Making people criminal: The role of the criminal law in immigration enforcement

Abstract

This article analyses the recent expansion of immigration offences in Britain. Drawing on criminal law scholarship, it considers the reasons for relying on the criminal law in immigration enforcement. On the one hand, criminal law is used symbolically. In this view, the creation of criminal offences may be read as an attempt to appease a sector of the electorate, the media and the Opposition about the ‘immigration problem.’ By introducing these offences, the government sent a message that the situation is under control. On the other hand, the criminal law serves regulatory functions, offering the UK Border Agency a range of options for dealing with unwanted immigrants. In practice, most immigration offences are rarely enforced. Instead, the criminal law often seems to primarily work as a threat, relied on to enforce compliance with immigration rules. A criminal prosecution is reserved for those foreigners for whom the primary sanction –expulsion- cannot be carried out. In these cases, a criminal prosecution and conviction facilitate administrative proceedings leading to removal. Given that the criminalization of immigration breaches is in stark contrast with a number of criminal law principles, this paper argues that the normative justification of criminal law in immigration matters is weak and it should have no role to play in the enforcement of immigration rules.

Keywords

Criminalization fraud immigration crimes removability UK Border Agency

Introduction

In Britain, during the last two decades there has been significant legislative activity in the field of immigration and asylum. This new legislation contains a number of criminal offences—so-called ‘immigration crimes’—such as illegal entry, overstaying, arriving in the country without a passport and so on. Nowadays almost any breach of immigration rules is a crime (Home Office, 2010b: 26). However, only a handful of these offences are enforced in practice.

The expansion of the number of immigration crimes has been largely overlooked in parliamentary debates and scholarly discussions about the criminalization of immigration. The reasons for criminalizing certain conducts, the terms in which offences are drafted, the consequences of making these conducts subject to criminal punishment and possible alternatives are rarely discussed in parliamentary debates. Likewise, in academic circles the category of ‘immigration crimes’ is seldom considered. While the criminalization of immigration—or ‘crimmigration’—has attracted a significant degree of scholarly attention (Bosworth and Guild, 2008; Calavita, 2003; Cecchi, 2011; De Giorgi, 2010; Melossi, 2003; Wacquant, 2006), in Britain the rise of immigration offences at the core of immigration laws has inspired much less reflection.¹ Such indifference by British academics contrasts with their colleagues in the United States who have been more interested in this phenomenon (e.g. Coutin, 2005; Legomsky, 2007; Miller, 2003, 2005; Stumpf, 2007, 2009).

By using the recent scholarship on (over)criminalization (Ashworth, 2008; Ashworth and Zedner, 2008; Duff, 2010a; Husak, 2008; Lacey, 2004, 2008, 2009) to analyse the increased reliance on the criminal law to enforce immigration statutes in Britain, the purpose of this article is to contribute to the growing literature on the criminalization of immigration. The contribution of criminal law scholars in a field which has been dominated by social scientists is important for understanding the criminalization of immigration as part of a broader phenomenon of criminal law expansion and for developing limiting principles in the use of criminal powers against ‘immigration wrongdoers’.

I begin by explaining the historical roots of the British legal system that has relied on criminal law for regulatory purposes. I argue that the reproduction of criminal provisions in immigration laws in recent years is as much a result of the attempt by the British government to reassert its sovereign powers to control non-citizens as an outcome of the pragmatic and strategic use of the criminal law in everyday enforcement practices. The first explanation points to the deployment of criminal regulation for symbolic purposes—to be seen as having immigration flows under control. The second one is far from the high world of ‘grand politics’ and is grounded in the everyday practice of immigration controls. From this second perspective, the criminalization of migration appears to be a mundane, bureaucratic and repetitive exercise of criminal powers geared by convenience and efficiency in delivering outcomes rather than to represent a punitive rationale to sanction morally wrong conducts. I finally reflect on the role of criminal law and punishment against immigration wrongdoers. I argue that criminal law has a very limited role to play in the control of immigration. The vast majority of immigration crimes are victimless and minor offences. Criminal law as a specific mode of legal regulation should be reserved for the most serious wrongs. Further, because the goal is to eject immigration offenders from the country, criminal sanctions against immigrants are emptied of any normative function and are unjustified. Not only is the formal enactment of immigration offences in conflict with various criminal law principles, the actual enforcement of these offences is discretionary and random, casting doubts on the alleged generalized feature of the criminalization of immigration and making criminal law highly unpredictable.

