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Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
List of figures
List of tables
Notes on contributors
Acknowledgements
List of abbreviations
Introduction
Part I Immigration and crime
1 Immigration and crime
2 Understanding immigration, crime and victimization in the United States: patterns and paradoxes in traditional and new destination sites
3 Immigration and crime in Sweden
Part II Crime control, criminal justice and migration
4 Global policing, mobility and social control
5 Bordering citizenship in ‘an open and generous society’: the criminalization of migration in Canada
6 Immigration detention, punishment and the criminalization of migration
7 The incarceration of foreigners in European prisons
8 Reinventing ‘the stain’: bad character and criminal deportation in contemporary Australia
Part III The politics of migration, security and crime
9 Border militarization, technology and crime control
10 Deciphering deportation practices across the Global North
11 Surviving the politics of illegality
12 (Un)knowing and ambivalence in migration: temporary migration status and its impacts on the everyday life of insecure communities
13 Intuiting illegality in sex work
Part IV Migration, law and crime
14 The state’s contradictory response to the exploitation of immigrant workers: the UK case
15 Crimmigration: encountering the leviathan
16 Criminal immigration law and human rights in Europe
17 War crimes and asylum in Canada: reflections on the Ezokola decision and the barriers courts face in protecting refugees
Part V Crimes of mobility
18 Human smuggling facilitators in the US Southwest
19 Stopped in the traffic, not stopping the traffic: gender, asylum and anti-trafficking interventions in Serbia
20 Labour trafficking and illegal markets
21 Border trading and policing of everyday life in Hong Kong
22 Enclosing the commons: predatory capital and forced evictions in Papua New Guinea and Burma
Part VI Criminology and the border
23 Borders, crime and justice
24 Shifting borders: crime, borders, international relations and criminology
25 The criminology of mobility
Index
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‘A stunning, interdisciplinary, international collection of original work, this Handbook challenges the bright line that has been drawn between regular and irregular migration, criminals and victims, and security and mobility. Essential reading for anyone who wants to understand how and why the immigration threat has been produced as a political project, the book refocuses our attention on the devastating social and human costs associated with making people illegal. An absolutely foundational contribution to the development of a “criminology of mobility”.’ Nancy A.Wonders, Professor of Criminology and Criminal Justice, Northern Arizona University, USA ‘This path-breaking book is filled with empirical detail, regional diversity, theoretical insight and cutting-edge research on the changing role of criminal justice in the twenty-first century as it becomes enmeshed with the control of mobility, the criminalization of migration and border control.Taken together, the 26 chapters, written by internationally renowned experts in the field and the next generation, provide new answers and new conceptual tools to tackle the enduring dilemma of crime and immigration.While engaged with traditional debates within criminology, this volume opens up new terrain to show how the control of mobility itself tends to create crime, offering a fresh perspective on public policy that may not be easy to reform, but essential to realize.’ Vanessa Barker, Docent and Associate Professor of Sociology, Stockholm University, Sweden

The Routledge Handbook on Crime and International Migration

The Routledge Handbook on Crime and International Migration is concerned with the various relationships between migration, crime and victimization that have informed a wide criminological scholarship often driven by some of the original lines of inquiry of the Chicago School. Historically, migration and crime came to be the device by which criminology and cognate fields sought to tackle issues of race and ethnicity, often in highly problematic ways. However, in the contemporary period this body of scholarship is inspiring scholars to produce significant evidence that speaks to some of the biggest public policy questions and debunks many dominant mythologies about the criminality of migrants. This book is also concerned with the theoretical, empirical and policy knots found in the relationship between regular and irregular migration, offending and victimization, the processes and impact of criminalization, and the changing role of criminal justice systems in the regulation and enforcement of international mobility and borders. The Handbook is focused on the migratory ‘fault lines’ between the Global North and the Global South, which have produced new or accelerated sites of state control, constructed irregular migration as a crime and security problem, and mobilized ideological and coercive powers usually reserved for criminal or military threats. Offering a strong international focus and comprehensive coverage of a wide range of border, criminal justice and migration-related issues, this book is an important contribution to criminology and migration studies and will be essential reading for academics, students and practitioners interested in this field. Sharon Pickering is Professor of Criminology and Head of Social Sciences at Monash University, Australia. She is an Australian Research Council Future Fellow on Border Policing and Director of the Border Observatory (www.borderobservatory.org). Her work on publishing scholarly work on asylum in the national media was awarded the Australian Human Rights Award in 2012. Professor Pickering recently co-authored a book with Leanne Weber called Globalization and Borders: Deaths at the Global Frontier, which documented and analysed over 40,000 border-related deaths in Europe, North America and Australia. It recently won the C. M. Alder Prize for best book by the Australian and New Zealand Society of Criminology.

Julie Ham is a doctoral student in criminology at Monash University, Australia, and an associate of the Global Alliance Against Traffic in Women (GAATW). Her doctoral research explores how the regulation of sex work and migration shapes sex workers’ security, mobility and agency. Since 2003, she has worked with community-based research projects working with and for women in sex work, immigrant and refugee populations, women substance users, low-income populations and anti-violence organizations. She has published on the impact of anti-trafficking measures on sex workers’ rights, feminist participatory action research and activist efforts by trafficking survivors, sex workers and domestic workers.

The Routledge Handbook on Crime and International Migration

Edited by Sharon Pickering and Julie Ham

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 selection and editorial material, Sharon Pickering and Julie Ham; individual chapters, the contributors. The right of Sharon Pickering and Julie Ham to be identified as the editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data The Routledge handbook on crime and international migration / edited by Sharon Pickering, Julie Ham.—First Edition. pages cm.—(Routledge international handbooks) 1. Crime. 2. Emigration and immigration. 3. Race. I. Pickering, Sharon, editor of compilation. II. Ham, Julie. HV6025.R687 2014 364.3086'91—dc23 2014011306 ISBN: 978-0-415-82394-4 (hbk) ISBN: 978-0-203-38556-2 (ebk) Typeset in Bembo by Keystroke, Station Road, Codsall, Wolverhampton

Contents List of figures List of tables Notes on contributors Acknowledgements List of abbreviations Introduction Sharon Pickering and Julie Ham

xi xiii xv xxv xxvii 1

PART I

Immigration and crime 1

Immigration and crime Rebecca Wickes and Michelle Sydes

2

Understanding immigration, crime and victimization in the United States: patterns and paradoxes in traditional and new destination sites Marjorie S. Zatz and Hilary Smith

3

Immigration and crime in Sweden Amber L. Beckley, Johan Kardell and Jerzy Sarnecki

9 11

26

41

PART II

Crime control, criminal justice and migration

55

4

Global policing, mobility and social control Ben Bowling and James Sheptycki

57

5

Bordering citizenship in ‘an open and generous society’: the criminalization of migration in Canada Karine Côté-Boucher

75

vii

Contents

6

Immigration detention, punishment and the criminalization of migration Mary Bosworth and Sarah Turnbull

7

The incarceration of foreigners in European prisons Thomas Ugelvik

8

Reinventing ‘the stain’: bad character and criminal deportation in contemporary Australia Michael Grewcock

91

107

121

PART III

The politics of migration, security and crime 9 Border militarization, technology and crime control Dean Wilson

139 141

10 Deciphering deportation practices across the Global North Leanne Weber

155

11 Surviving the politics of illegality Francesco Vecchio and Alison Gerard

179

12 (Un)knowing and ambivalence in migration: temporary migration status and its impacts on the everyday life of insecure communities Claudia Tazreiter 13 Intuiting illegality in sex work Julie Ham

193

206

PART IV

Migration, law and crime

221

14 The state’s contradictory response to the exploitation of immigrant workers: the UK case Lea Sitkin

223

15 Crimmigration: encountering the leviathan Juliet P. Stumpf

237

16 Criminal immigration law and human rights in Europe Ana Aliverti

251

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Contents

17 War crimes and asylum in Canada: reflections on the Ezokola decision and the barriers courts face in protecting refugees Catherine Dauvergne

265

PART V

Crimes of mobility

273

18 Human smuggling facilitators in the US Southwest Gabriella Sanchez

275

19 Stopped in the traffic, not stopping the traffic: gender, asylum and anti-trafficking interventions in Serbia Sanja Milivojevic

287

20 Labour trafficking and illegal markets Marie Segrave

302

21 Border trading and policing of everyday life in Hong Kong Karen Joe Laidler and Maggy Lee

316

22 Enclosing the commons: predatory capital and forced evictions in Papua New Guinea and Burma Penny Green, Kristian Lasslett and Angela Sherwood

329

PART VI

Criminology and the border

351

23 Borders, crime and justice Doris Marie Provine and Marjorie S. Zatz

353

24 Shifting borders: crime, borders, international relations and criminology Jude McCulloch and Jacqui True

367

25 The criminology of mobility Sharon Pickering, Mary Bosworth and Katja Franko Aas

382

Index

397

ix

Figures 10.1 Deportations 2000–2011 in selected countries with clear upward trend 10.2 Deportations 2000–2011 in selected countries with clear downward trend 10.3 Deportations 2000–2012 in selected countries with variable trend 10.4 Deportations per 100,000 population (latest available year) 10.5 Deportations per 100,000 foreign-born population, 2010 10.6 Deportations per 100,000 estimated irregular population using 2010 deportation data 11.1 The humanitarian protection cycle 19.1 Map of Serbia showing Bogovadja 21.1 Poster showing the amount of milk powder permitted to be exported from Hong Kong

159 160 161 162 163 164 189 289 323

xi

Tables 4.1 7.1 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 10.1 10.2 10.3 10.4 10.5 10.6 10.7 18.1

The diffuse border Foreign nationals in European prisons, 28 EU countries Use of sections 201 and 501 of the Migration Act, 1998–2002 Visa cancellations under section 501 of the Migration Act 1958, 2003–13 Visa cancellation decisions under section 501 of the Migration Act 1958, 2006–13 Applicants to AAT by years resident in Australia AAT decision by offence division (Australian Standard Offence Classification) Convictions of section 501 visa cancellations in detention as at 7 May 2008 Applicants to AAT by major country group (Standard Australian Classification of Countries) AAT decision by Ministerial Decree (MD) No. 21 by years resident in Australia (where known) AAT decision by Ministerial Decree (MD) No. 41 by years resident in Australia (where known) AAT decisions by offence divisions, 2005–11 EU and bilateral return agreements Categories of expulsion included in deportation statistics for each country Deportation data gathered by researchers (as per Appendix 1) vs Eurostat returns data Eurostat data on third country nationals returned following an order to leave, annual data (rounded) Population figures (from national census and projections) Foreign-born and irregular populations Eurostat data on Dublin Convention transfers Demographics of smuggling subjects

66 111 127 127 128 128 128 129 129 131 131 132 168 170 171 172 173 174 175 279

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Contributors Katja Franko Aas is Professor of Criminology in the Department of Criminology and Sociology of Law, University of Oslo. She is author of The Borders of Punishment: Migration, Citizenship, and Social Exclusion (co-edited with M. Bosworth, Oxford University Press, 2013), Cosmopolitan Justice and its Discontents (co-edited with C. Baillet, Routledge, 2011), Technologies of Insecurity (co-edited with H. M. Lomell and H. O. Gundhus, Routledge, 2009), Globalization and Crime (Sage, 2007) and Sentencing in the Age of Information: From Faust to Macintosh (Routledge, 2005). She is currently leading an ERC-funded research project on the intersections of migration control and crime control. Ana Aliverti is Assistant Professor at the School of Law, University of Warwick. She holds a DPhil in Law (Oxford, 2011), an MSc in Criminology and Criminal Justice (Distinction, Oxford, 2008), an MA in Sociology of Law (IISL, 2005) and a BA in Law (Honours, Buenos Aires, 2002). Before joining Warwick, she was the Howard League Post-Doctoral Research Fellow (2012–13) in the Centre for Criminology at the University of Oxford and a Stipendiary Lecturer at Wadham College, Oxford. Ana’s research looks at the intersections between criminal law and criminal justice, on the one hand, and border regimes, on the other, and explores the impact of such intertwining on the national criminal justice institutions and on those subject to the resulting set of controls. She is the author of Crimes of Mobility: Criminal Law and the Regulation of Immigration, (Routledge, 2013), which draws on her research on the use of criminal law in the enforcement of immigration controls in the United Kingdom. This work scrutinizes the substantive criminal law expansion in this field and develops a principal critique to such criminalization trends through engaging with contemporary debates in criminal law theory. It also aims to generate new knowledge about practices of criminalization with a specific focus on immigration enforcement, prosecutorial decisions and the handling of immigration-related cases by criminal justice actors. Amber L. Beckley is a doctoral student in the Department of Criminology at Stockholm

University. Her dissertation research focuses on immigrant criminality in Stockholm. It considers the effect of war in the home country on violent offending, the effect of age at immigration on criminality and whether or not immigration policy can be an effective crime control tool. Mary Bosworth is Professor of Criminology at the University of Oxford and concurrently, Professor of Criminology at Monash University. She works on race, gender and citizenship in prisons and immigration detention. Her books include Engendering Resistance (1999), The US Federal Prison System (2002), Explaining US Imprisonment (2010) and, most recently, Inside

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Contributors

Immigration Detention (2014). She is currently leading a five-year European Starting Grant, ‘Subjectivity, Identity and Penal Power’. Ben Bowling has been Professor of Criminology and Criminal Justice at King’s College London since 1999. He was previously Assistant Professor at John Jay College of Criminal Justice, City University of New York, Senior Research Officer in the Home Office and lecturer at the University of Cambridge Institute of Criminology. He has been a visiting professor at the University of the West Indies; at Monash University, Melbourne; and at the East China University of Political Science and Law in Shanghai. Ben’s research examines practical, political and legal problems in policing and the connections between local and global police power. His work exploring central themes of fairness, effectiveness and accountability has been published in three recent books: Policing the Caribbean (Oxford University Press, 2010), Global Policing (with James Sheptycki, Sage, 2012) and Stop & Search: Police Power in Global Context (edited with Leanne Weber, Routledge, 2012), and in articles in Modern Law Review, Criminal Law Review, Policing and Society and Theoretical Criminology. His studies of Violent Racism (Oxford University Press, 1998) and Racism, Crime and Justice (with Coretta Phillips, Longman, 2002) are the standard works on these subjects. Karine Côté-Boucher is Assistant Professor in Security and Policing Studies at the School of Criminology and researcher at the International Center for Comparative Criminology, University of Montreal, Canada.Trained in sociology, anthropology as well as migration and refugee studies, she has been researching border security with a view to understanding contemporary practices of governing mobility. Based on her fieldwork at Canadian customs, her PhD dissertation ‘The micro-politics of border control: internal struggles at Canadian customs’ (2013) examines the dynamics of everyday border policing in land ports of entry. Her current research investigates the securing of the cross-border transportation industry in North America. She is co-editor of the special issue ‘Border Security in Practice’ in Security Dialogue (2014) and of a forthcoming article in Criminologie (2014). Karine has published in Surveillance and Society (2008) as well as in the edited collections Neoliberalism and Everyday Life (2010) and Mobilité(s) sous surveillance (2010). Catherine Dauvergne is a Professor of Law at the University of British Columbia and a Fellow of Canada’s Trudeau Foundation. She works in the areas of immigration and refugee law. She is both a tactical lawyer and a big-picture thinker, and her work shows a commitment to engagement at these scales. Her book Making People Illegal: What Globalization Means for Migration and Law (Cambridge University Press, 2008) is read and taught across disciplines and has been twice reprinted. Catherine has co-directed a number of large empirical studies of refugee decisionmaking around the world and has published three other books and more than fifty articles, chapters and law-review pieces. She is regularly involved in pro bono legal work for individuals and for refugee- and immigrant-serving organizations. She is also a frequent commentator on these issues for Canadian media. Her next book, entitled The End of Settler Societies and the New Politics of Immigration, will appear in 2015. Alison Gerard is Senior Lecturer in Justice Studies at Charles Sturt University, Australia. As a

lawyer she practised in corporate class actions and criminal law. Her latest book, The Securitisation of Migration and Refugee Women, documents and analyses the experiences of women who have travelled from Somalia to the EU to seek refugee protection. It is part of the Routledge series Criminal Justice, Borders and Citizenship. The book is based on her doctoral research, which attracted Monash University’s (2012) PhD prize for Political and Social Inquiry (Criminology), xvi

Contributors

and the Mollie Holman Doctoral Award. Dr Gerard’s wider research programme includes an analysis of intersections of gender, race and class including specific areas such as deaths in custody, sex work and ‘crimmigration’ practices in Australia. She is a contributor to the Border Observatory Project hosted by Monash University, Australia, and Border Criminologies hosted by Oxford University, UK. Her research has appeared in the British Journal of Criminology, the Journal of Refugee Studies and Criminology and Criminal Justice. Penny Green is Professor of Law and Criminology at King’s College London. She is the founder and Director of the International State Crime Initiative (ISCI), www.statecrime.org, an editor in chief of State Crime Journal and editor of the Howard Journal. She is a trustee of both the Howard League for Penal Reform and the Democratic Progress Institute (formerly the Kurdish Human Rights Project). She has written extensively on critical criminology with a focus on state crime and currently leads a large ESRC-funded comparative research project investigating civil society resistance to state violence and corruption. Her books include State Crime: Governments,Violence and Corruption (2004); Criminology and Archaeology: Studies in Looted Antiquities (2009), Drugs, Trafficking and Criminal Policy:The Scapegoat Solution (1998); Law and Outsiders: Norms, Processes and Othering (2010); and The Enemy Without: Policing and Class Consciousness in the 1984–85 Miners’ Strike (1992). Michael Grewcock teaches criminology and criminal law in the Faculty of Law, University of

New South Wales, Sydney. He is the author of Border Crimes: Australia’s War on Illicit Migrants (2009) and several chapters and articles on Australia’s border policing practices. He is a Chief Investigator on the Australian Deportation Project and a member of the Editorial Board of the journal State Crime. Julie Ham is a doctoral student in criminology at Monash University, Australia, and an associate

of the Global Alliance Against Traffic in Women (GAATW). Her doctoral research explores how the regulation of sex work and migration shapes sex workers’ security, mobility and agency. Since 2003, she has worked with community-based research projects working with and for women in sex work, immigrant and refugee populations, women substance users, low-income populations and anti-violence organizations. She has published on the impact of anti-trafficking measures on sex workers’ rights, feminist participatory action research and activist efforts by trafficking survivors, sex workers and domestic workers. Johan Kardell is a doctoral student in the Department of Criminology at Stockholm University

in Sweden. He holds a Bachelor of Science in Social Work from Stockholm University and a Licentiate degree in Criminology from Stockholm University. The theme of his dissertation is over-representation of individuals with a foreign background in the Swedish criminal justice system and one sub-theme is structural discrimination within the justice system. He is currently working as a controller with the Stockholm County police. Karen Joe Laidler is Professor of Sociology and Director of the Centre for Criminology at the University of Hong Kong. She has been involved in criminological research – applied and theoretical – in the US and Hong Kong. In the US, her interest in the articulation of gender and ethnicity in gangs dates back to the late 1980s. She continues to publish in this area, focusing especially on violence and drugs. In Hong Kong, her research has focused on the sex work industry, and changes in the drug market, especially the rise of, and problems associated with, psychotropic drugs, and generational differences among heroin users.

xvii

Contributors

Kristian Lasslett is a Lecturer in Criminology at the University of Ulster. He has published widely on state and corporate crime in leading scholarly journals and edited volumes. Kristian’s first book, State Crime on the Margins of Empire (Pluto Press), is forthcoming. He is co-founder of the International State Crime Initiative (ISCI) and sits on its Executive Board. Kristian is editor of ISCI’s online digital platform, the State Crime Testimony Project, and joint editor-in-chief of the initiative’s scholarly journal State Crime. Maggy Lee is Associate Professor in the Department of Sociology at the University of Hong

Kong and Visiting Fellow in the Department of Sociology at the University of Essex, United Kingdom. She is the Principal Investigator on a number of research projects, including the Fear of Crime in Hong Kong (funded by the Hong Kong Research Grants Council), British lifestyle migration in Asia (funded by the ESRC/Hong Kong Research Grants Council) and female transnational migrants in Hong Kong (funded by the University Grants Committee, Hong Kong). Her recent books include Trafficking and Global Crime Control (Sage, 2011) and Human Trafficking (Willan, 2007). Jude McCulloch is Professor of Criminology at Monash University, Australia. Her research focuses on state violence and state crime. She has published more than sixty chapters and journal articles, and five books, edited special editions of journals and written for major newspapers and magazines. She currently serves on the editorial boards of Current Issues in Criminal Justice, State Crime and Critical Studies on Terrorism. Her research and publishing span police shootings, counter-terrorism laws and policing, neoliberalism and the war on terror, (in)security and precrime. Her major contribution has been to describe, analyse and theorize the growing integration of national security and internal security and the police and military under conditions of neoliberal globalization. Her latest books are State Crime and Resistance (eds Elizabeth Stanley and Jude McCulloch) and Borders and Crime (eds Jude McCulloch and Sharon Pickering). Her book (with Sharon Pickering and Dean Wilson) Pre-Crime: Pre-emption, Precaution and Future Crime will be published by Routledge in 2015. Sanja Milivojevic is a Lecturer in Criminology at University of New South Wales, School of Social Sciences, Australia. Sanja holds an LL.B and LL.M from Belgrade University’s Law School, and a PhD from Monash University. Her research interests are trafficking in people and transnational crime, borders and mobility, security technologies, surveillance and crime, sexting, gender and victimization, and international criminal justice and human rights. Sanja has worked as a researcher on various projects with the Institute for Criminological and Sociological Research in Belgrade and Victimology Society of Serbia. She is a recipient of national and international grants including the Criminology Research Council’s grant for a project on young people and sexting (with Associate Professor Murray Lee, Associate Professor Thomas Crofts, Dr Alyce McGovern and Dr Michael Salter). Sanja is a NSW representative on the Australian and New Zealand Society of Criminology’s Committee of Management and an editorial board member for journals Temida (Serbia) and The Human Rights Defender (Australia). She has been a visiting scholar at Belgrade University’s Faculty for Special Education and the University of Zagreb Law School (2013) and a Public Interest Law Fellow at Columbia University’s Law School (2001–2). Sanja has participated in over 30 international and domestic conferences and has published in English and Serbian. Her latest book, Sex Trafficking: International Context and Response with Dr Marie Segrave and Professor Sharon Pickering, has been published by Willan Publishing.

xviii

Contributors

Sharon Pickering is a Professor of Criminology and Head of Social Sciences at Monash

University, Australia. She is an Australian Research Council Future Fellow on Border Policing and Director of the Border Observatory (www.borderobservatory.org). Her work on publishing scholarly work on asylum in the national media was awarded the Australian Human Rights Award in 2012. Her books include Sex Work: Labour, Mobility and Sexual Services (with Maher and Gerard) (2012); Borders and Crime (with McCulloch) (2012); Gender, Borders and Violence (2010); Sex Trafficking (with Segrave and Milivojevic) (2009); Counter-Terrorism Policing (2008); Borders, Mobilities and Technologies of Control (with Weber) (2006); and Refugees and State Crime (2005). Most recently she has co-authored with Leanne Weber Globalization and Borders: Deaths at the Global Frontier, which documented and analysed over 40,000 border-related deaths in Europe, North America and Australia. It recently won the C. M. Alder Prize for best book by the Australian and New Zealand Society of Criminology. Doris Marie Provine is Professor Emerita of Justice and Social Inquiry in Arizona State University’s School of Social Transformation. She is a graduate of the University of Chicago and received her law degree (JD 1971) and PhD in Government (1978) from Cornell University. Her career includes a long tenure at Syracuse University as professor, and then chair of the Department of Political Science in the Maxwell School; two years of service as a Judicial Fellow assigned to the Federal Judicial Center in Washington, DC; a two-year appointment to direct the Law & Social Sciences Program at the National Science Foundation in Washington and overseas teaching in Strasbourg, France, Madrid, Spain and Geneva, Switzerland. In 2001 she came to Arizona State University to direct the School of Justice Studies. Provine is the author or co-author of eight books, including most recently, with Marjorie Zatz and James Walsh, Law and the Quest for Justice (Quid Pro Books, 2013), Perspectives on Justice, with four graduate-student co-authors (Kendall Hunt, 2010, 2011) and Unequal under Law: Race and the War on Drugs (University of Chicago Press, 2007). Her chapters appear in twenty books. Among her recent peer-reviewed articles are: ‘Immigrants and Civil Rights in Cross-National Perspective: Lessons from North America’, with Irene Bloemraad in the inaugural issue of the Journal of Comparative Migration Studies 1(1): 2013, and ‘Why Do (Some) City Police Departments Enforce Immigration Law? Political, Demographic, and Organizational Influences on Local Choices’, with co-authors Decker, Lewis and Varsanyi, in Journal of Public Administration 23(1): 2013. Her current research focuses on policy dilemmas surrounding unauthorized immigration and racial stigma in the American system of justice. Gabriella Sanchez is a postdoctoral research fellow at Monash University’s Border Crossing Observatory. A graduate of Arizona State University’s School of Justice and Social Inquiry, she has conducted extensive fieldwork on human smuggling operations along the US-Mexico Border and in North Africa, the Middle East and Australia. She is the author of Border Crossings and Human Smuggling (Routledge, 2014) and of multiple reports on human smuggling, human trafficking and transnational organized crime. Jerzy Sarnecki has a PhD in Sociology and is Professor in General Criminology at Stockholm University and Professor of Criminology at the University in Gävle. He is past President of the Scandinavian Research Council for Criminology, past Head of Investigation Unit at the Swedish National Council for Crime Prevention and past Head of Department of Criminology at Stockholm University. He is the author of numerous books and articles on delinquent networks; studies on juvenile delinquency, police efficiency and bureaucracy; and textbooks

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Contributors

in criminology. His latest book is about his father’s life story under Nazism and Communism. Sarnecki is director of ‘The Stockholm Life Course Project: Life Courses & Crime in the Swedish Welfare State Through Half a Century’. He serves as an expert on several scientific panels and committees in Sweden and internationally. He is also a member of the Scientific Council for the Swedish National Council for Crime Prevention, the Swedish Prison and Probation Service and Ethical Review Board. Sarnecki is co-chairman of the Jury for the Stockholm Prize in Criminology. Marie Segrave’s main research focus has been the area of human trafficking and migrant labour

exploitation, with additional work in the area of policing and victimization and women’s imprisonment and post-release survival. Her work in the area of human trafficking is part of a small but growing analysis of the impact of the policy response to human trafficking and labour exploitation that questions the design and enforcement of counter-trafficking efforts. Her research highlights the interconnection between border regulation, migration, labour demands and exploitative practices. Marie’s recent publications include Human Trafficking (Ashgate 2013), Women Exiting Prison: Critical Essays on Gender, Post-Release Support and Survival (editor, with Bree Carlton, Routledge, 2013) and Sex Trafficking: International Context and Response with Sanja Milivojevic and Sharon Pickering (2009, Willan). James Sheptycki is Professor of Criminology at York University, Toronto, Canada. He has been

a research fellow in the School of Law at Edinburgh University and a lecturer in criminology at Durham University, during which time he conducted research on transnational policing in Europe and intelligence-led policing in the UK. Some of this research was published as a book in 2002, entitled In Search of Transnational Policing (Ashgate). He has since published widely on criminological topics including organized crime, money laundering, transnational policing and comparative criminology. In 2005–6 he was a visiting Research Scholar at the Centre for Criminology at the University of Toronto, after which he published a book, co-edited with Andrew Goldsmith, entitled Crafting Transnational Policing (Hart, 2007). In 2008, he hosted an international workshop on guns, crime and social order at York University. Some of the results of this workshop were published in a special issue of the journal Criminology and Criminal Justice (Vol. 9, No. 3, 2009, edited by Adam Edwards and James Sheptycki). In 2011, he published a collection of his essays in a book entitled Transnational Crime and Policing: Selected Essays in the Ashgate Pioneers in Contemporary Criminology series. In 2012, he was a visiting Research Fellow at the Centre for Criminology at Oxford University. In that same year he published a book entitled Global Policing (Sage), written with Ben Bowling. Angela Sherwood is a PhD Candidate in Law at King’s College London. She holds an

MSc in Criminology and Criminal Justice from the University of Oxford, and has conducted research on humanitarian crises and forced migration in Asia, Africa and the Caribbean for the IOM, United Nations and other non-profit research institutions. Angela’s academic work examines violations of social and economic rights and their relationship to practices of spatial exclusion and forced displacement, engaging a critical legal perspective on human rights norms and the governance of land in post-crisis situations. In particular, her scholarship explores displacement dynamics and rights discourses in urban spaces, and the consolidation of claims, power and authority relating to land during times of transition and postcrisis settlement. Her research interests and other work also cover themes on border criminologies and the geopolitics of migration control; postcolonialism and social resistance; and the political economy of forced evictions. Over the course of her doctoral studies, Angela has pursued xx

Contributors

fieldwork in Port-au-Prince, Haiti, and her PhD thesis is tentatively entitled ‘Displacement to the New Frontier: A Study of Informal Land Settlement and Economic Redress in Post-disaster Haiti’. Lea Sitkin is currently completing her DPhil in Criminology at the University of Oxford. Her ESRC-funded thesis analyses the ‘criminalization’ of immigration law and migration control; the ways in which immigration status – in interaction with labour law and welfare policy – leaves immigrants particularly vulnerable to workplace exploitation; and finally, how and why countries vary along these dimensions. In particular, the thesis compares the UK (a liberal market economy) with Germany (a coordinated market economy), asking how immigrants are constructed as vulnerable workers in different ways in the two contexts. Finally, the thesis examines the effects of immigration on the institutions that differentiate coordinated industrial relations from liberal industrial relations, focusing on the construction industry. Outside of the doctoral thesis, her research focuses on comparative studies of punitiveness, including a project looking at the generalizability of Wacquant’s Punishing the Poor to the European context and another examining the political-institutional roots of hyper-incarceration across America. Hilary Smith is Assistant Professor of Sociology at the University of Colorado, Colorado Springs. She received her PhD in Justice Studies from Arizona State University in 2008. Her research interests include youth homelessness, violence against women and girls, juvenile court processes and immigration policy. Her work has appeared in Criminology, the Annual Review of Law and Social Science, The Annals of the American Academy of Political and Social Science and American Behavioral Scientist. Juliet P. Stumpf is a Professor of Law at Lewis & Clark Law School in Portland, Oregon. Her research explores the intersection of immigration law with criminal law, constitutional law, civil rights and employment law. She seeks to illuminate the study of immigration law with interdisciplinary insights from criminology, political science, psychology and sociology. She is a founding member of CINETS, a transnational, interdisciplinary network of crimmigration scholars (www.crimmigrationcontrol.com). She serves on the Advisory Boards of the Border Criminologies group at Oxford University and the Oregon Justice Resource Center in Portland, Oregon. Representative publications include ‘The Process is the Punishment in Crimmigration Law’, in The Borders of Punishment: Criminal Justice, Citizenship and Social Exclusion (Mary Bosworth & Katja Aas, eds, 2013); ‘Doing Time: Crimmigration Law and the Perils of Haste’, 58 UCLA L REV. 1705 (2011); ‘Fitting Punishment’, 66 WASH & LEE L. REV. 1683 (2009); ‘States of Confusion: the Rise of State and Local Power over Immigration,’ 86 N.C. L. REV. 1557 (2008); and ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,’ 56 AM. U. L. REV. 367 (2006). Before joining the Lewis & Clark Law School faculty in 2005, Professor Stumpf was on the Lawyering Program faculty at the New York University School of Law. She is a former law clerk to the Hon. Richard A. Paez of the U.S. Court of Appeals for the Ninth Circuit, served as a Senior Trial Attorney in the Civil Rights Division of the U.S. Justice Department, and practised with the law firm of Morrison and Foerster. Stumpf graduated cum laude from Georgetown University Law Center. Michelle Sydes is a PhD student at the School of Social Science at the University of Queensland (UQ) in Brisbane, Australia. She has a first-class honours degree in Criminology from UQ and was the recipient of the UQ John Braithwaite Prize in 2013. Her academic interests centre

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Contributors

around urban criminology with particular focus on the relationship between immigration and crime and the neighbourhood contexts associated with reports of hate crime. Claudia Tazreiter is a senior lecturer in Sociology at the University of New South Wales, Australia. Her research focuses on forced and irregular migration, human rights, the role of non-governmental organizations in social change and gendered forms of violence. She is the author of Asylum Seekers and the State: The Politics of Protection in a Security-Conscious World and co-editor of Globalisation and Social Transformation in Two Culturally Diverse Societies: The Australian and Malaysian Experience (with Tham Siew Yean). She is currently Managing Editor of The Australian Journal of Human Rights and is an associate of the Australian Human Rights Centre. Jacqui True is Professor of Politics and International Relations in the School of Social Sciences

at Monash University, Australia. Her research interests include sexual and gender-based violence in international relations, critical international political economy, global governance and gender, and feminist research methodologies. She is the author of Globalization, Gender and Post-Socialism (Columbia University Press, 2003), co-author of Doing Feminist Research in Political and Social Science (Palgrave 2010, with Brooke Ackerly), Theories of International Relations (Palgrave, 1996, 2001, 2005, 2009) and co-editor of Feminist Methodologies in International Relations (Cambridge, 2006). She recently published The Political Economy of Violence Against Women in the Oxford Gender and International Relations Series (2012), which won the American Political Science Association’s 2012 biennial prize for the best book in human rights and the British International Studies Association 2013 International Political Economy book prize. Sarah Turnbull is a Postdoctoral Research Fellow with the Centre for Criminology, University

of Oxford. Her postdoctoral research examines immigration detention and deportation in the United Kingdom, with specific focus on the experiences of confinement and removal in relation to affective issues of home, belonging and identity in postcolonial, multicultural Britain. Sarah has published articles on punishment in Canada and is currently completing a book entitled Parole in Postcolonial Canada: Gender and Diversity in the Federal System. Thomas Ugelvik is a postdoctoral research fellow at the Department of Criminology and

Sociology of Law at the University of Oslo. He has published in Ethnography, European Journal of Criminology, Punishment & Society and Qualitative Inquiry. He is series editor (with Ben Crewe and Yvonne Jewkes) of the Palgrave book series Studies in Prisons and Penology. His research interests include prisoner culture, forms of everyday power and resistance in prison, and prison masculinities. He is currently working on a study, funded by the European Research Council, of Norway’s only prison dedicated solely to foreign prisoners and its single closed immigration detention centre. Francesco Vecchio is a post-doctoral research fellow at Charles Sturt University, Australia, where

he researches mixed migratory movements and irregular border-crossing. He completed a PhD in Criminology at Monash University in 2012, focusing his research on the illegalization of asylum seekers in Hong Kong. This research forms the core of his book Asylum Seeking and the Global City (2014, forthcoming). Francesco is also a collaborator at the Fondazione ISMU, Italy, an independent scientific organization developing research with a focus on international migration and social cohesion, and aids the research objectives of Hong Kong-based, nongovernmental organization Vision First. xxii

Contributors

Leanne Weber is Senior Research Fellow in the School of Social Sciences at Monash University, Melbourne, Australia. She researches policing and border control using criminological and human rights frameworks. Her books include Globalization and Borders: Death at the Global Frontier (Palgrave Macmillan, 2011, with Sharon Pickering), Stop and Search: Police Power in Global Context (Routledge, 2013, with Ben Bowling) and Policing Non-Citizens (Routledge, 2013). Rebecca Wickes received her PhD in November 2007. She is currently an ARC Research Fellow and a Senior Lecturer in Criminology at the School of Social Science, University of Queensland in Brisbane, Australia. She is also an Associate Investigator with the ARC Centre of Excellence in Policing and Security (CEPS). Using quantitative and qualitative methods, her focus is on demographic changes in urban communities and their influence on social relationships, community regulation, crime and disorder over time. She is the director of the Australian Community Capacity Study, a multimillion, multisite, longitudinal study of place. She has published substantive works in Criminology, Journal for Research in Crime and Delinquency, Plos One, The Sociological Review and the Journal for Urban Affairs. Rebecca is a regular reviewer for the Australian Research Council, the National Science Foundation and several leading journals such as Criminology, Journal for Research in Crime and Delinquency, Journal of Quantitative Criminology and Urban Studies. Dean Wilson is Reader in Criminology and Criminal Justice at Plymouth University, UK. He

has published widely in the areas of surveillance, border control, technology and security, and on the history of policing and criminal justice. He recently co-edited a special edition of the journal Theoretical Criminology entitled ‘Theorizing Surveillance in Crime Control’ and was a joint editor of the book Surveillance, Crime and Social Control (with Clive Norris, 2006). He is a Director of the International Surveillance Studies Network and an Associate Editor of the journal Surveillance & Society. Marjorie S. Zatz is Vice Provost and Graduate Dean and Professor of Sociology at the University of California, Merced, and Professor Emerita of Justice and Social Inquiry in Arizona State University’s School of Social Transformation. She recently completed a two-year term as Director of the Law and Social Sciences Program at the National Science Foundation. She received her Ph.D. in 1982 from Indiana University, Bloomington, in sociology, with a minor in Latin American Studies. Zatz has published five books and more than 60 articles and chapters on: race, gender and juvenile and criminal court processing; immigration policy; Chicano gangs; and the Cuban and Nicaraguan legal systems. Her publications include Law and the Quest for Justice (2013, with Doris Marie Provine and James P. Walsh, Quid Pro Books), Punishing Immigrants: Policy, Politics and Injustice (2012, with Charis Kubrin and Ramiro Martinez, NYU Press), Images of Color, Images of Crime (third edition 2006 with Coramae Richey Mann and Nancy Rodriguez, Oxford University Press), Producing Legality: Law and Socialism in Cuba (Routledge, 1994) and Making Law:The State, the Law, and Structural Contradictions (with William Chambliss, 1993, Indiana University Press). She is the recipient of numerous awards including the American Society of Criminology’s Herbert Block Award, the American Society of Criminology Division on Women and Crime’s Senior Scholar Award, the American Society of Criminology’s Division on People of Color and Crime’s Lifetime Achievement Award, and the Western Society of Criminology’s W. E. B. DuBois Award for Research on Race and the Administration of Justice and Paul Tappan Award for Outstanding Contributions to Criminology.

