discontinuance [of a prosecution]’. ⁶ However, a rule that seems to be important in UKBA manuals is that removal should take precedence over a criminal prosecution, except in cases of ‘serious’ offences and repeat offenders. The UKBA Enforcement Instructions and Guidance states that: ‘offenders are not charged with immigration offences unless serious criminal offences and/or a history of immigration deception are disclosed’ (ch. 33.6, underlining in original). It also mentions that a removal is preferred for a number of reasons: ‘it is more effective and practicable […]; it is normally desirable that an offender is removed from the UK as soon as possible; courts are often unwilling to recommend deportation except for serious criminal offences; bail may be granted and the offender may then go to ground’. In the same vein, the Standard Acceptable Criteria (SAC), which define the UKBA’s criminal investigation priorities, state that low-level offences should be preferably dealt with through administrative means (Version 1.0, 28 April 2009, unpublished document). While these criteria prescribe that immigration offences should be considered on the basis of their seriousness, the UKBA’s priorities and the ‘impact on the integrity of the UK immigration control and its communities’, they do not provide detailed, specific guidance on when to employ criminal powers.

The absence of clear parameters and the availability of different mechanisms to deal with immigration offences confer on decision-makers ample margins of choice and maximum flexibility in responding to offences committed by non-nationals. The result is a lack of consistency and the disparate use of criminal powers.

Exercising Discretion

In British law – as in other common law systems – discretion is recognised as inherent to the exercise of police and prosecution powers. Prosecutors are not obliged to proceed against all crimes but only those where a prosecution is considered in the ‘public interest’. ‘Public interest’, however, is a lax and vague concept that grants prosecutorial authorities a certain margin of choice. There are no set criteria on how to interpret this term and decide which cases are candidates for prosecution, even though the ‘seriousness’ of the offence is generally an important factor (see e.g. Ashworth, 1987; Fionda and Ashworth, 1994; Daw and Solomon, 2010).

In immigration enforcement, such margins of discretion are even wider because of the different options to deal with a similar issue and the priorities of the immigration agency. Punishing wrongdoing is not the main concern of the UBKA. Rather its primary goal is to enforce compliance with immigration rules, so that controls can be exercised effectively, and to exclude and eject people who do not comply with immigration norms. Andrew Ashworth (2000: p. 247) explains that many so-called ‘regulatory offences’ are enforced by regulatory agencies that work through threats and negotiation to ensure compliance, thus keeping prosecution as a background threat (also Garoupa et al., 2011). Criminal prosecution is one of their tools to force compliance with a regulatory scheme. As such, regulators with enforcement powers – such as the Environmental Agency, the Financial Services Authority or the telecommunications and broadcasting regulator (Ofcom) – have different priorities from those of the CPS and the police. Concomitantly, they have great discretionary powers in the selection of enforcement mechanisms. Research on the enforcement of factory legislation shows that criminal prosecutions are rare in this context, whereas warning notices or formal and informal threats of prosecution are more frequently used (Carson, 1970: p. 392; also Hawkins, 2002). Ashworth points out that this differentiated enforcement regime casts doubt about the fair and equal treatment of conducts of similar gravity that are dealt with by different enforcement agencies in different ways (Ashworth, 2000: p. 246; also Lacey, 2008: p. 102).

Within the ‘compliance approach’ that characterises non-police, regulatory agencies, the UKBA often reserves criminal prosecutions to cases in which other mechanisms are ineffective. The SAC make clear that, in addition to the CPS’s assessment, UKBA’s policy to prosecute should also be considered in the decision to proceed against immigration-related offences. In this regard, they state that ‘[w]e must ensure that our use of the criminal justice system supports the maintenance of an effective immigration control; furthermore, we must also take into account administrative means of dealing with immigration law breaches’ (SAC, p. 3).

The wide scope of discretion present in the exercise of immigration/criminal powers makes the system of immigration and criminal regulations highly unpredictable for immigrants because there is no way of knowing in advance through which regime they are going to be dealt with (Macdonald, 2010, ch. 14.2). Often, the decision to prosecute is based on pragmatic considerations.