Criminalization the British way

In Britain and the USA, criminal law has historically served functions seemingly extraneous to its core task of censuring wrongdoing (Husak, 2008; Lacey, 2004). Criminal offences can be found in contemporary non-criminal legislation, such as competition, corporate, health and safety and consumer laws, which are primarily aimed at regulating certain economic and social activities (Ashworth and Zedner, 2011: 282; Sarat et al., 2011). More recently, the use of criminal law to ensure compliance with societal goals and roles has been identified by some authors as a main factor behind the expansion of criminal law and the redefinition of its boundaries (Ashworth, 2000; Duff et al., 2010; McSherry et al., 2009).

In his work on ‘police power’, Markus Dubber (2005) theorizes about the origins of the power of the State to punish in contemporary societies—particularly, the USA. He identifies a particular form of state power derived from that exercised by a householder over the members of a household in feudal societies. Police power bestowed wide prerogatives upon the head of the household over its members, who were inferior by definition. Because this authority sought to maximize the welfare of the household, it was not constrained by principles of justice. Dubber argues that this unconstrained, patriarchal, disciplinary power did not disappear but rather was entrenched in pre-modern criminal law statutes, particularly in so-called ‘police’ or ‘welfare’ offences. These offences were considered necessary for the due regulation and domestic order of the kingdom.

Dubber discerns ‘a residual, slippery, elusive, oppressively amorphous power [of the State] to manage people and things in order to maximise the welfare of a community’ (Loader and Zedner, 2007: 143). Such power is manifested in the wide and unconstrained scope to criminalize conducts for regulatory purposes which puts criminal law ‘on the muddy border between political/legal and police power’ (Lacey, 2008: 99). When comparing different criminal justice systems, Nicola Lacey (2008: 101) maintains that in countries, such as Britain and the USA, where this unrestrained, disciplinary power has been absorbed by or undifferentiated from the legal power, criminalization drives are less restricted than in continental Europe, where this differentiation is clearer (also Hildebrandt, 2009; Lacey, 2009: 940; Whitman, 2003). Unlike continental civil law countries which deploy criminal law only to reprimand the most serious wrongs, Anglo-Saxon, common law countries, she argues, commonly resort to the criminal law to regulate social life. Under such conditions, criminal law easily becomes a means to implement particular policies.

In British legislation, the wide, regulatory scope of the criminal law is expressed through a myriad of so-called ‘regulatory’ or ‘welfare offences’ (Dubber, 2010: 200, 2011b: 22; Ramsay, 2006). Many of these were introduced in legislation passed during the 19th century when arguably, without the threat of criminal sanctions, regulation would not have been possible to enforce (Farmer, 1996; Leigh, 1982: 12). In the context of industrialization and faced with the need to regulate a new set of economic activities—and their repercussions on society, legislation was enacted imposing public duties which were backed up by formal, criminal sanctions to ensure compliance. As LH Leigh (1982) explains, regulatory offences were not regarded as ‘real’ criminal offences and the courts considered them ‘less than crimes’ or ‘quasi-criminal’ offences. The main purpose of these offences was to minimize danger to others by dissuading people and businesses from engaging in lawful activities in an unlawful way.

Hyper-criminalization and the politics of immigration

The last two decades have witnessed a resurgence in reliance on the criminal law as the Government has sought to fix any social problem with ‘reactive, populist criminal legislation’ (Lacey, 2004: 163; also Duff, 2010a). This expansion of the ‘frontiers of criminalization’ has been linked by criminal law scholars to the use of criminal law for regulatory instrumental purposes. In particular, Ely Aharonson and Peter Ramsay (2010: 182) argue that the dominance of neoliberalism in social and economic policies has fostered the ‘role of criminalization as a mechanism of social ordering’. Criminal law scholars have branded this phenomenon as ‘over-criminalization’ (Husak, 2008) and ‘over-punishment’ (Steiker, 2010; Stuntz, 2001). In the UK, the ‘legal tradition’ of overusing or misusing the criminal law to regulate social life in recent years prompted Andrew Ashworth (2000) to qualify English criminal law as a ‘lost cause’. From 1997 to 2006, the New Labour government created more than 3000 criminal offences. Put another way, during nine years in office Labour created twice as many offences as its Tory predecessor created in 18 years (Morris, 2006; also Pantazis, 2008).

