Immigration and Criminal Law

Ana Aliverti

Course Introduction and Objectives

Immigration has long been linked to crime and social disorder. In countries which experienced high levels of immigration in the late 1800s and early 1900s, newcomers were perceived with suspicion and were accused of bringing disruption, social unrest and criminality to the hosting societies. In the United States, for instance, the Chicago School was an important site where those claims were tested. Such representation of immigrants as a source of social, economic and cultural threat for the receiving societies and as a dan gerous class is often articulated in contemporary public discourses and media reports about immigration. This may explain why immigrants are quickly identified as outlaws and potential offenders, and why recent policies have emphasised this parallel.

This course will address the position of non-citizens in contemporary penal policies and practices. It will explore how those public perceptions are imprinted in the everyday practices of the criminal justice system. It will also assess the so-called convergence of immigration law and criminal law regimes, and its impact on contemporary policies and practices to police foreigners.

Course Structure

First Session: Criminal law and citizenship/immigration status

In this session we will discuss which role, if any, should immigration status have in national criminal law systems. In this regard, we will discuss communitarian approaches to criminal law, in particular Antony Duff’s, to assess the virtues and disadvantages of making citizenship central to criminal law. We will also examine the pitfalls of constructing a criminal law for citizens using modern legislation on anti-terrorism as a case in point.

 Duff, R. 2010. A criminal law for citizens.Theoretical Criminology, 14, 293-309.  Duff, R. 2011. Responsibility, Citizenship, and Criminal Law. In:Duff, R. & Green, S. (eds.) Philosophical Foundations of Criminal Law. Oxford: OUP.  Gomez-Jara, C. 2008. Enemy Combatants vs. Enemy Criminal Law. New Criminal Law Review, 11 , 529-562.  Zedner, L. 2013. Is the Criminal Law only for Citizens? A Problem at the Borders of Punishment. In: Aas, K. F. & Bosworth, M. (eds.) The B orders of Punishment: Criminal justice, citizenship and social exclusion. Oxford: Oxford University Press (forthcoming).  Zedner, L. 2010. Security, the State, and the Citizen: The Changing Architecture of Crime Control. New Criminal Law Review 13, 379-403.  Dubber, M. 2010. Citizenship and Penal Law. New Criminal Law Review, 13, 190-215.  Aharonson, E. & Ramsay, P. 2010. Citizenship and criminalization in contemporary perspective: Introduction. New Criminal Law Review, 13, 181-189.  Coles, D. 2007. Against Citizenship as a Predicate for Basic Rights. Fordham Law Review, 75, 2541-2548.  ECHR, A and others v United Kingdom, Application no. 3455/05, Judgment of 19 February 2009 (Use of indefinite imprisonment against foreigners suspected of terrorism, Discrimination on grounds of nationality)

Second Session: Criminalization: Immigration offences

States in the west are increasingly appealing to the criminal law to deter migrants from choosing these countries as their destinations. In this session, we will discuss the reasons for criminalizing breaches to immigration laws. Should criminal law be used to police migrants? Are there legitimate reasons for criminalizing immigration law-breaking? Who are the ‘immigrants’, ie Are criminal law provisions aimed at foreigners, in general, or at certain groups of foreigners?

