Making people criminal: The role of the criminal law in immigration enforcement

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.