The criminalisation of migration in Italy: Current tendencies in the light of EU law
| Author | Giulia Mentasti |
| DOI | http://doi.org/10.1177/20322844221140711 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 502–525
© The Author(s) 2022
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DOI: 10.1177/20322844221140711
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The criminalisation of
migration in Italy: Current
tendencies in the light of EU law
Giulia Mentasti
Dipartimento di Scienze Giuridiche ‘C. Beccaria’, Universit`
a Degli Studi di Milano, Italy
Abstract
The word crimmigrationfirst appeared in the USA about twenty yearsago, following some studiesthat
for the first time had observed a general tightening in the instruments available for managing the
migration phenomenon. More specifically, these studiesobserved a progressive and realhybridisation
between theadministrative tools(usually adopted in the management of migratoryflows) and criminal
law instruments, obviouslymuch more incisive on thepersonal freedom of foreigners. While retaining
this feature,recent studies show that today,crimmigration results, also, in few more related features:
an overcriminalisation that affects the foreigners and those who, for solidarity purposes, provide them
with assistance (as in the case of the incrimination of the conduct of NGOs); or, again, in the in-
appropriate use of administrative law instruments, loaded with purposes and modalities typical of
criminal law. Starting from these premises, the aim of the article is to assess whether the rationale of
crimmigration is present in the instruments set up by the Italian Legislator for border control and
migration management. To this end, these instruments will be taken into consideration by analysing
their contents andtheir possible compliance with the logic of crimmigration, contextualising them in
the broader and more debated European framework of measures on the matter.
Keywords
Crimmigration, criminalisation of migration, administrative detention, facilitators package, d ´
elit de
solidarit´
e, EU Law, irregular migration, Italian criminal law
Introduction
The migration phenomenon is constantly intensifying in many European States and the tools for its
management are many, complex, and increasingly inspired by a securitarian-repressive logic.
Corresponding author:
Giulia Mentasti, Dipartimento di Scienze Giuridiche ‘C. Beccaria’, Universit`
a degli Studi di Milano, Via Festa del Perdono 7,
Milano 20122, Italy.
Email: giulia.mentasti@unimi.it
At least since the 2000s in the United States - a reality that has long been affected by significant
migratory flows - scholars have begun to use the word crimmigration (a crasis between crime and
migration) to describe an overlapping in the form and in the contents between administrative law -
normally adopted in management of migration - and criminal law. In general, in crimmigration was
included the widespread tendency to use criminal law as an ancillary tool of immigration law:
a feature observable, for example, in the creation of crimes that can only be committed by the
foreigner (such as illegal border crossing or violation of residence permit provisions) or, again, in
a greater propensity for arrests among foreigners by police forces. Crimmigration , in extreme
summary, resulted in an increasing interference of security and repressive instruments in migration
policies, a sector that, per se, does not present higher or disproportionate levels of crime as
compared to the rest of society.
1
Following this approach, its characteristics can be traced, essentially, to an overabundant use of
the criminal instrument (overcriminalization) or, just as frequently, to the use of ambiguous ad-
ministrative instruments affecting migrant’s fundamental rights with an intensity comparable to that
of criminal law but lacking the guarantees that normally surrounds the State’s exercise of force.
More specifically, these features result in two types of intervention. With regard to the use of the
criminal instrument, Legislators tend to create ad hoc crimes that can only be committed by
a foreigner or criminalise the mere assistance to migrants or even self-smuggling; as for the use of
administrative instruments, the hybridisation with criminal law’s purposes and contents originates
an arsenal of securitarian measures among the instruments for managing migration.
The purpose of this article is to investigate whether and to which extent crimmigration is also
present in Europe, having Italy as a point of reference. To this end, we will proceed as follows: first,
will investigate the presence of crimes that directly and exclusively affect foreign nationals, the so-
called ‘ad hoc crimes’. They represent, in fact, the most evident form of overlapping between
immigration and criminal law and, at least in theory, constitute the most severe and explicit tools in
the fight against irregular immigration. Still among crimes, we will then see how the migration
phenomenon - when not affected by ad hoc offences - is still indirectly criminalised, through the
incrimination of the conducts of aid or assistance to migrants. Here, in particular, it will be in-
teresting to observe how the incrimination of these conducts takes place through the broad for-
mulation of the crime of aiding and abetting irregular immigration, introduced into Italian law to
1. The word crimmigration was used for the first time in Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and
Sovereign Power’[2006] 56(2) American University Law Review 367; see also: David Garland, The Culture of Control:
Crime and Social Order in Contemporary Society (The University of Chicago Press 2002); Jonathan Simon, Governing
Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford
University Press 2007); Stephen Legomsky ‘The new path of immigration law: asymmetric incorporation of criminal
justice norms’[2007] 62(2) Washington and Lee Law Review; David Alan Sklansky, ‘Crime, Immigration, and ad hoc
Instrumentalism’[2012] 15(2) New Criminal Law Review 157-223; Ana Aliverti, ‘Making People Criminal: The Role of
Criminal Law in Immigration Enforcement’[2012] 16(4) Theoretical Criminology 417-434; Valsamis Mitsilegas, ‘The
Changing Landscape of the Criminalisation of Migration in Europe: The Protective Functionof European Union Law’in
Guia and others (eds), Social Control and Justice in theAge of Fear (Eleven International Publishing 2012). In Italy: Gian
Luigi Gatta, ‘La pena nell’era della “crimmigration”: tra Europa e Stati Uniti in Carlo Enrico Paliero, Francesco Vigan`
o,
Fabio Basile and Gian Luigi Gatta (eds), La pena, ancora: fra attualit `
a e tradizione. Studi in onore di Emilio Dolcini
(Giuffrè, Milan, 2018); Luca Masera, ‘”Terra bruciata”intorno al clandestino: tra misure penali simboliche e negazione
reale dei diritti, in Oliviero Mazza and Francesco Vigan`
o (eds.), Il “Pacchetto sicurezza”, (Turin, 2009). More recently,
with an interdisciplinary slant and a look at the realities of different European countries as well as at the EU legislation
itself: Gian Luigi Gatta, Valsamis Mitsilegas,Stefano Zirulia (eds), Controlling Immigration Through Criminal Law.
European Perspectives in ’Crimmigration’(Hart Publishing, 2021).
Mentasti 503
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