Using criminal law to control migration

The term crimmigration was coined in the beginning of the 2000s by an immigration scholar, Juliet Stumpf, who works in the US and has been very influential for understanding, particularly in the US, how criminal law tools are being used to control migration. We talk about criminalization and the use of criminal law specifically to deal with migration breaches. She also talks about how, for instance, the prison and the logic of the prison is increasingly a way of dealing with migrants and how migration controls have been increasingly taking on the practices, the logic, of criminal law and criminal justice – without the migration, the safeguards that are very much key in a criminal justice process. Crimmigration means this migration of criminal law into immigration law and immigration law into criminal law, but creating a second class system of justice where safeguards and rights and protections that are germane to the criminal justice process are not migrated with it.

The way in which migration is talked about in public debate – in terms of danger, in terms of threat, in terms of crimes – has a substantive effect. We can see this in terms of the evolution of this discourse. While in the 2000s the criminalization of migration was an extreme measure, in the context of 9/11 and the increased securitization of borders that the 9/11 attacks brought forth, it was conceived as an emergency measure.

The most important misconception in relation to migration and crime is the fact that migration is problematized, criminalized, while the human species, if not non-human species, are migratory species by nature. Our world has been built around migration and movement.

My work has been tracing how criminal law increasingly makes people criminals for various immigration breaches. What I have found is that, while criminal law – particularly in Anglo-American countries, where there has been a tradition of using or overusing it to address a range of social issues, including migration – has seen an increase in migration-related offenses over the last few decades, those offenses are not frequently applied. One of the conclusions that I have reached is that the function of criminal law is very much what criminologists or sociologists of punishment call prevention and deterrence. It is that symbolic acting-out to prevent people from crossing borders illegally.

The symbolic dimension that I am referring to in relation to the criminalization of immigration concerns two audiences. One is the national audience, to act as if the state is taking decisive action in relation to migration and its control. This performance of sovereignty and force underpins not just criminalization but also policing – particularly the militarization of borders, which many scholars have talked about. It is also the audience of the potential migrants who are willing to embark in those clandestine journeys.

There are a number of implications of this intersection of criminal law and migration law. This is something that I have been looking at empirically in the context of the UK: how migrants are dealt with in the criminal justice system, not just for migration-related offences but more generally. For instance, we see that questions of interpretation are a problem, as people are not provided with the right service in terms of understanding and being able to participate in the criminal justice process.

There is a discussion in the literature about how citizenship should bear on the role of criminal law. Those discussions that are mainly philosophical, theoretical, often lack an understanding of the implications of placing that central role of citizenship in the context of criminal law and the operation of criminal justice, which has significant and negative implications in terms of the treatment of those who are not citizens.