As part of this criminal law expansion, Labour introduced a large number of new immigration offences. While there has been a longstanding practice of criminalizing immigration breaches in British legislation, in the last 15 years there has been a noticeable change in the intensity of this criminalization. Labour passed six immigration and asylum acts which created a total of 84 immigration offences. The preceding Conservative administrations introduced five immigration and asylum bills which created only five offences.² The period between 1997 and 2009 witnessed the fastest and largest expansion of the catalogue of immigration crimes since 1905. The recent increase in criminal offences in immigration legislation is a clear example of regulation through punishment—or, at least, the threat of it.

The overuse of penal legislation was part of the immigration policies implemented by the New Labour administration since 1997. By the late 1990s, the ‘immigration issue’—and particularly the abuse of the asylum system—became a major concern for the Labour government. Faced with increasing pressure from the public, the media and the Opposition to bring immigration under control (Bosworth and Guild, 2008; Spencer, 2007: 345; Welch and Schuster, 2005: 408), the Government not only introduced more legislation, from 1999, it also started to use existing powers to detain and remove more rigorously (Bloch and Schuster, 2005; Bosworth and Guild, 2008; Gibney, 2008). The stricter enforcement of immigration rules also included the resort to the criminal law and its agencies. The 1998 White Paper, Fairer, Faster and Firmer clearly stated: ‘The criminal law has a role to play in stamping out abuse of immigration control’ (Home Office, 1998: ch. 11). Similarly, when introducing the first asylum and immigration bill under New Labour, the then Home Secretary Jack Straw announced that ‘[e]nforcement must be backed by the criminal law’.³

The Government’s response to public pressure to bring immigration under control needs to be read in a context of increasing social anxieties about the steady dismantling of the welfare state, the erosion of social security protections and the restructuring of the labour market. The working class was particularly affected by these changes. First, since the late 1970s the diminishing bargaining power of trade unions and their undermined capacity to protect workers had an adverse effect on this group. Second, many low-skilled jobs either disappeared as people were replaced by machines, were ‘shipped abroad’ or were considerably downgraded by the depreciation of wages—in part as a consequence of the influx of economic migrants, particularly from eastern Europe in the mid-1990s (De Giorgi, 2011; Garland, 2001: 82; Reiner, 2007: 151; Ruggiero, 1997: 233).⁴ Faced with structural limitations in implementing inclusionary social policies, the Blair administration sought to appease an important fraction of its electorate by promising a halt on immigration and by resorting to draconian measures to tackle the ‘unauthorized mobility of this ever more globalized proletariat’ (De Giorgi, 2010: 151).

The Government’s appeal to criminal sanctions to enforce immigration rules had a communicative and expressive dimension: to be seen as doing something about immigration law-breaking. In immigration—as in other fields—one of the ways to look tough is to create new offences. David Garland (1996: 459, 2001: 131) describes this reaction as ‘acting out’: a form of denial or evasion by the State that, conscious about the impossibility of or difficulties in solving a particular problem—such as reducing crime, improving social conditions or managing immigration, adopts more criminal legislation. Similarly, in his work on excess and incarceration, Ian Loader (2009, 2010a, 2010b) describes what he calls ‘contemporary forms of penal excess’ and states that responses to crime and insecurity in the USA and Europe are characterized by a seemingly insatiable appetite for ‘a semblance of security’ (Loader, 2009: 245, 246). In response to people’s demand for order, governments in the western world assume ‘a punitive, hyperactive and consumer-appeasing political posture which typically glosses over the complexities of lay sensibilities towards crime in favour of simplistic, risk-averse and electorally satisfying readings of “public opinion”’ (Loader, 2009: 250).

The other side of criminalization: the banality of everyday criminal law practices

The symbolic appeal to criminal law in the fight on illegal immigration in domestic politics reveals a highly politicized, emotionally charged exclusionary discourse. In this context, the criminalization of immigration breaches is but one facet of what some authors have referred to as the criminalization or securitization of immigration (e.g. Aas, 2011; Huysmans, 2006; Stumpf, 2007). There is however another side of this phenomenon which is far from the world of high politics and powerful rhetoric, and made up of the everyday practices of criminalization. These are less glamorous and more ordinary exercises of power where decisions are shaped by convenience, pragmatism and efficiency.