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Acknowledgements We are grateful for the fine scholarship of the contributors and their responsiveness to understanding Crime and International Migration across a range of contexts and using various methodological and disciplinary approaches.Tom Sutton and Heidi Lee at Routledge have been supportive and engaged with the project from inception. The cover image is part of a 12-poster series created through collaboration between the Cross Border Collective and individuals and groups whose lives are affected by borders. The process of initiating collaboration with campaigns and groups that do not all primarily see themselves as immersed in border politics was part of our broader intent to encourage conversations about the intersecting ways that the border shapes different arenas of social life. It was also about trying to find a political axis along which our commonality might form the basis for collective action. The full series can be viewed at www.crossbordersydney.org. We would particularly like to pay tribute to all the scholars who work with us at Monash University and particularly to the work of the Border Observatory. They provide a rich and diverse scholarly community that is well engaged with the work of policymakers and advocates as we seek to produce independent research capable of supporting more informed and inclusionary futures. Thanks go to the Joint Standing Committee on Migration for allowing us to reproduce Table 8.6, which originally appeared in their report entitled Inquiry into immigration detention in Australia: A new beginning – Criteria for release from Detention. Thanks also to Taylor & Francis for granting permission to reproduce quotes from Francesco Vecchio’s forthcoming book Aslyum Seeking and the Global City (2014) and a table that featured in Policing and Society (2004).

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Abbreviations AAT ACAD ACTU AFP AGO AIC AMERIPOL ASEANAPOL ASOC ATDs ATS CBP CBSA CIC CJEU CoE CPT CSO DRC DSS ESRC EU EURODAC EUROSUR FBI FCC FSC GA GCHQ HM HMP HMRC ICCC ICE ICRMW

Administrative Appeals Tribunal of Australia academia Australian Council of Trade Unions Australian Federal Police Auditor General’s Office Australian Institute of Criminology Comunidad de Policías de América Association of South East Asian Nations Police Chiefs Australian Standard Offence Classification alternatives to detention Air Transport Squadron US Customs and Border Protection Canada Border Services Agency Citizenship and Immigration Canada Court of Justice of the European Union Council of Europe European Committee for the Prevention of Torture civil society organization Democratic Republic of Congo Department of Social Services (UK) Economic and Social Research Council European Union European Dactyloscopy (European fingerprint database) European Border Surveillance System Federal Bureau of Investigation Five Country Conference FRONTEX Situation Centre governmental agency Government Communications Headquarters Her Majesty’s Her Majesty’s Prison Her Majesty’s Revenue and Customs Independent Consumer and Competition Commission Immigration and Customs Enforcement International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families xxvii

Abbreviations

IHC IIRIRA ILO INGO INS IOM IPE IR IRB IRCA IRCs IRPA IT ITF JFT LDC LIC LTTE MD MP NAPs NATO NCA NCB NCCs NGO NHC NHS NSA OECD PAC PHAR PHDC PNG RABIT RALON RCMP RFID RMA RPNGC SACC SARPOL SBI SEPCA SEZ SIVE TALOS TCO xxviii

immigration holding centre Illegal Immigration Reform and Immigrant Responsibility Act International Labour Organisation international non-governmental organisation or agency Immigration and Naturalization Service International Organisation for Migration international political economy international relations Immigration and Refugee Board Immigration Reform and Control Act Immigration Removal Centres Immigration and Refugee Protection Act information technology Immigration Task Force Joint Task Force Least Developed Country Low Intensity Conflict Liberation Tigers of Tamil Eelam or ‘Tamil Tigers’ Ministerial Decree Member of Parliament National Action Plans North Atlantic Treaty Organization National Crime Agency National Central Bureaux National Coordination Centres non-governmental organisation or agency National Housing Corporation National Health Service National Security Agency Organization for Economic Co-operation and Development Public Accounts Committee Paga Hill Arts Resistance Paga Hill Development Company Papua New Guinea Rapid Border Intervention Teams Risk and Liaison Officers Network Royal Canadian Mounted Police radio-frequency identification Revolution in Military Affairs Royal Papua New Guinea Constabulary Standard Australian Classification of Countries Southern African Regional Police Organisation Secure Border Initiative Southeast Europe Police Chiefs Association Special Economic Zone Sistema Integrado de Vigilancia del Estrecho Transportable Autonomous patrol for Land border surveillance transnational criminal organization

Abbreviations

TIP TOC TSETT UAVs UCATT UCR UK UKBA UMEHL UNHCR UNPOL US USA WPS

trafficking in persons transnational organized crime Transnational Sexual Exploitation and Trafficking Teams Unmanned Aerial Vehicles Union of Construction, Allied Trades and Technicians uniform crime reporting United Kingdom United Kingdom Border Agency Union of Myanmar Economic Holdings Ltd United Nations High Commissioner for Refugees United Nations Police Division United States United States of America UN Women, Peace, Security Agenda

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Introduction Sharon Pickering and Julie Ham

The Routledge Handbook on Crime and International Migration is concerned with the theoretical, empirical and policy knots found in the relationship between regular and irregular migration, offending and victimization, the processes and impact of criminalization, and the changing role of criminal justice systems in the regulation and enforcement of international mobility and borders. The Handbook is focused on the migratory ‘fault lines’ between the Global North and Global South, which have produced new or accelerated sites of state control, constructed irregular migration as a crime and security problem, and mobilized ideological and coercive powers usually reserved for criminal or military threats. Those seeking a traditional, disciplinary contained account of regular migration and criminal offending will be bitterly disappointed with this Handbook. For this Handbook begins with the most cutting-edge research on immigration and criminal offending to launch into an interdisciplinary exploration of how irregular migration has come to be produced and responded to as a criminal threat and the implications of this global trend. That is a shift from studying the immigrant as criminal, to irregular immigration as a criminal threat. The latter is increasingly tied up with territoriality, sovereignty, national security and the ungovernability of global migration. Criminology has been concerned with the nexus between crime and migration for over a century – in fact, it is one of its most enduring concerns or arguably foundational stories. The various relationships between migration, offending and victimization have informed a wide criminological scholarship that is often driven by some of the early lines of inquiry of the Chicago School. Moreover, the nexus between migration and crime came to be the device by which criminology as a discipline sought to tackle issues of race and ethnicity, historically often in highly problematic ways. In the contemporary period, this body of work is producing significant evidence that speaks to some of the biggest public policy questions and debunks many dominant mythologies about the criminality of migrants. Part I of the Handbook captures some of this important work, invaluable to the next generation of scholars and policymakers alike. At the same time, under conditions of globalization irregular migration has come to be constructed and responded to as one of the most pressing national and international criminal problems. Often entangled with concerns over global terrorism, increasing government and

Sharon Pickering and Julie Ham

supra-government concern with irregular mobility has generated new legal, political, social and criminal justice responses that have far-reaching impacts in terms of global mobility, human rights and the rule of law. The Handbook specifically traces many of these impacts and considers them for diverse groups, across a range of locations, cultures and polities. The chapters also consider the scholarly implications for understanding these far-reaching impacts – especially the need to draw on the concepts and methods of allied disciplines. Each chapter in the Handbook considers the historical antecedents of their focus within the theoretical and empirical traditions of criminology and cognate fields. Recognizing the highoctane political debates about migration and crime in so many parts of the world, authors have considered both the theoretical and empirical dimensions of the problem, recognizing the important contribution of independent scholarship to improving public policy debate. But each and every chapter does not neatly reside within one discipline or another, recognizing the inherent interdisciplinarity of the study of migration and crime with a range of fields that greatly improve the criminological gaze, including law, politics, international relations, sociology, history, gender studies, critical race studies and demography. Unsurprisingly, a central theme running through the Handbook is the extent, nature and implications of the merging of administrative (migration) and penal (criminal justice) pillars of the state identifiable across the world. Similarly, there can be no informed scholarly account of migration and crime that does not carefully consider the race- and gender-related dimensions of global mobility and its criminalization. Necessarily, the Handbook includes accounts from across the world including Hong Kong, China, Papua New Guinea, Burma, the Pacific Islands, Europe, Mexico, Canada, Australia, Indonesia, the US, the Middle East, North Africa and Scandinavia. The Handbook is divided into six Parts: immigration and crime; crime control, criminal justice and migration; the politics of migration, security and crime; migration law and crime; crimes of mobility; and criminology and the border.

Part I Immigration and crime Part I considers the Chicago School-inspired focus on the relationship between immigration and crime. This relationship, often unhelpfully simplified by media and policy assumptions that immigration drives crime, has been subject to increasingly rigorous investigation. This section includes contributions from Australia, North America and Europe, where public and policy attention to immigration and crime has had far-reaching consequences for the quality of public debate and policy development. Chapter 1 by Rebecca Wickes and Michelle Sydes highlights the significant consequences of the perceived immigration-crime association. They consider historical criminological work that indicated immigration led to measurable increases in crime and argue that the emerging international scholarship does not provide evidence that increased immigration leads to high crime rates. Drawing on a range of research, including Australian-based studies, they innovatively consider the immigration-crime association by considering immigrants as perpetrators and the impact of immigration on crime in cities and communities. They find little or no differences in offending between immigrants and native-born citizens and moreover advance the work of Sampson (2008: 30), who has found that cities of concentrated immigration ‘are some of the safest places around’. Future immigration and crime study needs more nuanced approaches to understanding the impact of immigration diversity on crime. The fear of crime has underpinned public and scholarly investigation of immigration and crime. In Chapter 2, Marjorie Zatz and Hilary Smith consider immigration, crime and 2

Introduction

victimization in the US. Like Wickes and Sydes, they consider research that has repeatedly shown that immigration is associated with a decrease in crime. Their work is attentive to whether and how the relationship between immigration and crime varies across traditional and new destination sites. But they then bring in an important, and related, question – the relationship between immigration and victimization and how this relationship may be patterned across new and traditional destination sites. Their survey squarely locates the victimization and vulnerability of immigrants within the moral panic about immigration and crime that contributed to a surge in state and local anti-immigrant laws and ordinances, especially in new destination sites. When Part I turns its gaze to Europe, it does so by specifically considering a Scandanavian case study – Sweden. In Chapter 3, Beckley, Kardell and Sarnecki consider the causes of immigrant criminality, including the provocative question of whether this should even be studied and note the caution with which it should be approached. Importantly, this chapter considers the dearth of data on ethnicity as a key weakness of many studies on immigrant crime. It charts the waves of research which have advanced results as to the prevalence and over-representation of immigrants in offending groups over time, and the waves of research which have disputed these results. Despite Sweden’s transition from a homogeneous to a multicultural society, the authors conclude that the over-representation of immigrants in offending groups has remained stable and depends mostly on Sweden’s reaction to and reception of immigrants. It is from this point that Part II leads off – criminal justice responses to migration.

Part II Crime control, criminal justice and migration The focus of this section is on the role of criminal justice institutions in responding to regular and irregular migration. Criminal justice systems and institutions are increasingly being involved in responding to irregular migration and pre-empting, constructing and responding to the ‘legality’ of persons within a jurisdiction. Part II examines how this is occurring in a range of locations internal and external to the territorial nation state and focuses on policing, imprisonment and deportation practices. In Chapter 4, ‘Global policing, mobility and social control’, Ben Bowling and James Sheptycki tease out the relationship between the global growth of transnational policing and the surveillance and control of human migration in general and suspect populations in particular. Race, class and ethnicity are highlighted in their historical account of migration policing and population movement. Under conditions of neoliberalism, economic globalization has increasingly shaped the role and purpose of policing undesirable mobility. The architecture of global policing implicates not only traditional transnational activities but also the increasingly transnational nature of offences and policing practices historically constrained to the local. As part of this turn, the policing of migration has moved from a primarily administrative to a crime control task – especially at the borders of nation states. Customs officials have historically maintained a front-line role in the administration of borders. However, their hybrid status – somewhere between civilian and military, law enforcement and administration – has meant they have been traditionally overlooked in their roles of border policing. In Chapter 5, Karine Côté-Boucher is remedying this with her study of Canadian Customs. She argues that exclusionary bordering strategies intersect with the domestic criminalization of migration and produce irregularity and migrant vulnerability. Yet at the same time, for settler societies, there is an ongoing demand for immigration, which generates a series of paradoxes to be resolved. Her chapter charts the effects of bordering classifications upon migrants but also considers how these classifications are still relied upon to 3

Sharon Pickering and Julie Ham

represent Canada as an ‘open and generous society’. She argues that successful border control depends on clear exceptions to increasingly exclusionary logics of border control. Incarceration of one sort or another is a growing feature of state responses to non-citizen offenders as well as to irregular migration. Immigration detention, while often overlooked by criminological study, is increasing across the Global North. Mary Bosworth and Sarah Turnbull, in Chapter 6, tackle questions of its purpose, justification and legitimacy by grounding it in empirical research with those detained (and those charged with detaining non-citizens). While the challenges of undertaking precisely this kind of empirical research are considered in Part VI of the Handbook, their consideration in this chapter makes a cogent argument for closer examination of the penal logics and practices used to control unwanted global mobility. In Chapter 7, Thomas Ugelvik considers the increasing incarceration of foreigners in European prisons and the impact on individuals, prison regimes and home countries. This chapter is at the intersection of migrant offending and punishment and the use of criminal and penal powers in response to irregular migration. Within the context of global social change and in particular relations between western European penal systems (with larger and growing foreign national populations) and eastern European penal systems (with relatively small foreign national populations), Ugelvik highlights the challenges of this changing imprisonment profile and an increasing reliance on (and frustration with) on deportation. Michael Grewcock, in Chapter 8, makes a close study of the deportation of noncitizen criminal offenders. Using Australia as a case study he considers the transportation of criminal offenders to Australia in the nineteenth century (a foundational national story) and the contemporary deportation of criminal offenders from Australia. He argues that the deportation of convicted offenders represents the transformation of legal subjects into criminal outsiders with no claim within civil society, and is increasingly part of border control regimes.

Part III The politics of migration, security and crime The politics of migration and security have become increasingly visible and in many nations of the Global North have become a defining national political issue. This has had repercussions for individuals and communities, particularly experiences of belonging and exclusion. It has also had repercussions for the ways different sites, both internal and external to the nation state, have come to be emblematic – symbolically and physically – of the politics of migration as a site for control and exclusion This section is concerned with the ways in which irregular mobility has become the site of significant ideological and political work that creates conditions of precarious migration, such that irregular migrants experience greater vulnerability and exercise greater resistance to the state’s coercive powers performed under migration law. The response to irregular migration has not simply mobilized and transformed criminal justice responses, but it has also drawn on the ideologies and coercive capabilities of states and supra-state bodies. In Chapter 9, Dean Wilson argues that the militaristic logic of border control of the Global North is ‘technophilic fantasies of total control that seldom unfold with their imagined security potential’ (p. 150). He considers the assemblages of border control, including state and non-state actors, to trace the nature and impact of border militarization on the desire and belief that borders can be secured. Leanne Weber, in Chapter 10, extends the focus on the ‘deportation turn’ taken by governments in Europe, North America and Australia, and outlines how deportation has come to be a population control strategy. Conceptually she considers deportation within the literature developed on enemy penology, to consider where the boundaries of belonging actually lie. Deportation is a preferred mechanism of governing through migration those populations which 4

Introduction

have remained deportable. Sometimes these align with contemporary concerns with criminality, while at other times they are applicable to more loosely defined groups defined to be socially or otherwise undesirable. Importantly, Weber contributes to a growing body of work a broad statistical survey of deportation across developed nations to reveal significant trends in the use of deportation. Vecchio and Gerard then flip the focus, in Chapter 11, to consider how the politics of migration control have come to rely on making people illegal (Dauvergne 2008). Using painstaking ethnographic fieldwork in Hong Kong, the authors chart the ways individuals and groups subjected to the politics of border control experience their precarious status. By focusing on the sociolegal and economic consequences of the politics of illegality, they lay bare the lives of asylum seekers who cross borders to seek protection but become ‘ensnared’ in myriad internal systems of border control. There is no doubt that governing mixed migration flows is complex, but so too are the consequences of one-size-fits-all state responses – especially those that default to the security side of the security/rights equation. Claudia Tazreiter then, in Chapter 12, considers the ways that contemporary migration has come to be a defining feature of migration and the desirability and challenges of this for communities – both those who migrate and those left behind. By focusing on contemporary migration from Indonesia to Australia, she details the everyday ambiguity that exists between state-defined migration rules and desires and the daily reality and desires of migrants. She uses the concepts of unknowing and ambivalence to analyse the lives of migrant workers and employs a methodology based on understanding the subtleties of their testimonies – both of what is said and what is left unsaid. She argues these migrants are suspended in an intermediate state of being unable to move forward or backward. This is often further complicated for those without regularized status, which can lead them into a life of invisibility and hiding. Her chapter is an account of lives suspended between regular and irregular, legal and illegal, belonging and exclusion. Turning her attention to Canada, in Chapter 13, Julie Ham examines how the strong popular association of human trafficking with sex work contributes to perceptions and categorizations of illegality for immigrant, migrant and racialized women in sex work. For naturalized citizens, permanent residents and documented migrants, engagement in sex work threatens to undermine or negate legal residency or migrant status in the country. The sex work sector in Vancouver, Canada, demonstrates how the tenacious association between illegality and ethnicity obscures the precarious connection between illegality and the law.

Part IV Migration law and crime Understanding the use of the law, on the one hand, accelerating and, on the other, limiting the harms of criminal, administrative and various regulatory responses to various forms of migration and crime is the focus of Part IV. It includes chapters that examine the demise of the rule of law and other legal protections in relation to non-citizens, including the merging of criminal and immigration laws and the impact of ‘crime’ frameworks on human rights approaches to migration. It begins with a seminal chapter by Juliet Stumpf reflecting on the use of the term she coined in 2006, ‘crimmigration’ or the interlacing of crime control and migration control. Her Chapter 15 charts how processes of crimmigration have had an impact over the past decades. Criminal and immigration law are the two areas which exercise the greatest use of state coercive force over individuals and the acceleration of their meshing is therefore of significant concern. Stumpf charts the legal collapse of distinctions between the two spheres in the US. She describes 5

Sharon Pickering and Julie Ham

the multiple faces of crimmigration law and their implications for public and governmental perceptions of migrant criminality and national security. Shifting back to Europe, in Chapter 16, Ana Aliverti details ‘criminal immigration’ law and human rights in Europe. The appeal to criminal law to solve the politics of migration has been particularly stark in Europe with tensions between the nation state (and especially of the Eurosceptic UK) and supra-regional bodies such as the EU. The criminalization of immigration lawbreaking in European countries is investigated in relation to increasing prosecutions, as are the limits and potentials of human rights as a brake on these trends. The use of criminal law against immigration offences also heralds a new era of governments publicly displaying their credentials in making life difficult, if not intolerable, for unwanted migrants. The ambivalence of regulation, particularly criminal law, in reducing harms against migrant workers is a theme in Chapter 14 by Lea Sitkin in a study of the exploitation of immigrant workers in the UK. This chapter resonates with chapters in Part V on crimes of mobility, but features in this section because of the ways the politics of criminal offences are being marshalled against immigrant workers. The politics of resorting to the criminal law and the hopelessness of politicians vying for the popular vote render sustainable solutions unlikely. Catherine Dauvergne then, in Chapter 17, elegantly outlines an emerging relationship between criminal law and refugee law yielding more positive outcomes for asylum seekers. By studying a key legal case in Canada, she is able to detail closely the tension between changing understandings and approaches to refugees – from a period when refugees were regarded as victims of human rights abuses to being tainted as criminal. Central to this shift has been states’ moving away from offering robust forms of refugee protection and at the same time closing down migration avenues other than those available to the most skilled or most wealthy. In this context, international refugee law, especially when informed by tenets of international criminal law, is a meaningful constraint on the sovereignty of states – ‘that they must admit and protect people they otherwise would not’. However, procedurally states such as Canada have moved to gazump these legal advances and the notion of ‘desert’ so familiar to students of criminal law has come to play a thorny role. Its impact has been to see migration and criminality play a central role in the adjudication of refugee and international law.

Part V Crimes of mobility Trafficking in and smuggling human beings occupy the key focus of international concerns about crime and migration.This section interrogates the construction, design and deployment of state interventions, and migrant experiences of trafficking and smuggling. It also considers these issues in relation to the dynamics of illicit markets. In Chapter 18, Gabriella Sanchez offers a rich ethnographic account of human smuggling across the US-Mexico border. Her detailed research evidences a far more nuanced and localized picture of smuggling practices where social capital is a critical factor. Her research challenges accounts of human smuggling as but another franchise of transnational organized crime. It reveals multiple chains of actors involved in a highly fragmented smuggling market driven by financial and social drivers. Notably the financial drivers are supplementary rather than primary forms of income for those involved. This contribution offers a clear alternative to many of the dominant accounts of smuggling. The feminization of survival identified by Sassen (1998) has particular ramifications for understanding crimes of mobility. In Chapter 19, Sanja Milivojevic traces what she calls ‘humanitarian’ crime prevention and its impact on women globally on the move. By focusing on female asylum seekers in Serbia and ethnographic research with NGOs, she considers the nexus 6

Introduction

between asylum and anti-trafficking initiatives that seek to immobilize women irregularly crossing borders. The chapter points to the difficulty of asylum-seeking in an era of border control and of the particular case of states aspiring to become (or in the process of becoming) EU member states. In pushing out the external boundaries of the EU, Eastern European and Baltic states are quickly becoming the custodians of the European external border. Marie Segrave, in Chapter 20, shifts the focus of this section to understanding crimes of mobility in relation to the creation of illicit markets. By examining the relationship between law enforcement and illegal markets, she focuses on the performance of state authority and sovereignty. Human trafficking and migrant labour exploitation need to be understood within the international political economy of both licit and illicit markets. She makes a compelling case that the production of conditions of vulnerability and exploitation for non-citizens requires a closer examination of the role of state regulatory apparatus that includes, but goes beyond, the reliance on the criminal justice system. Crimes of mobility are often rooted in paradox. In Chapter 21, Karen Joe Laidler and Maggy Lee consider the everyday experiences of cross-border mobility and border control between Hong Kong and mainland China.The case study of the criminalization and policing of parallel trading in infant milk formula, along with a range of other everyday products, reveals public and policy anxieties over difference, criminality and urban disorder. Hong Kong–mainland China is one of the migratory fault lines in a stratified global order that raises very ordinary, yet far-reaching, challenges for immigration regulation and enforcement of borders and for national and local identities. The vast bulk of the existing literature concerned with crimes of mobility has focused on irregular border crossing. However, mobility can be forced and remain internal to the nation state, all the while raising serious questions regarding where legality and illegality reside, and the nature and operation of legitimate and illegitimate violence. In Chapter 22, Penny Green, Kristian Lasslett and Angela Sherwood consider development-based displacement through forced eviction as a modality of state corporate crime. Considering forced displacement as a criminogenic event in Papua New Guinea and Burma lays bare the role of the state and even the organized criminal state apparatus.

Part VI Criminology and the border Historically the border has not been an area of explicit concern for criminologists. Instead, it has been the implicit referent of domestic criminal jurisdictions onto which mainstream criminological concerns have traditionally been mapped.The border, in other words, has silently set the limits for a domesticated criminological gaze, warranting neither comment nor concern. It demarcated lines of international comparison but otherwise retreated to silently patrol the limits of the discipline. What might be regarded as a future sub-field of criminology, the criminology of mobility, has received increasing attention within criminological literature over the past decade. This has been the work of scholars concerned with how national security and domestic criminal justice concerns have come to be intermeshed. Part VI surveys the theoretical and empirical basis for a broadly criminological account of the grand challenge of global mobility and its impact on the ways we understand and respond to migration and crime. Doris Marie Provine and Marjorie Zatz, in Chapter 23, shift the gaze from migration and crime to the border in the creation and facilitation of crime and specifically consider the criminogenic characteristics of borders. They consider the need for flexible conceptual tools for the study of crime and justice on borders. Drawing on legal scholarship and the work of Stumpf (Chapter 15, in this volume), they consider the application of crimmigration to the border and 7

Sharon Pickering and Julie Ham

then turn to juxtapose the management of economy and labour with public confidence in government efficacy and fairness in the seemingly infinite resources spent on border enforcement. Any criminology of mobility owes a significant debt to rich interdisciplinary endeavour. In Chapter 24, Jude McCulloch and Jacqui True argue that state responses to irregular migration can better be understood by combining the insights of criminology and international relations. Using the increasing overlap between internal and national security as their lens, they sketch the theoretically and conceptual trade-offs made between international relations and criminology in relation to security, risk, policing, protection, sovereignty and state crime to offer a more comprehensive account of irregular migration. They make a compelling case for increasing the dialogue and trade in ideas between criminology and international relations to understand better the changing nature and meaning of borders under conditions of globalization. The final chapter, Chapter 25, by Sharon Pickering, Mary Bosworth and Katja Aas argues that by drawing attention to the legal and criminological challenges posed by the increasing criminalization of immigration and the securitization of the border, the criminology of mobility demonstrates that mobility and its control are matters central to any understanding of the criminal justice system and the international state system. Global flows of people no longer (if they ever did) conform to expectations about predictability, permanence, desirability or impacts. The transnational and national control of migration has increasingly moved out of the remit of administrative systems and into criminal justice-cum-military arrangements. At the same time complex social, cultural and political arrangements are marshalled and challenged as the desire for mobility further spreads. One of the most concerning developments has been the designation of irregular migration status and various associated activities as criminal, even security, matters. As these arrangements take hold, on the basis of sheer volume alone, the mobilization of criminal justice and penal measures against unwanted international migration is likely to dwarf their use against traditional criminal justice threats. It is also likely to produce different kinds and a different scale of criminogenic threat. For criminologists, and those working in allied fields, it is understanding the nature and extent of this challenge that requires a large-scale rethink of the theoretical, empirical and policy tools to be brought to bear. It is likely to require genuinely audacious thinking (see Dauvergne, Chapter 17, in this volume and Weber and Pickering, 2011) to transgress current arrangements and develop new futures.

References Bosworth, M 2001, ‘The past as a foreign country? Some methodological implications of doing historical criminology’, British Journal of Criminology, vol. 41, no. 3, pp. 431–42. Dauvergne, C 2008, Making people illegal, Cambridge University Press, New York. Sampson, R 2008, ‘Rethinking crime and immigration’, Contexts, vol. 7, no. 1, pp. 28–33. Sassen, S 1998, Globalization and its discontents, New York: the New Press. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke.

8

Part I

Immigration and crime

1 Immigration and crime Rebecca Wickes and Michelle Sydes

Introduction The last century has witnessed significant growth in immigration. Recent figures show that 232 million people worldwide are residing outside their country of birth, representing an increase of 25 per cent in just over a decade, acording to the United Nations Department of Economic and Social Affairs (UN-DESA 2013). Internationally, immigration is at an all-time high, not just in developed nations, where the foreign-born population totals 136 million, but also in developing countries, where 96 million migrants are estimated to live (ibid.).The increasing ethnic/racial diversity that stems from immigration can positively impact economic and cultural growth in both sending and receiving nations (Putnam 2007; Goldin, Cameron and Balarajan 2012). At the same time, this diversity can drive negative attitudes towards immigrants, who are perceived to threaten cultural identity, steal native jobs, place a strain on the economy and increase crime rates (Mayda 2006; Sides and Citrin 2007; McLaren and Johnson 2007). The recent upsurge in immigration has led to anti-immigrant sentiment, which is exacerbated by the global context in which it has occurred (i.e. financial crises and threats to national security) (Chavez and Griffiths 2009; Mayda 2006; Sniderman, Hagendoorn and Prior 2004). An international survey on national identity provides an interesting comparison of the general receptivity to immigrants across 20 destination countries (Haller, Jowell and Smith 2009). Across all countries there was widespread disapproval for any increases in immigration. Further, in 14 of the 20 countries, participants believed immigration led to increased crime. These results are consistent with those of similar studies. An Australian survey revealed that nearly 50 per cent of respondents believed immigration increases crime (Sinning and Vorell 2011). A strong majority of participants (approximately 68 per cent) from the European Social Survey also endorsed this association (Sides and Citrin 2007). Even in developing nations like South Africa and Botswana, attitudes towards immigrants are less than favourable (Mattes et al. 1999; Campbell 2003). The consequences of the perceived immigration–crime association are non-trivial. The apparent link between increased immigration and greater crime is often manipulated by conservative governments to support restrictive immigration policies and deportation practices (Mears 2001; Sniderman et al. 2004; Stumpf 2006). This perceived association also leads to increased social anxiety and higher reports of disorder in neighbourhoods where immigrants live (Sampson

11

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and Raudenbush 2004; Wickes et al. 2013a). For example, a study of nearly 10,000 residents living across 300 neighbourhoods in two cities in Australia found that participants perceived more crime and disorder in neighbourhoods with higher proportions of residents born overseas, speaking a language other than English or practising a religion other than Christianity (ibid.). But does increased immigration actually lead to measurable increases in crime? Historically, criminological theories indicated that this was the case, but more contemporary theory and research contests this assumption. While some studies show that non-natives are arrested and incarcerated at disproportionately high rates, when appropriate controls are considered, there is little or no difference in offending between immigrants and native-born citizens (Butcher and Piehl 1998; 2007; Hagan and Palloni 1999; Morenoff and Astor 2006; Rumbaut et al. 2006; Sampson 2008). Any differences that do exist are more likely reflective of policing processes, discrimination against immigrants or the inability of immigrants to successfully navigate the criminal justice system (Mears 2001). Although we have only just begun to systematically address the relationship between immigration and crime rates, an emerging international scholarship does not provide evidence that increased immigration leads to higher crime at the local, state or national level (Alaniz, Cartmill and Parker 1998; Akins, Rumbaut and Stansfield 2009; Feldmeyer and Steffensmeier 2009; Bell and Machin 2013; Olson et al. 2009). In some neighbourhoods and cities in the US, high concentrations of immigrants are associated with lower levels of crime (Chavez and Griffiths 2009; Desmond and Kubrin 2009; Kubrin and Ousey 2009; Kubrin and Ishizawa 2012; Martinez, Stowell and Lee 2010) with the effect particularly strong in disadvantaged settings (MacDonald, Hipp and Gill 2013; Vélez 2009). This has led some scholars to suggest that the recent decline in violent crime in the US may in some part be attributable to increased immigration (Sampson 2008; Stowell et al. 2009). Indeed, Sampson (2008: 30) argues that ‘cities of concentrated immigration are some of the safest places around’. In what follows, we review two aspects of the immigration–crime association: immigrants as perpetrators, and the impact of immigration on crime in cities and communities. First, looking across different international contexts, we consider whether or not first- and second-generation immigrants are engaged in a differential rate of crime compared with native residents. Evidence suggests that neither immigrants nor their children pose a more serious criminal threat to society than their native-born counterparts. Second, we examine if increasing immigration is associated with higher rates of crime. The overall pattern indicates there is no significant relationship between the presence of immigrants and crime rates, once key indicators of social and economic exclusion are included in the analysis. However, the context where immigrants settle may be particularly important in understanding the immigration–crime dynamic. We conclude this chapter by suggesting new directions for advancing and understanding the immigration–crime link in developed and developing countries.

Immigrants as perpetrators: the immigrant–crime link The myth of the criminal immigrant is deeply rooted in public opinion, shaped by political rhetoric and fanned by sensationalist media accounts. Several criminological theories predict higher rates of offending among the foreign-born population as a result of a host of social, economic and cultural factors (Martinez and Lee 2000; Lee and Martinez 2009; Thomas 2011). There is, however, limited empirical evidence to support these claims. In contrast to theoretical expectations, scholars consistently find first-generation immigrants to be engaged in less crime than natives (Butcher and Piehl 1998; 2007; Hagan and Palloni 1999; Morenoff and Astor 2006; Papadopoulos 2010; Rumbaut et al. 2006; Sampson 2008). While generational disparities in offending rates are recognized, second-generation immigrants are considered no more 12

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crime-prone than their native-born counterparts (Morenoff and Astor 2006; Rumbaut et al. 2006; Bersani 2012; 2013). Despite this growing body of evidence, the criminal immigrant stereotype remains dominant and unwavering in public and political discourse. The immigrant–crime link stems from the fact that immigrants typically embody the characteristics known to be associated with crime among natives (Hagan and Palloni 1999). In particular, immigrants are often young, male, poorly educated and suffer high rates of unemployment, low household incomes and face widespread discrimination (De Jong and Madamba 2001; Rumbaut et al. 2006; Schnepf 2008). Their assumed criminal propensity is often understood in the context of traditional or contemporary strain theories. Within a strain theory framework, it is proposed that immigrants often migrate with the intention of improving their life chances but instead encounter constant barriers to upward social mobility. Thus, while they are not inherently criminal, the realities of life in their new host country can create a source of strain and frustration which may manifest in criminal behaviour. Yet immigrants are a self-selected group who choose to immigrate with the intention of improving their livelihoods through increased access to economic and social opportunities unavailable in their home country (Tonry 1997; Sampson 2008). To do this, immigrants must work hard, avoid short-term gratification in pursuit of longer-term goals and, above all else, steer clear of the criminal justice system (Tonry 1997). For these reasons, immigrants are perceived to have high stakes in conformity and are therefore likely to assume the role of law-abiding citizens in their destination country. Much of what we know about the immigrant–crime link is based on research from the US. Within this context, immigrants display low levels of criminal activity compared with the nativeborn population (Butcher and Piehl 1998; 2007; Hagan and Palloni 1999; Sampson 2008). Adjusted for age, gender and differential treatment in the criminal justice system, the rate of imprisonment for Hispanic immigrants in El Paso and San Diego was significantly lower than natives (Hagan and Palloni 1999). Other US studies also cast doubt on the validity of the criminal immigrant stereotype. In their analysis of the National Longitudinal Survey of Youth, Butcher and Piehl (1998) found that even without controlling for other characteristics, foreign-born youth were significantly less likely than native-born youth to be engaged in crime. A later study revealed that immigrants were incarcerated at one-fifth of the rate of natives despite possessing characteristics strongly related to institutionalization in the native-born population (Butcher and Piehl 2007). Further, in Chicago neighbourhoods, first-generation immigrants were 45 per cent less likely to act violently than third-generation Americans, all else being equal (Sampson 2008). Internationally, less is known about the immigrant–crime relationship, but several studies report findings consistent with the US literature. In Australia, the arrest and imprisonment rates for most immigrant groups are lower than their Australian-born counterparts (Mukherjee 1999). Similarly in the United Kingdom, there is no significant relationship between immigrant status and self-reported involvement in either property or violent crime (Papadopoulos 2010). Yet there is some evidence to support the immigrant–crime association in other countries. Using official police and court data, Albrecht (1997) discovered a positive relationship between immigrants and crime in Germany. This relationship persisted even after accounting for socioeconomic conditions and demographic differences. In Switzerland, official statistics, victimization reports and self-reports indicated that migrant offending was disproportionately higher than that of natives (Killias 2009). Offending patterns in Sweden show a similar pattern. As discussed in more detail in Chapter 3 of this volume, first- and second-generation immigrants are twice as likely to be registered for an offence, but this over-representation is predominantly due to differences in living conditions and discriminatory criminal justice practices (Beckley, Kardell and Sarnecki, Chapter 3 in this volume). 13

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The second generation Although first-generation immigrants typically display low criminal propensities, especially in the US, several scholars find criminal involvement increases in successive generations (Bersani 2012; 2013; Morenoff and Astor 2006; Rumbaut et al. 2006).Two theoretical arguments are put forward by scholars to help explain the offending gap between first- and secondgeneration immigrants. Segmented assimilation theory, developed by Portes and Zhou (1993), acknowledges that individual immigrants arrive at their new host country with varying skills and resources. While some immigrants may follow a path of upward mobility, immigrants may also stay in the same class position or experience downward mobility (ibid.). This mobility is largely shaped by two key factors: (1) social and human capital resources; and (2) patterns of residence (Portes, Fernandez-Kelly and Haller 2009). First- and second-generation immigrants with lower levels of human and social capital are more likely to experience downward mobility and, as a result, are more likely to become involved in crime. This is particularly the case for secondgeneration immigrants with few resources (Portes and Zhou 1993). An alternative explanation suggests that because the second generation is born and socialized in destination countries such as the US, they are merely ‘catching up’ with their native-born peers. Consequently, their engagement in crime will be driven by the same factors that explain crime among natives (Bersani 2012). In essence, the disparity in offending patterns between immigrants and their children may, in part, be attributable to different frames of reference (Bersani 2013). For first-generation immigrants, their frame of reference for their standard of living is their country of origin. Regardless of the challenges they face in their new host country, their current situation is usually better than the one they left (Tonry 1997). In contrast the second generation has only experienced their country of origin indirectly through their parents and may, therefore, compare their situation with that of those with non-immigrant histories (Bersani 2013; Tonry 1997). Some evidence does suggest that children of immigrants engage in crime at a higher level than their parents. In their analysis of self-reported violence drawn from the Project of Human Development in Chicago Neighborhoods, Morenoff and Astor (2006) found a strong significant relationship between age of arrival and self-reported violence among immigrant youth. Immigrants who were under 6 years of age at the time of migration were far more likely to behave violently during adolescence compared with those who migrated at an older age. Further, youth from fully acculturated households were more likely to be violent than those from partially acculturated or not acculturated households (ibid.). Using nine waves of data from the National Longitudinal Survey of Youth, Bersani (2012) considered whether the rate of offending for first- and second-generation immigrants (n = 532 and n = 988 respectively) was significantly different for native-born youth (n = 6418). Interestingly, rates of participation and frequency of offending were lowest among first-generation immigrants but comparable among secondgeneration and native youths. These patterns in trajectories were consistent even after disaggregating by nationality and crime type (ibid.). In a follow-up study, Bersani (2013) examined whether second-generation youth and native-born youth share similar aetiological pathways into offending. Predictors of crime among second-generation immigrants were largely reflective of the predictors of crime among natives. These findings question the utility of depicting second-generation offending as a unique crime problem. Studies outside the US paint a slightly different picture. In Sweden, the overall offending rates for first-generation immigrants are higher than those of both second-generation immigrants and natives, which suggests immigrants become less crime-prone following processes of socialization and assimilation (Kardell and Marten 2013). Yet while first-generation offenders

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were more likely to be registered for violent crimes, they were most commonly classified as lowrate offenders.