 Sklansky, D. 2012. Crime, Immigration, and Ad Hoc Instrumentalism. New Criminal Law Review, 15, 157-223.  Chacón, J. 2012. Overcriminalizing Immigration. Journal of Criminal Law & Criminology, 102, 613-652.  Dauvergne, C. 2008. Making People Illegal. What Globalization Means for Migration and Law, New York, CUP (Chapter 2).  Stumpf, J. 2007. The Crimmigration Crisis: Immigrants, Crime, and Sovereign State. Lewis & Clark Law School Legal Research Paper Series, 2007-2, 1-44.  Spena, A. 2013. Iniuria Migrandi: Criminalization of Immigrants and the Basic Principles of the Criminal Law.Criminal Law and Philosophy.  Aas, K. F. 2011. ‘Crimmigrant’ bodies and bona fide travelers: Surveillance, citizenship and global governance. Theoretical Criminology, 15, 331-346.  Medina, I. 1997. The Criminalization of Immigration Law: Employment Sanctions and Marriage Fraud.George Mason Law Review, 5,669-731.  Demleitner, N. & Sands, J. 2002. Non-Citizen Offenders and Immigration Crimes: New Challenges in the Federal System.Federal Sentencing Report 14, 247-254.  IACrtHR, Velez Loor v Panama, Series C 218, Judgment of 23 November 2010. (Criminalisation of illegal entry by Panama and compatibility with human rights norms)  Council of Europe 2010. Criminalisation of Migration in Europe: Human Rights Implications. Strasbourg: Office of the Commissioner for Human Rights Council of Europe.

Third Session: Foreigners before the courts

Because the criminal law procedure is generally more protective than other legal proceedings – such as administrative or civil ones – it can be argued that bringing non-citizens before the criminal courts will place them on an equal footing with same legal rights as citizens. Yet, research done on the criminal justice system shows that holding immigrants criminally accountable contribute to perpetuate inequalities, instead of ensuring equal treatment. During this session, we will examine the general patterns of immigration prosecutions and the criminal proceedings involving people accused of immigration crimes.

 Stumpf, J. 2011. Doing Time: Crimmigration Law and the Perils of Haste. UCLA Law Review, 58, 1705.  Aliverti, A. 2013. Crimes of Mobility: Criminal Law and the Regulation of Immigration, Abingdon, Routledge (forthcoming) (Chapter V).  Legomsky, S. 2007. The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms. Washington & Lee Law Review, 64, 469-528.  Dunstan, R. 1998. United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention. International Journal of Refugee Law, 10, 205-213.  Eagly, I. 2010. Prosecuting Immigration. Northwestern University Law Review, 104, 1281-1360.  Albrecht, H. 2000. Foreigners, Migration, Immigration and the Development of Criminal Justice in Europe. In: Green, P. & Rutherford, A. (eds.) Criminal Policy in Transition. Oxford and Portland, Oregon: Hart.  Albrecht, H. 1997. Ethnic Minorities, Crime and Criminal Justice in Germany. Crime & Justice, 21, 31-100.  Messier, F. 1999. Alien Defendants in Criminal Proceedings: Justice Shrugs. American Criminal Law Review, 36, 1395-419.  R v. Uxbridge Magistrates Court and Another, Ex parte Adimi [1999] EWHC Admin 765; [2001] Q.B. 667 (offences of fraud used against asylum seekers, article 31 Refugee Convention)  Arizona et al. v United States, 000 U.S. 11-182 (2012)  Human Rights Watch 2013. Turning Migrants into Criminals. The Harmful Impact of US Border Prosecutions. New York: Human Rights Watch. (on the increasing use of immigration prosecution)

Fourth Session: Punishing non-citizens: criminal punishment and administrative detention

Several academics have alerted about the over-representation of non-citizens in European seclusion centres in the last few decades. This session will examine reasons for this trend and assess whether race, social class and status play a role in this outcome. We will also explore the function of reclusion more generally, by looking at the functional and institutional commonalities between the prison and the immigration detention centre.