In this version of criminalization, immigration offences are merely additional tools to facilitate the everyday work of enforcement officers. In this view, these offences are brought in as ‘backups’ or ‘levers’ to enforce compliance, as part of a ‘presentational pack’ to enhance the role of immigration officers or simply to tackle evidentiary problems. These more mundane reasons behind criminalization were articulated by UK Border Agency (UKBA) policy and enforcement officials.⁵ A senior official at the Policy and Strategy Group explained that more offences meant more choices of intervention: ‘you can tailor your response to a particular case and you have a great range of deterrent … It just helps us to do the job’ (E1).⁶ He argued that the addition of new offences is inoffensive, even when they are barely, if ever, used:

Is it harmful to have offences that you either never use or don’t use very much? Once you have done the effort of creating, of putting them in the statute book they are not actively harmful even if they are not objectively, desperately useful.

(E1)

In fact, enacting legislation in general, and criminal laws in particular, is relatively easy. It is fairly cheap and does not entail high political costs for the actors involved. Removing them is much more difficult for practical and political reasons (Husak, 2008: 10). As Douglas Husak (2008: 34) nicely puts it, this easiness to create criminal offences has turned legislatures into ‘offense factories’. Arguably, the bipartisan consensus on the use of criminal law and criminal justice institutions to deal with an increasing range of social issues has contributed to this criminal law expansion in recent years (Garland, 2001: 131; Lacey, 2008: 63, 2009: 959; Simon, 2007: ch. 1; Tonry, 2004: 38).

Immigration offences created during the Labour government were of two types. They can be classified as supporting different purposes: the first group of offences supports removal while the second supports detection. The former comprises offences which penalize the failure to comply with a specific duty. An example in point is the provision of section 35(3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This provision enumerates a number of requirements which may be imposed by the Secretary of State in order to facilitate the removal of a person and impose a criminal sanction in response to non-compliance with them. Other examples are offences that punish the failure to attend and give evidence or produce documents before an immigration judge,⁷ the failure by a detainee to submit to medical examination⁸ and the failure to supply information requested by the authorities by employers or financial institutions,⁹ and by transportation companies.¹⁰

The second group is constituted of offences that have specific application in the immigration field and replicate existing offences. This is the case with deception and document fraud. While a number of deception offences were introduced in the Theft Act 1968 and the Theft Act 1978, and later on in the Fraud Act 2006,¹¹ the Immigration and Asylum Act 1999 (IAA 1999) includes a specific offence of deception to deal with asylum applicants.¹² Similarly, even though the Forgery and Counterfeiting Act 1981 (FCA 1981) already punished the use of a false instrument,¹³ the offences in the Identity Cards Act 2006 (IDCA 2006) were introduced specifically to address the possession of false identity documents.¹⁴ While the IDCA 2006 is not an immigration act, the offences contained in it are frequently used against non-citizens using forged or improperly obtained documents, or documents that belong to someone else (Macdonald, 2010: ch. 14.77; Wadham et al., 2006).

Other immigration offences in this second group, such as assaulting a detainee custody officer,¹⁵ and assaulting and obstructing an immigration officer,¹⁶ reproduce those related to constables¹⁷ and prison officers.¹⁸ The creation of these offences is connected to the expansion of police-like powers to immigration officers and they were aimed to back up those powers. Even if they are rarely used, they provide immigration officers with leverage to enforce compliance. They were requested by operational officers who find it ‘helpful’ to have their authority backed up with a criminal sanction. As a UKBA official at the Policy and Strategy Group told me, they are also part of a ‘presentational pack’ which demonstrates that they are being ‘looked after in the same ways as their police colleagues’ (E1).

In this sense it is relevant to remember that, unlike other government agencies, the UKBA has retained its policy-making power and is therefore responsible for proposing, shaping and taking a bill through Parliament. In the context of its institutional overhaul in the mid-2000s, the Border and Immigration Agency (the predecessor of the UKBA) was given this policy-making role because it was considered important to provide the newly created immigration force with additional tools to influence policy. Likewise, granting these powers to the force sent a symbolic message of a strong and unified law enforcement agency at the borders.¹⁹ Due to this dual policy-making and operational role, new legislation and new offences are frequently motivated and shaped by the enforcement work of the immigration agency. Hence, the agency is an important actor in ‘pragmatic criminalisation’—that is, the use of criminal law instrumentally for a range of regulatory purposes (Lacey, 2009: 940; also Stuntz, 2001).