The importance of context A recurrent theme in studies concerned with the immigrant–crime association is the importance of context. The inconsistencies in the international literature may be due to contextual factors such as differences in immigration policy or the ability of some nations to integrate their foreign-born population better than others (Simon and Lynch 1999). In their study of seven nations, Simon and Lynch investigated the involvement of immigrants in crime in immigrant countries (Australia, Canada and the United States), non-immigrant countries (Japan and Germany) and countries with both immigrant and non-immigrant features (Great Britain and France). Interestingly, nations with more restrictive immigration policies had higher incarceration rates of foreigners compared with nations with more liberal immigration policies. France, however, demonstrated considerably greater levels of foreigner involvement in crime than non-immigrant nations (ibid.). The immigrant–crime relationship may also differ within countries and/or regions. For example, there were considerable regional differences in self-reported property crime in England, which indicates that ‘different socio-economic conditions that immigrants encounter in different locations and their interactions with the native population, may affect their criminal behavior’ (Papadopoulos 2010: 51). In cases where immigrants engage in more criminal activity than natives, this may be due to the socio-structural conditions of their neighbourhood as opposed to the assumed criminality of certain immigrant groups (Lee and Martinez 2009). Further, context is considered especially important for the offending rates of second-generation immigrants, as they may be at greater risk of downward mobility and related social strain (Bersani 2012).

The immigration–crime link: social context Scholarship has long stressed the importance of the social context to the immigration–crime link. At the turn of the twentieth century, an influx of European immigrants into US cities provided the impetus to examine the contextual characteristics of particular types of places and their association with crime and disorder. The city of Chicago was at the centre of this research. Chicago went from a relatively obscure trading point to a large city, home to a diverse group of immigrants. By the early 1900s, nearly 75 per cent of Chicago’s population came from other cities and countries. The impact of this migration was spatially concentrated. Neighbourhoods close to the city had high concentrations of immigrants and African Americans, and experienced ‘great mobility, change, disintegration of the social structure and lack of stability’ (Shaw and McKay 1931: 294).These were also the poorest neighbourhoods, housing the highest number of delinquents in the city. Yet though the racial/ethnic profile of these neighbourhoods changed completely over time, they experienced remarkable stability in the levels of poverty, mobility and delinquency (Shaw and McKay 1942). This led Shaw and McKay and others who followed (Kornhauser 1979; Bursik and Grasmick 1992; Sampson and Raudenbush 1999; Kubrin and Weitzer 2003) to conclude that crime was not a consequence of the cultural traits of any particular group, but rather resulted from social disorganization. The concentration of high levels of poverty and mobility, and increasing ethnic diversity (caused by immigration) disrupted community networks, produced cultural barriers and weakened the capacity of residents to regulate unwanted behaviour (Sampson, Raudenbush and Earls 1997; Sampson and Raudenbush 1999; Sampson and Wikstrom 2007). This in turn allowed crime and delinquency to flourish. Recent 15

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evidence suggests that increasing ethnic diversity, in the short term, negatively impacts on the processes necessary for the regulation of crime. Individuals living in ethnically diverse areas have less confidence in government, vote less, have fewer friends and spend less time engaged in charity or volunteer work (Putnam 2007). Social cohesion is also lower in places characterized by ethnic diversity (Putnam 2007; Walker and Hewstone 2008; Lancee and Dronkers 2011; Wickes et al. 2013b). In areas with high levels of immigration concentration, residents report lower collective efficacy (Sampson, Raudenbush and Earls 1997) and have limited contact with their neighbours (Lancee and Dronkers 2011). Yet, the attenuation of social cohesion and neighbourly exchange in diverse areas is more pronounced for natives when compared with foreign-born residents (Wickes et al. 2013b). Whether or not the lower levels of social cohesion and neighbourly interactions attributed to immigrant concentration lead to crime is, however, questionable. Since the late 1990s, there has been a renewed interest in the immigration–crime link in criminology, sparked by recent waves of immigration in the US. Compared with other destination countries, the US recorded the largest absolute number of immigrants arriving in the country between 1990 and 2013. As the world’s largest corridor of international migration exists between the US and Mexico, a large majority of immigrants coming into the country are from Mexico or Latin American countries (OECD 2013) with many settling in immigrant enclaves in large cities (Sampson 2008). Despite the growth of ethnic enclaves in the US, there is little evidence to suggest that this is associated with increases in youth violence, robbery, burglary, theft, drug-related homicides, gang-related homicides or total homicides (Alaniz, Cartmill and Parker 1998; Reid et al. 2005; Desmond and Kubrin 2009; Feldmeyer and Steffensmeier 2009; Kubrin and Ousey 2009; Stowell et al. 2009). In contrast to the negative stereotypes proliferated in the media, ethnic enclaves can provide a feeling of home to groups suffering from feelings of disorientation and displacement (Desmond and Kubrin 2009). These places are colloquially referred to as ‘little worlds’ or ‘little homelands’ and encourage opportunities to build ties with culturally similar individuals (Breton 1964; Desmond and Kubrin 2009). Instead of increasing crime, concentrated immigration in these enclaves may have a revitalizing effect. The immigration revitalization thesis, advanced by Martinez and his colleagues (Martinez and Lee 2000; Lee and Martinez 2002; Martinez, Lee and Nielsen 2004; Nielsen, Lee and Martinez 2005; Lee, Martinez and Stowell 2008; Martinez, Lee and Martinez 2009; Stowell and Lee 2010), proposes that immigration may help build and strengthen social ties and neighbourhood organizations. In communities with homogeneous immigration populations, these social networks stabilize communities, offset the criminogenic conditions of an area and subsequently reduce crime. As a consequence, areas that had previously experienced a population decline and were ‘destined to become crime-ridden enclaves’ have become thriving social hubs, providing a range of social and economic opportunities to their residents (Martinez, Stowell and Lee 2010: 822). Vélez (2009) argues that immigration can revitalize disadvantaged neighbourhoods in several ways. Contrary to the propositions of social disorganization theory, residents in immigrant neighbourhoods typically develop strong ties to family members and members of the wider community. These connections provide important social and economic resources. The social capital generated in these ethnic enclaves creates job opportunities which progress economic growth. For example, some immigrant communities boast restaurants, street vendors, and openair markets that meet the needs of the immigrant population and serve to increase attachment to the labour market (ibid.). Additionally, in immigrant neighbourhoods, residents are often actively involved in local organizations like schools and faith-based institutions. This involvement 16

Immigration and crime

provides further opportunities to develop and strengthen the networks that may assuage the effects of deprivation and social isolation. It also helps generate informal social control.

Support for the immigration revitalization thesis There is strong empirical support for the immigration revitalization thesis in the US. In a study of 206 cities in the US, Kubrin and Ousey (2009) used census and FBI uniform crime reporting (UCR) data to examine the cross-sectional relationship between concentration of immigrants and altercation, felony, drug-related and gang-related homicides. Controlling for a range of socio-demographic predictors, including law enforcement capacity, immigration concentration was associated with lower homicide rates overall, and lower rates of altercation, felony and drug-related homicide rates (ibid.). Longitudinal studies of immigration concentration and crime produced similar results: over time increasing immigration leads to lower crime (Ousey and Kubrin 2009; see also Butcher and Piehl 1998; Reid et al. 2005; Stowell et al. 2009; Wadsworth 2010). At the level of the neighbourhood, the overall pattern is the same. Increasing immigration does not increase crime, and in some cases may have a protective effect even in disadvantaged neighbourhoods. In one of the earliest neighbourhood-level tests of the immigration–crime link, Alaniz et al.(1998) examined the spatial distribution of violent crime committed by or against youth aged 15–24 years across census blocks in three Northern California communities. Controlling for a range of neighbourhood factors, the percentage of foreign-born residents did not significantly predict youth violence. Other US studies find similar results, using both administrative and self-report data (Akins, Rumbaut and Stansfield 2009; Chavez and Griffiths 2009; Desmond and Kubrin 2009; Graif and Sampson 2009). Additionally, there is a protective effect of immigration on crime rates for members of specific ethnic/racial groups. Feldmeyer and Steffensmeier (2009) examined the impact of immigration concentration on crime across 328 census tracts in California. Using homicide arrest counts, they considered whether or not immigration had a violence-generating, violence-reducing or a neutral/trivial effect on Black, White and Latino offending. They uncovered important differences between racial and ethnic groups. Although immigration had no effect on Latino offending, it marginally reduced both White and Black homicide. The violence-reducing effect of immigration on specific ethnic/racial groups is also evidenced in a study of Black and Latino homicide in three border cities (Lee, Martinez and Rosenfeld 2001).The presence of new immigrants significantly reduced Latino homicide in El Paso, Texas, and Black homicide in Miami, Florida. However, in San Diego, the concentration of new immigrants significantly increased homicide for Black residents. Internationally, support for the revitalization thesis is mixed. In England, immigration concentration led to lower crime rates (Bell and Machin 2013). In comparison with areas with few immigrants, crime was lower in neighbourhoods with high proportions of immigrants, once controlling for socio-economic conditions. Bell and Machin (ibid.) suggest that immigrant neighbourhoods reduce serious crime, as residents in these areas are more likely to prevent antisocial/opportunistic crimes. Homogeneity, however, appears to be important, as the beneficial effects of immigration are most prominent in areas where immigrants belong to the same ethnic group. In France, the proportion of immigrants had a strong and positive association with crime, though this relationship was largely driven by unemployment. In areas where there was greater unemployment and concentrations of unemployed immigrants specifically, crime was higher (Aoki and Todo 2009). In Belgium, total immigration had no effect on either property or violent crime, but the concentration of non-EU nationals was associated with higher property crime 17

Rebecca Wickes and Michelle Sydes

and the concentration of African nationals was associated with higher property and violent crime (though the authors noted that this group is largely concentrated in one particularly crime-prone area) (Bircan and Hooghe 2011). The relationship between immigration and crime is less clear in Australia. A study of local government areas in Victoria revealed that areas with greater proportions of recent arrivals and residents with poor English proficiency experienced higher rates of crime (Francis, Armstrong and Totikidis 2006). In contrast, a study of local government areas across Australia found that immigration concentration did not negatively influence regional unemployment rates, median household incomes, or crime (Sinning and Vorell 2011).

Receptive contexts and the immigration–crime link The mixed findings in the international literature suggest that some contexts may be more receptive to immigrants than others. A receptive context is one in which the government, the labour market and the ethnic community are prepared and willing to integrate new arrivals socially and economically.These areas encourage local informal and formal social control, which in turn reduces problems of crime and disorder. Cities with long immigrant histories, referred to as ‘gateway’ cities, are typically receptive contexts. In these cities, access to established ties, social institutions and ethnic economies is readily available for immigrants (Singer 2004; Portes and Rumbaut 2006). In less receptive contexts, there is little to no co-ethnic presence and local governments and native residents do not integrate immigrants into the community. Here immigrant residents lack access to social and economic resources, and may experience social exclusion/ discrimination and ‘oppositional governmental policies’ (Ramey 2013: 7). Martinez et al. (2004) demonstrate the importance of these different contexts in their analysis of the immigration–crime link in Miami and San Diego. Miami is considered to be a receptive context, particularly for Cuban and Central American immigrants. Here immigrants are offered many opportunities for low-skilled labour and provided with access to economic and social support (ibid.). In contrast, the city of San Diego has traditionally been home to a large number of Mexican immigrants, but in the last few decades, has experienced a large growth in immigration from Southeast Asia. The concentration of these minority groups in San Diego is significantly less than Miami. Further, as San Diego has developed into a high-skilled employment area, there are fewer positions available for low-skilled workers. Thus, San Diego may lack the necessary structures and networks that are important for immigrant settlement. Comparing these two cities, Martinez and colleagues (ibid.) examined whether the level of receptivity influences spatial variations in crime across neighbourhoods in each city. In Miami, drug-related homicides were not higher in areas with high proportions of Cuban or Central American residents.Yet in San Diego, the relationship between the concentration of Southeast Asian immigrants and drugrelated homicide was significant and positive.The proportion of Mexican residents had no influence on drug-related homicide. Moreover, in San Diego, drug-related homicide was more likely in areas with higher proportions of recent immigrants (ibid.). In both Miami and San Diego, neighbourhoods with higher proportions of immigrants who had arrived in the 1960s were significantly less likely to experience drug-related homicide. Taken together, Martinez and colleagues’ findings demonstrate how greater levels of receptivity can help mediate the effect of immigration on crime. More recently, Ramey (2013) demonstrated the importance of receptive contexts and crime across 8,628 census tracts nested within 84 new and established destination cities across the US. He argued that new destination areas may be less receptive to immigration and, as a consequence, would experience higher crime rates. In new immigrant destination cities, immigration 18

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concentration was associated with higher levels of violent crime in predominantly White and African American neighbourhoods and immigrant growth was associated with higher violence in African American and integrated neighbourhoods. Interestingly, immigration concentration was associated with lower violence in Latino neighbourhoods. In neighbourhoods in established destination cities with high concentrations of immigrants, violent crime was lower.This relationship held in White, Black, Latino and integrated neighbourhoods. This led Ramey (ibid.: 26) to conclude that immigrant revitalization ‘is a contingent process’, that is dependent upon on the receptive context of the city and the contours of the neighbourhood.

New directions for immigration–crime scholarship With few exceptions, we find that first- and second-generation immigrants do not have a greater propensity for criminal behaviour when compared with their native-born counterparts. Our review of the international literature also suggests that increasing immigration does not lead to higher crime, once key indicators of social and economic exclusion are considered. There are, of course, exceptions. In some cases, immigrant groups are over-represented in the criminal justice system and in some places the presence of immigrants is associated with higher crime. However, these relationships can be largely explained by the context in which they occur. In receptive contexts, there is a generalized willingness to socially and economically integrate new immigrants. This enhances the mechanisms necessary for the regulation of crime and disorder. In less receptive contexts, immigrants may become isolated and the subject of prejudice and discrimination. In these contexts, regulatory processes may be compromised leading to increased law and order problems. We believe it is time to move the immigration-crime literature beyond questions of whether immigrant concentration affects crime to questions that probe a deeper understanding of the way immigration shapes the processes associated with crime, or indeed, revitalization. We therefore conclude this chapter with three recommended developments for understanding the immigration–crime dynamic.

The immigration–crime link in comparative contexts Each country’s immigration profile is distinct and thus the theoretical and empirical knowledge established in the US may not explain the immigration–crime relationship in other cultural contexts. Over 50 per cent of immigrants entering the US come from Latin America and approximately half of these emigrated from Mexico (OECD 2013). In contrast, immigration populations in other Organisation for Economic Co-operation and Development (OECD) countries like Canada, England and Australia are much more diverse: the largest immigrant groups in these countries represent between 14–16 per cent of the total immigrant population. Countries of origin also differ significantly across these contexts. For example, in England, Indian immigrants comprise the main incoming group, whereas in Canada, Filipino immigrants are most common (ibid.). In contrast the leading immigrant groups in Australia come from AngloCeltic, English-speaking countries (ibid.). The US-centric focus of the immigration crime literature becomes problematic when considering these varied international migration patterns. If what we know about immigration and crime is largely based on the impact of Latino immigration in the US, it is questionable whether these theories are applicable to countries with vastly different immigrant compositions. While our understanding of the immigration–crime association is limited in developed countries outside the US, it is virtually non-existent in developing countries. Though some 19

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scholars argue that immigration to developed countries can provide economic benefits for developing countries (World Bank 2005; Pritchett 2006; Goldin et al. 2012), the academic world is all but silent on how increases in immigration might influence social processes and crime in developing regions. Such research is especially warranted in Asia following substantial increases in immigration in recent decades. In 2013, Asian countries hosted the second-largest number of international migrants, though the share of immigrants as a proportion of the total population is small when compared with Europe and North America (UN-DESA 2013). There are significant challenges associated with comparative research between developed and developing countries, especially as it relates to access to administrative and survey data. Yet identifying whether or not similar patterns exist in developing countries currently experiencing unprecedented immigration is necessary to advance the literature. A key challenge for immigration–crime scholarship is the development of a comparative framework that would allow an understanding of the forces that shape the immigration–crime association in different international contexts, including developed and developing countries. This would require the consideration of two things: the types of migration flows, and the contexts of immigrant reception. Castles (2002) identified three types of primary migration flows in the last half-century: (1) permanent settlement; (2) temporary labour migration; and (3) humanitarian/refugee settlement. The extent to which different immigrant flows influence crime, and indeed victimization, across different contexts is not addressed in the current literature. Popular theoretical perspectives such as the immigration revitalization thesis are based on assumptions about immigrants who move by choice with the intention of settling permanently. In contrast, temporary labour migrants and humanitarian migrants comprise a considerable proportion of the total immigration population in some countries outside the US. For example, in industrializing Asian regions short-term labourers represent a sizeable population of the immigrant share. In Sweden, the humanitarian programme accepts large numbers of immigrants from war-torn nations (OECD 2013). Accounting for migration flows and how they may shape crime or influence the revitalization of crime-prone neighbourhoods offers an important way forward. Considering the contextual factors that lead to successful immigrant integration is also necessary, such as the presence of other co-ethnics, the availability of employment and a receptive social and legal climate (Singer 2004). The extent to which these factors explain the variation in the immigration–crime association across cities in developed and developing nations would test the generalizability of the central claims emerging from the US.

Moving beyond concentration effects Ecological approaches to the immigration–crime link largely centre on concentration effects. The empirical research typically combines immigrants into a homogeneous category of ‘foreignborn’ or examines the effect of immigration on racially specific crime for Blacks,Whites, Latinos and Asians (Rumbaut et al. 2006). This approach glosses over the substantial cultural differences between and within ethnic minorities (Bircan and Hooghe 2011). Specifically, it masks the differences in immigration and generation histories, cultures, frames of references, contexts of reception and assimilation processes, and thus, in effect, simplifies the diverse range of outcomes for immigrants in their new host country. Only a handful of studies have considered the association between immigration diversity and crime. Although this research is limited in scope, compared with the many studies that consider concentration effects, there is some evidence to suggest that immigration diversity may lead to higher crime under particular conditions. As we noted previously, crime is higher in integrated 20

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neighbourhoods in new immigrant destination cities (Ramey 2013). Yet Lee and Martinez (2002) found that homicide rates in disadvantaged, homogeneous, Black neighbourhoods were higher when compared with disadvantaged, heterogeneous, Black immigrant neighbourhoods. Homicide rates in the tracts that comprised ‘Liberty City’ were up to three times higher than rates in ‘Little Haiti’. Similarly, Graif and Sampson (2009) found language diversity significantly predicted lower homicide rates across 836 census tracts in Chicago. Future studies of the immigration–crime link should embark on a more nuanced approach to understanding the impact of immigration diversity on crime. This, however, requires a separation of race from ethnicity, which is not an easy task (Bell and Machin 2013). In countries outside the US, uniform groups like Blacks, Whites and Asians comprise heterogeneous groups from various ethnic backgrounds (Tonry 1997). For example, in England, 50.4 per cent of the Black population are immigrants and 52.8 per cent of the Asian population are immigrants. In Australia, the White population comprises residents from England, Ireland, Scotland, Wales, North America and New Zealand. Thus it makes little sense to categorize Blacks, Whites or Asians as specific groups in these contexts (Bell and Machin 2013). One could calculate immigration diversity by place of birth or nationality, but this approach can be equally problematic. Consider the vast cultural differences between indigenous populations and the Anglo-Celtic population in countries like Canada or Australia, or those between the Shia and Sunni populations in Iraq. To capture immigrant diversity, therefore, requires an approach that is sensitive to the shared historical, linguistic and cultural values of the immigrant groups. Future research should therefore consider using multiple dimensions of ethnicity to capture immigrant diversity. Certainly, the ethnic/racial ancestry of group members is an important indicator of immigration diversity, but language and religion may be equally important diversity markers (Wickes et al. 2013b).

Social and cultural properties of the immigration–crime link: a longitudinal approach The immigration revitalization theory states that co-ethnics living in ethnic enclaves develop strong social networks. Over time, these networks provide access to social and economic opportunities. They also provide a strong foundation for the informal social control necessary to regulate crime. This is turn revitalizes the neighbourhood. This thesis strongly resonates with longitudinal studies of immigration and crime in the US, where the clear pattern emerging from the literature is that increasing immigration results in lower crime under most conditions. But there are two problems here. First, few studies actually test the mediating effects of these social processes on crime in these ethnic enclaves. And evidence from the UK indicates that social networks and interaction in immigrant neighbourhoods are not heightened when compared with those of other neighbourhoods (Bell and Machin 2013). Second, the broader social science literature provides limited evidence that increasing immigration enhances the social mechanisms associated with the regulation of crime and disorder. Although social processes, like collective efficacy, mediate the effects of the structural characteristics of neighbourhood on crime (Sampson, Raudenbush and Earls 1997; Sampson and Wikstrom 2007; Mazerolle, Wickes and McBroom 2010), there is strong evidence that increasing diversity (and, by implication, immigration) negatively influences these important processes associated with the regulation of crime. For example, in Chicago child-centred informal social control is lower in areas with higher concentrations of immigrants (Sampson, Morenoff and Earls 1999). Our understanding of the mediating and moderating effects of social processes and cultural properties that may help to explain the immigration–crime link is therefore incomplete. 21

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Despite the recent ‘process turn’ in the study of neighbourhood effects scholarship (Sampson, 2012: 47), only a handful of studies can identify emerging patterns of stability and change in the social mechanisms that may mediate the relationship between the composition of the neighbourhood and crime. A six-wave neighbourhood-level panel study in the Netherlands revealed that immigration indirectly increased perceptions of disorder over time by diminishing social cohesion (Steenbeek and Hipp 2011). Similarly the results from a longitudinal study in the US show that ethnic heterogeneity directly influences perceptions of disorder over time (Markowitz et al. 2001). In contrast, increases in ethnic diversity led to decreases in perceptions of disorder in the Australian context (Zahnow et al. 2013). Understanding the way in which immigration shapes social processes across time is the next frontier for immigration–crime scholarship. As Sampson argues (2012: 359), to better understand how immigration shapes the capacity for crime control requires a strong focus on the mechanisms that link cause and effect – these include ‘social-interactional, social-psychological, organizational, and cultural mechanisms of city life’. With the renewed focus on neighbourhood effects in criminology, we hope that future research will entail prospective longitudinal approaches to provide for a stronger understanding of the reciprocal relationships between immigration diversity, social and cultural processes and crime.

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2 Understanding immigration, crime and victimization in the United States Patterns and paradoxes in traditional and new destination sites Marjorie S. Zatz and Hilary Smith

Introduction Immigration and crime have been intertwined in political and public discourse in the United States almost since the founding of the country, with fears of crime by one wave of immigrants quickly replaced by suspicions about the next. At the turn of the twentieth century, immigrants made up about 13–15 percent of the US population (Britz and Batalova 2013). Fear of crime by immigrants was closely entangled even then with race, culture, gender, and religion – sometimes explicitly, as in the Chinese Exclusion Act of 1882 and the Quota Laws of 1921 and 1924, and sometimes more implicitly (Calavita 1984, 2000; Ngai 2004; Gardner 2005). This chapter surveys the extant literature on immigration, crime and victimization in the United States. As we discuss, research has repeatedly shown that immigration is associated with a decrease in crime.We then explore the context and conditions under which this crime reduction occurs, with particular attention to whether and how the relationship between immigration and crime varies across traditional and new destination sites.We turn next to the flipside of immigration and crime, considering the relationship between immigration and victimization and how this relationship may be patterned across new and traditional destination sites. Finally, we consider how the moral panic about immigration and crime has contributed to a surge in state and local anti-immigrant laws and ordinances, especially in new destination sites, thus exacerbating the vulnerability of immigrants to exploitation and victimization.

Early research on immigration and crime Early research exploring the relationship between immigration, ethnicity, and crime was grounded primarily in social disorganization theory, a perspective drawn from the Chicago School of sociology. Shaw and McKay (1942), Thomas and Znaniecki ([1918] 1958), and others associated with the Chicago School observed that immigrants initially settled in impoverished

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neighborhoods. These pioneering studies focused attention on the structural characteristics of neighborhoods, observing that high levels of economic disadvantage, residential instability, and heterogeneity were associated with weakened social ties and diminished informal social control mechanisms, resulting in greater social disorder and crime. As immigrants assimilated and integrated into the larger labor market, they moved to less disorganized and disadvantaged areas, making room for the next wave of immigrants to settle in their old neighborhoods. In contrast to the linkages between immigration and crime proposed by the Chicago School, government-sponsored investigations such as the 1911 (Dillingham) Immigration Commission and the 1931 (Wickersham) National Commission on Law Observance and Enforcement found lower levels of criminal involvement among the foreign-born (see Kubrin and Ishizawa 2012; Wang 2012). In part, these divergent findings reflect differences in what was being studied: crime rates in impoverished urban neighborhoods, or arrest and incarceration rates for foreign-born and native-born offenders. Immigration slowed in the mid-1900s, and the percentage of the population that was foreign-born dropped to approximately 5 percent between 1930 and 1970. It then rose sharply, reaching 13 percent of the total population in 2011. The vast majority of the new immigrants came from Latin America and Asia, with almost one-third (29 percent) arriving from Mexico (Britz and Batalova 2013). With this reshaping of the US population, fear of crime by immigrants re-emerged as a powerful political theme, and again race and culture figured prominently in the popular discourse about immigration and crime. As Provine and Doty remind us, there is a ‘mutually reinforcing relationship between racialization and criminalization’ (2011: 265; see also Mears 2001; Hagan, Levi and Dinovitzer 2008; Newton 2008; Kubrin, Zatz and Martínez 2012). Demonizing Latinos as criminals is not new in the Southwest (Mirandé 1987; Gómez 2007), where fears of violence at the hands of Mexican immigrants – whether or not based on any reality – play into what Chavez has called the ‘Latino Threat Narrative’. This narrative is ‘part of a grand tradition of alarmist discourse about immigrants and their perceived negative impacts on society’ (Chavez 2008: 3). In response, there has been renewed scholarly interest in the immigration–crime nexus over the past two decades.

Immigration and crime: patterns and paradoxes Contrary to what Hagan and Palloni termed the popular ‘mythology’ (1999: 630) linking immigration and crime, research conducted in different parts of the country and using diverse methodologies overwhelmingly finds either no relationship between immigration and crime, or that crime rates decrease in areas of high immigrant concentration. These findings hold in both cross-sectional and longitudinal studies, and regardless of whether the researchers focus on crime rates or incarceration rates (see, for example, Butcher and Piehl 1998; Hagan and Palloni 1999; Martínez 2002; Lee 2003; Sampson, Morenoff and Raudenbush 2005; Rumbaut and Ewing 2007; Stowell 2007; Martínez, Stowell and Cancino 2008; Lee and Martínez 2009; Ousey and Kubrin 2009; Stowell et al. 2009; MacDonald and Saunders 2012;Vélez and Lyons 2012). Some of the most influential research debunking the immigration–crime nexus took place in Chicago – the same city in which urban sociologists had proposed social disorganization theory to explain the purported relationship between immigration and crime almost a century earlier. Some of this new research supports more sophisticated versions of social disorganization theory, while other findings refute the theory. For instance, in seeking to understand the reduction in crime rates evidenced in many US cities, Robert Sampson and his colleagues examined violent crime in 180 Chicago neighborhoods, finding that immigrant concentration was directly 27

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correlated with lower rates of violence (Sampson, Raudenbush and Earls 1997; Sampson 2008). Sampson suggests that the ‘Latino paradox’ explains this unexpected effect. That is, Latinos do better on a range of social indicators, from mortality rates to crime rates, than would be expected given their levels of socio-economic disadvantage. This protective function of immigration has now been confirmed in dozens of studies (e.g., Hagan and Palloni 1999; Lee 2003; Stowell 2007; Hagan, Levi and Dinovitzer 2008; Sampson 2008; Desmond and Kubrin 2009; Lee and Martínez 2009; Kubrin and Ousey 2009; Ousey and Kubrin 2009; Davies and Fagan 2012; Vélez and Lyons 2012).

Disentangling the threads Recent research has sought to further disentangle the complex relations between immigration, social capital, informal and formal social control, and crime and victimization, and some scholars are returning to social disorganization and other ecological theories to better specify the conditions and contexts in which immigration protects against crime. Borrowing from Kubrin and Ishizawa (2012) who argue that ‘context matters’, we must consider not just whether, but how it matters. For example, Kubrin and Ishizawa suggest that divergent findings may be due to varying levels of social deprivation in the larger community context within which immigrant neighborhoods are situated. Other scholars are exploring whether the same patterns hold in traditional and new destination sites, as the strength of social support systems differs markedly in these divergent settings. Still others are examining differences between first- and secondgeneration immigrants, variation in the extent to which communities have favorable political climates for immigrants, and divergent patterns that may be based on country of origin and immigrants’ experiences in their home country (e.g., DiPietro and Bursik 2012; Lyons,Vélez and Santoro 2013). A number of theories have been proposed to explain these patterns, and they add texture and nuance to our understanding of the relationship between immigration, crime and victimization. One such theory is ‘immigrant revitalization’ (Lee and Martínez 2009). In contrast to social disorganization theory, this thesis posits that the steady stream of new immigrants from the same sending communities replenishes and revitalizes traditional religious and cultural values, strengthens familial and other social ties, and infuses informal social control more generally. Employment prospects also tend to be better in traditional destination sites, where established ethnic enclaves offer newcomers resources, support networks and opportunities to find work. As a result, traditional immigrant destination sites are characterized by lower crime rates, especially for violent crime (Martínez and Lee 2000; Martínez and Valenzuela 2006; Martínez, Stowell and Cancino 2008; Sampson 2008; Lee and Martínez 2009; Martínez and Stowell 2012; Harris and Feldmeyer 2013). Immigrant selection and segmented assimilation have also been proposed as reasons to explain differences across generations. Immigration is not easy, especially for undocumented persons. Economic opportunities are often the primary incentive for immigration, and firstgeneration immigrants may be especially motivated to work hard and save money to remit home and pay for family members to join them. This, in turn, further strengthens their stake in conformity and in avoiding situations that could result in deportation (Stowell et al. 2009; Kubrin and Ishizawa 2012). In contrast to first-generation immigrants, who are typically buffered from crime due to the traditions and values they carry with them as they migrate, second- and thirdgeneration immigrants tend to have assimilated more, and to be influenced as much by their American peers as by their parents’ values (DiPietro and Bursik 2012; Bersani, Loughran and Piquero forthcoming). 28

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Traditional and new destination sites and immigrant concentration One of the most important patterns emerging from recent research is the difference between traditional and new destination sites. California, Florida, Illinois, New Jersey, New York, and Texas have been the primary destinations for new immigrants for decades. Such traditional destinations often have a well-developed infrastructure in place to help new immigrants get settled. They offer social networks, support services and assistance through churches and other institutions, economic resources, and a ‘safe haven’ (Shihadeh and Barranco, 2013: 82).Yet while many immigrants still seek out traditional gateways, others are starting to favor non-traditional destinations. That is, the presence of immigrants has increased markedly in Southeastern states, such as Georgia, North Carolina, Virginia, and Alabama, as well as in parts of the Midwest, Northeast, and Western states including Arizona, Nevada and Utah (Massey 2008; Passell and Cohn 2009). The shift from traditional gateways has been influenced largely by the availability of jobs in the new locales, at the same time that traditional sites have experienced reduced employment opportunities and stagnant economic growth (Harris and Feldmeyer 2013). As Varsanyi notes, these new settlement patterns have ‘brought the phenomenon of immigration—particularly undocumented immigration—to cities and states that have never before grappled to any significant extent with the challenges and costs—both real and perceived—of large-scale immigrant settlement’ (2010a: 10). Accordingly, some scholars are exploring whether the protective effects of immigration on crime found in traditional destination sites are also apparent in these new locales, or whether the weaker economic, cultural, and social supports for immigrants in these settings erode the positive aspects of immigration on community life. Vélez and Lyons (2012) analyzed neighborhood-level data from 69 U.S. cities during the period 1999–2001 to explore variation in the relationship between immigration and violent crime in traditional and new destination sites. They find that the neighborhood revitalization that protects immigrant communities from crime is strongest in traditional gateway cities, while there is no significant relationship between immigration and crime in neighborhoods located in new destination sites.Vélez and Lyons suggest that this may reflect the smaller concentration of immigrants in new settlement sites, such that they are not able to create a strong infrastructure of ethnic enclaves and immigrant-serving institutions. Having previously found a negative relationship between immigration and homicide in economically disadvantaged neighborhoods but not in more affluent Chicago neighborhoods (Vélez 2009),Vélez and Lyons (2012) also examine whether neighborhood disadvantage conditions the effects of immigration. They find that the protective effect of immigration on violent crime is greater in economically disadvantaged neighborhoods than in wealthier neighborhoods, perhaps due in part to the higher concentrations of recent immigrants in poorer neighborhoods. While immigrant concentration does not map perfectly onto traditional and new destination sites, there are similar indicators, as immigrant concentration is strongest in traditional sites that have been receiving immigrants for years and weaker in new sites with fewer immigrants.Vélez and Lyons conclude that new immigrants reinvigorate local communities, resulting in ‘an infusion of social control and reductions in crime’ (ibid.: 237). In contrast, the small number of immigrants in wealthier neighborhoods may isolate them from cultural and social support systems that reduce crime. Lyons,Vélez and Santoro (2013) take this research a step further in their analysis of immigrant concentration and neighborhood violence in 87 large cities. Using data from the National Neighborhood Crime Study, they report that the inverse relationship between immigrant concentration and violent crime is especially evident in cities characterized by pro-immigrant

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legislation and minority political incorporation into elected offices. Such cities, they suggest, enhance social organization and formal and informal social control by building trust within immigrant communities. Likewise, Kubrin and Ishizawa (2012), Ousey and Kubrin (2009), Shihadeh and Barranco (2013), Harris and Feldmeyer (2013) and MacDonald et al. (2013) find that Latino violent crime rates are substantially lower in traditional destination sites and locales with large immigrant concentrations, while in new destination sites and locales with low immigrant concentrations, the effects are weaker, nonsignificant or weakly positive.These findings hold whether it is official crime data that is analyzed or school-based surveys of youth, as evidenced by Desmond and Kubrin’s (2009) findings that immigrant concentration reduces adolescent violence. As a set, these authors suggest that protective factors such as strong family ties, close religious and other traditional networks, and a variety of informal and institutional social control mechanisms reduce crime in traditional destination sites. Stansfield et al. (2013) add an important nuance to these patterns. While most studies have looked at violent crime, Stansfield and his colleagues examined serious property crime in new and emergent gateway cities, finding no association between recent immigration and major property crimes in new locales. Drawing from a modification of social disorganization theory, Kubrin and Ishizawa (2012) suggest that divergent findings between Chicago and Los Angeles neighborhoods may be due to contextual differences in the larger communities within which these neighborhoods are located. Both Chicago and Los Angeles are traditional destination sites, but immigrant neighborhoods in Chicago are characterized by lower rates of crime than those in Los Angeles. They suggest that differences may be due to variation in the degree of ethnic diversity within immigrant communities, rates of residential turnover, immigrant generational status and differences in structural conditions in the cities studied.

