Crimmigration checks in the internal border areas of the EU: Finding the discretion that matters

Date01 January 2017
Published date01 January 2017
DOI10.1177/1477370816640139
Subject MatterArticles
https://doi.org/10.1177/1477370816640139
European Journal of Criminology
2017, Vol. 14(1) 27 –45
© The Author(s) 2017
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DOI: 10.1177/1477370816640139
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Crimmigration checks in the
internal border areas of the
EU: Finding the discretion
that matters
Maartje van der Woude
Van Vollenhoven Institute for Law, Governance and Society, Leiden Law School, The Netherlands
Joanne van der Leun
Institute for Criminal Law and Criminology, Leiden Law School, The Netherlands
Abstract
Internal borders are a major but understudied site of crimmigration as most scholarship has
focused on external borders (Van der Woude and Van Berlo, 2015). Internal borders were
supposed to disappear under the principle of free movement within the European Union. But
today we see EU member states policing the borders inside Schengen, checking identification,
verifying passage, and regulating mobility in so-called ‘gray zones’. This article investigates this
type of policing within the EU, focusing on the case of the Netherlands. It argues that the
policing of internal borders is highly dependent upon discretionary power, a significant factor
in the crimmigration process that we do not know enough about. Following Hawkins (1992,
2003), Schneider (1992), and Bushway and Forst (2013) on discretion and discretionary decision-
making, we examine the interaction between decisions by law-makers and policy-makers that
create discretionary space for law enforcement officials on the ground, and the way in which
these street-level bureaucrats perceive the discretionary space attributed to them. By zeroing
in on the interaction between these two actors, we aim to find the discretionary decision that
matters the most in terms of explaining the crimmigration practices, offering a more holistic and
interdisciplinary approach to border control. We discuss the implications of this power and the
consequences for the European Project as such.
Keywords
Crimmigration, decision-making, discretion, European Union, immigration control, internal
borders
Corresponding author:
M.A.H. van der Woude, Van Vollenhoven Institute for Law, Governance and Society, Leiden Law School,
PO Box 9520, 2300 RA Leiden, The Netherlands.
Email: m.a.h.vanderwoude@law.leidenuniv.nl
640139EUC0010.1177/1477370816640139European Journal of CriminologyVan der Woude and Van der Leun
research-article2017
Article
28 European Journal of Criminology 14(1)
Introduction
Times are turbulent for the European Union (EU). Large numbers of immigrants are try-
ing to find their ways into Fortress Europe irrespective of the dangers of such an under-
taking and the insecure future ahead of them, often fleeing desperate situations in their
home countries. Against the background of an ongoing securitization of migration in
Europe (Bourbeau, 2011; Guild, 2009; Huysmans, 2006), the influx of immigrants enter-
ing the European mainland has led to heated debates among politicians and policy-
makers, on both the member state level and the EU level, on how to best deal with the
matter. Solutions are sought in the militarization of the external borders, border fences,
and extensive yet also dispersed border surveillance (Aas, 2011). Much of the scholar-
ship on EU border matters seems to focus on the external border of the EU, whereas
developments affecting the formally non-existing internal borders between EU member
states remain relatively understudied. Obviously, the tragedies happening at the EU’s
external borders justify attention. Yet, given what the EU stands for – being an area with-
out internal borders in order to stimulate the free flow of services, goods, and people –
monitoring what is happening in internal border areas is as crucial. In response to the
recent immigration influx, several member states have asked for internal border checks
to be temporarily reinstalled, which would be a fundamental breach of the Schengen
acquis. Other states have started to explore the possibility offered by the Schengen
Borders Code to conduct highly discretionary random police checks –for reasons of both
immigration control and/or crime control – in 20 kilometer internal border areas between
two member states (Van der Woude, 2015).
These police checks taking place in internal border areas are highly relevant in the
light of the process of crimmigration (Van der Woude and Van Berlo, 2015) – the
increased merger of crime control and immigration control (Aliverti, 2014; Chacón,
2009, 2014; Sitkin, 2014; Spena, 2014; Stumpf, 2006, 2011, 2013). Both virtually and
physically, borders are primary sites for authorities to distinguish between so-called
‘bona fide travelers’ and ‘crimmigrant others’, being a bridge for the former and a barrier
to the latter (Aas, 2011, 2013; Barker, 2013; Stumpf, 2006; Van der Woude and Van
Berlo, 2015).The growing body of scholarship studying practices of crimmigration
seems to paint a rather grim picture: to a greater or a lesser extent, crimmigration seems
to be present in many national contexts, with no exception for countries in the EU
(Barker, 2012; Bosworth, 2014; Bosworth and Guild, 2008; Mitsilegas, 2015; Staring,
2013; Van der Woude et al., 2014).
Despite the different macro-level explanations that can account for the process of crim-
migration, many scholars directly or indirectly refer to the central role of discretionary
decision-making. Discretion allows law enforcement officials to make largely autono-
mous decisions – to exercise choice – on how to deal with an individual case. In cases in
which immigrants are involved this may also include the decision on whether to treat or
approach it as a criminal case or an immigration case, with far-reaching consequences
attached. When examining the literature on discretion and crimmigration, much of it
seems to focus on explaining why and how the actions of one specific actor contribute to
the practice of crimmigration: police and/or immigration officers (Motomura, 2011;
Weber, 2003), prosecutors (Eagly, 2011; Hernandez, 2013; Wadhia, 2015), judges (Reyes,

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