Members of Chicago School, who firmly believe in the natural environment which the community inhabits is a major factor in shaping human behaviour, view that social mobility is the cause of social problems. Immigrants have been seen as threats to one country’s social structure, economy and culture. (Ana Alierti,2016) In the UK, a hostile social and political attitude towards immigrants have always existed and gradually increasing. There have been some significant legislative activities in controlling Immigration and asylum, including using a variety of criminal offences, which will be discussed later in this essay. Nowadays, almost any breach of immigration rules is a crime (Home Office, 2010b: 26).
However, the increasing reliance on criminal law at the core of immigration law has been primarily criticized by scholars. For example, Antony Duff introduced his terminology — ‘perversion of the criminal law ‘(Duff, 2010), which means when criminal norms are being used to achieve extra-penal aims. Then Ana Alierti extended his theory– she suggested that not only criminal law is used to achieve ‘extra-penal aims’, using criminal sanctions against immigrants also does not have any impacts on serving its original goal, which is to eject immigration offenders (Ana Alierti, 2012).
This essay is going to argue that criminal law governing Immigration does not fit its purpose and should not have too much impact on the enforcement of immigration rules. The first part of the essay is going to analysis the changes in the immigration act in recent years; the second part is going to look at the problems with criminalization of immigrants and the using of the word ‘illegal immigrant’; the third part is going to demonstrate how criminal law failed to govern Immigration by looking at recent cases.
It is clear to see that, in the UK, there has been a massive increase in adapting criminal offences into immigration acts since the year 1999. Each criminal offence makes it easier for an immigrant to face criminal sanction. The 2014 Immigration Act extended power for home office and customs office to collect and check fingerprints; power to search for a passport; powers to implement embarkation controls; powers to examine the status and credibility of migrants seeking to marry or enter into a civil partnership. Not only the Act enhances the power of Home Office, but it also set up all kind of barriers for illegal immigrants to live in the UK through both civil penalties and criminal offences for those who have contacts with illegal immigrants, such as landlords, employers, organizations.
Private landlords are subjects under the 2014 Act, and they are asked to check tenants’ immigration status, will be facing penalties sanctions if he or she fails to conduct the required checks on prospective tenants and subject them to up to £3,000 per lodger. In 2016 Act, the law put a criminal offence which penalizes landlords who ‘knew or had reasonable cause to believe that the tenant was disqualified from renting, and the maximum sentence is five years imprisonment’ (Immigration Act 2016); The 2016 Act also put criminal offences on employers who hire foreigners without permission to work may face either civil penalties or criminal sanction, the maximum civil penalty is £20,000 for each illegal worker. The criminal sanction may include a fine with a maximum of five years imprisonments. The 2014 Act restricts organizations, like NHS and banks, to provide any services for migrants who enter the country unlawfully.
Other organizations like carriers and transportation companies, colleges and other educational institutions are under the civil penalty regime. However, they might be prosecuted for other criminal offences, such as assisting unlawful Immigration to a member state (Ana Aliverti, 2013). The 2014 Act introduced a scheme called ‘deport first, appeal later’, and the 2016 Act extended such scheme to all migrants, that is unless the removal will cause ‘serious, irrelevant harm’ to the individuals, any migrant that has made human rights claim or asylum claim can now be removed from the UK while waiting for the outcome of their appeal against the decision to deport them, or even had a chance to appeal. In 2019, the supreme court ruled that ‘deport first, appeal later’ policy was unlawful because it deprived individuals of a practical appeal.
The UK authorities want to apply criminal law to control immigrants so that people would ‘fear to come into the country’. However, by relying on criminal law, the contemporary immigration policy has become a site of overcriminalization. Using criminal law offences to ensure the compliance of social harmony is a usual move for Britain; historically, criminal law has served functions relate to non-criminal law matters. (Husak, 2008; Lacey, 2004) Bosworth argues that there is a sub substantially difference between migrants and British domestic criminals, that is migrants are in a far more vulnerable position, and the immigration system does not share the same enforcement as the criminal justice system, there is no judicial oversight in the immigration system and no explicit restriction on the time when an asylum seeker is detained. ( Bosworth and Guild, 2008) All of the above put migrants into an unfair position when facing criminal law governed immigration system.
Furthermore, it is argued that the reasons for the government to apply criminal offences into immigration policy is to respond to the public’s pressure which is ‘to bring immigration under control’. (Ana, 2012) In order to achieve that, the government would assume ‘a punitive, hyperactive and consumer-appeasing political posture which typically glosses over the complexities of lay sensibilities towards crime in favour of simplistic, risk-averse and electorally satisfying readings of ‘public opinion” (Loader, 2009: 250). However, in practice, using criminal law to restrict illegal immigrants is highly politicized.
Some also argue that criminal law and punishment is supposed to be the most definite form of condemnation of a society, which should not be put to Immigration that harshly as it usually only contributes to minor crimes or victimless crime. () Andrew Duff(2010) pointed out that even if the government wants to use criminal law as expressing a ‘pre-rational ‘urge to punish, the issue can be constrained but cannot be eliminated(Playfair, 191). Therefore, using criminal offences in immigration policy seems like an immediate solution to control Immigration, but the real problem still could not be solved.
The abuse of using criminal law concerns people as well, because the abuse of using criminal law may become a norm. So far, the citizenship is becoming the subject of criminal law, the citizens are all at risk whether the criminal law would extend its power to other “rights” matters. (Bosworth, 2008)
Asylum seekers, refugees and members of ethnic minority groups are the main subjects in immigration policy and legislation. Especially after the repeat reports from media, which caused moral panic, the general public wants to see harsher legislation to control Immigration; therefore, asylum seekers, refugees are also the subjects to disclosure criminalization. (Calavita, 2005) According to Universal Declaration of Human Rights 1948 Article 14 and EU Charter Article 18, ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’, and ‘the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and following the Treaty establishing the European Community.
In UK, asylum seekers will only become refugee when Home Office declare that they are refugee. However, in practice, it is not as easy as they claimed, just like previously discussed, not only they are in a much vulnerable position, their claims are either not given enough consideration, or not thoroughly examined, or the seekers would end up in jail(Schuster, 2012). Asylum seekers without refugee status become ‘illegal’ immigrants. The word ‘illegal’ link them with other criminals, like burglars, rapists or any other serious crime that the public would assume any ‘illegal’ immigrants would commit.
The Criminal Case Review Commission found out that the asylum seekers and refugees are not being appropriately protected by criminal justice agencies, and it reflects more extensive anxiety about the negative influence of Immigration in general. The Commission reviewed the case of Kapoor ([2012] EWCA Crim 435; [2012] 1 WLR 3569; [2012] 2 Cr. App. R. 11), the result was that even when a person who has a successful claim, he or she can still be found guilty under s.2 2004 Act. The law requires those who have successfully claimed their status to keep their documents, or the 2004 Act allows the prosecution to those who not able to present their immigration documents at asylum interview. However, the famous Windrush Scandal shows that this method is not functioning as it supposed.
To conclude, too much reliance on criminal law for immigration policy is not as effective as it sounds. It is more of a political show-off to calm the general public than really estimate the issue and control immigrants; furthermore, it puts refugees and asylum seekers in an extremely vulnerable position and fail to protect them. The criminalization of immigration and the use of “illegal” would draw more hatred towards migrants, especially refugees and asylum seekers. In general, criminal law should not have such strong impact on immigration and it does not fit for its purpose.