In the immigration field, this pragmatic, instrumental use of the criminal law is reflected in the creation of new categories of offences to facilitate the agency’s day-to-day work. A high-ranking official at the UKBA’s Criminality and Detention Group told me that many of the recently created immigration offences are the product of loopholes and evidentiary difficulties that UKBA staff encounter in the exercise of immigration controls: ‘we sometimes find through experience a gap in processes or a gap in law, and so we legislate and fix that. It’s just through experience and through changes really’ (E2).²⁰ He told me that this was the case with the offence of document fraud. The general offence of fraud under the FCA 1981 was apparently difficult to use in the context of immigration because of its narrow scope and evidentiary difficulties. Therefore, the agency was involved in the enactment of the IDCA 2006 as this act was considered important for immigration enforcement.

The motives reviewed above illustrate an instrumental use of criminal law aimed at aiding the enforcement of immigration rules and which has contributed to the expansion of formal criminalization in recent years. Such an expansion in the law on the books, though, is not reflected in the actual enforcement of these offences. The everyday practice of dealing with immigration offenders is bound by strategic decisions and a discretionary exercise of powers which casts doubts about a one-dimensional trend towards increased (substantive) criminalization. The existence of juxtaposed mechanisms of criminal and administrative sanctions allows enforcement agencies wide margins of discretion. Thus, a similar matter may be dealt with in different ways. As UKBA officials explained to me, prosecution generally follows when a foreigner is not ‘readily removable’ because his identity is unknown or there is an outstanding asylum claim (Aliverti, 2012). The low and highly discretional enforcement of these offences reveals how contested and ambiguous the category of ‘immigration offences’ is. The definition of a particular behaviour as criminal does not only depend on its formal criminalization, rather, it is contingent upon criminalization practices, particularly on the process of definition and the actors involved in the labelling (Lacey, 1995). The discretionary nature of the enforcement of immigration offences is not only selective. As Ashworth (2000: fn 82) observes, it is ‘transformative’ in the sense that it alters the impact of the law—particularly, the labelling of a certain behaviour as criminal.

The use of criminal law as threat is not new. In his study about the expansion of capital statutes related to offences against the property in 18th-century England, Douglas Hay (1975) observes that these ‘terror laws’ were tempered in practice by the wide exercise of mercy by the victim: the English propertied gentlemen. The combination of legal terror with flexibility and discretion was crucial to reaffirm the force of the law and contributed to maintain order and deference. In the same way, the combination of, on the one hand, the threat of punishment through penal proscriptions, and on the other, the extensive exercise of ‘grace’, is testimony of a form of governance largely relying on the threat of punishment rather than its actual use. However, non-enforcement here does not mean pardon, as those caught are generally subject to the administrative proceeding leading to removal. The decision to prosecute a particular ‘immigration wrong’ largely depends on the suitability of a criminal prosecution for the purpose of immigration controls. The actual enforcement of these offences is bound by practical considerations, mainly the impossibility of immediate removal.

On regulation and prevention: using criminal powers for immigration management

The preferred choice to deal with immigration wrongdoers is through executive removal because a criminal prosecution and the proceeding that follows are more time-consuming and expensive than an administrative one (Home Office, 2010b: 27, 2011). Further, the removal of undocumented migrants is the primary goal of the immigration service (Weber and Bowling, 2004: 204). A high-ranking member of the force at the Criminality and Detention Group articulated the preference of the agency for removals over criminal prosecutions for immigration offences because such choice serves better ‘the interest of justice’:

If we embark in a prosecution route we’ve have to wait for the prosecution to be over before we can remove the person and the motives of the person is only about staying in the country anyway … You know, if the offence is not serious—these are victimless offences so there’s no victim—and we have to have this person out of the country immediately, well normally we will take that course because it serves the interest of justice better, probably. … [It] doesn’t serve the interest of justice particularly to take it through the criminal justice system where they may or may not get a serious penalty. We are not talking about the most serious offences.