Immigration Offenders: Rhetoric and Practices of Punishment

Even though the government announced tougher actions against the most harmful offenders – including smuggling organisations – organised criminal gangs are rarely brought before the courts. While smuggling – or facilitation – is one of the most frequently prosecuted immigration offences, the cases that reach the courts generally involve individuals, sometimes helping relatives or friends. Surprisingly, this gap is apparent in the same policy papers and media reports that publicise enforcement operations against organised criminal groups. For example, one of these documents announces actions against facilitators; however, it only reports the detection of 18 people in a tanker who were later on handed to French authorities (Home Office, 2010b: p. 11). Nothing is said about their smugglers and whether they were identified and prosecuted for this operation. In a snapshot of UKBA’s enforcement operations based on information in the agency’s website, ⁸ I identified 15 cases: 11 cases of illegal working, two of passport fraud and two of sham marriage. In only two of them (sham marriage cases), there is evidence of criminal prosecution for facilitation against those directly involved in the marriage. The rest of the cases were dealt with through removal or prosecution for document fraud. This data shows that, while official rhetoric about immigration offenders generally addresses those who commit the most serious offences, it is the petty crime of illegal immigrants – and not the crime of those who profit from them – on which legislative activity and enforcement operations concentrate.

According to official statistics, facilitation (or technically, assisting unlawful immigration to a Member State) is the second most frequent immigration offence before the magistrates’ court and the most important one at the crown court (Home Office, 2010a). This coincides with the findings of the review of court cases for this study in which 16% of immigration-offence cases that reached Uxbridge Magistrates’ Court between January 2008 and December 2009 were ‘facilitation’ cases. This is an offence that is punished with a maximum of 14 years’ imprisonment. Therefore, these cases are generally not suitable for a summary trial and are committed to the crown court. At Isleworth Crown Court – where these cases are committed – the rate is even higher: 55% of those accused of immigration offences were charged with assisting unlawful immigration.

However, when prosecutions are brought against smugglers, the small, family-based smuggling organisation is generally caught. From the information in court-files, I could not find any evidence of large-scale organised criminality connected to the accused. Generally, the defendant assisted the person with travel arrangements before and during the journey, such as providing documents, booking the ticket, contacting the travel agent and airline – especially when the person assisted does not speak English – and assisting the passenger during flight connections. At the magistrates’ court, in only two cases was there evidence that a second person was involved in the crime (in both they were husband and wife); in the rest of them only one person was charged with the offence. At the crown court, in five cases there was more than one person charged with this offence: in three of them the alleged facilitators were family members assisting another member.

In many of these cases, the defendant was charged with assisting a family member (brother, mother, wife, children and other relatives). At Uxbridge, in 25% of facilitation cases the accused and the person assisted were members of the same family; this rate was even higher at Isleworth, where 45% of defendants were accused of assisting family members. In one of the cases reviewed, the defendant, a man from Somalia who had been granted refugee status in the UK, was charged with facilitating the unlawful entry of his wife and his two children. Previously, he had applied for visas on their behalf on family reunification grounds, which were refused. His family never had passports, arrived at the airport without documents and claimed asylum. He was found not guilty of this offence (Isleworth, Case 70). In another case involving two friends who assisted the sister of one of them to enter the UK and to claim asylum, the lawyer asked the judge for a mitigated sentence because the offence was ‘done for humanitarian reasons. This case is about humanitarian issues, not criminal. This case does not fit in the structure. This was about saving one’s life’. The person assisted was granted refugee status. Both defendants were convicted for the offence of facilitation and sentenced to 15 and nine months in prison, respectively (Isleworth, Case 77).

The fact that the selected courts for this study have jurisdiction over a major port of entry (Heathrow Airport) may explain that the cases analysed involve individual or small-scale facilitation. Crimes spotted at ports of entry tend to share these characteristics as detection is the product of reactive policing rather than proactive, intelligence work. People caught at the port can be part of a criminal chain, but this is not uncovered unless further investigative work is carried out. In the files that I reviewed, however, there was no evidence of the involvement of larger smuggling organisations. These findings resonate with work by Sarah Webb and John Burrows (2009) on prisoners convicted of smuggling and trafficking offences. In relation to smuggling organisations, the authors report that most of the interviewees refer to medium- to small-scale organisations such as businesses formed by a particular ethnic community based in the UK to engage in facilitating the entry of further members of that community. A similar pattern is described by Leanne Weber and Michael Grewcock (2011) in their analysis of the actions recently taken by the Australian government to tackle the smuggling of asylum seekers into the country. They point to the fact that, contrary to the official policy, many of those prosecuted are fishermen or farmers, and not international criminal organisations.