Generational status Another strong and consistent finding in the literature on immigration and crime in the United States concerns the effect of generational status. Whether explained by immigrant selection – that is, the factors that distinguish individuals who pull up stakes and move to a new country in search of better opportunities – in the first generation, by processes of assimilation or other factors, the protective effects of immigration diminish across generations. Bersani, Loughran and Piquero (forthcoming), for example, analyze longitudinal data from the Pathways to Desistance study, finding that first-generation immigrants are less likely to engage in serious offenses. Moreover, first-generation immigrants who have offended move towards desistance more quickly than native-born or second-generation peers, and persistent offending is most pronounced among youth who live in disadvantaged contexts and who exhibit high levels of assimilation. Stansfield (2012) reports similar findings, with immigrant youth significantly less likely to steal from a retail store than nonimmigrant youth. And, the probability of engaging in theft increases with level of assimilation and a concomitant decrease in protective factors such as supportive parenting and a structured home environment.

National origin, race and ethnicity The influence of generational status may vary depending on the immigrant’s race/ethnicity and country of origin. DiPietro and Bursik (2012) compared Cuban, Dominican, Colombian and Nicaraguan youth, using data from the national Children of Immigrants Longitudinal Study. 30

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This is an interesting set of groups to compare, as substantial numbers of immigrants from each of these countries fled to the US for political as well as economic reasons. Their experiences of reception by the US government, local schools and the general public were quite different however. DiPietro and Bursik found that the generational effects differed depending upon the youths’ race and national origin, with first-generation Dominican, Colombian and Nicaraguan youth more likely to engage in fighting behavior than their second-generation counterparts, while the reverse was true for the Cuban youth. They conclude, ‘the oft-cited finding that second-generation youth engage in more problem behaviors than their first-generation counterparts may hinge on the national origin of the group being studied’ (ibid.: 264). Moreover, ‘these differences were obscured in estimates for the group as a whole, suggesting that the composition of “Hispanic” samples may obfuscate group differences in the association of nativity with crime and delinquency’ (ibid.: 264). Davies and Fagan (2012) also found variation in immigrants’ experiences in New York City, depending in part on race and ethnicity. Most immigrants, they report, settle in areas ‘where people look like them and have similar resources’ (ibid.: 111). Most of the White immigrants in New York City are from Russia and Eastern Europe, and they tend to settle in areas where they are the predominant racial group. These areas are characterized by low crime rates and good access to resources. In contrast, Black immigrants, most of whom emigrated from Africa and the Caribbean, settle in neighborhoods marked by greater economic deprivation. These neighborhoods have the highest rates of homicide and assault. Latinos and Asians fall in between. Latino immigrants tend to live in majority-Latino neighborhoods that are less economically isolated than those in which Black immigrants have settled. Asian immigrants, interestingly, typically move into predominantly White neighborhoods, which, Davies and Fagan suggest, may reflect their greater economic resources. Other Asian immigrants live in areas that are not as well-off as the White neighborhoods, but are more similar to White than to Black or Latino neighborhoods. In both Latino and Asian neighborhoods, the association between immigration and crime is negative in direction, but nonsignificant.

New destination sites and anti-immigrant legislation The United States has served as a destination site for immigrants since its founding, but most newcomers have settled in just a few states. There has been a substantial demographic shift in the past two decades, however, with the foreign-born population growing at, or above, twice the national rate in 14 states spread across the southern and central regions of the country (Terrazas 2011). And even in states that have traditionally received immigrants, newcomers are settling in areas where they were not visible in such numbers in the past. The rapid influx of immigrants into new destination sites is largely driven by employment opportunities, including jobs at meat-processing plants and other new industries (Harris and Feldmeyer 2013). Yet while the rise in immigrant concentration benefits local businesses, the increased labor market competition is often a source of tension and conflict. For some residents, the changing demographics and competition for jobs constitute a racial threat (Stewart 2012; Wang 2012; Longazel forthcoming; ). This threat, in turn, is often manifested in a ‘moral panic’ about the dangers of immigration and immigrants. In response, local and state governments have introduced and enacted an unprecedented number of restrictive immigration laws and ordinances in recent years (Newton 2008; Varsanyi 2010b; Provine et al. 2012; Sinema 2012; Welch 2012; Longazel 2013). From 2005 to 2007, the number of proposed immigration-related bills more than quintupled, from 300 to 1,562, with a corresponding increase of 240 bills enacted in 2007 from 39 in 2005 31

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( Johnston and Morse 2012). This high level of legislative activity continued over the next five years, with a record 1,607 bills introduced in 2011. Many of the harshest anti-immigrant laws and ordinances arise in new destination sites, where immigration has less of a protective effect on crime and victimization. Even Arizona, which has always been a transit site, is a relatively new destination point for immigrants. Following passage of Arizona’s SB 1070, which authorized local police to determine immigration status during any lawful stop, required people to carry alien registration documents and permitted warrantless arrests if the offense would make the person removable from the country, similar legislation was enacted in other new destination sites, including Alabama, Georgia, Indiana, South Carolina, and Utah. The US Supreme Court has blocked most of Arizona’s SB 1070, and perhaps in response some localities have backed away from their earlier anti-immigrant hysteria and are even passing legislation that expands benefits for certain categories of immigrants, especially those who came to the US as young children (Morse 2014). Nevertheless, the anti-immigrant sentiment has not abated, as evidenced as recently as February 2014, when nearly 60 percent of voters in Fremont, Nebraska, opted to keep an ordinance that requires renters to apply for a permit and attest to their legal status (Funk 2014).

Immigration and victimization The question of whether immigration increases crime has been definitively answered – it does not. A multitude of studies demonstrate that immigration significantly and substantially reduces crime, though there are important nuances and caveats to this general conclusion.That is, immigration decreases crime, especially violent crime, in traditional receiving communities characterized by high concentrations of immigrants and a welcoming ethnic enclave providing newcomers with sources of employment, strong social and familial ties, and community resources through religious and other neighborhood-based institutions. In new receiving communities where these resources are not as evident, immigration serves less of a protective role. In addition, studies have shown that generational status, national origin, race and ethnicity also condition the relationship between immigration and crime. But what about victimization of immigrants? While the imaginary relationship between immigration and crime has generated a moral panic, and politicians and pundits have jumped on this bandwagon to propose harsh legislation designed to encourage people to ‘selfdeport’ (to borrow the expression from presidential candidate Mitt Romney), these political actors have said little about the victimization of immigrants. We suggest that this antiimmigrant fervor makes immigrants especially vulnerable to exploitation and victimization. As we discuss below, the involvement of law enforcement officers in immigration control makes residents of communities with large numbers of undocumented immigrants afraid to call upon or cooperate with the police and this, in turn, makes them particularly attractive targets for victimization. We have not found recent estimates of the numbers of immigrants who are the victims of crime, but Kittrie (2006) extrapolated from estimates of violent crime and estimated numbers of undocumented immigrant adults in the United States in 2004, concluding that undocumented immigrants were the victims of at least 200,000 violent crimes and one million property crimes annually. That estimate is now a decade old, and we can assume the numbers are higher, given increases in the immigrant population and the increased vulnerability of immigrant communities due to the expansion of immigration enforcement into the interior (see Provine and Zatz, Chapter 23 in this volume). 32

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Drawing from theoretical work on the Latino paradox and on modified social disorganization theory, we ask whether the same protective factors that reduce crime in immigrant communities also reduce victimization. Conversely, does their relative absence in new destination sites leave immigrants more vulnerable to exploitation and violent victimization? In addition, we ask whether these vulnerabilities are exacerbated by anti-immigrant legislation and local ordinances that result, at least in part, from the moral panic about immigration and crime. To shed light on these questions, we explore three areas of vulnerability: (1) the dangers associated with entering the country; (2) employment as day laborers and domestic workers; and (3) violence in the home and community safety. These forms of victimization are by no means exhaustive, and serve simply to highlight the dangers faced by immigrants and to help us consider whether and how the wave of anti-immigrant legislation has made immigrants and their communities even more vulnerable.

Entering the country: border deaths, violence and exploitation Former Immigration and Naturalization Services Commissioner Doris Meissner and her colleagues subtitled their report on the complex, interlocking system of immigration enforcement in the United States ‘the rise of a formidable machinery’ (Meissner et al. 2013). On the country’s southern border with Mexico, the ramping-up of fences, technology, and personnel has forced migrants to cross the border in increasingly remote areas where they are more likely to become lost and where the risk of death from dehydration, heat stroke, hypothermia and drowning is heightened (Government Accountability Office 2006; Guerette 2007; Nevins 2008; Weber and Pickering 2011; Meissner et al. 2013). Not trusting the federal government to enforce the border, civilian vigilante groups have taken up arms along the border as well (Kil and Menjívar 2006; Chavez 2008; Fan 2008; Doty 2009). In response to these increased risks, the business of transporting persons across the border has been transformed from small-scale smuggling operations to organized trafficking schemes (Guerette and Clarke 2005; Chacon 2010). Kidnappings, rape, extortion and involuntary servitude or prostitution to repay escalating costs en route have become relatively routine elements of this trafficking (Kil, Menjívar and Doty 2009; Chacon 2010). Recognizing the limitations of existing law, the Trafficking Victims Protection Act of 2000 (TVPA) and reauthorizations in 2003, 2005, 2008 and 2013 sought to prevent trafficking in persons, identify methods of prosecuting traffickers, assist victims and monitor other nations’ responses to human trafficking. The Act created a special T visa for victims of human trafficking who assist law enforcement with the investigation and prosecution of trafficking cases (Chacon 2010). The T visa is capped at 5,000 allocations per year for individuals, not including visas for the recipients’ immediate family members. Its use was slow initially, with only 1,168 T visas approved for individuals and another 925 for family members during the period 2005–9, but they have risen steadily (USCIS 2010). The latest available data covers the first three quarters of 2013, during which time 681 individual and 731 family member visas were approved, indicating that the numbers continue to rise (USCIS 2013).Yet the number of visas approved remains far below the 5,000 visas annually that had been anticipated when the law was created, suggesting either that there is less trafficking than scholars and advocates had anticipated or, more likely, a continued reluctance and inability of trafficking victims to come forward.

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Violence and exploitation in the workplace A second area in which immigrants, and especially undocumented immigrants, are vulnerable is in the workplace. Valenzuela et al. (2006) found that 49 percent of day laborers they surveyed reported wage theft by employers and 18 percent were victimized by violent employers, often in the context of confrontations over payment for work completed. More recently, Waren (forthcoming) reports that 78 percent of the Latino day laborers surveyed in post-Katrina New Orleans were the victims of wage theft in 2008. The risks of both violent assaults and theft are even greater when immigrants are perceived to be unlikely to report victimization because of fears of the police and of deportation, for day laborers with limited English language skills, and for those working in isolated conditions (Guerette 2006; Bauer 2009; Ramírez and Hondagneu-Sotelo 2009; Fussell 2011; Cepeda et al. 2012; Waren forthcoming; Negi, Cepeda and Valdez 2013). As Negi, Cepeda and Valdez note, day laborers’ exposure to robbery, assault, and home invasions is aggravated by general knowledge that they carry cash on their person or hide money in their homes, and that they are unlikely to report the crime to the police (2013: 362). In addition, these researchers note that undocumented day laborers, janitors, landscapers, nannies, and others working in the informal sector often have to put in long hours, work at a fast pace, accept late, partial and meager payments, endure harassment and tolerate violations of labor laws due to their precarious legal status. As Cepeda et al. (2012) conclude from their study of Latino immigrant day laborers in postKatrina New Orleans, these risks are also racialized, with clashes between displaced African Americans and Latino day laborers erupting into violence at times. Conflicts also arise among the immigrant populations, with Central Americans distrusting their Mexican co-workers due to violence and theft they may have encountered on their journey through Mexico. These risks are also gendered.While male day laborers may face the greatest danger of robbery on the streets, undocumented women working as nannies, maids and caregivers are also at great risk of exploitation and abuse (Chang 2000; Hondagneu-Sotelo 2001; Ehrenreich and Hochschild 2002). And, because they are hidden behind the closed doors of their employers’ homes, they are especially vulnerable to sexual and other assaults by their employers. These dangers appear to be especially pernicious in new destination sites, where the social supports typical of traditional destinations, or what Shihadeh and Barranco call the protective social control ‘umbrella’, are limited or nonexistent (2013: 82). As a consequence, new destinations do not offer a way to ‘mediate the negative effects of poverty, discrimination, street culture, and ethnic and racial tensions that contribute to crime’ (Negi, Cepeda and Valdez 2013: 365–6).

Violence in the home and community safety A substantial body of research demonstrates that immigrant women are vulnerable to intimate partner violence, and both the risk of violence and the fear of reporting victimization to the police are exacerbated when the woman is undocumented (Menjívar and Salcido 2002; Menjívar and Bejarano 2004; Salcido and Adelman 2004; Gillis et al. 2006; Erez and Globokar 2009; Erez, Adelman and Gregory 2009; Vidales 2010; Pearce and Sokoloff 2013). Multiple factors converge to explain this underreporting, including lack of resources and knowledge of the law, fear of arrest and deportation, reliance on the abusive partner for economic support, isolation, pressure from other family members not to report the abuse, fear of retribution and language difficulties. In addition, when the abusive partner has legal residency in the United States and his partner does not, the batterer may threaten to call immigration authorities or withdraw petitions for citizenship if she calls the police (Menjívar and Salcido 2002; Morash et al. 2007; Erez and 34

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Globokar 2009). This risk is especially great in states with dual arrest policies for domestic violence or where child protective services become involved. In such circumstances, the victim could be deported and the violent partner granted sole custody of the children, thus potentially putting the children at risk and permanently separating the victim of abuse from her children (Wessler 2011). Victims’ reluctance to report domestic abuse may be intensified in new destination sites. In a pair of studies conducted in the new gateway city of Baltimore, Maryland, Sokoloff and Pearce (2011) and Pearce and Sokoloff (2013) examine awareness of intimate partner violence, finding that immigrants were more apt to reach out to co-ethnics than to law enforcement in cases of abuse.They argue further that social location is critical to understandings of intimate partner violence, and that victims feared immigration detention and deportation even more than they feared further violence from their partner, making them wary of calling on the police for help. This risk may be especially great in new destination sites because of the relative isolation experienced by the women. In contrast, they may experience greater protection in more traditional receiving communities. This suggestion also finds support in research by Wright and Benson (2010), who found that neighborhoods with large immigrant populations have lower levels of intimate partner violence, perhaps because the women are less isolated. In recognition of the special risks confronting immigrant women, the Violence Against Women Act of 2000 created the U visa for undocumented immigrants who have suffered substantial physical or mental abuse as a result of being the victim of certain specified crimes and who have assisted authorities in investigating and prosecuting the crimes.Yet it was not until 2008 that any U visas were approved, and it has only been since the fiscal year 2010 that the full annual allocation of 10,000 U visas (not including visas for derivative family members) has been approved (USCIS 2013). Even more telling, far more applications come in than can be approved. Thus, almost 25,000 applications for U visas were received in the fiscal year 2012 – far more than the 10,000 visa cap – plus another 15,000 for applicants’ family members. Fewer than 3,000 of the visa requests were denied; the remainder simply could not be granted, given the cap. This pattern appears to be continuing into the fiscal year 2013, since at the end of the third quarter more than 19,000 U visas and 14,000 derivative visas had already been requested (ibid.). This situation, in which undocumented victims of domestic violence have come out of the shadows to ask for help but were then denied because of a shortage of U visas, likely contributes to the reluctance of immigrants to turn to the police for help.This reluctance is further aggravated in locales that require law enforcement officers to engage in immigration enforcement. Such policies fly in the face of efforts by police departments to cultivate improved relations with communities that include large numbers of immigrants (Davis, Erez and Avitabile 2001; Skogan 2009; Kirk et al. 2012; Provine et al. 2012).

Conclusion The research literature is clear that immigration reduces crime rates in traditional destination sites across the United States, though this effect is lessened in new destinations. There are subtle differences and nuances to this general pattern related to generational status, country of origin, racial/ethnic classifications and crime type. Nevertheless, the general pattern is clear. It is also somewhat paradoxical, and contrary to the expectations of early researchers and to the assertions of politicians and pundits who have sought to rally others behind a moral panic linking immigration and crime. We suggest that these unfounded fears of crime by immigrants have contributed to the rash of anti-immigration laws and ordinances sweeping the United States. It is also important to 35

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recognize that many of the harshest of these laws took root in new destination sites, where economic competition for jobs and rapidly changing demographics combine to make residents wary of newcomers who look different, speak different languages and have different customs. We argue further that anti-immigrant laws and ordinances have made immigrants more vulnerable to victimization and exploitation, and their communities less safe. Finally, we suggest that this vulnerability is especially great in new destination sites, where the broad protective umbrella of social services, extended family and employment options found in traditional ethnic enclaves is lacking.

Acknowledgments An earlier version of this chapter was published in 2012 as ‘Immigration, crime and victimization: rhetoric and reality’, in Annual Review of Law and Social Science, vol. 8, pp. 141–59.

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Erez, E & Globokar, J 2009, ‘Compounding vulnerabilities: the impact of immigration status and circumstances on battered immigrant women’, in W McDonald (ed.), Immigration, crime and justice, Emerald, New York, pp. 129–45. Fan, M 2008, ‘When deterrence and death mitigation fall short: fantasy and fetishes as gap-fillers in border regulation’, Law & Society Review, vol. 42, no. 4, pp. 701–33. Funk, J 2014, ‘Fremont, Nebraska to keep undocumented immigration rules’, Huffington Post, 12 January, viewed 13 February 2014, http://www.huffingtonpost.com/2014/02/12/fremontnebraska-immigration_n_4774027.html Fussell, E 2011, ‘The deportation threat dynamic and victimization of Latino migrants: wage theft and robbery’, The Sociological Quarterly, vol. 52, no. 4, pp. 593–615. Gardner, M 2005, The qualities of a citizen: women, immigration, and citizenship: 1870–1965, Princeton University Press, Princeton, NJ. Gillis, J, Diamond, S, Jebely, P, Orekhovsky, V, Ostovich, E, MacIsaac, K, Sagrati, S & Mandell, D 2006, ‘Systemic obstacles to battered women’s participation in the judicial system: when will the status quo change?’ Violence Against Women, vol. 12, no. 12, pp. 1150–68. Gómez, L 2007, Manifest destinies: the making of the Mexican American race. New York University, New York. Government Accountability Office 2006, Illegal immigration: border-crossing deaths have doubled since 1995; border patrol’s efforts to prevent deaths have not been fully evaluated, U.S. Government Accountability Office, Washington, DC. Guerette, R 2006, Disorder at day laborer sites, Department of Justice, Office of Community Oriented Policing Services, Washington, DC. — 2007, ‘Immigration policy, border security, and migrant deaths: an impact evaluation of life-saving efforts under the border safety initiative’, Criminology & Public Policy, vol. 6, no. 2, pp. 245–66. Guerette, R & Clarke, R 2005, ‘Border enforcement, organized crime, and deaths of smuggled migrants on the United States-Mexico border’, European Journal on Criminal Policy & Research, vol. 11, no. 2, 159–74. Hagan, J, Levi, R & Dinovitzer, R 2008, ‘The symbolic violence of the crime-immigration nexus: migrant mythologies in the Americas’, Criminology and Public Policy, vol. 7, no. 1, pp. 95–112. Hagan, J & Palloni, A 1999, ‘Sociological criminology and the mythology of Hispanic immigration and crime’, Social Problems, vol. 46, no.4, pp. 617–32. Harris, CT & Feldmeyer, B 2013, ‘Latino immigration and White, Black, and Latino violent crime: a comparison of traditional and non-traditional immigrant destinations’, Social Science Research, vol. 42, no. 1, pp. 202–16. Hondagneu-Sotelo, P 2001, Doméstica: immigrant workers cleaning and caring in the shadows of affluence, University of California Press, Berkeley, CA. Johnston, A & Morse, A 2012, 2012 immigration-related laws and resolutions in the states (Jan.1–Dec.31, 2012), National Conference of State Legislatures, viewed 6 January 2014, http://www.ncsl.org/ research/immigration/2012-immigration-related-laws-jan-december-2012.aspx Kil, S & Menjívar, C 2006, ‘The “war on the border:” criminalizing immigrants and militarizing the U.S.-Mexico border’, in R Martinez & A Valenzuela (eds), Immigration and crime: race, ethnicity, and violence, New York University Press, New York, pp. 164–88. Kil, S, Menjívar, C & Doty, R 2009, ‘Securing borders: patriotism, vigilantism and the brutalization of the US American public’, in W McDonald (ed.), Immigration, crime and justice, Emerald, New York, pp. 297–312. Kirk, DS, Papachristos, AV, Fagan, J & Tyler, TR 2012, ‘The paradox of law enforcement in immigrant communities: does tough immigration enforcement undermine public safety?’ The Annals of the American Academy of Political and Social Science, vol. 641, no. 1,pp. 79–98. Kittrie, O 2006, ‘Federalism, deportation, and crime victims afraid to call the police’, Iowa Law Review, vol. 91, pp. 1449–508. Kubrin, C & Ishizawa, H 2012, ‘Why some immigrant neighborhoods are safer than others: divergent findings from Los Angeles and Chicago’, The Annals of the American Academy of Political and Social Science, vol. 641, no. 1, pp. 148–73. Kubrin, C & Ousey, G 2009, ‘Immigration and homicide in urban America: what’s the connection?’ in W McDonald (ed.), Immigration, crime and justice, Emerald, New York, pp. 17–32. Kubrin, C, Zatz, MS & Martínez, R (eds) 2012, Punishing immigrants: policy, politics, and injustice, New York University Press, New York. Lee, M 2003, Crime on the border: immigration and homicide in urban communities, LFB Scholarly Publishing, New York.

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Lee, M & Martínez, R 2009, ‘Immigration reduces crime: an emerging scholarly consensus’, in W McDonald (ed.), Immigration, crime and justice, Emerald, New York, pp. 3–16. Longazel, JG 2013, ‘Moral panic as racial degradation ceremony: racial stratification and the locallevel backlash against Latino/a immigrants’, Punishment & Society, vol. 15, no. 1, pp. 96–119. — forthcoming, ‘Rhetorical barriers to mobilizing for immigrant rights: White innocence and Latino/a abstraction’, Law and Social Inquiry. Lyons, CJ, Vélez, MB & Santoro, WA 2013, ‘Neighborhood immigration, violence and city-level immigrant political opportunities’, American Sociological Review, vol. 78, no. 4, pp. 604–32. MacDonald, J, Hipp, J & Gill, C 2013, ‘The effects of immigrant concentration on changes in neighborhood crime rates’, Journal of Quantitative Criminology, vol. 29, pp. 191–215. MacDonald, J & Saunders, J 2012, ‘Are immigrant youth less violent? Specifying the reasons and mechanisms’, The Annals of the American Academy of Political and Social Science, vol. 641, no. 1, pp. 125–47. Martínez, R 2002, Latino homicide: immigration, violence and community, Routledge, New York. Martínez, R & Lee, M 2000, ‘On immigration and crime’, in G LaFree (ed.), Criminal justice 2000, vol. 1, The nature of crime: continuity and change, U.S. Department of Justice, Washington, DC, pp. 485–524. Martínez, R & Stowell, J 2012, ‘Extending immigration and crime studies: national implications and local settings’, The Annals of the American Academy of Political and Social Science, vol. 641, no. 1, pp. 174–91. Martínez, R, Stowell, J, & Cancino, J 2008, ‘A tale of two border cities: community context, ethnicity, and homicide’, Social Science Quarterly, vol. 89, no. 1, pp. 1–16. Martínez, R & Valenzuela, A (eds) 2006, Immigration and crime: race, ethnicity and violence, New York University Press, New York. Massey, D (ed.) 2008, New faces in new places: the changing geography of American immigration, Russell Sage Foundation, New York. Mears, D 2001, ‘The immigration-crime nexus: toward an analytic framework for assessing and guiding theory, research, and policy’, Sociological Perspectives, vol. 44, no. 1, pp. 1–19. Meissner, D, Kerwin, DM, Chishti, M & Bergeron, C, 2013, Immigration enforcement in the United States: the rise of a formidable machinery, Migration Policy Institute, Washington, DC. Menjívar, C & Bejarano, C 2004, ‘Latino immigrants’ perceptions of crime and police authorities in the United States: a case study from the Phoenix metropolitan area’, Ethnic & Racial Studies, vol. 27, no. 1, pp. 120–48. Menjívar, C & Salcido, O 2002, ‘Immigrant women and domestic violence: Common experiences in different countries’, Gender & Society, vol. 15, no. 6, pp. 898–920. Mirandé, A 1987, Gringo justice, University of Notre Dame Press, Notre Dame, IN. Morash, M, Bui, H, Zhang, Y & Holtfreter, K 2007, ‘Risk factors for abusive relationships: a study of Vietnamese American immigrant women’, Violence Against Women, vol. 13, no. 7, pp. 653–75. Morse, A 2014, 2013 immigration report, National Conference of State Legislatures, viewed 13 February 2014, http://www.ncsl.org/research/immigration/2013-immigration-report.aspx Negi, NJ, Cepeda, A & Valdez, A 2013, ‘Crime victimization among immigrant Latino day laborers in postKatrina New Orleans’, Hispanic Journal of Behavioral Sciences, vol. 35, no. 3, pp. 354–69. Nevins, J 2008, Dying to live: a story of U.S. immigration in an age of global apartheid, City Lights, San Francisco. Newton, L 2008, Illegal, alien, or immigrant: the politics of immigration reform, New York University Press, New York. Ngai, M 2004, Impossible subjects: illegal aliens and the making of modern America, Princeton University Press, Princeton, NJ. Ousey, G & Kubrin, C 2009, ‘Exploring the connection between immigration and violent crime rates in U.S. cities, 1980–2000’, Social Problems, vol. 56, no. 3, pp. 447–73. Passell, J & Cohn, D 2009, A portrait of unauthorized immigrants in the United States, Pew Research Center Publications, viewed 14 April 2012, http://pewresearch.org/pubs/1190/portrait-unauthorizedimmigrants-states Pearce, SC & Sokoloff, NJ 2013, ‘This should not be happening in this country: private-life violence and immigration intersections in a U.S. gateway city’, Sociological Forum, vol. 28, no. 4, pp. 784–810. Provine, DM & Doty, RD 2011,‘The criminalization of immigrants as a racial project’, Journal of Contemporary Criminal Justice, vol. 27, no. 3, pp. 261–77. Provine, DM, Varsanyi, M, Lewis, PG, & Decker, SH 2012, ‘Growing tensions between civic membership and enforcement in the devolution of immigration control’, in C Kubrin, MS Zatz

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Vélez, M & Lyons, C 2012, ‘Situating the immigration and neighborhood crime relationship across multiple cities’, in C Kubrin, MS Zatz & R Martínez (eds), Punishing immigrants: policy, politics, and injustice, New York University Press, New York, pp. 220–44. Vidales, G 2010, ‘Arrested justice: the multifaceted plight of immigrant Latinas who faced domestic violence’, Journal of Family Violence, vol. 25, no. 6, pp. 533–44. Wang, X 2012, ‘Undocumented immigrants as perceived criminal threat: a test of the minority threat perspective’, Criminology, vol. 50, no. 3, pp. 743–76. Waren, W forthcoming, ‘Wage theft among Latino day laborers in post-Katrina New Orleans: comparing contractors with other employers’, Journal of International Migration and Integration. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke. Welch, M 2012, ‘Panic, risk, control: conceptualizing threats in a post-9/11 society’, in C Kubrin, MS Zatz & R Martínez (eds), Punishing immigrants: policy, politics, and injustice, New York University Press, New York, pp. 22–58. Wessler, S 2011, Shattered families: the perilous intersection of immigration enforcement and the child welfare system, Applied Research Center. November, viewed 10 November 2013, http://www.sph.sc.edu/cli/ word_pdf/ARC_Report_Nov2011.pdf Wright, E & Benson, M 2010, ‘Immigration and intimate partner violence: exploring the immigrant paradox’, Social Problems, vol. 57, no. 3, pp. 480–503.

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3 Immigration and crime in Sweden Amber L. Beckley, Johan Kardell and Jerzy Sarnecki

Introduction Sweden is, by land area, a relatively large European country in the northern hemisphere, with a population of about 9.5 million people and a relatively low population density. Sweden has enjoyed a reputation as an open and accepting country with progressive social and crime policies and a democratic welfare oriented government. This chapter discusses immigration and criminality in Sweden. It first presents a broad overview of immigration, immigrants and crime in Europe in general, which serves as an important point of departure for comparing and contrasting the Swedish context. The second section covers the history of immigration to Sweden along with Sweden’s development of immigration and integration policy, and discusses Sweden’s immigration and integration policy and shows that it is still evolving. The next section provides context on studies of immigrant crime in Sweden. There has been great controversy over whether immigrant criminality should even be studied. The section that follows provides an overview on immigrant criminality in Sweden based on research that has been done since the 1970s. The literature on immigrant offending is characterized as being of three waves. The third wave has addressed potential causes of immigrant criminality and this research is expanded upon in the fourth section. Finally, we summarize and offer our conclusions on the outlook of immigrant criminality in Sweden.

Immigration and crime in Europe While most countries in North and South America and Australia have been built up (not always voluntarily) by migrants, Europe is lacking this extensive migration tradition. Indeed, most of North America became populated with emigrants from Europe. In several of the European countries, low immigration has fostered a tradition of the notion of an ethnically homogeneous state. This nationalist and even racist ideology, with roots in the 1800s, is in many places a major source of resistance against immigration, particularly from non-European countries. Europe experienced many large population movements caused by wars throughout the continent, but non-European migration is relatively new. It started on a larger scale in the second 41

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half of the twentieth century and is still accelerating. Europe is an attractive destination for many migrants partly because the majority of the countries on the continent are democracies and many are welfare states. Moreover, many European countries are peaceful. Despite these similarities, the immigrant population of different European countries varies significantly. This applies even to Scandinavian countries, which are often viewed as more homogeneous because of their history as a single nation. The various populations, however, have not prevented Western Europe from merging into a single entity: the European Union. As of late, migration policies have contributed to what has come to be known as ‘fortress Europe’, due to free movement within the European Union, but restrictions on getting into the ‘fortress’. Perhaps, then, it is unremarkable that immigrant criminality and the construction of this as a problem are surprisingly similar between European countries. On the surface, immigrants are highly over-represented in crime statistics throughout Europe (Tonry 2013). These figures do not, however, take important criminogenic factors such as employment, age, and education into account. In general, research that endeavours to control for such factors is unsupportive of a causal immigrant–crime link. Findings often indicate little or no difference between similarly situated immigrants and natives. Thus, while a greater proportion of immigrants may be responsible for crime, this is likely due to circumstances unrelated to their foreignness. Rather, findings indicate that socio-economic characteristics are often a key explanatory factor in immigrant offending (Tonry 1997). In their review of economic research on immigration and crime, Bell and Machin (2013) summarize that immigrant criminality appears to be closely related to employment. Their review includes studies from Spain, France, the UK and Italy. As Tonry (1997) also points out, criminality seems to be a prevalent problem among the most disadvantaged segments of society; these are often comprised of immigrants. As Kardell (forthcoming) notes, researchers have also connected immigrant offending to factors such as alienation, blocked opportunities, social disorganization, relative deprivation and deviant subcultures, to name but a few. Moreover, in most European countries, criminality is more prevalent among the children of immigrants (Tonry 1997). This pattern even appears in the United States and has been related to theories on immigrant acculturation and a disconnect between immigrants and their children (Portes and Zhou, 1993). This is one area where Sweden emerges as unique. One significant weakness of European studies is the lack of data on ethnicity. As Tonry (2013) notes, this makes many cultural arguments untestable. Often data on the country of origin is available to researchers. But considering many ethnicities can be found in one country, and that ethnicities also cross national borders, country information is often minimally helpful.

Immigration in Sweden post-World War II to 1971: labour migration predominates Sweden was primarily a country of emigration during the 1800s and in the early 1900s. After World War II, Sweden began attracting many labourers. Sweden had avoided the war and had a wealth of natural resources to contribute to the rebuilding of Europe. The flow of immigration was, to all intents and purposes, controlled by the labour unions. Labour was in such high demand that workers were even recruited from Southern Europe and Finland. The labour migrants were seen as temporary residents and there was no explicit policy addressing their integration into Swedish society. Many of the immigrants who came to Sweden for work following the war did, in fact, return to their home countries. 42

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Yet Sweden also took in a number of refugees both before and after the war, the majority of whom became permanent residents, inter alia refugees from the Baltic States that had been occupied by the Soviets. A small group of these were extradited to Soviet Russia in 1945 (Andrae 2004). And further refugees came from Hungary in 1956, and from Poland and Czechoslovakia in 1968. Immigration and integration policy for refugees was established by the UN Convention Relating to the Status of Refugees (1951), to which Sweden was a signatory. The Convention defined refugees as people under the threat of persecution. Sweden broadened this definition to include people in need of humanitarian aid. According to the Convention, refugees were to have the same rights and responsibilities as residents in the receiving country. The Convention also contained the important principle of non-refoulement, which stated that immigrants could not be returned to the country of origin while still under the threat of persecution. By the mid-1960s many migrants had come to Sweden in search of work without having been recruited by employers. Many migrants were no longer just pursuing short-term work and then leaving, they were seeking refuge or a permanent job. Immigration began to be seen as a potential social and economic problem and, beginning in 1966, with pressure from labour unions, a labour permit was required to immigrate (Rosenberg 1995; Schierup, Hansen and Castles 2006). By the late 1960s questions about multiculturalism and how immigrants and native Swedes should co-exist were frequently asked (Westin 2003; Dahlström 2004). ‘Proposition 1968’ was the first attempt to address integration and recognize the long-term residence many migrants were seeking (Dahlström 2004). The proposition emphasized that immigrants should be given equal access to housing and the welfare state and should not be marginalized either in employment or in society. Discrimination was not explicitly outlawed, in part because it was not seen as a problem warranting legislation and in part because the labour market retained a substantial amount of autonomy (Graham and Soininen 1998).

Swedish immigration, 1972–1989: integration at the forefront In 1972, again steered by the powerful labour unions, Sweden generally prohibited labour migration as labour needs began to dwindle (Rosenberg 1995; Graham and Soininen 1998; Schierup, Hansen and Castles 2006). The country received its first non-European, non-labour migrants in 1972 from Uganda, following political upheaval under the rule of Idi Amin. In 1973, migrants came from Chile after Pinochet came into power. This pattern of waves of migrants following political and social unrest became a permanent feature of migration into Sweden. Throughout the 1970s and 1980s immigrants came primarily from countries in Africa, Asia, South America and the former Soviet Union. In response to the diversifying culture of Sweden, Sweden’s famous integration policy was enacted in 1975 (Regerings proposition 1975). In addition to addressing the manner in which migrants to Sweden would go about acquiring legal residence and citizenship, it also addressed how Swedes and immigrants should participate in society.There were three primary tenets of the policy: equality, freedom of choice and partnership (Castles and Miller 2003). Equality meant that those holding a residence permit were granted the same rights as citizens, with the exception of voting in national elections.This tenet was viewed as the most crucial as it allowed immigrants access to social and healthcare services and education (Westin 2003). Freedom of choice allowed immigrants to choose to retain their own culture or adopt a Swedish culture. In terms of policy, this tenet allowed for education in the native language for children, and the government provided Swedish language courses for adults (Westin 2003).The third tenet of partnership pertained to the civic participation of immigrants in the recognition that there is a benefit to 43

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society for native Swedes and migrants working together (Castles and Miller 2003). The civic participation of immigrants was encouraged and funding for immigrant organizations was made available. During the 1980s nationalist movements began to increase while Sweden was under economic constraints and global immigration was rising. This resulted in anti-discrimination laws aimed at protecting immigrants, on the one hand, and policies trying to curtail integration policy, on the other. For example, though discrimination would remain non-criminal for quite some time, the position of Ombudsman for Ethnic Discrimination was established to assist with problems with discrimination and shaping public opinion about immigrants. At the same time, Proposition 1986 (Regerings proposition 1985/86) clarified that freedom of choice had its limits. Specifically, it was practically impossible for the government to accommodate education in the home language with the increased diversity of immigrants (Soininen 1999: 659). Also, while immigrants could retain aspects of their culture, there were limits to ‘freedom of choice’ in that a basic idea of democracy, Swedish law and Swedish policy had to be adhered to (ibid.: 690). A key event in Swedish history also stirred ethnic tensions. In 1986, Prime Minister Olof Palme was assassinated. Police suspected Kurdish terrorists and a number of Kurds were subsequently held in police custody. The police suspicions were, however, unfounded at the time. Finally, in 1989, Sweden’s previously liberal definition of an asylum seeker was curtailed to include only those meeting the criteria of the 1951 Geneva Convention. Those who were previously able to claim refugee status on humanitarian grounds no longer qualified.To be a refugee, one had to be explicitly persecuted and conform to the strict definition of a refugee as found in the 1951 UN Convention.