(E2)

According to the UKBA Enforcement Instructions and Guidance (UKBA EI&G), removal should take precedence over a criminal prosecution, except in cases of ‘serious’ offences and repeated offenders. It states that: ‘offenders are not charged with immigration offences unless serious criminal offences and/or a history of immigration deception are disclosed.’²¹ In terms of the ‘benchmarks’ of the agency’s performance, removal numbers matter more than prosecution and conviction rates. Removal figures are usually publicized by UKBA as evidence of its capacity to deliver. As with the exercise of punishment, the execution of removal orders serves to maintain the credibility and legitimacy of the State’s immigration laws and demonstrates the State’s sovereign command over its borders (Garland, 1996: 461, 2001: 132; Kanstroom, 2000: 1892).

While removal is formally categorized as a civil or administrative measure, it might be better conceived of as a blend of civil and criminal law (Kanstroom, 2000). As Katherine Beckett and Steve Herbert (2010) observe in relation to the removal of homeless people from public areas, these new forms of banishment are ‘best understood as punitive in nature’ because they have similar consequences to that of imprisonment, even though they are not formally categorized as punishment (also Ashworth and Zedner, 2010; Ewald, 2011). Further, they argue that the effect of these forms of spatial segregation is to expand the criminal justice net to those who would otherwise not be subject to punishment (Beckett and Herbert, 2010: 34; also Cohen, 1985: 48). In the same way, the expulsion of unauthorized foreigners may be understood as punitive not only because of its consequences for those subject to it, but also in view of its main objective which is to, first, segregate and, second, eject.

Criminal law expands the possibilities of intervention when immigration law finds its own limits. According to Carol Steiker (1997: 784), the recasting of the nature of civil and criminal sanctions as preventive reflects the dominance of consequentalist or utilitarian approaches in legal theory which ‘portray[] them as related parts of a unitary scheme of state control of private behaviour’. She argues that in this scheme criminal punishment is relegated to perform a secondary or reinforcing role to that of civil sanctions:

Just as economic analysis helped to shift conceptions of civil justice from compensation toward deterrence, so, too, it has begun to shift conceptions of criminal justice from retribution toward deterrence. … [Law and economics advocates give] the criminal sanction a role secondary to that of the civil sanction; criminal law works as a ‘backup’ to civil law to induce deterrence in situations in which civil sanctions are likely to prove ineffective.

(Steiker, 1997: 785)

This observation holds true for regulatory offences in which criminal punishment reinforces the preventive role of the regimes underpinning these offences (Ashworth and Zedner, 2011: 282). Likewise, the everyday practice of immigration offences reveals that criminal law is often used against foreigners in breach of immigration rules when immigration measures (the primary response) are ineffective or impracticable. Because they cannot be returned due to practical and legal obstacles, they are usually prosecuted. In the immigration arena, criminal law is not only used as a threat. The rationale for the actual punishment of immigration wrongdoers is, as judges repeatedly emphasize in their decisions, deterrence. For instance, in the leading case, R v Kolawole, the judges state: ‘Due to international events in recent years and the resulting increase in public concern, deterrent sentences at a higher level … are justified’²² in cases involving the possession of a false passport.

While prevention of harm to others is a legitimate goal—and a duty—of the State and hence of the criminal law, deterrence alone is a weak justification of coercive interventions on people’s lives (Ashworth and Zedner, 2011: 282). One of the purposes of any legal prohibition is to dissuade people from engaging in socially undesirable conduct and, thus, to orient their behaviour. While this is a pragmatic function of any social norm, by itself it is an unsatisfactory justification of criminal law (Duff, 2011: 129; Ferrajoli, 1989: 277). Even though the appeal to the preventive function of criminal law is not new (Chambliss, 1973), since the late 1970s and early 1980s Anglo-American legal systems have witnessed the ascendance of deterrence as one of the central purposes of criminal regulation. Such legal shift has been brought about, inter alia, by the decline in rehabilitation, an increasing use of actuarial methods in criminal justice systems and concomitantly an embracing of efficiency to reduce crime as the key objective in crime control policies (Feeley and Simon, 1992, 1994; Garland, 2000, 2001: ch. 3; Garland and Sparks, 2000, 16; Harcourt, 2007: 16).

