Exploring the Function of Criminal Law in the Policing of Foreigners

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 decision to criminally proceed against suspected immigration offenders. The reasons behind the policy and practice 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.