Swedish immigration 1990 to present: conflicting interests In the 1990s Sweden joined the EU and became a Schengen member state, making migration between member states easier. Migrants continued to come in waves that followed conflicts around the world. The majority of immigrants were, and continue to be, family of previously settled migrants and many immigrants stay in Sweden permanently. Second only to Luxemborg, Sweden has one of the highest per capita rates of asylum seekers, around 3,000 per million population from 2006–11, with most coming from Afghanistan, Somalia and Kosovo (OECD 2013). Sweden’s neighbours, Norway, Denmark and Finland have far fewer: 1800, 680, and 570, respectively (ibid.). Sweden is also unique among its neighbouring countries in that the largest proportion of Sweden’s recent immigrants (2001–10) have come from Iraq (ibid.). For both Norway and Denmark, the greatest proportion of recent immigrants were from Poland (ibid.). In Finland, Estonia and Russia were tied as the most predominant sending countries.This has created a ‘second generation’ of immigrants – or Swedish-born children with parents who were born outside of Sweden. Sweden, like most countries across the world relies on jus sanguinis (or citizenship through parental lineage). This means that those born in Sweden to foreign-born parents have the citizenship of the parent(s). In total, approximately 20–25 per cent of the Swedish population has a foreign background, either being born abroad or born in Sweden with at least one foreign-born parent (Statistics Sweden 2013: 100). In 2008, Sweden relaxed restrictions on its labour migration policies and extended the time limit on work permits. This was not only an important step to increase productivity, but also to save the welfare state in light of declining birth rates and an ageing population (Ministry of Justice 2008). Work permit holders have the same rights as all other registered residents of Sweden. These rights include access to need-based welfare, housing, and unemployment compensation. In addition, residents receive heavily subsidized healthcare and free education 44

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(including post-secondary education). Immigrants are still able to participate in free Swedish language courses and obtain resettlement plans free of charge. Attaining citizenship usually takes between three to five years, provided that criminality does not delay the process, and there are no citizenship tests. These features have led to Sweden’s integration policies being ranked among the best in the world (Huddleston et al. 2011). Despite the expansion of labour immigration and highly rated integration policies, sociopolitical tensions with immigrants in Sweden have continued. In 2010, the first openly anti-immigration party was elected into parliament. Much of the anti-immigrant sentiment may be in reaction to the current status of immigrants in Sweden. Immigrant households are far more likely to receive social benefits than Swedish households while, on average, contributing less and receiving more from the ‘social purse’ than native households (OECD 2013). Currently the unemployment and underemployment rates of immigrants exceed that of natives (OECD 2008). However, refugees and family-based immigrants do not appear to have an equal playing field. Labour market segregation remains somewhat problematic with around 10 per cent of foreign workers needing to change sectors to match the native worker distribution across sectors (OECD 2013). Studies have also documented discrimination in hiring (Arai, Bursell and Nekby 2008; Arai and Thoursie 2009; Bursell 2011). Recently, Sweden has increased its funding to non-governmental organizations who attempt to combat discrimination (OECD 2013). Residential segregation is prevalent across Sweden (Statistics Sweden 2007) and may have an impact on school grades (Bygren and Szulkin 2010). Many immigrants live in immigrantdominated neighbourhoods in the poorest segments of large cities (cf. Shaw and McKay’s (1942) zone in transition and Wacquant’s (1997, 2008) anti-ghetto). It should, however, be noted that the standard of housing in these areas, in contrast to many other countries, is often relatively good. In 2012, about 4000 reported crimes were identified as hate crimes with a racist motive (Brå 2013), a rate of about 44 per 100,000. The most prevalent type of hate crime was threats (41 per cent), followed by violent crimes (17 per cent). Other examples come from Hällgren’s (2005) study in the town of Umeå in Northern Sweden, where respondents discuss things such as having ‘Heil Hitler’ salutes directed towards them and racially motivated aggression and physical attacks.Yet, polls show that Swedes’ attitudes toward immigrants generally are increasingly positive (Westin 2003; Demker 2012). The generous policies of Sweden may have been moderately effective in helping immigrants but may also have backfired among natives by creating a substantial anti-immigrant sentiment. These changing social patterns and policies over time have contributed to a predictable pattern of crime seen across many countries in which policies and practices are far less respected.

The immigrant criminality controversy Swedish research with a focus on persons with a foreign background and their level of representation in registered offending has sometimes been described as controversial. This description is not an experience limited to Sweden (Gabbidon 2010: 227). In the debate about the controversial nature of research on foreign background and crime, empirical research has been viewed as a means of counteracting erroneous conceptions. As early as the 1970s, Sveri (1973: 284) argued that the criminality of non-Swedish citizens was an important subject that could be used to combat unfounded misconceptions. This argument was subsequently referred to by others. Ahlberg and Lööw (2002) argued, for example, that in the absence of knowledge, the field would be left wide open for conspiratorial theories. Others, 45

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however, have argued that the results can be used to reinforce stereotypes (Falck 1982: 118; Tamas 2004). At the beginning of the 1980s, the Norwegian researcher, Falck, argued that in order to properly study foreign background and criminality, researchers have to take a range of circumstances into consideration, such as the size of the groups being examined, their gender and age distributions, the proportion living in urban or rural areas, the regions from which they had migrated, and so forth. He concluded that research in this area was important, but that it was also dangerous since there was a risk that the findings would affect our attitude towards immigrants and future policy (Falck 1982: 137). Sveri, who was the object of some of the criticisms outlined in Falck’s article, responded by arguing that: The criminality of foreigners is an area that a researcher may approach with different attitudes. One could, as I do, view it as one social problem among other social problems, that it is important to study. One therefore feels it is necessary first and foremost to provide a description of the problem, to clarify its extent and to see where it is concentrated. One can do this while observing all of the measures of caution that are involved in all forms of research. One could also, like Falck, view it as a problem area that is so full of pitfalls and dangers that one – if one is wise – would preferably decline to research it at all. (Sveri 1982: 212) Yet, it has been argued that the taboo nature of the issue has led Swedish criminologists to avoid any detailed study of the over-representation in crime statistics of individuals with a nonSwedish background (Martens 1995: 255). A study of the debate in the press following the publication of a 1996 report by the Swedish National Council for Crime Prevention (Ahlberg 1996) asserted that the picture of over-representation of immigrants represented such an uncomfortable truth that many wished to conceal it. Some in the media incorrectly concluded that the National Council’s report had exposed a truth that had previously been concealed (Pedersson 2006: 328). However, in reviewing studies of the over-representation of individuals with a foreign background, it is hard to detect any effect of this ‘research taboo’. There have been more than 20 published studies since the 1970s in Sweden, and all of them have shown that individuals with a foreign background are over-represented in registered criminality (Kardell 2011). The notion of a research taboo is more likely to be interpreted as a rhetorical tool than a reality, on the basis of the number of studies and the stability of the results.

Foreign background and crime in Sweden Previous Swedish research has shown that, in relation to their proportion in the population at large, individuals with a non-Swedish background are more often registered for offending than individuals with a Swedish background (von Hofer and Tham 1991; Martens 1997; von Hofer, Sarnecki and Tham 1998; Nilsson 2001; Pettersson 2002; Brå 200). Considering the history of immigration in Sweden, non-Swedish Scandinavian nationals, mostly from Finland, often comprised a majority of the foreign criminal element (von Hofer 1983: 79; Savvidis 1991: 80; Ahlberg 1996: 35; Brå 2005: 36; von Hofer 2008: 150). It has also been noted that the level of over-representation lies around double what would be expected on the basis of the population proportion alone, and that this figure has remained relatively stable since the beginning of the 1970s (Kardell 2011). This is the case despite the fact that the nature of immigration to Sweden has changed substantially over this period, both with regard to the countries from which people have migrated to Sweden and the reasons for this 46

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migration (von Hofer, Sarnecki and Tham 1997: 75). For example, individuals from Finland, Denmark and Norway comprised approximately two-thirds of all convicted foreign citizens at the beginning of the period (Sveri 1973; 1980) compared with under one-third by the early 1990s (von Hofer and Thorsson 1994). The size of the over-representation found varies between different categories of offences, and also between different sub-groups (Ahlberg and Lööw 2002: 12). Generally speaking, Swedish and non-Swedish citizens1 have been convicted of the same types of offences (von Hofer et al. 1997: 73). Several previous studies have emphasized the similarities between the offences for which individuals with a Swedish and a non-Swedish background are registered (von Hofer 1990: 6; 2008: 150; von Hofer and Tham 1991: 16; Brå 2005: 30). It has been noted that the proportion of individuals with a non-Swedish background is greater in relation to convictions for more serious offences (von Hofer 1990: 6; 2008: 150; von Hofer and Tham 1991: 16). However, the over-representation of individuals with a non-Swedish background is also reported in analyses of more specific crime types (Pettersson 2006: 133) and in analyses of convictions resulting in a suspended sentence, probation or a prison term (Kardell 2006: 95). Previous results have shown that the level of over-representation is lower among individuals born in Sweden with foreign-born parents than among foreign-born individuals (von Hofer, Sarnecki and Tham 1996: 80f; Ahlberg 1996: 87ff; Martens 1997: 240; Nilsson 2001: 137; Pettersson 2001: 183). The first studies on offending among second-generation immigrants versus first-generation immigrants and indigenous Swedes were presented in the mid-1990s. The first study by Ahlberg (1996) was a statistical analysis of criminal offences reported to the police during a five-year period concerning the whole Swedish population between 15 and 55 years of age. In contrast to findings in the United States and other western European countries, Ahlberg found lower crime involvement among second-generation immigrants than among first-generation immigrants. Indigenous Swedes had the lowest involvement. This striking finding that second-generation immigrants engage less in criminal activities than the first generation has been reproduced in subsequent Swedish research for both convicted persons and crime suspects (Kardell 2011; Brå 2005; von Hofer et al. 1997). Ahlberg’s results received international attention and were further commented upon by Tonry (1997). Tonry draws the conclusion from Swedish results that a country’s settlement policies might have a suppressing influence on crime rates in the next immigrant generation. This interpretation has fallen on good ground among the domestic criminal justice authorities in Sweden and has been presented as being a success for the country’s welfare system. Martens (1997) argued that there were three waves of research on foreign background and crime in Sweden. The exchange between Sveri and Falck grew out of the first wave of research on immigrants and crime, which took place during the late 1970s and early 1980s. Despite the fact that the research showed that there was an over-representation of foreigners, the subject was viewed as a sensitive one, and the debate faded away (Martens 1997: 184). According to Martens, the second wave started in 1989 and was still ongoing in 1997 when his own study was published. In the context of the second wave, the Swedish Equality Ombudsman echoed previous arguments that facts were needed on immigrants’ involvement in crime and nothing would be gained by ignoring the issue (Martens 1997). This sentiment continued to resonate throughout the debate (see e.g. Pedersson 2006). One interpretation based on the years of publication presented in a later work (Kardell 2011) would be that this second wave began to recede during the late 1990s, and that a third wave of research then emerged around the middle of the first decade of the new millennium. It was around this time that selfreport studies appeared showing a smaller gap between immigrants and natives than previously 47

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found when using official data.Von Hofer, Sarnecki and Tham (1996: 83) noted that ‘immigrants’ over-representation in crime is marginal in relation to self-reported crime, is less than double in relation to convictions statistics, and is three times [what would be expected] in relation to the most serious violent offences.’ In the third wave of research, conclusions on over-representation have been called into question. More recent work (Kardell and Martens 2013) compared incidence rates, prevalence rates, and the average number of offences per suspect for different groups of individuals. The groups consisted of three categories: people with a foreign background (born abroad, born in Sweden to two foreign-born parents, born in Sweden to one foreign-born parent), and those without a foreign background. The prevalence rate was the number of persons per 1,000 in a category who were registered for at least one offence during the five-year period studied. In statistical terms it was the probability or the risk that the members of a category were suspected of an offence. The incidence rate was the number of offences per 1,000 in a category during the time period. The rate showed the average number of offences the members of a category have been suspected of and gave an idea about the offending activity of the group. The average number of registered offences among the suspected persons (sometimes referred to as lambda in the literature of the field) measured how frequently the suspected persons were registered for an offence during the five-year-period. It was a measure of the suspected persons’ offending activity. All three measurements were standardized on age, gender and education based on the distribution in the population of Swedish-born individuals with two Swedish-born parents. The results on prevalence were supportive of previous Swedish studies: second-generation immigrants were registered as suspects less than first-generation immigrants. The incidence rates for first-generation immigrants and second-generation immigrants without Swedish-born parents were practically the same. The incidence rates showed that on average, both first- and second-generation immigrants were registered for an offence twice as many times as those without a foreign background. This finding differed from previous studies, which were almost exclusively based on prevalence rates (e.g. von Hofer, Sarnecki and Tham 1996; Ahlberg 1996; Brå 2005). When the average number of registered offences among suspects was used, those without a foreign background had a higher average number of registered offences per person than firstgeneration immigrants, but a lower average number than second-generation immigrants. Apparently, there were more high-rate offenders among native Swedes than among firstgeneration immigrants. Again, this finding was different from that found in past studies. Moreover, the offending profile found for the group of high-rate offenders among the Swedish-born with two foreign-born parents contained crimes identified as ‘strategic offences’ in Swedish studies (Svensson 2002; Brå 2011). These were offences that past research had shown to predict a serious criminal career, e.g. car theft and robberies (Wikström 1995). Svensson (2002) found that when vehicle theft was the principal offence in the first conviction of a young person, there was a relatively high risk that he or she would follow ‘the career path of a chronic offender’ (ibid., p. 401). Also robbery/aggravated robbery as the first conviction indicated a fairly high risk of developing a chronic criminal career. In a more recent similar study, these results were confirmed, but with a slightly stronger emphasis on robbery and aggravated robbery and violent crimes (Brå 2011).

Reasons for over-representation Further research in the third wave consisted of research into possible causes of overrepresentation. These have been discussed by several researchers (e.g. von Hofer et al. 1996) over 48

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the past 40 years, but empirical studies on this issue have only been conducted more recently. The exception is possibly a study by the Swedish Council for Crime Prevention (Brå 2005), which was the earliest attempt.This study examined over-representation among immigrants after controlling for age, gender, education and income. Over-representation decreased only slightly after including these controls. This is not surprising considering the controls were concurrent with the measurement of crime as opposed to measuring childhood conditions, where, according to most criminological theories, much of the explanation of future crime can be found. Moreover, factors such as formal education and income have a completely different impact on the living conditions of immigrants compared with persons born in Sweden to Swedish-born parents and who have a Swedish education. The difference in recorded crime between immigrants and the local population can in principle be caused by three different conditions: 1

2 3

Inherent differences between immigrants and the native population.This includes conditions related to the country of origin and circumstances related to emigration (e.g. selective immigration, injury of migrants caused by war and other traumas, cultural differences, etc.). Differences in living conditions between immigrants and the local population in the country of arrival (e.g. differences in socio-economic conditions and housing segregation). Discriminatory practices in the justice system that are harmful to immigrants.

Recent research conducted on all of these issues suggests that it is likely that all three of the above-mentioned factors have effects on the gap in recorded crime between immigrants and Swedes. But, the second factor appears to have the most explanatory power. Hällsten, Szulkin and Sarnecki (2013) conducted a study of 66,330 individuals (emigrants and native Swedes) who had completed grade nine (i.e. their final year of compulsory education in Sweden) between 1990 and 1993 in the metropolitan area of Greater Stockholm. An immigrant was only included in the study if their parent(s) had migrated to Sweden at least five years prior to the date of completion of compulsory education (i.e. prior to 1985–88) and if they had participated in the 1990 census. Recorded crimes were followed up until 30 years of age. The recorded crime rate was measured in multiple ways: (1) the total number of recorded suspected offences; (2) the total number of recorded convictions; (3) the total number of recorded violent crimes; and (4) the overall length of prison sentences, in months. The study controlled for parents’ highest level of education, employment, social class, family’s total disposable income, age of mother at birth, parental divorce, number of siblings in different age spans, and relative social and economic neighbourhood conditions at the age of 16. When the analysis took the parents’ socio-economic resources and the effects of residential segregation into account, the difference in recorded crime was reduced by half to three-quarters for men and even more for women.The conclusion from this study was that the differences in recorded crime between immigrants and Swedes could predominantly be explained by the differences in circumstances under which youths with a foreign and native background grew up in Swedish society. The study also attempted to assess the possible cultural impact on crime levels based on region of emigration; the effects appeared to be small. These results can in no way be considered surprising. On the contrary, they are very consistent with ideas presented in several classic criminological theories such as: socio-ecological theories (e.g. Shaw and McKay 1942), strain theory (Merton 1957), subcultural theories (e.g. Cohen 1955; Cloward and Ohlin 1960; Miller 1958) and cultural conflict theories (e.g. Sellin 1938). In general, if the majority of differences in registered crime between immigrants and Swedes can be explained by differences between these groups in socio-economic conditions and housing 49

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segregation, little room is left for the effects of other factors, such as selective migration, cultural differences, and discrimination. There are presently no studies in which all these factors are simultaneously analysed. However, there is some research evidence to indicate that variables other than the family’s socio-economic status and residential segregation may be of some importance. Olsson (1986) has written about selective migration of Finnish citizens with extensive social problems (especially alcohol problems) to Sweden in the 1970s and 1980s. Beckley (2013) studied the potential impact of war in the home country on crime among foreign-born males in Stockholm. First, using psychological theories on war trauma provoking violence, she considered how wars during the individual’s residence in the home country affected criminal offending. Then, relying on sociological theories on cultures of violence, she considered wars prior to the individual’s birth. The results were generally unsupportive of either war trauma or a history of war leading to higher levels of crime. There was, however, a relationship between the level of human development in the home country and crime. Specifically, a higher level of human development was tied to a lower level of crime. Her study, however, only considered differences in criminality among the foreign-born and excluded comparisons with native Swedes. The issue of effects of immigrants’ cultural and religious background, from the country of origin, on behaviour in the receiving country (what Sellin 1938, would call ‘primary culture conflict’) is very sensitive. The ‘cultural argument’ is used as an argument against immigration by certain political forces in Sweden. As mentioned above, there is no scientific evidence that this effect is particularly significant. One can, however, not completely ignore such an effect if considering certain types of crime such as so-called honour-based violence against women (Brå 2010). Finally, there is a lot of research supporting the thesis that discrimination against immigrants and ethnic and religious minorities exists in different parts of the legal system (Brå 2008). Dahlbäck (2009) found that the public was somewhat more inclined to report crime to the police if they believed that the perpetrator was an immigrant. Kardell (2006) looked at the outcomes of court cases and found that the rates of dismissal were higher for immigrant suspects, further supporting the notion that immigrants are more likely to be reported to and/or officially suspected by the police. Additionally, sentencing practices appear to be uneven. Pettersson (2006) showed that Swedish courts tended to sentence persons with a foreign background to longer prison sentences than Swedes who committed equally grave types of crime. On the basis of these results, Sarnecki (2006) argued that the degree of discrimination found in various sectors of the judicial system was positively correlated with police officers’ level of discretion.

Conclusion Sweden has, in about half a century, turned from a generally ethnically homogeneous country to a multicultural society where approximately one-quarter of the population has its roots in one or more foreign countries. This transformation has taken place so quickly that it would be surprising if it had not led to some friction. The slow integration of newcomers in terms of difficulties in the labour market and neighbourhood segregation has been problematic. In contrast to many other countries, permanent residents in Sweden are entitled to social welfare, which somewhat helps counteract the situation. Since the mid-1970s, around more than 20 studies have shown that immigrants are overrepresented in crime. Swedish-born children of immigrants have also been over-represented, though it is debatable whether or not the level of over-representation is greater than or equal to that of first-generation immigrants. Overall, the research indicates that over-representation in 50

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recorded crime has remained stable over time, even if immigration to Sweden has changed in character. Research on the causes of this over-representation has been limited. It has, however, been pointed out that the differences in living conditions between people with a foreign background and native Swedes are comparable to the different living conditions found in America’s big cities a century ago. These differences formed the empirical bases to a number of theories about the causes of crime. Only recently have hypotheses on the negative effects of socio-economic resources and housing segregation been supported in Swedish research on immigrants and crime (Hällsten, Szulkin and Sarnecki, 2013). Yet, research also finds that there is some support for causal factors of crime rooted in the country of origin. The extent of this effect is difficult to measure considering justice system discrimination against immigrants. The future of immigrant criminality in Sweden appears to depend mostly on Sweden’s reaction to and reception of immigrants. While the overall sentiment towards immigrants, arguably, seems to be more positive, anti-immigrant voices have become louder (Rosenberg 1995). Compared with other European countries, Sweden has weathered the recent economic crisis quite well, with stable finances and, by European standards, low unemployment. The positive economic climate, however, has not prevented Sweden from having an antiimmigration political party in parliament, something becoming more common throughout Europe. Violent rioting that is drawn around ethnic, and sometimes outwardly racist lines, was a feature of 2013. There was a riot in a suburb of Stockholm which received international attention and neo-Nazis engaged in violent counter-demonstrations at an anti-racism rally. One argument from the anti-immigrant movement in Sweden is, as in many other countries, that immigrants commit more crime compared with the rest of the indigenous population. The criticism is mainly focused on immigrants’ over-representation among persons who commit violent and sexual crimes (this is confirmed by official statistics) and that it is mainly Muslims who commit crimes (such statistical information is not available). In contrast to many other European countries, however, anti-immigrant opinion does not have any influence over policy. For example, the cultural divides which have sparked policies like the headscarf ban in France, have not led to such policies in Sweden. Sweden, as yet, retains a relatively generous immigration policy.

Notes 1 This is a categorization that was previously presented in Sweden’s official conviction statistics.

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— 2008, Brott och straff i Sverige: historisk kriminalstatistik 1750–2005: diagram, tabeller och kommentarer (3. rev. uppl.), Department of Criminology, Stockholm University, Stockholm. von Hofer, H, Sarnecki, J & Tham, H 1996, ‘Invandrarna och brottsligheten’, in Att möta det mångkulturella: socialtjänsten och invandrarna, 16–17 April, Gothenburg, Centralförbundet för socialt arbete (CSA), pp. 76–93. — 1997, ‘Minorities, crime, and criminal justice in Sweden’, in IH Marshall (ed.), Minorities, migrants, and crime: diversity and similarity across Europe and the United States, Sage, Thousand Oaks, CA, pp. 62–85. — 1998 ‘Invandrarna och brottsligheten’, in H von Hofer (ed.), Brottsligheten i Europ, Studentlitteratur i samarbete med Institutet för framtidsstudier, Lund, pp. 70–90. von Hofer, H & Tham, H 1991, Foreign citizens and crime: the Swedish case, Statistics Sweden, Stockholm. von Hofer, H & Thorsson, U. (1994). Utländska medborgare i kriminalstatistiken 1993. Statistics Sweden, Stockholm. Wacquant, L 1997, ‘For an analytic of racial domination’, Political Power and Social Theory, vol. 11, pp. 221–34. — 2008, Urban outcasts: a comparative sociology of advanced marginality, Polity, Cambridge. Westin, C 2003, ‘Young people of migrant origin in Sweden’, International Migration Review, vol. 37, no. 4, pp. 987–1010. Wikström, PO. (1995). ‘Self-control, temptations, frictions and punishment: An integrated approach to crime prevention’, in PO Wikström, C Clarke & J McCord (eds), Integrating crime prevention strategies: propensity and opportunity, Brå, Stockholm, pp. 7–38.

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Part II

Crime control, criminal justice and migration

4 Global policing, mobility and social control Ben Bowling and James Sheptycki

Introduction Police power is globalizing. Networks of connection are forming among domestic police in various parts of the world; national policing hubs are increasingly linked to their counterparts overseas; regional organizations and fully global police entities are growing in strength and reach. In short, a new transnational architecture of policing is forming (Bowling and Sheptycki 2012; Sheptycki 2000; 2011). As well as being transnational, the new policing is multilateral, incorporating many other ‘police-like’ organizations including secret intelligence, the military, customs, immigration, border protection and private security agencies. Global policing is legitimated by its mission of responding to and preventing transnational organized crime and terrorism, and, increasingly, in the attempt to regulate suspect populations. In practice, this means generating, packaging and distributing intelligence and inaugurating new enforcement strategies and tactics in a range of policing organizations around the world.The globalization of policing is occurring organically as a result of rapid changes in technology and ease of travel, but is also being driven by powerful policy actors from seigneurial states and advocates within supranational agencies such as the United Nations and Interpol. Central to the transnational policing mission is the surveillance and control of human migration in general and of ‘suspect populations’ in particular. Neoliberal globalization has resulted in a rapid growth in the number of people travelling by land, sea and air for work and pleasure. Therefore, one of the key tasks for global policing is to regulate these human flows, sorting what Bauman (1998) calls the tourist – financially independent business people as well as holiday-makers – from the vagabond – ‘the waste of the world which has dedicated itself to tourist services’ (ibid.: 92). While the tourist is mobilized, empowered and sped through the system to aid the accumulation of capital, the vagabond is restricted to precise terms of mobility for their employment in the industrial zones at the periphery and otherwise, detained or excluded (Weber and Bowling 2008). Policing these human flows therefore has a twofold sense. It is negative insofar as it serves to control and this is emphasized and it is positive in the sense that policing can facilitate the movement of preferred categories of persons. While Bauman’s vagabond may stand as a synonym for the world’s socially excluded, it should be emphasized that preferred categories of mobile

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population include both executives and low-paid labour. The passage of certain categories of people – agricultural workers and foreign students – may be positively facilitated through migration controls as well as entrepreneurs and business people. In this process of ‘social sorting’, race and class serve to make distinctions between the included and excluded and the capacity of individuals to take up the rights and freedoms of global mobility (Weber and Bowling 2008; Bowling, Phillips and Sheptycki 2012). A ‘moral panic’ has grown up around fears of unrestricted mobility and the movement of large numbers of people from rural areas to the cities and from the Global South to the Global North. The migrant seems to embody the inherent danger of the arrival of ‘others’ in western capitalist societies with migration itself increasingly defined ‘as a crime against the new economic order’ (Webber 2004: 133). With the cruellest of ironies, in the same moment that the secure citizens of the gilded metropolis construct themselves as the potential victims of hordes of unregulated migrants, they witness on their television screens the death by drowning of hundreds of people attempting to reach the West as their flimsy boats capsize and sink. The moral panic about unregulated migration has served to legitimate the creation of what has been called a new ‘crimmigration control system’ (Bowling 2013). This system of social control, growing up in parallel with domestic criminal justice systems, is shaped by the writing of hybrid crimmigration laws that combine the power of both administrative immigration law with criminal penality (Stumpf 2013). It also intensifies the creation of immigration enforcement as a specialism within domestic policing, the law enforcement arms of immigration authorities, the creation of new hybrid agencies and a range of transnational processes such as global databases, carriers’ liability, pre-clearance checks and exclusion. Beyond the scope of this chapter, the crimmigration control system also includes specialized courts and tribunals and a rapidly expanding ‘secure estate’ of immigration detention centres and prisons (Aas and Bosworth 2013; Bowling 2013). This chapter examines the global policing of mobility and its implications for social control in an era of rapid transnationalization. First, we briefly trace the history of border policing – drawing largely on English examples – before discussing some theoretical matters concerning the emergence of the transnational state system and briefly sketching out the architecture of contemporary global policing. We then look in more detail at how the policing of migration is changing through an analysis of attempts to regulate the flow of people across international borders. We end the chapter with a brief examination of the effects of global policing, especially on the lives of migrants, in terms of freedom and safety and conclude by raising the vexed question of how – if at all – this emerging system of global social control can be held accountable for the harm it is evidently causing.

Migration control in historical context Concepts of race, ethnicity, class and difference have underpinned the perceived threat of migration and its control in England since at least the sixteenth century. Take, for example, the letter written by Elizabeth I to the lord mayors of major cities in 1596 complaining that there were ‘of late divers blackmoores brought into this realm, of which kind of people there are already here to manie’. The queen ordered that ‘those kinde of people should be sente forth of the land’ (Fryer 1984: 10–12). This indicates that racial difference has for a long time been a factor in identifying ‘otherness’, but in the late 1500s in England race was far from the only factor. At this time the focus of migration control was on the parish boundaries and in these relatively small village communities the primary indicators of difference related to the concepts of vagrancy which encompassed not just those who travelled from place to place but also specific categories 58

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of person, among them scholars and sailors, fortune tellers, minstrels, peddlers and prostitutes (Weber and Bowling 2008). During the Tudor reign, vagrancy became an offence based on status; ‘others’ were identified by occupation or membership of marginal and visibly identifiable groups and were considered to be a threat to the stability of feudal communities. This social sorting became indirectly based on concepts of class, gender and ethnicity (Beier 1985). In periods of social upheaval and instability, as today, visible minorities became particularly vulnerable to harsh migration control measures, their visible difference making them targets of community resentment (ibid.). During the emergence of the Tudor secularized state, gypsies – referred to as ‘fake Egyptians’ – once a welcome source of exotic entertainment, were targeted by the Egyptians Act 1530, which sought to remove them from English communities through expulsion or execution (Kenrick and Puxon 1972; Hawes and Perez 1995). Irish travellers too were expelled from the country after punishment under the Vagrancy Act of 1572 (Beier 1985: 64). Feldman (2003) notes that though eighteenth-century vagrancy laws targeted ‘the poor’ in a generalized way, these measures did in fact impact more harshly on Scottish and Irish beggars, who, once punished, were often expelled far beyond the parish which the laws governed, out of England altogether, to their ‘countries of origin’ of which they often knew nothing. A wave of intercontinental population movement at the end of the nineteenth century signalled a change in focus of migration control, which switched from parish boundaries to the national border. The rapid expansion and arrival of new migrant populations in Britain in the nineteenth and twentieth centuries saw many ethnic minority populations become the direct or indirect targets of migration control, often against a backdrop of native community hostility fuelled by social and economic strife. The migration of Jews from Russia and Poland fleeing economic hardship and pogroms at the end of the nineteenth century was met with hostility and political controversy in England that culminated in the establishment of the Immigration Department by the Aliens Act 1905.This was the end result of several Parliamentary Select Committee reports which recommended widely drawn powers for its officers to ‘make whatever inquiries necessary to determine whether persons were criminals, prostitutes, persons of notoriously bad character, lunatics, idiots or persons likely to become a charge on the public funds’ (Shah 2000: 33). The Act committed to law the concept of ‘undesirable aliens’ and empowered immigration officers to refuse entry or detain persons considered to fit this criterion. The Act also included measures for controlling aliens who had already gained entry (ibid.). The end of the British Empire brought with it new complications for the concept of British nationality. Up until this point concepts of racial difference and superiority had supported the existence of colonial rule, but now the lack of distinction in nationality benefits – including the right of abode – between those born in Britain and those born elsewhere in the Empire under the Nationality Act 1948 posed a threat to the British state in terms of mass migration and perceived problems in assimilation and pressures on public funds (Holmes 1988). The migration of European Jews during and immediately after the Second World War, the influx of migrants from the Indian subcontinent and those of Caribbean origin during the 1950s and 1960s, the arrival of those of African and Indian origin following decolonization in Africa, all saw ethnic tensions rise and elicited fear of social disintegration.These fears resulted in what has been termed a ‘white Britain policy’ (Weber and Bowling 2008) through the introduction of the Commonwealth Immigration Act 1962. This severely limited the ability of ‘coloured immigrants’ from the ‘New’ Commonwealth to settle in Britain while continuing to welcome those mostly white immigrants from the Old Commonwealth. Explicitly racialized tensions and the resulting fear were captured in a crystallized form in Enoch Powell’s ‘rivers of blood’ speech in 1968 where he forewarned that welcoming a destructive ‘alien element’ into England was ‘literally mad’, ‘like a nation busily engaged in heaping up its 59

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own funeral pyre’ (Bowling 1999; Weber and Bowling 2008). Migration was severely restricted in the second Commonwealth Immigrants Act 1968, limiting the rights of ethnic Indians to migrate from Kenya and Uganda and was condemned by The Times as a shameful ‘colour bar’ (Solomos 1993). Ironically, this legislation did nothing to quell anti-immigrant feeling that reached its zenith in the 1970s with openly racist political parties shifting the agenda further towards demands for control and the exclusion of ‘non-white’ people from Britain (Bowling 1999; Bowling and Phillips 2002). The Immigration Act 1971 and the British Nationality Act 1981 consolidated this racialized approach to immigration from the Empire and established five types of British Nationality, reserving the right to abode only for the full British Citizen (Loughlin 2013). Those born in other parts of the Empire or with insufficient family links to Britain – defined by the neologism ‘patriality’, meaning the British birth of a parent or grandparent – were relegated to classes of citizenship that did not carry this privilege. Ultimately these Acts ended the concept of universal British citizenship within the Commonwealth. Members of the former colonies who were welcomed to fight and die as British soldiers in two World Wars were now, despite carrying British passports, denied the right to settle in Britain. The 1981 British Nationality Act also ended the centuries-old common law tradition of granting an automatic right of citizenship to those born on British soil. Concepts of ‘otherness’ based on perceived differences in status whether grounded on class or race have for many centuries underpinned the enforcement of migration control in Britain.The concept of otherness has long been perceived in government and within established communities as a threat to social cohesion and control. This pattern is still being played out in Britain today with fears surrounding the arrival of asylum seekers since the 1980s featuring high on media and government agendas.This pattern is not unique to Britain, the historical oppression of the Roma population in Eastern Europe and the oppression of Jewish communities in Russia, Germany and many other parts of the world being glaring examples of ethnic communities targeted for harassment, expulsion and even extermination in times of economic and social difficulty. Neither is this pattern merely of historical interest. There is historical continuity with the patterns of migration control in the twenty-first century; a contemporary practice that must be seen in the context of a shift from the nation state system to the transnational state system.

Theorizing the transnational state system The end of the twentieth century saw a new wave of globalization driven by the rise of neoliberal economic policies, the development of a globally integrated economy and advances in transport and communications technologies. The result is a significantly more interconnected world. International travel has become significantly easier and more affordable, and the lives of individuals transcend and transgress national boundaries, whether physically or virtually, on a daily basis. Economic globalization, encompassing the free flow of capital and the opening up of trade generally, has created fundamentally changed conditions for the operation of states. The traditional concept of the nation state in Weberian terms, as a national community bounded geographically, exercising a monopoly on coercive power within its territory, has become increasingly anachronistic. It is important not to exaggerate the demise of the nation state: the power of national governments to claim and exert sovereignty, to rule within national boundaries and to project power beyond them has hardly withered away. Rather, it has been ‘hollowed out’, with power being pulled upwards to supranational systems of governance and downwards to non-state actors such as non-governmental organizations, private corporations and individuals who act both within the state and increasingly on a transnational stage, themselves 60

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crossing national boundaries and forming power bases that are global in nature (Sheptycki 1995; 1998a; 1998b). The rise of neoliberalism as a new political economic philosophy of state power is advanced globally through the Washington Consensus and applied institutionally through the International Monetary Fund and the World Bank. Neoliberal ideology advocates deregulation, privatization of state assets and the liberalization of investment and capital flows (Bowling and Sheptycki 2012). This trend has operated to hollow out state power ‘from below’, placing more capital and economic power in the hands of corporations. Other non-state actors – among them nongovernmental organizations, organized crime groups and paramilitary organizations – are also playing increasingly important roles in local and global governance. At the same time, the rise of human rights law and the right of individual petition has increased the ability of individuals to challenge the power of the state from below. The power of individuals has also been increased through advances in communication technology facilitating the development of transnational networks of otherwise unconnected individuals working towards common aims which place political pressure on state power structures from below (Koskenniemi 2010). The manifestation of economic globalization in the establishment of supranational institutions of governance has also had the effect of hollowing out sovereign state power from above. This can be most clearly seen in Europe with the establishment of the European Economic Community and later the European Union, whose fast-developing institutions have limited the sovereign power of member states, particularly in the area of trade, and represent an added layer of governance above the nation state. The Council of Europe with a membership of 47 states also represents an added layer of governance for the accountability of state power in the area of human rights. This trend, pulling state power upwards into the hands of supranational organizations, is evident internationally, though the emergence of regional platforms of governance has been uneven. On the global stage the development of transnational platforms of governance is diverse and includes the World Bank, the IMF, the G7, G8 and G20, the Organisation for Economic Co-operation and Development, the Commonwealth Secretariat and the UN. All of these organizations have drawn political power upwards from the nation state and as a result of these changes from above and below interaction between nation states has transformed from an international state system into a transnational state system (Bowling and Sheptycki 2012; 2013). Dramatic changes in the global economic structure reflect the transformation of political power structures; investment, labour and goods markets are now integrated and globalized. Between 1995 and 2007 global trade increased four-fold in volume and the global services market six-fold. There has been a 60 per cent increase in international air travel in this period, driven by the explosion of the tourism market and an increase in those travelling for business. The International Organisation for Migration (2011) estimates that there are now over 200 million migrant workers worldwide and that the global system heavily relies on their ability to travel to fill gaps in national labour markets. These changes are at least in part related to the neoliberal policies that relaxed trade barriers and deregulated financial markets. Neoliberal policies strongly encourage the unrestricted mobility of certain classes of worker to feed the evergrowing free-market structure while at the same time seeking to ensure that the rights of migrant workers are restricted and ‘undesirable’ migrants are excluded entirely. The adoption of neoliberal policies worldwide has also had a dramatic impact on domestic and international policing structures; the ease with which goods are transported can be assumed to apply not just to a legal trade in goods but also to illicit trade (Bowling 2009). Technological advances in computing and telecommunications have radically increased the ability to communicate across borders, both in business and for illicit purposes. The speed with 61

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which international connections can now be made has been identified as a process of space-time compression (Harvey 1990) and it has been noted that this process increases the extensity of global networks, the velocity of global flows and the intensity and impact of global interconnectedness (Held and McGrew 2000). This brings new challenges for policing and surveillance, in terms of law enforcement agencies’ ability to keep pace with technological advancements and in terms of legitimacy of surveillance programmes that extend far beyond the traditional boundaries of the state. The increase in world travel has brought with it new challenges specifically to the area of policing migration, with the growth of expatriate and ‘transnational communities’ and the increase in those commuting across borders or sporadically travelling for business purposes. The growing numbers of people living and working abroad create specific problems requiring solutions such as repatriating human remains when someone dies abroad. The ease with which people can now move around the globe has also resulted in an increase in those crossing borders for illegal purposes. The rise of human trafficking as a global issue, issues relating to stolen identity documents, missing persons and the apprehension of international fugitives and the management of ‘foreign criminals’ demonstrate the plethora of problems facing law enforcement. The changes in global social and economic structures and the emergence of a transnational state system have fundamentally altered the way all major institutions operate. This applies not just to the state qua state, but all the institutional components of the state at various levels within it, non-governmental institutions and other agencies involved in governance in its broadest sense. As well as creating new problems for law enforcement and order maintenance, the advances in communications technology open up new possibilities for collaboration and coordination among police agencies worldwide. The reach of domestic policing structures has widened and the possibility of instantaneous communication with one another has the ability to reduce bureaucratic drag and political control (Bowling and Sheptycki 2012; 2013). While this has the potential to increase the reach and efficiency of law enforcement structures it also reduces their accountability and legitimacy (ibid). What is clear is that the traditional concept of the Weberian nation state and existing structures of enforcement contained within and restrained by it, are inadequate to face the challenges posed by the new globalized world (Sheptycki 1995; 2011). The issue of policing crime and migration in a transnational state system is faced with very real questions concerning legitimacy and accountability. Issues of jurisdiction arise frequently and the concept of a global social contract to support the legitimacy of state action beyond its borders is tenuous. The world system is polycentric; there are many centres of social power that direct its machinations and no clear hierarchy among them. Although it can be argued that world power structures are dominated by the most powerful nation states, this concentration of power is certainly not determinative; the rapid rise of the BRIC countries (Brazil, Russia, India and China) demonstrates that which nation states are the most powerful is unlikely to remain static over time. Furthermore, this simplistic view of the global power structure ignores the dispersal of sovereign power into supranational platforms of governance and underestimates the importance of actors operating at the middle levels within state bureaucracies and non-state actors such as the private corporation. The rise of neoliberal policies has had a fundamental impact on global economic conditions; it has increased the ability to move goods, capital and people around the planet, and this has given birth to a new transnational state system which raises important practical and theoretical questions for both police and police scholars (Sheptycki 1995; 2011; Bowling and Sheptycki 2012). Contained within neoliberal policies is a paradox that poses problems for the policing of migration in particular: maximizing market growth and feeding labour markets require streamlined and speedy mass movement of people and simultaneously high levels of social control. The 62

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solution is a constant process of social sorting at land borders, airports, seaports and in cities, both within and beyond the nation state. This and other policing challenges created by globalization have changed the structure of policing at both a domestic and an international level.

