Making people criminal: The role of the criminal law in immigration enforcement
| Author | Ana Aliverti |
| DOI | 10.1177/1362480612449779 |
| Published date | 01 November 2012 |
| Date | 01 November 2012 |
| Subject Matter | Articles |
Article
Theoretical Criminology
16(4) 417 –434
Making people criminal: The
© The Author(s) 2012
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DOI: 10.1177/1362480612449779
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immigration enforcement
Ana Aliverti
University of Oxford, UK
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
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
418
Theoretical Criminology 16(4)
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 immigra-
tion. 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 aca-
demic 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 indif-
ference 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 gov-
ernment 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 punish-
ment 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 vic-
timless 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
Aliverti
419
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 extra-
neous 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 pre-
rogatives upon the head of the household over its members, who were inferior by defini-
tion. 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 compar-
ing different criminal justice systems, Nicola Lacey (2008: 101) maintains that in coun-
tries, 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 activi-
ties—and their repercussions on society, legislation was enacted imposing public duties
420
Theoretical Criminology 16(4)
which were backed up by formal, criminal sanctions to...
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