Exploring the Function of Criminal Law in the Policing of Foreigners
| Author | Ana Aliverti |
| Published date | 01 December 2012 |
| DOI | 10.1177/0964663912455447 |
| Date | 01 December 2012 |
| Subject Matter | Articles |
Article
Exploring the
Function of Criminal
Law in the Policing of
Foreigners: The
Decision to Prosecute
Immigration-related
Offences
Ana Aliverti
University of Oxford, UK
Abstract
This paper looks at the decision-making process in cases involving immigration-related
crimes. Based on interviews with practitioners and immigration staff and the analysis of
court-files, it disentangles the criteria guiding both enforcement officers and prosecutors
in the decisionto criminally proceed againstsuspected immigrationoffenders. The reasons
behind the policy andpractice of prosecuting immigration crimes show that criminal law is
but one means to enforce immigration rules. The role that criminal law is called to play in
this context is purely instrumental as the main consideration for pursuing a case is the
impact that it may have on immigration enforcement. Criminal law is emptied of any
condemnatory function and, as such, its primary function of censuring wrongs is
disrupted. The examination of the decision-making process in these cases reveals how
problematic it is to reconcile retribution and punishment with immigration imperatives.
Keywords
Immigration offences, discretion, undocumented migrant, harm matrix, criminalisation of
immigration
Corresponding author:
Ana Aliverti, Centre for Criminology, University of Oxford, Manor Road Building, Manor Road, Oxford
OX1 3UQ, UK.
Email: ana.aliverti@law.ox.ac.uk
Social & Legal Studies
21(4) 511–527
ªThe Author(s) 2012
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DOI: 10.1177/0964663912455447
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Introduction
The convergence of immigration and criminal laws in recent years hascreated 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 immi-
gration laws has expanded the alternative interventions that enforcement officers can
follow against immigration offenders (Weber and Bowling, 2004; Zedner, 2010; Bos-
worth, 2011b). Nowadays almost any breach to immigration rules has a criminal sanc-
tion 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 breach-
ing 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 wrong-
doers’. 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 expul-
sion 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 methodol-
ogy used for this study. Before analysing the criteria used in the decision to prose-
cute, 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 mar-
gin 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 nation-
ality, the availability of resources to initiate a criminal investigation and local prac-
tices. 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 immi-
gration 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.
512 Social & Legal Studies 21(4)
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