The architecture of global policing As governance has transnationalized, so have the coercive and intrusive mechanisms of state power. Although policing is still largely rooted in the nation state, contemporary empirical research demonstrates that globalization has affected policing at all levels from the local to the global. This can be seen by a brief examination of the architecture of global policing (Bowling and Sheptycki 2012: 53–77). Global policing power is polycentric, fluid and complex but it is possible to identify several areas of distinction by applying functional and socio-spatial typologies.There are not sharp lines of separation between these levels of distinction and in many areas of practice they fade into one another. Nevertheless they provide a practical conceptual basis from which to broadly examine the institutional architecture of global policing. From a functional perspective three significant distinctions are evident. First, ‘low policing’ and ‘high policing’ mark the distinction between day-to-day policing of crime and public order, on the one hand, and national security of the state as whole, on the other (Sheptycki 2000). Second, the task of physically securing territory can be distinguished from the monitoring and surveillance of suspect populations (or whole populations, as the case may be). Third, there is a distinction to be drawn between public and private policing. Between each of these extremes there is an array of functions. This model illustrates the diversity of policing tasks and indicates the problems that are encountered by those attempting to define policing roles and ensure that the wide-ranging powers of actors within the structure act consistently and accountably (ibid.). Another dimension can be added to this horizontal model of the policing field through the identification of vertical divisions in the structure, which we base on Michael Mann’s (1997) conception of socio-spatial networks of interaction. Examining policing within these five levels – local, national, international, global and transnational – illustrates the effect of globalization of the overall structure (Bowling 2009). At a local level, domestic policing has taken on an increasingly transnational dimension as local security issues – especially relating to terrorism, drugs and people trafficking – are shaped by events abroad. Criminal conspiracies frequently involve offences, offenders, victims and proceeds of crime that can be found in a large number of different national jurisdictions. As a result, police, prosecutors and prison officers are all collaborating and communicating more frequently with their counterparts overseas. At a national level, law enforcement and the administration of justice are becoming a transnational business. International police cooperation, mutual legal assistance, cooperation between prosecution and judicial institutions, extradition and the deportation or transfer of convicted prisoners are all mechanisms concerned with the transnational administration of justice that have become common in the day-to-day practice of domestic policing. Many countries have overseas liaison officers in their Embassies and High Commissions and almost all countries in the world now have a police force or coordinating agency at the national level where previously there may have only been local agencies. These national organizations operate to coordinate responses to domestic events and disasters but they also facilitate cooperation with national agencies in other countries.The paradigm example is the United States Federal Bureau of Investigation, which has the most extensive international networks of agents, has posted liaison officers overseas since 1940 and has 340 agents permanently stationed in other countries. The FBI has the ambitious 63

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aim of having an agent in every country in the world (Fowler 2008). Most seigneurial states – the UK, Australia, Canada, China – now have similar international networks although none is as extensive as that boasted by the United States. At the international level we see the increase of nationally constituted networks operating regionally. Examples include Europol, the Association of South East Asian Nations Police Chiefs (ASEANAPOL), the Southern African Regional Police Organisation (SARPOL), the Association of Caribbean Commissioners of Police (ACCP), the Southeast Europe Police Chiefs Association (SEPCA) and the Comunidad de Policías de América (AMERIPOL). These networks facilitate regional coordination and cooperation in closely connected geographical areas where the interests of constituting nations are closely intertwined. Europol, with its head office in The Hague, is the treaty-based, state-backed supranational policing force of the European Union. Its main function is to coordinate and share intelligence among the national police forces of the EU to facilitate the prevention and investigation of serious organized crime. It is a multi-disciplinary agency with almost 800 headquarters staff from law enforcement agencies of all member states (and partners such as Australia, Canada and the USA), including police officers, immigration and border officials, customs officers and intelligence agency staff. At the global level there are several policing entities whose operations involve the whole world or at least aspire to. These organizations include the United Nations Police Division (UNPOL), the International Criminal Court Investigation Division and Interpol. Interpol is arguably the most established of these bodies and has the widest geographical reach. With 190 national police force members, it directly employs 650 staff from 89 countries and thousands of staff work in National Central Bureaux (NCB) embedded in national police forces around the world. Despite having no specific enforcement powers, it is an increasingly active organization issuing more than 8,000 international wanted persons red notices in 2012, up from just over 3,000 in 2007. Interpol’s primary function is information sharing through its secure global communication network I-24/7. The network connects 190 NCB to police forces and private policing entities worldwide and gives access to databases containing information on suspected criminals, missing persons, fingerprints, DNA, stolen goods and identity documents among other things.1 Interpol also provides support to domestic police forces in a myriad of areas, including emergency response and planning and coordination of specific law enforcement tasks. In relation to border control, the INTERPOL Integrated Border Management Task Force – according to its website – was set up to ‘offer a range of tools and services which can help member countries enhance their border security procedures and integrate their border security efforts with those of their neighbours’2 and recently partnered with FRONTEX to support Romanian police in checking identity documents as part of the European Union initiative.3 The transnational level is more complex. Here, policing bodies operate across national boundaries largely unaffected by them (Mann 1997; Bowling and Sheptycki 2012). Interpol’s operations can be seen in this context, with the issuing of red notices having an instant global effect. However, any enforcement action arising from the issue of a red notice relies on the power of policing authorities within a state and not on the actions of Interpol itself. The posting of liaison officers in other states also allows police forces to operate on a transnational plane. These agents provide a direct line of communication for domestic police officers into the state in which they are stationed and can collect intelligence and evidence on behalf of their own state, largely uninhibited by their position of being abroad. The surveillance operations undertaken by secret services such as the US National Security Agency (NSA) and the UK Government Communications Headquarters (GCHQ) clearly function in a transnational manner as they carry out surveillance on mobile phone traffic and the Internet. This surveillance of digitalized international communication in what is essentially a deterritorialized space provides a good 64

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example of the policing of transnational flows. A range of public and private actors can monitor, collect, store and analyse quantities of person-to-person communications and other forms of personal data largely unaffected by national borders. This sketch of the architecture of global policing is far from a complete picture, but it illustrates the developments taking place at various levels of law enforcement in response to the pressures and challenges of globalization (Bowling and Sheptycki 2012). The analytical distinctions based on function and socio-spatiality are distinct only as ideal types, there are many points where these typologies converge and the full picture has blurred lines and shades of grey. What is abundantly clear is that the work of the ‘police family’ – from street cops and detectives to border guards and secret agents – is rapidly transnationalizing.This is nowhere more evident than in relation to the task of migration control, which is, by its very nature, a transnational enterprise: controlling the movement of people across national borders, entering and departing nation states through geographically defined areas such as ports, airports and border zones that have become transnational spaces in themselves. It is to the specialism of migration policing that we now turn.

Policing migration Until the latter years of the twentieth century, the policing of migration was seen as a largely administrative task conducted at land borders, seaports and airports. In recent years, the attempt to control the movement of people between countries has undergone something of a revolution and continues to change dramatically worldwide. Border policing has developed into a significant element of the transnational state apparatus and is a key mechanism through which the coercive power of the state can be understood in late modern societies. Crucially, while external border protection is still a major feature of migration policing, it has moved away from the administrative towards the criminal, and from the civil towards the military. At the same time, the location of border policing has moved both inwards and outwards from the physical frontier (Weber and Bowling 2004). The changes brought about by globalization, especially in relation to increased mobility, have spawned a new wave of ‘moral panic’ in westernized societies relating to immigration. The perceived insecurity driven by the rhetoric of the rise of transnational organized crime in global terrorism and the actual economic instability following the economic crisis triggered by the US banking crisis in 2008 have fostered social conditions in which harsh immigration policies are thriving. Under these policies the paradox contained within neoliberalism – the demand for global capital to be fed by the ‘free movement’ of labour alongside a hunger among wealthy populations for protection from the perceived insecurity brought by migration – has given birth to what has been termed a ‘crimmigration control system’ (Bowling 2013; see also Aas and Bosworth 2013; Stumpf 2013). This system couples the administrative task of immigration control with criminal sanctions and draws many different actors into the process of social sorting and enforcement of sanctions against those deemed to be undesirable. Immigration officials, police and customs officers are all now active in the field of ‘crimmigration’ enforcement and the border, as the traditional site for the sorting process, has been transformed. The national border is commonly thought of as a thin line on the map separating sovereign territories. Those who cross borders on a regular basis become accustomed to the myriad of control technologies employed by the various officials encountered there: police, customs, immigration, private security and military personnel. Frontiers can be seen as complex filtration systems aiming to ‘select, eject and immobilize’ (Weber and Bowling 2008). What has been termed the ‘smart border’ is not simply a line on the map demarcating territory but is a broader zone of control, extending both into and out of sovereign territory (Côté-Boucher 2008).These 65

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diffuse borders are constituted by a multitude of administrative and technological procedures that facilitate the sorting process. Pre-entry checks and forward intelligence gathering ‘outside’ sovereign territory by immigration officials and police and the use of surveillance coupled with the possibility of coercive sanctions ‘within’ sovereign territory both operate to give depth and breadth to the border itself, informing decisions of officials at the border for the process of selection of those potentially undesirable and to be subjected to further checks. Borders themselves are sites of enforcement; control procedures such as counter-terrorism checks, refugee containment and intelligence sharing between states all speak to this process. Coercive facilities such as detention centres, prisons and other containment areas are frequently present at borders, giving them physical depth beyond the line of demarcation itself. Table 4.1 illustrates the diffuse border and the location of migration policing. In some countries, the militarization of borders, in response to perceived threats to national security and economic stability, has been coupled with erecting fortified walls and fences, physical boundaries that aim to protect the territory within, shut undesirables out and funnel travellers through the heavily controlled, closely guarded entry points. There is a 1,950-mile US southern border fence under construction that passes through both urban and desert terrain and extends into the sea. It is both a physical and a virtual barrier, protected by electronic surveillance equipment and monitored by US Customs and Border Protection officers. Similar fences are being constructed around the world – between India and Pakistan, between Russia and Chechnya, between India and Burma, between China and North Korea, between India and Bangladesh, between Israel and Palestine, with proposals for walls in other places including between Mexico and Guatemala (Pickering and Weber 2006). Minefields still exist along parts of the Greek/Turkish border and in Spain and Italy electric fences, razor wire and armed guards fortify some borders. The notorious Spanish enclaves of Ceuta and Melilla in North Table 4.1 The diffuse border Global surveillance and enforcement Carriers’ liability Harmonization of European border Interpol travel asylum policy agency documents database

Fugitive apprehension squads

Pre-entry controls Immigration liaison officers

Extraterritorial borders control

Watch lists/No fly lists

Pre-entry clearance

Border protection Border posts Immigration officers

Border patrols Customs

Fences National Crime Agency

Special Branch

Military

Special Branch

Private security

In-country enforcement Immigration service Police enforcement enforcement

Joint snatchsquads

Diffuse local surveillance Employer sanctions Entitlement cards University student surveillance

Public ‘dob in’ hotlines

Source: Weber and Bowling (2004). Taylor & Francis Ltd, www.tandfonline.com reprinted by permission of the publisher.

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Africa are examples, where many people are shot attempting to scale the fences (Weber and Pickering 2011). Some borderlands have become ‘containment zones’, ‘growth triangles’ or ‘export processing zones’. These zones are characterized by low wages and minimal representation for workers, and low taxation and minimal regulation for employers, and operate as an interstitial space within the transnational state system. Many workers – mainly young single women – migrate backwards and forward between towns and villages in the poorer parts of the zone and dormitories in the industrial parks in the industrialized parts of the zone. Examples of these ‘free enterprise zones’ can be found at the US-Mexican border and in the SIJORI triangle between Singapore, Johor (in Malaysia) and the Riau Islands (in Indonesia). Overwhelmed by the influx of people searching for work, local governance capacity is stretched and these areas display features of social degradation, and physical boundaries between the shanty towns of the poor and the gated communities of the wealthy are visible in many places. Another example of the ‘abject spaces’ that grow in the borderlands is Sangatte, the Red Cross refugee camp near the French seaport of Calais, which held as many as 2,000 refugees before it was closed down in 2002. This provides an example of how the expansion of the UK border beyond sovereign territory grounded the population of refugees attempting to flow through France and onwards to the UK. Extra-territorial practices expanding border control outside of the state are now commonplace all over the Western world. The focus has shifted from enforcement of controls on arrival to policies and practices aimed at securing the non-arrival of unwanted people (Weber and Bowling 2004).These practices give migration policing a transnational dimension as they allow immigration controls to reach across borders and act on identified persons even before they have left their nation state. The general trend toward outsourcing of migration control from the state can be seen in pre-entry clearance practices, carriers’ liability and visa application processes. Many countries post immigration liaison officers to overseas airports to check visas, travel permits and passports of departing passengers and to identify those on international ‘watch lists’ or ‘no fly lists’ and prevent them from travelling. In Europe, the creation of Europol and FRONTEX has shifted the focus of migration control from the national border of individual nation states to the external border of the European Union. FRONTEX is a paramilitary border-policing agency operational across the Union as a whole. It conducts offshore patrols around the southern and western borders of the EU and, sometimes in conjunction with Interpol, assists in shoring up border checks in the newly acceded states of Eastern Europe. The harmonization of European asylum policy and the ‘moral panic’ currently spreading throughout the Union regarding migration from the Global South have led to Western European powers exhorting countries on the eastern perimeter to exercise greater control over flows of asylum seekers and immigrants into ‘fortress Europe’ (King 1994). Beyond Europe, a clear example of transnational immigration policing practice can be seen in the ‘The Five Country Conference’ (FCC), which in 2009 reached a multilateral agreement between the UK, the US, Australia, New Zealand and Canada to create a global network of shared visa application centres, the first of which opened in Singapore in March 2013.The stated aims of the FCC are to create a biometric data sharing protocol for immigration purposes to prevent identity fraud, ensure economic prosperity and enhance border security, protect public safety and provide protection against ‘violent foreign criminals’. The ‘high value data sharing protocol’ facilitates the sharing of fingerprint records with all the other participating countries and – where matches are found – enables officers to share biographical information on a reciprocal basis. This had led to the creation of databases containing information on criminal 67

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records, fingerprints, DNA, travel documents and details of deportees that are shared and compiled by multiple agencies, including police, immigration and prisons (Aas et al. 2008). The most radical approach to offshore migration policing is the Australian ‘Pacific Solution’. This seeks to prevent asylum seekers and ‘suspected unlawful non-citizens’ from entering the country by boat. Incoming vessels are intercepted by naval patrols off the coast and redirected to offshore detention centres (Weber 2007). Applications are processed from these centres, preventing undocumented or undesirable migrants from eluding the authorities or becoming settled within communities. This aids the process of expulsion upon the failure of applications but it also raises significant questions surrounding the treatment of foreigners and of vulnerable refugees in particular. Accompanying the trend of expanding borders outwards away from the nation state is a move to criminalize migration infractions – such as illegal entry and overstaying – which has expanded the enforcement of migration control inwards. This trend can be observed in two ways: first, in the nature of immigration law itself, which has become increasingly penal in nature, and, second, in the increase in official and non-official actors that have been drawn into the enforcement process. Although immigration enforcement has traditionally been seen as an administrative task, our account of historical migration control in Britain earlier in this chapter demonstrates that governments’ use of the criminal law to control migration is far from entirely new. Centuries-old vagrancy laws criminalized undesirable visitors and sought to punish and eject them from local communities.This trend is re-emerging in a multitude of laws that criminalize border infractions (Stumpf 2013). Unlawful entry and re-entry, overstaying, failure to register, attempting to enter with false documents and unlawful employment have all become specific criminal offences (Bowling 2013). People committing these border infractions, previously labelled ‘illegal immigrants’, are now finding themselves cast as ‘immigration offenders’. Western governments routinely and universally refer to ‘immigration crime’ and place arrest, detention, prosecution and deportation at the centre of the policy response to this threat (Aliverti 2012).This new breed of offender is not just threatened with removal or visa restrictions, but also with criminal sanction, being liable for prosecution and punishment prior to deportation (Stumpf 2013). Alongside this trend of criminalizing unlawful immigration, the criminal grounds for revoking legal immigration status and permitting the deportation of non-citizens have been considerably expanded. Relatively minor illegalities such as shoplifting or drug possession can now justify deportation and permanent refusal of re-entry, and in some jurisdictions, including the UK, these can be applied retroactively (Bowling 2013).This new wave of law-making that specifically criminalizes immigration transgressions and penalizes ‘foreign criminals’ has been identified as ‘crimmigration law’ (Stumpf 2013). The pervasive rhetoric of governments is of the threat to society posed by undesirable others and the need for them to be identified and expelled. The enforcement of these laws, especially within the territory of the state, relies heavily on the identification of illegality among migrants by law enforcement officials and so by their very nature they sanction police identity checks based on the physical appearance of individuals singled out. This has the inevitable effect of reproducing and reinforcing racism and racial discrimination in the policing of migration and is evident in a wide range of jurisdictions (Weber and Bowling 2012). Along with the criminalization of irregular migrants the new ‘crimmigration’ systems emerging across the world are for the first time criminalizing the actions of those nationals who aid and assist a new class of people referred to as ‘immigration criminals’. Thus criminal offences are being created that include employing, harbouring, shielding, concealing, transporting and associating with illegal migrants. These kinds of laws are in place in Australia and several states in 68

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the USA including Alabama and Arizona (Provine and Sanchez 2012). Alabama was accused in a New York Times editorial (28 August 2011) as passing ‘The Nation’s cruelest immigration law’, which it described as a ‘sweeping attempt to terrorize undocumented immigrants in every aspect of their lives and to make potential criminals of anyone who may work or live with them or show them kindness’.4 The political success of these laws has clearly inspired British policy-makers in drafting the UK Immigration Bill, which requires landlords to check whether tenants are in the UK illegally (or face a fine of £3,000), reduces the grounds for appeal against deportation, allows ‘foreign criminals’ to be deported before the outcome of their appeals is known and requires marriage registrars to report and initiate investigation into suspected ‘sham weddings’. The Bill is expected to pass through Parliament largely uncontested. One of the effects of these new ‘crimmigration’ laws is to draw many more enforcement personnel into the process of policing migration than the border guard or immigration official. This can be seen in the laws that draw civilian actors into the process of social sorting by criminalizing their potential aiding of immigration offenders. They make enforcement officials out of employers, banks, landlords and universities, who are duty bound to check and confirm the immigration status of potential employees, tenants, depositors and students or face criminalization themselves. From the perspective of law enforcement personnel, domestic law enforcement and border control are converging; the previously distinct agencies are now becoming formally and informally linked (Pickering and Weber 2013). There is increasing continuity between domestic policing and ‘police-like’ activities of border control and transnational policing agencies (Bowling and Sheptycki 2012). Immigration officers, who were until relatively recently empowered simply to check documents at borders and to refuse entry in tightly circumscribed circumstances, have been granted progressively more police-like powers, including powers of surveillance and investigation, search and seizure, arrest, prosecution and detention. This enables them to patrol internal transport hubs and to carry out raids in search of undocumented workers within the territory of the state. In the UK a single frontier force has been a long-awaited development and the newly established National Crime Agency (NCA) is soon to have a unified border policing command (Bowling 2013). The US Customs and Border Protection (CBP) agency of the Department of Homeland Security is now the largest armed law-enforcement agency within the US Federal Government (Stumpf 2013). The growth of reality TV shows – such as UK Border Force, Border Security – Australia’s Front Line, Border Wars (USA), Border Security (Canada) and Border Patrol (New Zealand) – as popular entertainment suggests a growing ubiquity of these new agencies. Domestic police agencies are being given stronger and more formal roles in the policing of immigration, both internally and in external border patrol. ‘Crimmigration’ laws in Arizona threaten police officers who fail in their legal duty to identify and arrest immigration offenders with civil action by citizens. These laws have been criticized as sanctioning racial profiling, an accusation that has been strongly contested by the State government, but one that upon scrutiny appears well founded (Provine and Sanchez 2012).The creation of multiple criminal offences for assisting irregular migrants in many jurisdictions draws domestic police into the day-to-day enforcement of migration control. It can be argued that border policing is transversal in nature – cutting across the physical boundaries of the state, across boundaries between organizations and between public and private life (Pickering and Weber 2013). Immigration agencies become more police-like, while policing agencies become more involved in border control. Intelligence gathering from internal and external sources, followed by armed raids by immigration enforcement leading to mass arrests, prosecutions and deportations is becoming common in many countries (Brotherton and Barrios 69

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2013).The policing of migration is increasingly transnational, operating well beyond the borders of the state. This extra-territorial reach is both virtual through information sharing systems, and physical in the form of overseas liaison officers. In many cases overseas liaison officers are able to refuse entry to travellers before they have even left their nation state, fulfilling the policy goal of non-arrival of undesirable immigrants. These rapidly shifting relationships between enforcement agencies engaged in the task of migration control and the wave of laws creating ‘crimmigration control systems’ worldwide have significant implications for the provision of safety and the accountability of migration policing. Traditional boundaries between interior and exterior, domestic and foreign, criminal and administrative, civilian and military, are fundamentally shaken and blurred (Aas and Bosworth 2013). This results in the creation of closer connections between traditionally separate agencies and involves the creation of new hybrid ones such as FRONTEX. The danger here is that accountability gaps are created where agencies working closely together fail to take responsibility for their part in actions that involve multiple actors. These risks increase as organizational boundaries are reconfigured tying domestic agencies more closely together between themselves and with transnational ones (Bowling and Sheptycki 2012). Developments in domestic and transnational migration policing (and transnational policing more generally) raise serious concerns. These have to do with the effects policing practice has on the people subjected to it. These effects, in turn, draw into question the fairness of policing practice and the way in which police mechanisms of control are themselves subject to systems of accountability that underwrite their legitimation.

The global effects of crimmigration policing The emergence of a global system of ‘crimmigration control’ that transcends national boundaries and traditional boundaries between enforcement agencies, as well as the civil/criminal divide, has many negative effects that impact on societies and individuals worldwide. It is important to recognize that migration policing also facilitates the passage of specially designated classes of travellers. Most obviously, there are the business people travelling by private jet who circumvent mass migration controls and the ‘high value passengers’ welcomed through first class airport lounges, priority boarding and ‘fast track’ passport checks. But there are also other categories of worker – for example, industrial and agricultural workers on short-term work visas and people with advanced technical skills working in the higher echelons of corporate management – who have their transnational passage facilitated through policing systems in order for the global neoliberal economic order to function. Criminologists sometimes neglect this ‘positive’ aspect of migration policing, but it has important consequences for the character of the global system. Both positive and negative aspects of police immigration control reinforce the same global structural configuration. With the emergence of both explicitly and implicitly racially coded immigration laws in Western countries, supported by heavily publicized anti-immigration rhetoric from governments, crimmigration control operates to enforce social divisions, even within metropolitan multicultural societies. The aggressive promotion of these policies entrenches social division along racial and religious lines, risking the stability of plural societies and sacrificing the rich cultural patchwork only found in a well-integrated multicultural metropolis. The risk of encouraging and entrenching institutional racism within enforcement agencies is also a potential problem. Institutional racism is an acknowledged problem, which the British and American states in particular have struggled to overcome in recent decades. They now face the very real possibility of sacrificing the progress which has been made at no small expense, financially or politically. 70

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The criminalization of immigration transgressions as well as the intense focus on the deportation of ‘foreign criminals’ creates a system where individuals falling foul of the system are penalized and punished twice. With prosecution and penal sanctions for ‘ordinary law crimes’ in the first instance and then with loss of legal status and deportation for ‘immigration crimes’ in the second. Frequently these individuals lose their homes, families, livelihoods and savings, and many are deported to their nation states of birth of which they often know very little, having left as children or in some instances never having lived there at all. In some cases these deportees experience social stigma and persecution on their return. In Jamaica over 1 per cent of the general population have been deported from the UK, the US or Canada over the past 15 years.5 Although in most cases the crimes committed by these deportees are relatively minor nonviolent offences, some commentators seek to blame surges in violent crime on these deportees. Consequently, the main focus of society in these cases is not the reintegration of this population but their segregation and control. The expansion, reinforcement and militarization of national borders have far-reaching harmful effects on individuals who risk life and limb to reach the Western world by sea, land and air. The increase in border security forces people into more clandestine and dangerous forms of travel; many people are injured or die en route, through drowning, dehydration, suffocation, exposure and malnutrition. People are injured and killed at militarized borders, with electric fences, minefields and armed guards all contributing to the rising death toll. The most recent estimate indicates that there have been more than 7,000 documented cases of border-related deaths in Europe since 1993 (Weber and Pickering 2011).

Conclusion Implicitly or explicitly, governments of the Global North have determined that the free movement of labour is a both a fundamental requirement for neoliberal economic development and a threat to the newly emerging global order. These governments are developing a range of migration policy solutions that, despite their apparent diversity, look increasingly similar in both their practice and their legitimation rhetoric. These similarities are hardly surprising since they arise out of collaborative and coordinated solutions worked out at the transnational level. There are also disturbing resemblances to discredited systems of social sorting on the basis of race and ethnicity, suggesting the emergence of a system of ‘global apartheid’ (Richmond 1994; Bowling 2013). The result is transnational crimmigration policing, which, troublingly, appears as the exercise of power without responsibility. In this chapter, we have placed new developments in migration policing in the context of broader shifts in the transformation of governance and in radical changes that are have taken place in policing more generally over the past 50 years. In our view, the globalization of police power is the key to understanding the emergence of transnational systems for migration control. It also raises disturbing questions for law, policy and practice that should be taken up by researchers and practitioners. The transnationalization of migration policing, and the gravity of harm that flows from the enforcement of aggressive crimmigration policies, raise important questions about how state and supranational actors can be held to account for border-related harms. Policing and immigration control are traditionally rooted in the nation state and limited to actions within the borders of the state itself. In Weberian terms, policing power is both substantively and symbolically an expression of the nation state: ‘a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’ (Weber 1918: 1). The effects of globalization and neoliberal governance, opening up financial markets, the growth of the multinational corporation, the emergence of supranational systems of governance, the increase in flows of 71

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goods, information and people around the planet, have all had the effect of ‘hollowing out’ the nation state ‘from above’ and ‘from below’ (Sheptycki, 1995; 1998a; 1998b). This process has placed stress and strain on all aspects of national governance, and crimmigration policing is an important example of where the concepts of legitimacy and accountability are most significantly stretched. It is an axiom of liberal democratic governance that agents of the state must be accountable to the people that they serve. This is particularly important where state actors exercise intrusive and coercive powers. The power to spy on people’s private lives and to use physical force as a means of control are, by their very nature, morally suspect in a democratic system. They are clearly also open to abuse and have the potential to cause far-reaching harm, even more so when those most likely to be adversely effected are vulnerable individuals such as undocumented migrants. The increase in transnational policing practice, whether in the form of supranational agencies or by state actors operating outside the boundaries of their nation state, has become increasingly difficult to fit into traditional theoretical frameworks of state accountability. The difficulty of transposing the traditional language of police accountability articulated in the domestic sphere onto the transnational plane is immediately obvious. Once the notion of accountability to ‘the law of the land’ is raised, the question ‘the law of which land?’ immediately arises (Bowling and Sheptycki 2013). Clearly this difficulty is not easily resolved when policing practice encompasses more than one jurisdiction, or actors from several jurisdictions collaborate and cooperate across the borders of nation states. A similar difficulty arises when the concept of ‘accountability to the people’ is considered. The question arises: to which people are transnational actors accountable? In the absence of any system of global governance or organization democratically representing the global population generally, this is an especially vexed question. It becomes all the more so when considered in the context of migration policing, where those most directly affected – the ‘users’ as it were – are usually disenfranchised, without legal status and effectively powerless to control or question the terms of their treatment. In an attempt to answer these questions it is tempting to be drawn into a discussion of the future of global governance and the possibility of establishing truly democratic and accountable global systems along the lines of commentators like David Held or George Monbiot.The reality of contemporary international relations suggests to us that this is unlikely to be a real possibility in the foreseeable future. Perhaps it is sufficient to say for now that the empirical evidence demonstrates that the transnational practice of migration policing is widespread around the world and though unevenly spread, it appears in a myriad of forms, some of which have a truly global reach. Meanwhile, few institutional mechanisms exist through which these forms of policing can claim legitimacy or be held to account. There is very little debate surrounding the issue of how policing can be held to account outside of the boundaries of the nation state (Bowling and Sheptycki 2012; 2013). In our view, this should be an item high on the agenda for debates about global governance, the protection of human rights and fundamental freedoms. We hope that our work in this area contributes to making global policing theoretically visible and that it provides some tools for researching newly emerging transnational strategies for the policing of mobility.

Notes 1 http://www.interpol.int/INTERPOL-expertise/Databases (accessed 4 Nov. 2013). 2 http://www.interpol.int/INTERPOL-expertise/Border-management (accessed 4 Nov. 2013).

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3 http://www.interpol.int/News-and-media/News-media-releases/2013/N20130813 (accessed 4 Nov. 2013). FRONTEX is an agency of the European Union. The term is a portmanteau of the French words Frontières and Extérieures–meaning ‘external borders’. This agency is charged with co-ordinating the activities of EU members’ border policing agencies both with each other and with agencies in non-member states. See below, page 67. 4 New York Times, August 28 2011. http://www.nytimes.com/2011/08/29/opinion/the-nations-cruelestimmigration-law.html. 5 International Herald Tribune, 21 March 2007.

References Aas, KF & Bosworth, M (eds) 2013, The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford. Aas, KF, Gundhus, HO & Lomell, HM (eds) 2008, Technologies of insecurity: the surveillance of everyday life, Routledge, London. Aliverti, A 2012, ‘Making people criminal: the role of the criminal law in immigration enforcement’, Theoretical Criminology, vol. 16, no. 4, pp. 417–34. Bauman, Z 1998, Globalization: the human consequences, Polity Press, Cambridge. Beier, AL 1985, Masterless men: the vagrancy problem in England, 1560–1640, Methuen, London. Bowling, B 1999, Violent racism: victimization, policing and social context, Oxford University Press, Oxford. — 2009, ‘Transnational policing: the globalization thesis, a typology and a research agenda’, Policing, vol. 3, no. 2, pp. 149–60. — 2013, ‘Epilogue. The borders of punishment: towards a criminology of mobility’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 291–306. Bowling, B & Phillips, C 2002, Racism, crime & criminal justice, Pearson Education, Harlow. Bowling, B, Phillips, C & Sheptycki, J 2012, ‘Race’, political economy and the coercive state, Hart Publishing, Portland, OR. Bowling, B & Sheptycki, J 2012, Global policing, Sage, London. — 2013, ‘Reflections on legal and political accountability for global policing’, in S Lister & M Rowe (eds), Accountability of policing, Routledge, London. Brotherton, DC & Barrios, L 2013, ‘The social bulimia of forced repatriation: a case study of Dominican deportees’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 201–17. Côté-Boucher, K 2008, ‘The diffuse border: intelligence-sharing, control and confinement along Canada’s smart border’, Surveillance & Society, vol. 5, no. 2, pp. 142–65. Feldman, D 2003,‘Migrants, immigrants and welfare from the old Poor Law to the welfare state’, Transactions of the Royal Historical Society, vol. 6, no. 13, pp. 79–104. Fowler, S 2008, ‘Legal attachés and liaison: the FBI’, in S Brown (ed.), Combating international crime: the longer arm of the law, Routledge Cavendish, London, pp. 110–22. Fryer, P 1984, Staying power: the history of black people in Britain, University of Alberta, Edmonton. Harvey, D 1990, The condition of postmodernity: an enquiry into the conditions of cultural change, Blackwell, Oxford. Hawes, D & Perez, B 1995, The Gypsy and the state: the ethnic cleansing of British society, SAUS, Bristol. Held, D & McGrew, A 2000, ‘The great globalisation debate: an introduction’, in D Held & A McGrew (eds), The globalisation reader, Polity, Cambridge, pp. 1–50. Holmes, C 1988, John Bull’s island: immigration and British Society 1871–1971, Macmillan, London. International Organisation for Migration 2011, World migration report 2011. IOM, Geneva. Kenrick, D & Puxon, G 1972, The destiny of Europe’s Gypsies, Sussex University Press, London. King, M 1994, ‘Fortress Europe’: the inclusion and exclusion of migrants, asylum seekers and refugees, University of Leicester, Centre for the Study of Public Order, Leicester. Koskenniemi, M 2010,‘What is international law for?’, in M Evans (ed.) International Law, Oxford University Press, Oxford, pp. 32–57. Loughlin, M 2013, The British Constitution: a very short introduction, Oxford University Press, Oxford. Mann, M 1997,‘Has globalization ended the rise and rise of the nation-state?’, Review of International Political Economy, vol. 4, no. 3, pp. 472–96.

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Pickering, S & Weber, L (eds) 2006, Borders, mobility and technologies of control, Springer, Dordrecht. Pickering, SJ & Weber, L 2013, ‘Policing transversal borders’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 93–110. Provine, M & Sanchez, G 2012, ‘Suspecting immigrants: exploring links between racialised anxieties and expanded police powers’, in L Weber & B Bowling (eds), Stop and search: police power in global context, Routledge, London. Richmond, AH 1994, Global apartheid: refugees, racism and the New World Order, Oxford University Press, Oxford. Shah, P 2000, Refugees, race and the legal concept of asylum in Britain, Cavendish, London. Sheptycki, J 1995, ‘Transnational policing and the makings of a postmodern state’, British Journal of Criminology, vol. 35, no. 4, pp. 613–35. — 1998a, ‘The global cops cometh: reflections on transnationalisation, knowledge work and policing subculture’, British Journal of Sociology, vol. 49, no. 1, pp. 57–74. — 1998b, ‘Policing, postmodernism and transnationalisation’, British Journal of Criminology, vol. 38, no. 3, pp. 485–503. — 2000, Issues in transnational policing, Routledge, London. — 2011, Transnational crime and policing: selected essays, Ashgate, London. Solomos, J 1993, Race and racism in Britain, Macmillan, London. Stumpf, J 2013, ‘The process is the punishment in crimmigration law’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 58–75. Webber, F 2004, ‘The war on migration’, in P Hillyard, C Pantazis, S Tombs & D Gordon (eds), Beyond criminology: taking harm seriously, Pluto Press, London, pp. 133–56. Weber, L 2007, ‘Policing the virtual border: punitive preemption in Australian offshore migration control’, Social Justice, vol. 34, no. 2 (108), pp. 77–93. Weber, L & Bowling, B 2004, ‘Policing migration: a framework for investigating the regulation of global mobility’, Policing and Society, vol. 14, no. 3, pp. 195–212. — 2008, ‘Valiant beggars and global vagabonds: select, eject, immobilize’, Theoretical Criminology, vol. 12, no. 3, pp. 355–75. — (eds) 2012, Stop and search: police power in global context, Routledge, London Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke. Weber, M. 1918 ‘Politik als Beruf ’ [Politics as a Vocation], in Gesammelte Politische Schriften, Munich, 1921, pp. 396–450. Originally a speech at Munich University, 1918.