Conclusion

While the ‘harm matrix’ mandates the use of criminal powers against those who cause most harm, low-level offences continue to be the most common matters reaching the criminal courts. Over 60% of immigration defedants at Uxbridge Magistrates’ Court are charged with the offence of arriving without documents. Many more are charged with related offences of fraud and deception, such as those in the Identity Cards Act 2006, when trying to enter, remain, leave or obtain employment in Britain. Moreover, while facilitation cases are one of the most important categories of immigration crimes in the courts, most of them involve individual criminality with low levels of organisation. According to sentencing guidelines and the characteristics of the cases reviewed, those accused of this offence are unlikely to be at the higher end of the sentencing range because of the absence of aggravating features. ⁹

How can this apparent contradiction between policy and practice be explained? One obvious reason is that governments are not monolithic entities and in many instances the policy design is contradicted by its implementation (Ruhs and Anderson, 2010: p. 199). While general policies mandate the use of criminal powers against serious offenders, other rules encourage prosecutions of low-level offences, such as the establishment of prosecution targets (Home Office, 2008: Appex C). It is practically simpler and easier for enforcement staff to identify individual offenders without proper documentation and to charge them with a criminal offence than to investigate criminal networks. It is also easier to obtain a conviction in these cases. However, the gap between official goals and outcomes is not just a problem in the implementation of the former.

In fact, it might be that this contradiction is only apparent and reflects a more coherent and consistent approach when considered in the light of the objectives of the immigration force. The main purpose of the UKBA is to control irregular flows and eject those without leave, rather than controlling criminality and punishing offenders. Criminal law is one of the means available to achieve such goal. The rationale behind the harm reduction policy is that the prosecution of the ‘big fishes’ will have a greater effect on the reduction of illegal immigration. However, the criminal law is still kept for low-level crimes to tackle particular problems of removability. This is clearly articulated by UKBA officials. After stating that prosecutions should be reserved for serious criminality, high-ranking officials at UKBA justify the use of it for low-level offences when there is a ‘value’ in it, either because it ‘buys’ time for expulsion or several prosecutions have a deterrent effect on the number of undocumented migrants.

In order to understand the role of criminal law in immigration enforcement, it is useful to examine the literature on regulation and law. In her essay on regulation, Julia Black (2002) explains that the task of subsuming regulation into law, or vice versa, is contested and the relationship between law and regulation is shifting and complex. Still, she suggests that a distinction between regulatory legal rules and other legal rules can be made, where the former is ‘instrumentalist’ in orientation: ‘the prevalence of regulatory law requires the acceptance in legal theory of an instrumentalist view of law, which in turn poses different set of questions about the legal system (those of effectiveness rather than coherency)’ (Black, 2002: p. 33). Focusing on the criminal law realm, Markus Dubber (2011) considers penal regulation and penal law as alternative systems that coexist. While the latter is concerned with legitimacy, the former is entirely instrumental, concerned with the effectiveness of a certain tool to achieve a particular goal. Penal law, Dubber argues, treats offenders and victims as individual human beings, while ‘in penal regulation individual victims and offenders are alike not as right bearing persons, but as human resources subject to state management’ (Dubber, 2011: p. 42). Similarly, Eugene Kamenka and Alice Tay (1975: 138) identify what they call ‘bureaucratic-administrative’ regulation in which ‘the presupposition and concern is a non-human abstracted ruling interest, public policy or on-going activity, of which human beings are subordinates, functionaries, or carriers’.

Criminal law in the immigration field is conceived in utilitarian terms, by the ‘advantages’ that it adds to the system of immigration enforcement (Sklansky, 2012). In Carol Steiker’s terms, the immigration and criminal sanctions have become ‘related parts of a unitary scheme of state control of private behaviour’ (Steiker, 1997: p. 784). Criminal law is used instrumentally, its role is ancillary to the primary mechanism of immigration enforcement and is emptied of any condemnatory function. This explains the highly unpredictable and inconsistent use of it in immigration-related cases. The practice of immigration enforcement shows that the use of criminal law in these cases is not so much triggered by a synchronised policy to subject more foreigners to criminal punishment. Rather the aim is to increase the range of possible interventions and to provide enforcement officers with greater flexibility to deal with immigration law-breaking. Criminal law expands the frontiers of immigration controls where the latter trips over with its own limits.

The use of criminal law in this sphere disrupts its censuring function by making immigration imperatives central in the decision to prosecute (Ashworth, 2000: p. 250). Ultimately, what is at stake in the substantial criminalisation of immigration violations is not so much punishing serious wrongdoing – of immigrants or those who aid, commerce with or exploit them – but deterring and expelling unauthorised migrants. This is an example of the ‘collision’ between the rational of immigration regulation and criminal law that might be ‘an inevitable side-effect of any criminal law attempt to regulate another social system which has its own distinctive imperative’ (Lacey, 2004: 164). Criminal law should be reserved for censuring serious wrongdoing. Then, it has no role to play in the regulation of immigration flows.