Abstract
In recent years, criminological attention has focused increasingly on the convergence of crime and migration control strategies, and the extensive use of the state’s criminal justice apparatus and criminal legislative framework to control migration. Criminalization has come to refer not just to the use of criminal legislation to regulate migration, but also to the creation of an exaggerated image of an ‘undeserving’ and dangerous migrant who justifies the use of such powers. This process of holding foreign nationals to account appears to be motivated more by a desire to assert sovereignty and national identity than to control offending behaviour, and is now, as a consequence, subject to substantial academic scrutiny.
Aliverti’s book consists of six main chapters: the first discusses the history of British immigration controls, while the second covers the hyperactive legislating of the Labour government which embarked on a huge expansion of immigration law and immigration crimes, more systematic enforcement and the ‘institutional convergence’ of criminal and immigration enforcement. Chapters 3 and 4 draw directly from the empirical research, in which the author analysed records of hearings at UK criminal courts and conducted 20 interviews with practitioners and policy-makers (including 10 legal practitioners and six Home Office officials). The interviewees all occupied relatively senior positions because immigration caseworkers, who make most of the decisions, were reluctant to be interviewed. Chapter 4 considers in particular the decision to prosecute immigration offenders while the following chapter examines in more detail the immigration crime cases which reach the criminal justice system. Chapter 6 explores the causes and consequences of the use of criminal law in immigration enforcement, arguing that the assertion of sovereign power is the most important motivation for encroachment of criminal provisions into immigration law.
The extensive interview data and case material offer some fascinating insights into the thought processes and behaviours of the key actors, supporting, for example, the common concerns about the disturbingly low standard of representation for many migrants in the courts. These data add empirical depth to Aliverti’s discussion of the expansion of criminal laws related to immigration control and the stricter enforcement of existing legislation on the one hand (instrumental criminalization) and the symbolic role of criminal law sanctions to regulate immigration on the other (expressive criminalization). The former has taken place in the context of weak protections offered to migrants by immigration law, while the latter has coincided with the greater use of the prison-like detention and criminal justice processes to manage immigration and asylum, thereby reinforcing the punitiveness of immigration control—both symbolically and practically.
Aliverti argues that the recent increase in criminal offences in UK immigration legislation is a clear example of the regulation of social affairs through punishment, or at least the threat of it, in response to the increasing pressure from the public and media to bring immigration ‘under control’. She points out that while there has been a longstanding practice of criminalizing immigration breaches in British legislation, there has been a noticeable change in the intensity of this criminalization during the last 15 years. As the author demonstrates, between 1997 and 2010, the Labour government passed six immigration and asylum acts which created a total of 84 immigration offences. In contrast, the preceding Conservative administrations introduced five immigration and asylum bills which created only five offences. This is a stark and illuminating statistic, illustrating how the criminal law has assumed a much more central role in UK immigration control.
However, Aliverti’s detailed analysis of the dynamics between the expressive and the instrumental functions of the criminal law as it relates to migrants reaches an unexpected conclusion. Despite a growth in punitive discourse and the rapid expansion of legislation that criminalizes migration, the actual enforcement of such powers is relatively rare. Indeed, the immigration authorities prefer to make use of administrative powers. This suggests both that the criminal law is used mainly as a threat to motivate compliance with immigration rules, and that the less regulated punitive power of administrative measures is a more convenient tool for the Home Office to implement its policies. Criminal prosecution is reserved for those foreigners for whom the primary sanction of expulsion cannot be carried out through other means. In these cases, a criminal prosecution and conviction facilitate administrative proceedings leading to removal. She thus highlights the gap between formal criminalization (expansion of criminal offences) and substantial criminalization (their actual enforcement), pointing to the appeal to criminal legislation for symbolic and deterrent purposes.
Aliverti argues that criminalization of immigration breaches is contrary to a number of criminal law principles and concludes that the normative justification of criminal law in immigration matters is too weak for it to have such a role in the enforcement of immigration rules. A key argument is that immigration offences are essentially a part of the wider corruption of the liberal principles of criminal law, which is wrongly used ‘against non-serious, victimless conducts and the sanction of imprisonment on most immigration defendants is disproportionate to the wrong done’ (p. 143). She also questions the purpose of, and justifications for, punishment in the cases where people are prosecuted given that it does not appear to be for reintegration, discipline or protective incapacitation. It is, Aliverti contends, ineffective, damaging and lacking legitimacy.
One of Aliverti’s objectives is to better engage criminal law scholars in migration studies. In particular, she wishes to broaden out the traditional focus of criminal law theory on the idea of the citizen as the main recipient of state protection and punishment, so that it can better reflect the changes brought about by globalization. As someone without a legal background, I found Aliverti’s perspective to be both valuable and informative. Her book adds a useful context for my own work with immigration detainees who frequently describe the frustration and confusion at what they consider to be punitive treatment and limited access to justice. Stylistically, the text is dense in parts, with similar points sometimes made in subtly different ways, or by drawing on multiple sources. But this does not significantly detract from a book that provides both welcome empirical data and theoretical understanding about the criminalization of migration.