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5 Bordering citizenship in ‘an open and generous society’ The criminalization of migration in Canada Karine Côté-Boucher

Introduction Much critical scholarship insists on the exclusionary and punitive tendencies adopted by contemporary migration control. Accounts examine how the criminalization of migration has become a bonanza for the public and private security actors whose job it is to regulate migrant mobility and behavior, and who obtain significant budgets to do so. These scholars pay attention to how these actors employ a language of unease and moral panic towards migration. By sustaining the formation of restricted social bonds and exclusive cultural identities based on fear and a sense of insecurity in the face of global migratory flows, contemporary projects of migration control would prevent an approach to mobility that promotes hospitality and mutual aid. Exclusionary bordering strategies would as a result intersect with the domestic criminalization of migration and produce irregularity and migrant vulnerability. This chapter enters into conversation with this interdisciplinary portrayal of the contemporary politics of mobility and the role of borders. This account can be found in political geography, critical border and security studies (see significant works by Huysmans 2006; Rajaram and Grundy-Warr 2007; Squire 2011), as well as in refugee and migration studies (e.g. de Genova and Peutz 2010; Malkki 1995). More recently, it has been gathering attention within a criminology of mobility particularly concerned with migration punishment and border policing (Aas and Bosworth 2013; McCulloch and Pickering 2012a). In a nutshell, this critical literature analyzes the political and ontological dimensions of border security, offering essential insights into the ways in which the global reworks social relations and the boundaries of political communities through border policing. Yet in view of these analyses, a simple fact remains: while they adopt increasingly exclusive citizenship rules, promote more stringent immigration enforcement and introduce yet more border control measures, some countries, such as Canada, but also the United States and Australia, grant legal residential status and even citizenship to thousands of immigrants each year. Building on the Canadian case, this chapter asks: how can we make sense of these paradoxical tendencies that simultaneously promote the inclusion and exclusion of migrants? What are the lessons for conceptualizing the crime–migration nexus? The chapter highlights the effects of bordering classifications upon migrants but also pays particular attention to how these 75

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classifications help maintain an image of Canada as an ‘open and generous society’. The main argument of this chapter is that, though it does in part respond to a global bordering politics that extends spaces for the control of movement outside traditional geopolitical lines and inside territories, thus producing irregular mobilities only to cast them as threatening to social and political stability (Côté-Boucher 2008; Pickering and Weber 2013), the securing of Canada’s borders cannot be seen as purely exclusionary. Other, more subtle dynamics are at play. These concern a particular ‘social imaginary’ (Taylor 2004), where the criminalization of migration intersects with neoliberal politics to form the Canadian bordering regime.1 Complex dynamics of hostility and openness, of repulsion and desire are unfolding at this intersection. The task of differentiating bad from good migrants, law-abiding from dangerous, productive from indolent, citizen material from temporary labor source, represents an important legitimating function for Canadian border policing and immigration authorities. These officials are granted significant moral regulation powers over the classification of migrants as deserving individuals or deviants. Bordering dynamics thus reproduce a certain idea of what ‘Canada’ is, asserting a particular representation of its social order as a multicultural, perhaps, but also moral, humanitarian, generous, decent and above all, productive political community keeping itself safe from world violence, war and conflict. By taking Canadian borders at its vantage point, this chapter first speaks to how borders stratify mobilities along a securitized but neoliberal social imaginary. The chapter then sets out to illustrate these dynamics by paying attention to the policing of Canadian borders, how this policing is legitimized and impacts refugees as well as criminalized non-citizens. It concludes by suggesting that new bordering temporalities make up hierarchies of belonging in migration-receiving societies.

Stratifying mobility under conditions of globalization The relation between mobility control and state-making has a long history. But today’s global configurations, Sassen (2008) tells us, are reshaping national institutions in ways that destabilize how we experience and represent the national. Whereas passports and documentary identification have been essential to state-building (Torpey 2000; Mongia 2003), global migration is now reshuffling the cards, transforming how we view anchored state functions such as penalty and the provision of citizenship. Recent scholarship on the criminalization of migration analyzes how the use of criminal law in immigration enforcement is remodeling penalty (Aliverti 2013; Stumpf 2006; Bosworth and Kaufman 2011). Aas (2013: 23) judiciously observes that the meeting of global migrant mobility with the territorial configuration of the nation state alters conventional state authority as it relates to penalty by ‘producing fragmentation and to some extent dissolving the (national) penal domain by mixing elements of the “internal” and the “external,” thus creating novel configurations of the penal’. Similarly, undocumented migrants’ claims for status rework the classic distinction between legality and illegality (Coutin 2005) and the very criteria on which political membership is based (Nyers 2010). The meaning of citizenship also shifts as it comes in contact with the differential treatment reserved for different categories of people within border spaces. Citizenship now presents itself as a regime of mobility governance. This regime is inscribed in the bordering discourses, practices, logics and technologies of a variety of private and public actors who construct and classify mobile populations as threatening or privileged along gendered, classed and racialized readings of low and high risk (Rygiel 2010). These distinctions are deployed within a variety of bordering categories which increasingly distinguish between different types of undocumented and legal migrants, ‘crimmigrants’, visa-required and privileged travelers (Aas 2011). 76

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Some of the bases for such border classifications are not new, having historically promoted racialized forms of citizenship. A ‘settler society’ (Stasiulis and Yuval-Davis 1995), Canada was built on the colonization of Indigenous lands from the seventeenth to the beginning of the twentieth century, with immigration laws which, until the end of the 1960s, favored specific European settlers.2 The federal state has since opened its borders to an influx of legal migration from all over the world while adopting multiculturalism as its main approach to cultural identity.3 But the migration and border regime characteristic of twenty-first-century Canada takes on a neoliberal twist, uncovering a reworked approach to the (un)desirability of migrants. Nowadays, Canada is more than ever a country of immigration, as the numbers of lawful admissions are on the rise. In 2012, about 256,000 persons were admitted as permanent residents, compared to 227,000 in 2000 (Citizenship and Immigration Canada 2013).4 About another 178,000 obtained a temporary foreign worker visa that same year, compared to 492,000 in 2012. In a population of 35 million, one in five people was born abroad (Statistics Canada 2011). Given these numbers, the Canadian case introduces in the critical conversations about crime and migration a concern with the heterogeneity and flexibility of the racial, gendered and classed configurations of bordering and citizenship regimes. This chapter suggests that such regimes can best be understood not so much as exclusionary but in that they make possible the stratification of mobility. Through legislations, bureaucratic institutions and policing practices, migration-receiving countries sustain what Mezzadra and Neilson (2013) term ‘differential inclusion’. As it supports distinctions between but also within labor migration, and undocumented and refugee flows in order to better divide and contain but also channel and foster mobilities, differential inclusion speaks to how ‘borders are equally devices of inclusion that select and filter people and different forms of circulation in ways no less violent than those deployed in exclusionary measures’ (ibid.: 7). Differential inclusion indicates how, alongside more restrictive border measures, the proliferation of moving privileges for transnational elites—faster border crossing, pre-clearance and frequent flyers schemes for business travelers—speaks to the ‘multiplication of authorized identities’ on the global border control stage (Côté-Boucher 2010a). This proliferation of manners of entry, stay, exit and expulsion facilitated by the Canadian bordering regime evince the complex interplay of what Honig (2001) calls xenophilia and xenophobia. By articulating its migration policies to a strategy of insertion in the global labor market—facilitating high levels of temporary and long-term migration—Canada proposes to monitor mobilities with a very specific kind of migrant in mind. It is often thought that Canada valorizes difference; after all, it first adopted multiculturalism as an official government policy. Almost 20 years ago, Spivak (1995: 83) criticized the liberal multicultural project as ‘determined by the demands of contemporary transnational capitalisms’. This view still holds true today. Canada’s migration and trade agenda enhances the mobility of specific types of migrants. Current labor-related immigration programs include: federal skilled workers, provincial nominees, federal skilled trades, Quebec-selected skilled workers, Canadian experience class, investors, entrepreneurs, self-employed as well as live-in caregivers. It promotes the mobility of those who are seen as proactive neoliberal subjects able to generate wealth and sustain Canada’s search for a competitive advantage in the global economy. Yet this approach intersects with border policies that remain suspicious of the potential threats to national security introduced into the peaceful Canadian social order by this neoliberal agenda. Consequently, the Canadian immigration regime sustains divergent evaluations of degrees of morality in migrants. What Dauvergne (2008) calls the ‘moral worthiness’ of migrants is thus weighed against a range of xenophilic and xenophobic imagery. The desire for perfect immigrants—chosen for their qualifications, for being prosperous, active, family-oriented, 77

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respectful of authority and grateful for having been granted access to a democratic and wealthy society—is at variance with representations of undeserving fraudulent refugees knocking at the door, of migrants who ‘refuse to be like us’ and dare to make political demands, of suspected terrorists and criminals ‘who should be sent back to where they come from’. It is not that migrants are wholeheartedly accepted or downright refused; rather, they are fantasized about. To a large extent, immigrants in Canada meet xenophilic expectations in relation to crime rates. In contrast to the Chicago School model, which related studies of ethnic transformation in city neighborhoods to criminality, recent studies have shown that the relation between crime and migration is statistically negative in Canada—as it is in traditional migration cities in the United States (Zatz and Smith 2012). Dinovitzer, Hagan and Levi (2009) suggest that factors such as migrants’ commitment to education as well as the costs associated with criminality for migrant families—damaging to a family’s migration project undertaken to ensure a better future for their children—help keep migrant youth illegalities low. But racial fantasies have little to do with statistics. As Melossi (2003: 376) judiciously observes, contemporary discussions about migration and crime in European (and other ‘Western’) countries speak less about the reality of migration and more about how the perception of this reality is embedded in how we see ‘ourselves, who we are, and where we want to go’. Participating in affective representations of the threatening and the comforting, the legitimate and the undesirable, migrants appear as bearers of uncertainty. They thus become easy targets for a variety of bordering strategies, ranging from bestowing some form of legal status to monitoring, detention and even expulsion. As shown in this chapter, we are currently witnessing the temporal extension of borders now experienced by the same migrants at different moments of their lives.Therefore, it is an elusive task to analyze the malleability of this xenophilic/xenophobic dynamic—which supports the desire for specific groups of migrants to renew a political community who can later perceive them with suspicion. Driven by these concerns, the remainder of this chapter explores how the crime-migration nexus is constructed, interpreted and cultivated by Canadian border and migration control actors.

There are no real refugees: from rhetoric to reality Closely following the American model and adopting a more restrictive border control approach, Canadian border activities oversaw an institutional overhaul in 2003. Under the responsibility of the Ministry of Revenue for almost a century, Canada Customs was dismantled and replaced by the Canada Border Services Agency (CBSA), itself administered by the new Ministry of Public Safety (Canada’s equivalent of the Department of Homeland Security). Beyond its customs as well as food and agriculture safety enforcement duties, the CBSA now enforces the Immigration and Refugee Protection Act (IRPA)—previously a responsibility of Citizenship and Immigration Canada (CIC). CIC remains nevertheless involved in key border control areas. It rules over the eligibility of refugee claims, which are then sent to the Immigration and Refugee Board (the administrative tribunal that decides over refugee matters). The CBSA enforces CIC’s immigration control policies as well as the Immigration and Refugee Board’s (IRB) negative rulings. To do so, the border agency runs migration detention centers in Vancouver, Montreal and Toronto and oversees migrant detention in provincial jails. Some 35 percent of detained refugees in Canada are now jailed in provincial prisons, where time spent in detention for migrants is longer on average in conditions less specifically geared to the needs of migrants (Global Detention Project 2012).This increasing use of criminal penitentiaries blurs the difference between immigration and punitive detention (Nakache 2013). This reorganization of border policing speaks to the redefinition of the border agency`s activities 78

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along a security, immigration and law enforcement mandate. The CBSA has hired many personnel since its inception, including inland armed border officers. These new internal border police enjoy arrest powers and are in charge of investigating ‘immigration violations’.Accordingly, the CBSA carried out close to 19,000 deportations in 2012, that is more than double the number reached a decade before when it deported 8,000 persons.The same year, the Agency also denied entry to about 51,000 persons (Canada Border Services Agency 2013). Deciding on who should get in, who should stay and who should be expelled requires not just new security actors and legislation. Following Stanley Cohen`s work, much has been written about the moral panic in criminology. But in addition to event-specific responses to mediatized immigration cases (e.g. the arrival of a boat full of asylum seekers), persistent immigration restrictions in countries built on immigration must be supported by a sustained program of political legitimation. Consequently, it is important to speak to the country-specific contexts in which such justifications arise, as did Welch and Schuster (2005) in the case of the US and the UK where divergent constructions of asylum seekers sustain similar detention policies. If, globally, a variety of non-citizen migrants (refugees, undocumented workers, criminalized migrants) are increasingly classed as ‘illegals’ in order to justify the closure of borders (Dauvergne 2008), the stratifying xenophilic/xenophobic dynamic characteristic of the Canadian migration regime particularly shapes border policing in the area of refugee protection. Therefore, it is significant that most of Canada’s efforts at stemming irregular mobility for the past two decades concern the progressive criminalization of this particular type of migrant. While temporary and permanent residency immigration numbers continue to climb in Canada, refugee claims reached a three-decade low in 2013, after a downhill trend started in 2002.5 This decline has been years in the making. As we shall see, public policy in Canada has become gradually more repressive against asylum seekers since the 1990s. Like other countries (Guiraudon and Joppke 2001), Canada has experimented with a variety of interception measures outside its borders, such as visa impositions on refugee-producing countries, carrier sanctions and overseas migration officers in foreign airports checking passenger documentation. Inside Canadian borders, immigration authorities proposed in 2012 a new refugee determination system, including short timelines to claim status and appeal negative decisions, rolling back access to health care for refugee claimants and country of origin rules that permit expedited hearing, detention and deportation of rejected asylum seekers. In between these years, each anti-refugee policy, piece of legislation and border policing practice has come to be legitimized in a political rhetoric interweaving two tropes of the threatening foreigner: the illegal refugee cum potential terrorist posing a risk to North American security, and the refugee defrauding Canada’s generous welfare policies. In parallel emerges a third figure: that of the once naïve Canadians who have now realized the dangerous and corrupt world in which they live and wish to protect their way of life against insecurity and dishonesty.

‘Cheaters’ and ‘fraudsters’ For more than two decades, official discourse has been emphasizing the ‘generosity’ of Canadian immigration policy to justify the progressive closure of the Canadian refugee system.Welcoming in June 2012 the passing of the Protecting Canada’s Immigration System Act (known as Bill C-31), then Canadian Citizenship and Immigration Minister, Jason Kenney, commented: This legislation will help stop foreign criminals, human smugglers and those with unfounded refugee claims from abusing Canada’s generous immigration system and receiving taxpayer-funded health and social benefits. Canada’s immigration and refugee 79

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system is one of the most fair and generous in the world and will continue to be so under the new and improved system. (Citizenship and Immigration Canada 2013) The figure of the cheating, ‘queue-jumping’ refugee usurping legitimate immigrants’ rightful place and taking advantage of honest Canadians has reappeared at intervals in refugee policy since the 1990s. Pratt and Valverde (2002) have looked at the ways in which various signifiers such as immigration, crime and fraud became intermixed in populist fears to constitute hybrid objects for neoliberal governance during that period. Stigmatized as criminal threats to public safety, as ‘welfare cheaters’ and ‘fraudsters’ to the refugee system, refugees were cast as threatening the efficiency of governmental mechanisms and problematized within a critique of dependency characteristic of a neoliberal moral universe reconstituting subject-citizens through a moral of enterprise, responsibility and autonomy. As shown below, the idea of the inherent deviance of refugees remains alive and well in Canadian immigration policy in ways that further victimize asylum seekers. However, attempts at identifying deviant refugees have since become enmeshed within a complex border regime where competing actors attempt to reconcile immigration administrative means, internal border policing and foreign trade policy. This is illustrated by the use of the ‘safe country’ designation in Canadian refugee policy. As most individuals from ‘refugee-producing countries’ have required a visa to enter the country since the 1990s, Canada’s visa policy has entered a more political phase. The debates about whether visas should be imposed on Canada’s major trading partners demonstrate that migration control and the criminalization of migrants do not always mix well with efforts to further integrate the global economy. In order to limit refugee claims from Roma fleeing persecution from Eastern European countries, Canada imposed a visa on Czech Republic visitors in 2009. But as a result of EU-Canada trade talks finalized at the end of 2013, this visa requirement has been lifted.6 Yet alarmist discourses about Roma refugees in Canada have not subsided, as border authorities are promoting rather novel ways to criminalize these migrants while maintaining the mobility of ‘low-risk’ European travelers. The CBSA has been a central actor in this regard. In a context where Western European countries reluctantly receive Roma fleeing persecution in Eastern Europe, Canada has become one of the few refuge countries for the Roma (Caparini 2010). After the imposition of a visa on the Czech Republic, Hungarian Roma started arriving in Canada. From 2,300 the previous year, 4,400 Hungarians claimed refugee status in 2011. Out of concern for this ‘irregular migration movement’, the CBSA launched Project SARA. The redacted report about the Project made publicly available by national media demonstrates how, in their risk assessment, the CBSA paid little attention to the plight of the Roma in Hungary and elsewhere in Eastern Europe—who are targeted by paramilitary right-wing groups guilty of arson, assaults and murders directed at Roma peoples (Amnesty International 2009). Instead, the report written by the Intelligence Branch of the Agency aimed at ‘identifying areas of possible intervention, prosecution or disruption’ through a combination of ‘pull factors, financial flows and criminal attributes’ (Canada Border Services Agency 2012: 5). Among the key findings, the report offers a criminalizing portrayal of the Roma in Canada without solid figures to sustain their assertions. According to the report, Hungarian asylum seekers come to Canada to collect social benefits before abandoning their claims, and they engage in property and fraud-related crimes while their refugee claims increase costs to the immigration system. Among restrictive measures, the report recommends restricting access to social welfare benefits, reducing access to the refugee protection system, better use of Advanced Passenger Information to post border officers at strategic points in airports and 80

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recourse to the Intelligence Division in order to identify and curtail smugglers. The report includes moralizing and criminalizing comments about Roma youth who would be ‘engaging increasingly in petty crimes, inappropriate sexual activity [sic] and in more violent encounters with other ethnic groups, to the point where there is an indication that local gangs may be developing’. The report has been denounced by representatives of the Roma community as racial profiling but found support in the conservative media, which commended the efforts of the CBSA at catching undeserving criminal refugees. Given recent Canada-EU trade talks, there has been no visa requirement imposed on Hungary, a bordering measure now judged to be too politically sensitive. The CBSA can rather count on new legal provisions that allow putting countries such as Hungary on a designated countries of origin list.7 Claimants from these countries ‘that do not normally produce refugees but do respect human rights’ now see their claims fast-tracked with no right of appeal, and are subsequently deported if their claims are denied by the Immigration and Refugee Board.

Foreigners as security threats Since 9/11, another figure of the threatening foreigner has come into the spotlight in Canadian border practice: the illegal migrant as a threat to national security. The association of refugees with Canadian national security is not new; it dates back to the Cold War (Whitaker 1987). But 9/11 introduced a renewed concern about refugees. Gone is the potential communist spy. Now, refugees are part of wider threats to what the 2001 Canada-US Smart Border Declaration calls the ‘North American zone of confidence’. In this document, and in all policies and bilateral border security agreements that followed it—and which share a double concern for ‘security and prosperity’—refugees and undocumented noncitizens are assimilated to terrorists. From this moment, illegality is officially seen in North America as a security risk to be managed and averted. Claims of frustration at having one’s generosity cheated by ‘false’ asylum seekers are giving way to what Ahmed (2004: 65) calls the ‘affective politics’ of fear, building on anticipation fantasies that ‘construct the other as a danger not only to one’s self as self, but to one’s very life, to one’s very existence’. A slew of post-9/11 initiatives have securitized migrants in Canada—among the most controversial ones, ‘security certificates’ are ordinances that call for the arbitrary detention and pre-emptive deportation of (generally) Muslim non-citizens suspected by intelligence services of harboring terrorist affiliations (Larsen and Piché 2009). But one particular bilateral accord, the 2004 Canada-US Safe Third Country Agreement, has done much to reduce the number of refugee claims presented at Canadian borders.The agreement requires asylum seekers to present their claim to the first country of arrival by land or be sent back to this first ‘safe’ country (it does not apply to airport or maritime arrivals). Since most migratory channels to Canada go through the United States, the agreement concretely results in sending asylum claimants back to that country. First, put on the table by Canada in the 1990s with a view to reducing costs and backlogs at the underfunded Immigration and Refugee Board, the US then refused to agree to the proposal, which would have left its immigration bureaucracy with more refugee claims to process. Post 9/11, however, US politicians suddenly became concerned with the ‘porosity’ of the Canadian border to terrorism, that is, they started looking at the Canadian refugee system with suspicion. They agreed to the plan at a time when, under the Smart Border Declaration, refugee interdiction policies became integrated into a larger bilateral counter-terrorist policy. 81

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The impact of this agreement has been immediate and long-lasting. In her analysis of the Safe Third Country Agreement, Macklin (2005: 369) has highlighted the growing North American tendency to discursively disappear refugees, a process where the erasure of the notion of people in need of protection ‘performs a crucial preparatory step toward legitimating actual laws and practices that attempt to vanish them in reality’. The Safe Third Country Agreement has made asylum seekers more vulnerable to persecution and detention, while pushing many underground and inducing an increase in migrant smuggling at the Canada-US land border (Harvard Law School 2006; Arbel and Brenner 2013). The agreement immediately caused a significant reduction in asylum claims at the land border, particularly affecting Colombians fleeing decades of civil strife and who made up most of asylum claims filed at the land border in the years previous to 2004. Colombian refugee claims in 2005 were only 30 per cent of those made in 2004 prior to the implementation of the agreement (Canadian Council for Refugees 2005). In addition, those turned back at the Canadian land border are often detained by US immigration authorities. The latter have been found to detain refugee claimants for more than six months, sometimes years (Arbel and Brenner 2013), confirming Bosworth and Kaufman’s (2011) analysis of the indefinite character of US immigration detention. Consequently, the agreement has been temporally and spatially deferring the detention of asylum seekers to the US immigration penalty regime, a country where migrant imprisonment is an industry (Doty and Wheatley 2013) and where detention standards are nowhere comparable to those of the Canadian prison system.

Legislating the undeserving migrant away During the years leading up to 2004 and culminating with the Safe Third Country Agreement, we witnessed a multiplication of bordering measures diffusing the Canadian border beyond and across its territory. These relied on expanding border agencies’ material and technical capacities, investing in technologies, relying on information exchange as well as increasing legal surveillance powers (Côté-Boucher 2010b). These measures have been significant in creating a decade-long drop in asylum claims in Canada, by intercepting asylum seekers and undocumented migrants before they enter the country. Nevertheless, it seems that Canada has recently opened a new chapter of its bordering ‘hyperactivity’ book (McCulloch and Pickering 2012b), but one where the means are primarily legal. In 2012 and 2013, Parliament adopted a series of bills amending the Immigration and Refugee Protection Act (IRPA). It is hard to predict how these new legal dispositions will be interpreted and implemented by all the border actors involved—the CBSA, the Immigration and Refugee Board, the Minister (and his increased discretionary powers), as well as the criminal justice and the provincial jail systems. However, it can already be argued that these new legal provisions reveal an agenda of institutional hardening of existing migrant criminalization along three axes.The first concerns rule changes facilitating the detention of asylum seekers, while the second expands the grounds for deportation in cases of non-citizens’ criminality. The third axis suggests a remodeling of the citizenship regime via promotion of a denationalization agenda for those migrants considered to have failed to correspond to xenophilic understandings of migration.

The MV Sun Sea episode and refugees as ‘terrorist travelers’ Whereas immigration penalty continues to activate the notion of the defrauding refugee, it now articulates it in a complex threatening figure where the fraudster also presents national security and public safety concerns. The reaction to the landing in 2010 of the MV Sun Sea with Tamil 82

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asylum seekers on board illustrates this recent convergence where refugees are not only conceived as cheaters but simultaneously as terrorists and criminal threats. Refugee arrivals by boat are uncommon in Canada (and when they happen, they are circumscribed to British Columbia on the country’s West coast). However, Mountz (2010) has shown how these undocumented sea arrivals create controversy and are often answered by calls for the tightening of immigration laws amidst fears of loss of sovereignty. In an unprecedented move during the Sun Sea episode, border authorities detained all 492 asylum seekers on board.This mass detention was first publicly justified on the suspicion that some of the claimants might be related to the Tamil Tigers (LTTE). Whereas Canada is home to a sizeable Tamil refugee community, the armed liberation movement is listed as a terrorist entity by the Ministry of Public Safety. In addition, detention was meant to allow border authorities to search amidst the refugees for smugglers and enablers of ‘terrorist travel’—a designation taken from a report of the Canadian secret service. Newspapers reported that 11 of the passengers have since been deported back after having been designated as members of the LTTE; 14 others were deported on human smuggling grounds as they were part of the ship’s crew (Bell 2013). Beyond this immediate impact on the asylum seekers, the MV Sun Sea incident prompted the adoption in June 2012 of the omnibus immigration Bill C-31, Protecting Canada’s Immigration System Act. Since the reworking of the Immigration and Refugee Protection Act (IRPA) in 2002, the CBSA arrests and detains asylum seekers mainly for identity verification purposes or when it evaluates that an individual represents a flight risk. Under this new law, however, asylum claimants associated with group arrivals (by sea, land, air) are not to receive the same individualized examination of their refugee claim. The bill introduces new legal categories, ‘irregular arrival’ and ‘designated foreign nationals’, and grants discretionary powers to the Minister of Citizenship and Immigration to apply these designations to ‘group arrivals’: ‘The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons.’ The law also ensures mandatory arrest and automatic detention of adults (16 and older) on group arrivals for a minimum of one year or until the claim is reviewed.While it does not require the detention of minors, these provisions will have deleterious effects on refugee families, either by placing children in foster care or by compelling parents to have their children follow them into detention. Finally, if accepted as refugees, ‘irregularly arrived’ persons are banned from applying for permanent residency for 5 years, pushing back the possibility of family reunification (permanent residents can apply for similar status for their family). According to Nakache (2013), Bill C-31 inaugurates two distinct juridical regimes of migration detention in Canada for asylum seekers: one for ‘foreign nationals’ and another for those labeled ‘irregular arrivals’ by the Minister.

Wanted by the CBSA: producing migrant criminality Surfing on this legislative wave, the CBSA launched a program in July 2011 which received a significant amount of press. Wanted by the CBSA first aimed at finding 30 individuals ‘accused of, or complicit in, war crimes or crimes against humanity’ under a removal (deportation) order and called for the collaboration of the public in finding these individuals. With recent legislative changes in immigration law that inaugurated new categories of immigration inadmissibility (on security grounds and organized criminality), the program was quickly expanded to include non-citizens with criminal convictions. The CBSA publishes on its website police-record details on the researched individuals (name, date of birth, gender, place of birth, last known address and identifying features) accompanied by photographs. In February 2014, the program had led to the arrest of 54 individuals, 42 of whom have since been 83

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deported. The CBSA continues adding new names to the list—generally accompanied by a news release. With such publicized designations, border authorities contribute to the social construction of migrant criminality through the production of a racializing imagery made up of evocative police shots associated with names and details indicative of foreign nationality. Such powerful imagery provides policing agencies with legitimacy in competitions for budgets and technologies as well as symbolic struggles over who gets to define, and consequently be in charge of containing threats against national security and public safety (Bigo 2011)—an especially significant struggle during a time of fiscal constraint such as the one experienced by Canadian federal agencies since 2009. Small but emblematic, Wanted by the CBSA illustrates how the Agency and other policing actors who claim a stake in border security are involved in ‘performing the internal border’ (Weber 2011: 464). In fact, some of the arrests related to the program have been carried out by a special integrated team, Toronto’s Immigration Task Force (ITF), comprising inland officers from the CBSA and officers from the Royal Canadian Mounted Police (RCMP). ITF claims to have arrested 3,000 ‘high risk migrant fugitives’ since its inception.The task force was created in 1994 in the wake of the mediatized homicides of a by-stander and of a police officer by two permanent residents of Caribbean origin in Toronto. The same year, the racist public response to these events also supported the introduction of a new legal category in immigration legislation admitting the deportation without right of appeal for noncitizens (foreign nationals and permanent residents) deemed to present a ‘danger to the public’ (Pratt 2005). Accordingly, migrants are currently criminalized in Canada through an expanding array of legal provisions in immigration legislation allowing the arrest, detention and deportation of noncitizens convicted of crimes. In the 2002 remodeled version of the Immigration and Refugee Protection Act (section 36), ‘danger to the public’ was modified to ‘serious criminality’ (Pratt 2012), which became grounds for inadmissibility and deportation, even of adults who had spent most of their lives in Canada. Since then, the Faster Removal of Foreign Criminals Act (assented in 2013) reduces the 2002 criteria. It establishes ‘serious criminality’ to criminal sentences of six months and over—down from two years or more. It also recognizes as grounds for deportation convictions for criminality received abroad and carrying a maximum penalty of at least 10 years’ detention. The Act also criminalizes by association: pending regulatory changes, it will forbid visits to Canada from foreign nationals with inadmissible family members. It also further securitizes migrants and makes them vulnerable to reprisals by compelling migrant applicants to undergo an interview at the request of the Canadian Security Intelligence Services (Canada’s main intelligence agency).

Denationalization These new excluding legal criteria support a third trend in Canadian immigration and citizenship law: denationalization. New legal provisions facilitate the removal of status for unwanted foreigners and citizens who have failed to conform to the xenophilic immigrant ideal. Those deemed unworthy of the legal status bestowed upon them—given that, outside of attention to context, they are considered to have individually failed at becoming law-abiding, productive members of society—can be denationalized and deported. Since 2002, immigration law allows Ministerial applications towards cessation of refugee status. Following section 108 of IRPA, loss of refugee status may occur if individuals have ‘re-availed’ themselves of the protection of their country of origin by traveling back to that country, using the passport of their country while traveling or applying for a passport from their country of origin. If the section has not been 84

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much used until now, this might change with modifications introduced by Bill C-31 to allow the cessation of permanent residency after an order of cessation of refugee protection (McLeod 2012). Cessation of both refugee status and permanent residency will mean the removal of legal status in Canada; the likely conclusion will be deportation. In other words, the new law facilitates the denationalization of those who have acquired permanent residency after being granted refugee status. Already, refugee rights organizations have noticed that the CBSA ‘is actively looking for cases in which they can argue that refugees have accepted the protection of their home country’ (Canadian Council for Refugees 2013). Finally, the Canadian government is now thinking of ways to remove citizenship status to undeserving migrant citizens. In the last few years, it is estimated that more than a hundred young Canadians have flown to Somalia and Syria to join armed groups recognized as extremists or even listed as terrorist groups in Canada. Partly in response to security services making the most of the situation with a few well-mediatized terrorism cases,8 the Canadian government introduced before Parliament in early 2014 the Strengthening Canadian Citizenship Act, The Act proposes to revoke citizenship in cases of identity fraud during citizenship applications. It intends to do the same for dual citizens convicted of terrorism, high treason, espionage or having taken up arms against Canada. The revocation power would rest with the Citizenship and Immigration Minister. The reform of citizenship and immigration law points to a profound alteration in the politics of belonging in Canada. It also addresses in new ways the spatio-temporal articulations of the crime–migration nexus. Stumpf (2011) argues that crimmigration reduces the lives of noncitizens to the moment of the criminal offence, hence obliterating the many experiences, circumstances and relationships to the community that make up people’s lives. This insightful analysis centers on the ways in which legal decisions about membership are embedded within crimmigration proceedings. But approaching the criminalization of migration also requires paying attention to how xenophilic expectations are maintained in the course of one’s migration and settlement, throughout immigrants’ lives, and to how these expectations even extend to their children. Consequently, recent developments in Canada’s immigration and citizenship law suggest the emergence of bordering temporalities that rework the boundaries between inclusion and exclusion.These developments stratify belonging and create hierarchies of migrants not only synchronically but along a temporal continuum. In this sense, migrants can be made ‘temporarily permanent’ or ‘permanently temporary’ (Rajkumar et al. 2012) through a mixture of legal status and residential categories, migrant policing interventions and public discourses defining membership.

Criminalization of migration in Canada: the need for further research Recent legislative changes are left to the discretion of a variety of actors responsible for their implementation. These actors are not only border and policing authorities, but also include the criminal justice and provincial jail systems. The ways in which these different actors will integrate the Canadian border regime and decide to act, or not, as exclusionary or inclusionary border actors, remain an open research question. For instance, after the ratification of the UN Trafficking protocol, IRPA and the Criminal Code now criminalize trafficking in the way Canadian law does for first degree murder (25 years’ or life imprisonment, the most severe penalty in the Canadian criminal justice system). However, in her analysis of anti-trafficking legal decisions, Jimenez (2013) has shown that Canadian judges have until now sentenced smugglers to short-term suspended jail terms to be served in the community, taking into account extenuating circumstances such as the often life-saving character of smuggling. If these sentences are not 85

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proportional to political discourses, they show how different logics enter the regulation of migration—in this case the promotion of the rule of law, but also logics of criminalization, humanitarianism (Walters 2010), security (Andreas 2009; Zedner 2010) and management (Geiger and Pécoud 2012) as well as a politics of insecurity and exception (Agamben 1998). We need more research into how these intersecting logics shape the relationship between crime and migration in view of this new legal regime. Similarly, while most legislative changes announce an increasingly restrictive take on immigration and asylum, incarceration numbers paint a more nuanced picture. As shown above, deportation numbers are undeniably on the rise. Yet immigration detention numbers are decreasing. About 14,300 individuals were detained under the responsibility of the CBSA (at both holding centers and in provincial prisons) in 2008–9, 9,400 in 2009–10, and 8,800 in 2010–11 (Global Detention Project 2012). This is perhaps an indication of the smaller number of refugee claimants able to reach Canada. Or maybe the Toronto Bail Program has had some success by providing an alternative to migrant detention (Field 2006). Or these rates possibly indicate the ebb and flow of budgetary surpluses and constraints such as those that reduced the size of Canadian Federal agencies since 2009. It is difficult to tell at this point, but these complexities indicate that the criminalization of migration intersects with a multifaceted security and penal environment and with the variegated practices of different border and immigration control actors (Côté-Boucher, Infantino and Salter 2014; Loftus 2013).

Conclusion Canada’s bordering regime and its discursive legitimation call for an analysis of the social climate that it creates for migrants. Discourses promoting differential inclusion are more than just words with no anchor in reality. When they materialize in anti-refugee policies, in detention and deportation, they impact migrants’ sense of self. Migrant detention and the criminalization of migration more generally carry a deep ontological effect not only upon national identities, but upon migrants’ mental health as well as their sense of agency, humanity and security (Bhandar 2008; Bosworth 2012; Cleveland, Dionne-Boivin and Rousseau 2013). Furthermore, despite its obvious exclusionary character, the criminalization of migration in Canada builds on processes of differentiation that produce an imagery of migrants, from the worthy who should be allowed to stay and thrive, to those whose mobility should be curtailed or those who should be expelled. Bordering institutions are ‘as much about the expulsion of particular “undesirable” immigrants as [they are] about making “good” citizens’ (Chan 2005: 154). Bordering discourses not only legitimate detention, deportation and refugee interdiction; they also promote a particular narrative about Canada, that of a generous society open to immigration. Articulating a pedagogy of the well-governed, decent, safe and multicultural society, these criminalizing discourses sustain the moral regulation of migrants. They attempt to discipline them in their everyday conduct and gauge the vigor of their commitment to their adopted political community. Bordering actors thus create a fantastical double-sided mirror image of Canada and of its other, amalgamating different types of criminal and moral migrant deviance—displaying ‘inappropriate sexual activity’, engaging in criminal activity, joining an extremist fighting group abroad or, the ultimate transgression, not waiting for one’s turn and showing up at the door, uninvited and asking for help—in an essential otherness, thus justifying confinement and expulsion from an imagined social order which desires itself apart and removed from the world’s woes.