 Wacquant, L. 2006. Penalization, Depoliticization, Racialization: On the Over- incarceration of Immigrants in the European Union. In: Armstrong, S. & McAra, L. (eds.) Perspectives on Punishment New York: OUP.  Wacquant, L. 1999. ‘Suitable Enemies’: Foreigners and Immigrants in the Prisons of Europe. Punishment & Society, 1, 215-222.  De Giorgi, A. 2010. Immigration control, post-Fordism, and less eligibility: A materialist  critique of the criminalization of immigration across Europe. Punishment & Society, 12, 147-167.  Bosworth, M. 2011. Human Rights and Immigration Detention in the UK. In: Dembour, M. & Kelly, T. (eds.) Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States. Abingdon: Routledge.  Bosworth, M. 2012. Subjectivity and identity in detention: Punishment and society in a global age. Theoretical Criminology, 16, 123-140.  Broeders, D. 2010. Return to sender?: Administrative detention of irregular migrants in Germany and the Netherlands. Punishment & Society, 12, 169-86.  Melossi, D. 2003. ‘In a Peaceful Life’: Migration and the Crime of Modernity in Europe/Italy. Punishment & Society, 5, 371-397.  Lacey, N. 2008. The Prisoners’ Dilemma. Political Economy and Punishment in Contemporary Democracies, New York, CUP. (pp 144-169)  Hammond, N. 2007. United Kingdom. In: van Kalmthout, A., Meulen, F. H.-v. & Dünkel, F. (eds.) Foreigners in European Prisons. Nijmegen: Wolf Legal Publishers.  World Prison Brief: percentage of prison population who are foreigners in prisons of European countries

Fifth Session: Deportation and removal

In modern times, the protection against deportation – or non-deportability – is one of the distinctive features of citizenship. As opposed to citizens, foreign nationals can be expelled. Deportation is a collateral consequence of a criminal punishment and, as we have seen in previous sessions, one of the purposes of punishment, at least in extra-legal terms. In the United States, the increasing number of criminal offences which have been classified as ‘aggravated felony’ have significantly expanded the pull of deportable foreigners on grounds of criminal convictions. In Britain, non-citizens convicted to at least one year imprisonment are automatically subject to deportation. In this last session we will look at how expulsion in times of globalization is caught up in-between a technique of ‘population transfer’ and as one of the last bastion of state sovereign powers.

 Stumpf, J. 2009. Fitting Punishment. Washington & Lee Law Review, 66, 1683-741.  Kanstroom, D. 2000. Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases. Harvard Law Review, 113, 1890-1935.  Gibney, M. 2008. Asylum and the Expansion of Deportation in the United Kingdom. Government & Opposition 43, 146-167.  Ewald, A. 2011. Collateral Consequences and the Perils of Categorical Ambiguity. In: Sarat, A., Douglas, L. & Merrill Umphrey, M. (eds.) Law as Punishment/Law as Regulation. Stanford, California: Stanford University Press.  Beckett, K. & Herbert, S. 2010. Penal Boundaries: Banishment and the Expansion of Punishment. Law & Social Inquiry, 35, 1-38.  Chacón, J. 2007. Unsecured Borders: Immigration Restrictions, Crime Control and National Security. Connecticut Law Review, 39, 1827-1891. or  Chacón, J. 2008. The Security Myth. Punishing Immigrants in the Name of National Security. In: D’Appollonia, A. & Reich, S. (eds.) Immigration, Integration, and Security: America and Europe in Contemporary Perspectives. Pittsburgh, PA: University of Pittsburgh Press  Bosworth, M. 2011. Deportation, detention and foreign-national prisoners in England and Wales. Citizenship Studies, 15, 583-595.  Quassoli, F. 2004. Making the neighbourhood safer: social alarm, police practices and immigrant exclusion in Italy. Journal of Ethnic & Migration Studies, 30, 1163-1181.  De Genova, N. 2002. Migrant ‘Illegality’ and Deportability in Everyday Life.  Annual Review of Anthropology, 31, 419-447.  Markowitz, P. 2008. Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings. Harvard Civil Rights- Civil Liberties Law Review, 43, 289-351.  European Court of Justice, Judgement of 28 April 2011. Hassen El Dridi. Case C-61/11  Padilla v Kentucky 130 US S. Ct. 1473 (2010) (on deportation as consequence of criminal conviction and failure of legal counsel to advice on this matter)