While the aim of preserving the integrity of immigration controls can be achieved through other, less intrusive and punitive interventions, the resort to criminal law either as a threat to force compliance or as an alternative sanction when practical reasons frustrate removal represents a disruption of the principles of certainty, equal treatment, harm to others and proportionality (Duff, 2010b; Duff et al., 2010; Husak, 2004, 2008; Stumpf, 2009). Criminal sanctions are not used to punish serious wrongs. The conducts that are being criminalized—and punished—are not considered serious offences and are victimless. The vast majority of these offences do not protect individual human beings from harm or the risk of it; they are made crimes in pursuit of other means. What is at stake is preventing the arrival of irremovable migrants. The main problem in using criminal punishment for immigration management is that the imperatives of the enforcement agency infiltrate the aims and purposes of the criminal justice system: it is not the crime in itself which is considered but the impact that the conduct at stake may have on the whole immigration system (Ashworth, 2000: 250; Lacey, 2004: 164).

The observations above cast doubt not only on the role that criminal law plays in immigration enforcement, but more generally on its use for pragmatic, non-principled regulatory purposes. Criminal law and punishment is the strongest form of condemnation a society has to communicate censure. Therefore, the principal function of criminal law is to censure substantial wrongdoing. It should not be used whenever it is efficient and cost-effective to pursue a particular policy goal—such as preventing illegal immigration. Criminal law, as a distinctive mode of regulation, is seriously disrupted where prevention determines the decision to criminalize, the decision to prosecute and the decision on the appropriate penalty (Ashworth, 2000: 250; Ashworth and Zedner, 2011: 303).

Perhaps most importantly is that deterrence is barely achieved in practice. As studies have shown (Andenaes, 1974; Zimring and Hawkins, 1973), the effectiveness of deterrence is closely linked to the certainty of punishment. The deterrent effect of punishment is severely undermined by the erratic and selective use of criminal prosecutions in cases involving immigration-related offences. The way in which criminal law powers are exercised in practice contradicts deterrence as a key objective behind immigration policies. Arguably, such objective can be hardly achieved by prosecuting only ‘un-removable’ migrants. Indeed, it remains unclear why a prosecution serves more as a deterrent than a removal. This apparent contradiction between policy objectives and practice reinforces the conclusion that criminal law is ancillary to immigration powers and used when the first sanction is futile.

Immigrants as criminal offenders: rhetoric, practices and symbolism of criminalization

While foreigners caught and removed by the State in breach of immigration laws are a small portion of the irregular resident population in the country, the proportion of those who are actually prosecuted and convicted for breaches to immigration laws is even smaller.²³ Such low rates of enforcement substantiate the claim that the Government has appealed to the politically symbolic effect of creating new crimes (Garland, 1996: 460). On the face of it, then, the criminalization of immigration is not a generalized phenomenon as it is sometimes claimed. Even when these offences are barely enforced, criminalization carries a number of consequences. At the rhetorical level, the re-shaping of immigration law under the banner of crime has the consequence of demonizing migrants (Pratt and Valverde, 2002). They are often seen as criminals (Bosworth, 2007: 208; Bosworth and Guild, 2008; Dauvergne, 2008). This is not only because of the borrowing of criminal justice jargon, methods and strategies for immigration enforcement. It is the potential use of criminal law—the prosecution, conviction and imprisonment—which has the most powerful effect in the representation of foreigners as cheats and abusers. Immigrants who violate immigration statutes are not only represented as criminal, dangerous and risky, but are also strictly speaking—in legal and institutional terms— criminal offenders.

Using Ivan Illich’s concept of ‘iatrogenesis’, Stanley Cohen (1985: 169) has argued that the expansion of social control mechanisms to reduce crime often inflicts more ‘damage’ and worsens the problem (also Weber and Grewcock, 2011; Weber and Pickering, 2011: 200). Similarly, restrictive immigration policies seeking to reduce illegalized border crossing—including its criminalization—has had the effect of expanding immigration ‘criminality’ and illegality. Even if the criminal route is not followed, the label of ‘immigration offender’ justifies other measures—generally, detention and removal. The criminal label in this sense reinforces and legitimizes the need for administrative action and controls (Coutin, 2005: 14).

When immigration-based offences are enforced, there is a further, symbolic implication of the criminalization of immigration status (Valverde, 2010: 228). They enable the representation of the immigration drama in the public stage of a criminal hearing—even when it is a silent drama since most of these cases are settled by guilty pleas. The very fact of being called, held to account and punished for entering the country by prohibited means uncovers the perils that those ‘begging’ for access are prepared to face to be in Britain. In doing so, these proceedings make possible the exposé of the receiving country as desirable, powerful and prosperous; and give the State the opportunity to display the last bastion of sovereign powers—the power to grant entry, and to punish and expel those who are not allowed in. As Mary Bosworth (2011a: 592) argues in relation to the power to detain and deport, the power to punish so too poses ‘a virile, absolutist State, wielding great power over non-citizens’ (also Bosworth, 2011b; Dauvergne, 2004). The criminalization of immigration status makes apparent the importance of entitlement to enter and remain in certain nations. In the context of increased criminalization, the ‘accident’ of being born in the global South is reasserted as a moral, political and legal handicap which precludes those unfortunate ones from enjoying the rights reserved for the citizens of prosperous countries (Dauvergne, 2008: 17) and licenses the use of state coercion against those who challenge the boundaries of their status.

Conclusion

As Michel Foucault (1977) famously argued, criminal law has not always been the outcome of principles elaborated by Enlightenment thinkers. The dark side or authoritarian aspect of criminal law has been a constitutive part of it, rather than its perversion (Dubber, 2011a; Ericson, 2007; Norrie, 2009). An element of unaccountability and ‘unlawlessness’ has been inherent to the formation of modern criminal law conceived as both a control device and source of protection for those affected by state coercion. This ‘dark side’ is exemplified by the extensive and unconstrained power that British lawmakers have historically had to criminalize an extensive range of conducts (Lacey, 2008: 100). In turn, this is reflected in the deployment of criminal punishment—or the threat of it—for purposes other than retribution or moral condemnation. Utilitarian aims—particularly deterrence—have been behind the broad use of criminal law for regulatory purposes.

These early developments are linked to more recent trends of excessive enactment of penal legislation. One of the consequences is the enlargement of criminal provisions to police the compliance with immigration norms. I want to draw attention to two fundamental problems in using criminal law to regulate immigration. First, the gap between formal criminalization (the expansion of criminal offences) and substantial criminalization (their actual enforcement) reveals the recurrent appeal to criminal legislation for symbolic and deterrence purposes. It can be argued that with the criminalization of immigration violations there is an ‘upgrade’ of such breaches (formal condemnation). Their under-enforcement however suggests the opposite. For most immigration offenders, criminal punishment is more than anything a threat unlikely to be realized. Such a wide difference between formal and substantive criminalization might be explained by the diverse functions and ‘audiences’ that the formal criminalization of immigration is called to address. Unlike other criminal offences in which the recipient is mainly the ‘community of citizens’ (Duff, 2010a, 2011), immigration offences address different audiences: on the one hand, the protective, reassuring message is directed to the British public; and on the other, the threatening, deterrent exhortation to refrain from coming to Britain targets unwelcome migrants.

Second, in the cases in which these offences are used and defendants are convicted, the purpose of punishment remains unclear. It is certainly not to reintegrate offenders, since they are usually due to be expelled. The society that punishes foreigners for violating the boundaries of their status does not expect them to become good members of it, but rather the opposite. Neither is the aim to incapacitate or discipline them. Even though punishment may serve temporarily as a containment to prevent undocumented migrants to abscond, migrants are not incarcerated just for incapacitating purposes. The ultimate goal is to facilitate the successful removal of these people from the community (Bosworth, 2011a). Criminal punishment is then redundant and unfit to deal with immigration offenders. The actual role of criminal punishment in relation to the individual offenders is emptied of content. It can only play a more general function of (re)establishing the normative force of the violated norm (in positive terms) or as a deterrent for others (in negative terms). But are they enough justification for imposing criminal sanctions?

The problems outlined above suggest that immigration crimes are not simply ancillary powers, nor are they inoffensive, harmless tools that only serve symbolic and political purposes. Even if they are not used, they ‘create’ crime and thus a pull of potential offenders liable to administrative or criminal sanctions. They license the use of coercive force against people who have not caused serious harm to others, the sanction imposed is disproportionate and their normative justification remains weak. In fact, in the case of people subject to removal or deportation imposing punishment does not serve retributive, incapacitating or rehabilitative aims.

Footnotes

Notes

Ana Aliverti is a Howard League Fellow in the Centre for Criminology at the University of Oxford. Her research interests encompass border controls and immigration, regulation and punishment, and the philosophical foundations of the criminal law.

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