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Notes 1 Taylor (2004: 23) defines a social imaginary as: the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations. 2 Among key symbolic events and legislations of the first half of the twentieth century, Canada implemented a Chinese Head Tax to reduce immigration coming from China. Canadian officials deported the Komagata Maru in 1914, a boat filled with Sikh migrants. It also refused Jewish refugees and migrants between 1933 and 1948 in a now infamous period named after an anonymous declaration of a Canadian migration officer: ‘none [Jewish refugee] is too many’. 3 Nowadays, selected immigration in Canada generally follows two post-colonial streams.The first comes from former British colonies in Asia and the Middle East. These immigrants settle in major Englishspeaking Canadian cities (Toronto, Vancouver and others) as well as in oil-rich and labor-hungry Alberta. The second stream is created by the province of Quebec, which shared control over its legal immigration with the federal state. The province favors French-speaking immigrants with a view to renewing itself linguistically and demographically. Currently, immigrants come from a variety of African, Asian and Latin American countries, but France, the French post-colonial world (Morocco, Algeria, Haiti), are among the first five countries of origin of migrants to Quebec (Institut de la statistique du Québec, 2013). It must be mentioned, however, that China supplies an important part of the selected immigrant population in both Canada as a whole and Quebec. 4 Citizenship is automatically granted to anyone who was born in Canada. It can also be obtained after having been a resident for three of the past four years before the application. A 2014 legislative proposal aims to increase this limit to four years. While it goes beyond the purpose of this chapter, it is important to mention the trend towards the temporalization of migration in Canada which started in 2006. Most temporary workers will not be allowed to apply for permanent residency, making them an underclass of guest workers. On developments in labor and migration temporariness in Canada and worldwide, see Vosko et al. (2014). 5 Some 34,000 new asylum claims were made in 2009, 22,000 new claims in 2010, 25,000 in 2011 and 50 per cent fewer claims were made in the first half of 2013 than in 2012 (Canadian Council for Refugees 2013; University of Ottawa Refugee Forum 2012). 6 In a free trade agreement with Mexico (and the United States) since 1994, Canada has also imposed in 2009 a tourist visa to Mexicans in the wake of higher refugee claims resulting from a drug war that has made more than 60,000 victims since 2006. Similar to the Eastern European countries case, this visa is since on the agenda of every tri-lateral meeting between North American countries, Mexico seeing it as an impediment to free trade. As a result of this policy, Mexican refugee claims dropped to 300 in 2012 from 9,500 in 2008 (Citizenship and Immigration Canada 2013). 7 The list can be found at: http://www.cic.gc.ca/english/refugees/reform-safe.asp (viewed 28 Feb 2014). 8 For instance, the January 2013 attack on an oil production facility in Southern Algeria by an Islamist militant group killed 80 people. Two of the dead attackers were radicalized young men from London, Ontario.

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6 Immigration detention, punishment and the criminalization of migration Mary Bosworth and Sarah Turnbull

Introduction Since the turn of the century, immigration detention has garnered increased attention among scholars across a variety of disciplines, including anthropology, geography, psychology, medicine, law and sociology. It is all the more surprising then, that until recently it has rarely been the subject of criminological scrutiny. Although, as this handbook attests, there is these days a burgeoning field of border studies within criminology (see McCulloch and Pickering 2012; Aas and Bosworth 2013; Guia et al. 2013), much of the work is very recent. If we narrow the lens further to criminological accounts of immigration detention, there are only a handful of texts, few of which contain any detail about the lived experience of this form of confinement (see, for example,Welch 2002; Pratt, 2005; Leerkes and Broeders 2010; Grewcock 2011; Bosworth 2012; 2013). Administrative rather than penal (Hernandez 2008), immigration detention seems to have been eclipsed by the prison, notwithstanding the long-standing ties between them (Simon 1998; Bosworth and Kaufman 2011; Kaufman and Bosworth 2013). As the use of detention for immigration purposes continues to rise among countries of the western world (see Sampson and Mitchell 2013), questions about its purpose, justification, and legitimacy can no longer be ignored. The growing ‘use of penal tactics to manage international conflict and migrant and refugee flows’ (Martin and Mitchelson 2009: 460) presents important lines of inquiry for scholars of punishment and others interested in the expansion of penal power under conditions of globalization. Similarly, the racialized and gendered nature of immigration detention reveals interconnections between migration, criminal justice, and entrenched legacies of colonialism and imperialism in contemporary border control efforts and responses to mass mobility. This chapter sets out the historical development, typologies, experiences, and impacts of immigration detention in Australia, the United Kingdom (UK), the European Union (EU), Canada, and the United States (US).While drawing attention to its historical roots, the analytical focus is primarily on the expanding policies and practices of detention in these places since the late 1990s and early twenty-first century.1 The aim of this chapter is to show the relevance of immigration detention to the field of criminology, including the ways in which this form of incarceration is similar to and different from ‘traditional’ penal logics and institutions. In doing

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so, it will highlight how immigration detention reflects the broadening reach of penal power and of race, gender, and postcolonial relations in a globalizing world.

Overview Immigration detention is not new. However, states have been most active in pursuing immigration detention policies and expanding practices since the late 1990s. At present, most countries utilize some form of detention as part of their immigration and border control policies, though the structures, functions and purposes vary. What most countries share, however, is a predominant focus on ‘unauthorized’ migrants – those ‘irregular’, ‘illegal’, ‘alien’ or ‘undocumented’ persons who lack formal immigration approval to enter and remain (Wilsher 2011). Detention is best thought of as one of a set of border control measures, rather than an isolated tactic (Caloz-Tschopp 1997). It can be defined as the practice of confining individuals identified as non-citizens in order to achieve immigration-related aims (e.g. identification, removal, etc.). The apparatus of immigration detention is complex and ambiguous, combining elements of hospitality and care with coercion and control (Browning 2007; Khosravi 2009). Immigration detention is thus characterized by important affective elements, including fear, hope, disdain, empathy and suspicion over identities, claims and futures (Hall 2010; see also Bosworth and Slade 2014). Conceptually, immigration detention is made up of a variety of geographies, knowledge practices, institutional legacies, material orderings (Martin 2012), and temporalities (Browning 2007). Detention can be understood as a ‘technology of citizenship’ that minimizes migrants’ ability to access resources to make claims to citizenship (Rygiel 2011: 7) while separating ‘us’ and ‘them’, ‘legal’ and ‘illegal’. It is ‘a practice’, in other words, ‘that attempts to create territorial orders based on legal status and im/mobility’ (Martin 2012: 326). In most countries, the forcible confinement of non-citizens in immigration detention is accomplished through administrative rather than criminal means. Immigration detention thus is not formally a punishment and does not require a criminal conviction (Broeders 2010). Although sharing many of the central features of a term of imprisonment, from the deprivation of liberty and freedom of movement (Bashford and Strange 2002) to the uniformed custodial staff (Bosworth 2007; 2011b), immigration detention is a non-punitive measure made possible through administrative power. As legal scholar Daniel Wilsher (2011: ix) observes, this means the detention of foreigners occurs ‘without the normal due process safeguards commonly demanded in liberal democracies’. Nonetheless, there is substantial cross-over between imprisonment and immigration detention, which blurs the lines between these two practices. In jurisdictions such as Canada, Australia, the US and the UK, the spaces and places of detention are usually either current or former carceral institutions or purpose-built centres based on prison design to achieve high security-grade classifications. Similarly, immigration detention centres tend to utilize similar day-to-day operations and security mechanisms as penal institutions, including fencing, razor wire, security cameras, locking doors, segregation cells, head counts, cell searches, strip searches and incentive systems. In some countries, such as the UK, there is also a cross-over effect related to staffing at both managerial and officer levels, with managers and frontline staff moving from prisons to detention centres and vice versa. In Britain, for example, detention centres are regulated by the same organizations as prisons, from HM Inspector of Prisons to the Independent Monitoring Board. Complaints over conditions can be directed to the Prison Ombudsman. Finally, in many countries, immigration detainees continue to be housed in prisons while held under 92

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Immigration Act powers (Bosworth 2011a; Bosworth and Kaufman 2011). In the UK, such persons account for 25 per cent of the total detained population. In terms of rationale and purpose, immigration detention differs significantly from the traditional justifications of imprisonment in the criminal justice realm. Unlike the incarceration of sentenced individuals, the forcible confinement of immigration detainees ‘does not aim to “correct”, “reform”, or “transform” souls, habits, or risks’ (Pratt 2005: 23), nor does it produce citizen-subjects (Bashford and Strange 2002). In most countries, immigration detention is used to hold people until they can be expelled (Broeders 2010). Detention is rationalized as a mechanism to contain people so that they can be identified and not abscond until case decisions are made. It ends when detainees are either expelled from the country or released into the community (Schuster 2005; Broeders 2010; Hall 2010; Martin 2012). One of the notable features of immigration detention is the way in which detainees are excluded from the ‘receiving society’. Many scholars and activists argue that detention itself is an exclusionary process that separates ‘us’ and ‘them’, keeping ‘them’ isolated and contained, often in remote and inaccessible areas (Evans 2003; Mainwaring 2012; Mountz et al. 2013). Practices of exclusion may extend to the daily operation of detention itself through the lack of activities or services provided to detainees under the logic that skills training or educational opportunities are mechanisms of ‘inclusion’ unbefitting this population. Indeed, if one of the primary objectives of immigration detention is to aid in the expulsion of unwanted migrants, programmes for (re)integration are not easily justifiable (Leerkes and Broeders 2010). The temporality of immigration detention is another defining feature. There is significant variation among countries in the length of time an individual can be detained. Whereas some countries have maximum durations specified by law, in others, it can last indefinitely (Broeders 2010). The EU’s Returns Directive, for example, limits immigration detention to a total maximum of 18 months for participating Member States (Hatzis 2013). The UK, however, did not adopt this directive, opting instead to allow for indefinite terms of detention (Stefanelli 2011). In contrast, France limits terms of confinement in its detention centres (known as centres de rétention administrative) to 32 days (Welch and Schuster 2005). For critical race scholars, immigration detention helps constitute the nation along racial lines (Hernandez 2008). In this view, the detention of primarily non-white migrants in postcolonial contexts refines and reproduces the ‘whiteness’ of the citizenry and the state, while naturalizing the illegality of non-white, non-citizen others. Indeed, the racial and ethnic make-up of detained populations in countries such as the UK and the US speaks to long-standing connections between empire, colonialism, and imperialism. For example, in the UK, the detention estate has large populations of ex-colonial subjects from Bangladesh, Pakistan, India and Nigeria (Home Office 2013). In the US, Mexican nationals comprised 67 per cent of the total number of detainees, followed by Guatemalans (9 per cent), Hondurans (6.3 per cent) and El Salvadoeans (5.5 per cent) (Simanski and Sapp 2012). Importantly, immigration detention is also a gendered phenomenon, with male migrants making up the majority of those who end up in detention (e.g. Ahmad 2008; Alberti 2010; Schuster 2011). One of the most contentious issues pertaining to immigration detention is the confinement of children, either alongside their families or on their own as unaccompanied minors (Fekete 2007; Grewcock 2009; Dudley et al. 2012). Under the UN Convention on the Rights of the Child (Article 37(b)), a child should only be detained ‘as a last resort’ (Calvert 2004: 113), yet countries such as Australia, the US and the UK have been criticized for routinely detaining children. The immigration detention of children raises concerns as to their mental and physical health and development (Lorek et al. 2009; Jureidini and Burnside 2011), particularly in relation to self-harm (Parr 2005). 93

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Historical development Although academic interest in immigration detention primarily dates to the turn of twentyfirst century, there are longer roots to practices of interning ‘presumably dangerous others’ (Fassin 2011: 219; Wilsher 2011). The phenomenon of immigration detention can, therefore, be situated in historical processes of colonialism, nation-building, and immigration control. As Bashford and Strange (2002: 510) observe, ‘detention has intermittently been part of the process in the definition and assessment of who belongs and who doesn’t, and in enforcing and creating degrees of belonging and alien-ness in the project of nation-building’. In this section, we consider the historical developments that have informed present-day immigration detention practices in the UK, the US, Australia, Canada and the EU. In so doing, we reveal commonalities as well as points of difference. An historical overview demonstrates the importance of cultural and legal context in understanding this complex practice.

The United Kingdom While the British government has had the power to detain foreigners for immigration purposes since the passage of the Aliens Act in 1905 (Wilsher 2011), purpose-built detention centres have only existed in the UK since the Harmondsworth Immigration Detention Unit opened with 40 beds adjacent to London’s Heathrow airport in 1970. At the time, Harmondsworth, and a similar facility within Dover Castle, housed Commonwealth citizens denied entry at the border who were given in-country right of appeal by the Immigrant Appeals Act 1969. Following the passage of the 1971 Immigration Act, which expanded the power to detain and deport, the population subject to detention significantly expanded. In 1989, a special immigration detention wing was created in HMP Haslar, while, in 1993, Campsfield House was converted from a young offenders institution to an immigration detention centre.Those who could not be accommodated in these facilities were, as they had been before, placed in prison, or housed briefly in police cells and short-term holding facilities in ports. The Immigrant Appeals Act 1969 followed years of wrangling about the status and claims of subjects of the former British Empire. Initially, the government had encouraged immigration from the former colonies in the post-war period, bringing over thousands of men and women to help re-build the country. Racism and xenophobia, however, greeted many of the new arrivals, who found it difficult to rent suitable accommodation and were often given short shrift by the white working-class communities in which they settled (Paul 1997; Hansen 2000; Gilroy 2002). Though initially reluctant to limit the access of Commonwealth citizens to UK shores, due to an enduring sense of empire, the British government was not unaffected by such xenophobia nor immune from populist sentiment. In a memorandum to the Cabinet in 1965, for instance, the Lord President of the Privy Council, Herbert Bowden, claimed that ‘Britain has always been reluctant to restrict the entry of people who hope to find greater opportunities within her shores’,2 before setting out in detail the government’s concerns about the growing numbers of Commonwealth arrivals and plans for their restriction. Restrictions on settlement from the Commonwealth came into force with the 1962 Commonwealth Immigrants Act. Aimed specifically at economic migrants from the former empire, this Act, and an amended version passed six years later (the 1968 Commonwealth Immigrants Act), permitted only those with government-issued vouchers (obtained in their country of origin prior to travel) to settle. Persons arriving without these documents would be denied entry. Though seemingly straightforward, this first attempt at border control faced a number of problems from the beginning. Not only was the voucher system hard to police, but

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the restricted numbers on the vouchers vastly under-estimated the desire of people to move.The continual arrival of Commonwealth citizens without proper documentation became a major administrative headache and a source of growing public concern. Notwithstanding the changing legislative framework that effectively cut off access to the UK for many of its former colonial subjects, disquiet remained about the legitimacy of doing so. In particular, as the 1969 Immigrant Appeals Act made clear, a sense lingered for many years that former subjects were entitled to distinct treatment. They were not the same as foreigners from elsewhere. It is for that reason that the Immigrant Appeals Act 1969 is so important for our understanding of British immigration detention. This Act not only established the first purposebuilt centres for confining foreigners, but also established the parameters of an immigration system with tribunals, immigration officers, and so on. It also instituted the involvement of the private sector in looking after detainees, as Harmondsworth and Dover were both run by Securicor, the company better known these days as G4S (see Bacon 2005). While various pieces of legislation were passed after the 1969 Act, the current system of detention, like many crime control measures in the UK, dates to the 1990s and the early part of the twenty-first century. During this period, the government passed a number of laws targeting so-called ‘bogus asylum seekers’, terrorists, ‘economic migrants’, and foreign ex-prisoners, thereby propelling a rapid expansion of the detention estate from a capacity of 250 in 1993 to 4,000 today. At the time of writing, approximately 3,400 detainees are placed in one of ten Immigration Removal Centres (IRCs), 100 are housed for up to five days in short-term holding facilities at ports, and an estimated average of 635 detainees are in prison (Association of Visitors to Immigration Detainees 2013). Over the course of the year, the total figure of men, women, and children ‘arriving in detention’ expands ten-fold. Most detainees are awaiting deportation or administrative removal, though a small number are confined in order to process their asylum claims or to establish their identities.

The United States The historical roots of the detention of ‘undesirable foreigners’ in the US can be found in Ellis Island, New York, a site where many foreigners, even if most were ultimately admitted, were detained and some expelled (Wilsher 2011). Additional practices of detention include the internment of Japanese Americans during World War II (Fassin 2011: 219) as well as Germans and Italians, and more recently the detention of Cuban and Haitian migrants at Guantánamo Bay Naval Base (Campisi 2005; Hernandez 2008). The detention of Latinos in the US has a particularly long history (Hernandez 2008). Not only are they the largest minority group in the US, but they are also most likely to be apprehended at the border, where they may be detained prior to expulsion and they constitute the majority of detained ‘criminal aliens’. According to Simon (1998), it was the 1981 Mariel Boatlift, which brought nearly 100,000 Cuban migrants to Florida’s coastline in just under a month, that began the contemporary reliance on incarceration in border control, precipitating the creation of Miami’s Krome Avenue Detention Center.The first in a wave of immigration ‘service processing centers’ run by the then US Immigration and Naturalization Service (INS), Krome revitalized an immigration imprisonment practice that had died out when the Ellis Island facility closed its doors in 1954 (Simon 1998; Welch 1996). Four years later, the 1986 Immigration Reform and Control Act (IRCA) increased the use of detention and deportation, a development that was further consolidated by the Immigration Act of 1990, which modified much of the Immigration and Nationality Act of 1952, enabling the INS to detain foreign national citizens pending a decision whether or not they were to be deported. 95

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Changes to immigration law complemented the more narrowly crafted criminal justice legislation brought in under Presidents Bill Clinton and George W. Bush, which extended the use of mandatory detention for a vast array of issues associated with non-citizens (Bosworth and Kaufman 2011: 114). Of particular relevance was the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 (Lawston and Escobar 2009).The IIRIRA expanded the range of offences in the ‘aggravated felony category’, thereby increasing the use of mandatory detention for migrants who are deemed ‘deportable’ and ‘inadmissible’ (Heeren 2010). Notwithstanding its terminology, aggravated felonies are, in fact, a group of immigration offences – many of which are criminal misdemeanours. They include forgery, perjury, nonviolent theft and drug offences, receipt of stolen property and some forms of tax evasion (Bosworth and Kaufman 2011: 115).3 Immigration detention must also be contextualized in the country’s history of using imprisonment as a normalized response to social problems (Simon 1998). Such a view suggests that while the contemporary expansion of immigration detention may have increased and shifted post-9/11, it is not exceptional (Hernandez 2008). Rather, this practice has always been constitutive of the nation itself (Lawston and Escobar 2009). In 2011, US Immigration and Customs Enforcement (ICE) detained an all-time high of approximately 429,000 foreign nationals (Simanski and Sapp 2012). Detainees in the US may be held either in specific immigration detention centres, county jails, federal prisons or ICE-owned ‘service processing centres’. The majority (67 per cent) of detainees are held in one of the more than 250 local and state facilities. A further 17 per cent of detainees are kept in contract detention centres, followed by 13 per cent in processing centres, and 3 per cent within Bureau of Prisons facilities (US Immigration and Customs Enforcement 2011). In 2011, the US maintained a total of 33,400 detention beds (ibid.).

Australia From its earliest days as a penal colony, Australia has evinced a particular enthusiasm for confinement, locking up a vastly disproportionate number of Indigenous people and, in times of conflict, interning citizens of countries with which it was at war. Two Acts passed in 1901, just after Federation, made up what became known as the ‘White Australia policy’. The Pacific Islanders Act and the Immigration Restriction Act barred Pacific Islanders from entering the country at all, and, by imposing an English-language test, made it very difficult for non-English-speaking migrants to move to Australia. As the Rt Hon William McMillan, the Member for Wentworth, succinctly put it in Parliament, ‘[n]o matter what measures are necessary, Australia must be kept pure for the British race who have begun to inhabit it’ (Immigration Restriction Bill, Hansard, September 6, 1901, Australian Parliament, cited in Moylan 2013: 16). While the policy was relaxed after 1966, enabling the migration of so-called ‘distinguished’ non-Europeans, it was not until 1973 that it was fully abandoned by the Labor government of Gough Whitlam (Sheikh, Macintyre and Perera 2008). Like the UK, Australia has responded increasingly harshly to irregular arrivals since the 1990s. In 1992, under the helm of Liberal Prime Minister John Howard, the Australian government established mandatory detention of individuals arriving by boat without visas (Zion, Briskman and Loff 2012).This policy was later revised to enable the mandatory detention of all individuals arriving by boat, a move that was justified by the Australian government, despite no evidence for their claim, as a deterrent to asylum seekers (Zion et al. 2012). Since that time, Australia has developed a series of remote off-shore detention centres in other sovereign states, 96

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including Papua New Guinea and Nauru as well as on Australia’s own remote outpost, Christmas Island (Mountz 2011). As of 31 August 2013, Australia detained 8,732 people in immigration detention. This figure includes 6,173 individuals in immigration detention on mainland Australia and 2,559 on Christmas Island (Australian Government Department of Immigration and Citizenship 2013: 3). A further 2,739 individuals have been approved for a residence determination and are under a form of ‘community detention’ (ibid.: 4).The vast majority (96 per cent) of those in immigration detention are what the government terms ‘unauthorized maritime arrivals’ (ibid.: 6). At the time of writing, Australia has nine detention centres, three residential housing centres, and three immigration transit accommodation facilities, as well as an unknown number of ‘alternative places of detention’ (ibid.).

Canada As in Australia and the US, the historical roots of immigration detention in Canada can be similarly linked to colonialism and race-based processes of nation-building. Canada has a history of interning populations deemed to be a threat to the nation, including Ukrainian Canadians during World War I (see Kordan 2002) and Japanese Canadians during World War II (see Omatsu 1992). Through genocidal practices of colonization, Indigenous peoples were either killed or ‘relocated’ (through force and/or negotiation of treaties) onto reservations, thereby making way for race-based, exclusionary immigration policies and the creation of a ‘white’ Canada. Canada’s concern with letting the ‘right’ people ‘in’ to the country has continued to the present. The passing of the Immigration and Refugee Protection Act (IRPA) in 2002 is notable for its focus on protecting Canadians from ‘foreign nationals’ by keeping ‘out’ criminals, fraudsters and – after the events of 9/11 – terrorists. Under the IRPA, asylum seekers, in particular, were only meant to be detained if they were considered a danger to Canada, a flight risk or if they lacked proof of identity (Pratt 2005). In 2012, however, the Conservative government, led by Prime Minister Stephen Harper, radically altered the country’s immigration detention practices, vastly expanding the powers of the state to incarcerate foreign nationals, with specific focus on ‘bogus asylum claimants’, ‘human smugglers’, and others perceived to be a threat to the nation (Citizenship and Immigration Canada 2012). Following the passage of the Protecting Canada’s Immigration System Act (as an amendment to the IRPA), new mandatory detention rules were ushered in for all ‘irregular’ migrants over the age of 15. Under the new Act, the Minister of Public Safety has discretionary authority to designate the ‘arrival’ in Canada of a group of persons seeking asylum as an ‘irregular arrival’ (Béchard and Elgersma 2012). The Act also includes a specific clause that allows the designation of an ‘irregular arrival’ to apply retroactively to 31 March 2009, which conveniently provides Ministerial discretion to so designate the ‘mass arrival’ of Sri Lankan asylum seekers who arrived by boat off the coast of the province of British Columbia in October 2009 (Ocean Lady) and August 2010 (MV Sun Sea). Detainees may be held in a provincial correctional facility, at a short-term detention facility, or at one of two minimum-security immigration holding centres (IHCs) (Canada Border Services Agency 2009). In 2010–11, Canada had a total of 8,838 ‘immigration holds’, of which 47 per cent are labelled ‘refugees’ (i.e. asylum seekers and refused refugee claimants) (Nakache 2011). Detainees outside of Toronto and Montréal (where the two IHCs are located) are held in correctional facilities, including those categorized as high-security. In 2010–11, 27 per cent of ‘refugees’ were detained in a correctional facility (ibid.). 97

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The European Union Immigration detention in the EU reflects the domestic policies, local politics, and sentiment within Member States as well as a series of agreements that govern mobility within and into the EU. Member States of the EU vary in their reliance on detention and in the size of their detention estates. Some southern nations, like Malta, Italy, Spain and Greece, which are the entry points for Europe, incarcerate large numbers of migrants at the point of arrival, before rapidly expelling them onto the streets. Other northern countries, like Holland, in recent years have seen an expansion of their detention estates to house long-term foreign residents and former foreign offenders. During the 1980s, prior to the existence of an integrated European asylum policy, individual states pursued domestic policies to control unwanted migration (e.g. visa restrictions, fingerprinting, etc.) (Schuster 2005). In the 1990s, lists of safe countries were introduced alongside the so-called third country rule as a means to ensure only one European country assessed asylum seekers’ cases. More recently, in the 2000s, greater efforts have been made to align, or ‘harmonize’, immigration control in Member States through the introduction of EU Directives, the most important of which are the Returns Directive, the Reception Conditions Directive and the Dublin II Regulation (Schuster 2005; Majcher 2013). EU Member States, including the UK, are also subject to the European Convention on Human Rights (Majcher 2013). Until the 1990s, as elsewhere, immigration detention was relatively rare in most EU countries. Before then, the majority of foreign nationals were incarcerated in prisons. In response to the growing numbers of arrivals, as well as a deepening politicization of the issue, the EU has been at the forefront of border policing, functioning legislatively and at an operational level (Aas 2013). Organizations like FRONTEX, charged with policing the boundaries of Europe, alongside a surge in nationalist and right-wing anti-immigrant political parties from Greece to Holland, have resulted in a swell in EU countries’ detention populations. In the autumn of 2013, the inevitable outcome of ‘Fortress Europe’ was drawn to popular attention when more than 300 migrants drowned less than a kilometre off the coast of Sicily, in their bid to sail from Africa to the Italian island of Lampedusa. At the time of writing, it is unclear what the outcome of this tragedy will be.

Typologies Spaces, locations and durations of immigration detention vary significantly. Immigration detention centres may be open or closed (Guild 2005). Open facilities typically require detainees to reside while allowing them to leave at will or under certain conditions, whereas in closed facilities detainees are not permitted to leave of their own accord (Guild 2005), unless they agree to leave the territory. Depending on the country’s immigration system, individuals may be detained at various times during their migration trajectories: at the border upon arrival, during their residence within a country and/or as the final point in their removal or deportation. Detention centres may be located in or near major ports of arrival (e.g. airports), dispersed throughout a country’s territory or located off-shore in another territory altogether. Finally, immigration detention centres may be places of temporary, short-term ‘holding’ or long-term confinement. In all countries, prisons remain a common place of detention. Sometimes detainees held in prison are kept separate from those serving criminal sentences, while at other times they are housed alongside them. Even when separate institutions exist, the prison provides an important comparator. In the UK, for instance, despite a change of policy in 2001 designed to end the practice of holding asylum seekers in prison, the detention estate remains dependent on the

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prison in a number of ways. Not only are ‘non-compliant’ detainees and former foreign offenders routinely held in prison, but most of the centres built and/or refurbished after 2002 have been designed according to high security (i.e. Category B) prison architectural standards. The facilities and amenities at immigration detention centres vary from centre to centre and from country to country. In the Netherlands, for example, these are limited, with few opportunities for work or education (Leerkes and Broeders 2010), whereas in the UK detainees are encouraged to work in the centres in which they are confined (Burnett and Chebe 2010). Depending on the country and facility, detainees may also have restricted access to health care (Ochoa et al. 2010; Venters, Foote and Keller 2011) and legal aid, and often find it difficult to maintain contact with their friends and relatives outside (Leerkes and Broeders 2010). In many jurisdictions, immigration detention is privatized, meaning that governments contract with for-profit companies – such as Serco, G4S, and Corrections Corporation of America – for the provision of detention services. In turn, these companies may sub-contract with others for services such as health care. Privatized immigration detention centres can be found in the UK, the US and Australia. Many of these companies also provide other contracted services within the criminal justice realm, including operating prisons. The following are additional mechanisms of immigration detention that can be found in western countries.

Camps Unlike more formalized mechanisms of immigration detention through purpose-built or refurbished centres, camps are another form of detention that exists to separate non-citizen from citizen, illegal from legal, and control migrant mobilities (Rygiel 2011).While typically associated with humanitarian disasters, and with the care of refugees, camps may be used to hold immigration detainees, both when their numbers are too high to be housed elsewhere and as an informal mechanism of punishment or humiliation. In Malta, for instance, new arrivals often outnumber the available beds. When that happens, they are placed in tents. On Manus Island, Australia held detainees in tents while a more permanent structure was built. In the US state of Arizona, detainees held in local jails will be housed alongside those awaiting trial or serving short sentences under canvas tents.

Alternatives to immigration detention Alternatives to detention (ATDs) refer to non-carceral forms of state supervision and may include house arrest, ‘tagging’ (i.e. wearing of an electronic bracelet for monitoring) and other sorts of conditions (e.g. curfews, restrictions on association, reporting to police or immigration officials, etc.) (Costello and Kaytaz 2013). ATDs are viewed as ‘effective migration management’ tools that also better protect migrants’ rights and dignity (Sampson and Mitchell 2013: 98). In Australia, a practice known as ‘community detention’ enables asylum seekers to live in the community while reporting regularly to the police. Used in the UK as well (though not under this appellation), this technique is the most common means of managing asylum seekers as well as populations facing deportation or removal.

Island and extraterritorial detention centres According to Mountz (2011: 118), island detention centres are ‘a key component of a broader enforcement archipelago designed to control migrants deemed out of place, reducing their 99

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chances to reach sovereign territory’. Certain countries, such as Australia and the US, utilize detention centres on islands as a means to confine liminal non-citizen populations, thereby isolating them from key resources (e.g. legal representation, advocacy groups) and limiting monitoring by the media and human rights organizations (ibid.). Australia runs a maximum security immigration detention centre on Christmas Island, a remote island located between Indonesia and Australia (Dimasi and Briskman 2010). Other locations on the island hold children and unaccompanied minors awaiting determination of their cases. As part of the ‘Pacific Solution’, Australia also has extraterritorial detention centres on the neighbouring state island of Nauru, on Manus Island in Papua New Guinea (Silove, Austin and Steel 2007) and on Indonesian islands such as Lombok (Mountz 2011). The US operates the Guantánamo Bay Naval Base on Cuba, and Guam, its island territory in Micronesia, for detention purposes. In 1992–93, the US began detaining Haitians at Guantánamo Bay, in addition to the US Coast Guard interdicting Haitian refugees at sea and returning them to Haiti (Carey 2002). In the Mediterranean, Malta and Lampedusa have been effectively turned into island detention centres, overwhelmed particularly in the summer months by new arrivals (Gerard and Pickering 2012). France redraws its borders at certain sites of arrival into ‘international zones’ in order to ‘detain’ irregular migrants (O’Nions 2008; Makaremi 2009). In these sites, some of the usual legal protections of French national law are suspended. Although this power is predominantly used at ports as a means of excising space that is physically within the borders of France from its legal protections, it can be extended under exceptional conditions elsewhere (e.g. police stations).

Experiences of immigration detention At present, there is a limited amount of academic scholarship on the experiences of immigration detention. Immigration detention centres are extremely difficult to access for research purposes and pose a number of methodological challenges including language barriers, cultural and religious differences and low levels of trust. With a few notable exceptions (see, for example, Whyte 2011; Bosworth 2012; Bosworth and Kellezi 2012; Hall 2012; Bosworth, Fili and Pickering 2014), much of what is known comes from post-detention interviews or covert research during visits with detainees. Despite the relative paucity of evidence, a few clear themes have emerged. First of all, detention centres are sites of great uncertainty (Griffiths 2013). In the UK, Australia and the US, for instance, nobody knows how long they will be detained. Even in countries like Greece, where there is an upper limit to the duration of detention, detainees are unsure what will happen next (Bosworth, Fili and Pickering 2014). Although detention is not technically imprisonment and detainees are not prisoners, detainees and staff habitually compare the two institutions (Bosworth 2012). In this comparison, not only does the prison act as a means of interpreting and legitimizing detention (Bosworth 2013), but it also helps individuals make sense of where they are. Despite this inaccuracy in legal terms, the comparison is a means of dealing with this uncertainty. Detainees often find it difficult to relate to one another. Under great pressure due to their immigration cases, detainees are also divided from each other by language, religion and culture. In one study, of Yarl’s Wood, a women’s removal centre in the UK, the authors found racialized tensions within the population, particularly among Chinese, Nigerian and Jamaican women (Bosworth and Kellezi 2013a). Staff at Yarl’s Wood and other removal centres in the UK often rely on national stereotypes to make sense of the population in their care (Bosworth and Slade 2014). 100

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Medical provision is notoriously poor in many jurisdictions. Detainees often exhibit complex medical needs, from addiction to torture. Women are likely to have endured sexual violence and might arrive with related conditions such as pregnancy and sexually transmitted diseases (Heeren 2010). In determining whether someone is a torture survivor or has a particular medical condition that might preclude deportation, medical professionals wield considerable power (Fischer 2013). Detention centres are frequently beset by violence. In the US, disturbing evidence exists of staff brutality (Welch 1996; Dow 2007), while in the UK and Australia, all too often detainees turn their violence towards themselves through self-harm (Parr 2005; Athwal and Bourne 2007; Cohen 2008) and hunger strikes (McGregor 2011).4 In 2013, allegations5 emerged in the UK of sexual abuse of female detainees, accusations that, at the time of writing, have still not been resolved.While not especially prevalent, fights between detainees, suicides and attempted suicides, fires, riots and escapes do occur and can heighten feelings of fear, instability and distrust in spaces of immigration detention (Griffiths 2013). Together, such examples paint a dispiriting portrait of life inside. Notwithstanding considerable individual efforts, the literature on detention is bleak. Depression rates are high (Silove, Austin and Steel 2007; Robjant, Hassan and Katona 2009; Bosworth and Kellezi 2013b), and the negative effects of detention linger after release (see, for example, Robjant, Hassan and Katona 2009; Steel et al. 2011), particularly for those who have experienced prolonged periods of detention (Coffey et al. 2010; Bull et al. 2013). As a mechanism of social control, such institutions raise profound ethical questions.

Conclusion: relevance for criminology Immigration detention is relevant to the field of criminology for a number of reasons. Most obviously, the intermingling of criminal justice and immigration policies and practices has reanimated penality at the precise moment that economic and other concerns over efficacy looked set to challenge it. Some commentators (e.g. Welch 1996; Broeders 2010) have thus considered immigration detention in the context of the new penology as symptomatic of broader shifts in punitiveness, including the heightened surveillance and imprisonment of an ‘underclass’ of unwanted migrants. Immigration detention, in this view, can be understood as a localized response to globalization as states pursue increasingly regressive reassertions of sovereign power (Schinkel 2009), drawing on and expanding existing penal infrastructures to do so. Immigration detention also challenges criminology, highlighting the relevance of race, gender, and postcolonialism to the study of security and governance. Issues of identity are fundamental to the practice of detention: people are detained because of who they are (or are not). The similarities in the representations of detainees as criminals, deviants, and ‘risky’ along gendered and racialized lines (Pickering and Lambert 2001; Malloch and Stanley 2005) can thus be linked to the ‘criminology of the other’ (Garland 1996) and the expansion of detention in a culture of control (see Welch and Schuster 2005). The context of postcolonialism is central to understanding the global movement of people and the increasing use of penal power to manage irregular migration. As states around the world seek to reduce irregular migration at the same time that mobility is growing, reliance on immigration detention seems set to expand. That it does so, despite its considerable financial costs and in the face of significant human pain, without evidence of its deterrent or instrumental effect, is worth exploring in more detail.The extension of penal logics and practices to efforts to control global mobility makes immigration detention an important site for understanding contemporary responses to migration and crime. 101

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Notes 1 The practice of immigration detention is no longer confined to western countries but rather has ‘expanded’ to developing nations as well (see Wilsher 2011: xii). In this chapter we focus on western countries, as the vast majority of academic engagement on immigration detention focuses on the ‘West’. 2 23 July 1965, Commonwealth Immigration, Memorandum to Cabinet by the Lord President of the Privy Council, CAB 129/122/9. 3 Other relevant pieces of legislation signed into law by President Clinton in 1996, such as the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), further criminalized immigration and curtailed migrants’ access to benefits. As Bosworth and Kaufman (2011: 116) observe: AEDPA and IIRIRA increased the penalties for immigration violations while expanding the list of crimes for which resident non-citizens could be removed, starting a process of criminalization of immigration and an accompanying erosion of protections of foreigners’ civil liberties – particularly their right to habeas corpus – that the Patriot Act continued with such effect. Alongside those provisions, PRWORA not only denied benefits to most legal and illegal immigrants and their children but also kept them from thousands of female American citizens. Taken together, these Acts fostered an environment wherein immigration, poverty, and criminality became equally feared and regulated; in turn they contributed to a growing dependence on incarceration. 4 In Australia, the Detention Logs project publishes data on its website of ‘incidents’, including self-harm and voluntary starvation. See http://detentionlogs.com.au/. 5 Several media outlets, including The Guardian (UK), have publicized these stories. See, for example, http://www.theguardian.com/uk-news/2013/sep/21/sexual-abuse-yarls-wood-immigration.

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Evans, C 2003, ‘Asylum seekers and “border panic” in Australia’, Peace Review, vol. 15, no. 2, pp. 163–70. Fassin, D 2011, ‘Policing borders, producing boundaries: the governmentality of immigration in dark times’, Annual Review of Anthropology, vol. 40, pp. 213–26. Fekete, L 2007, ‘Detained: foreign children in Europe’, Race and Class, vol. 49, no. 1, pp. 93–104. Fischer, N 2013, ‘Bodies at the border: the medical protection of immigrants in a French immigration detention centre’, Ethnic and Racial Studies, vol. 36, no. 7, pp. 1162–79. Garland, D 1996, ‘The limits of the sovereign state: strategies of crime control in contemporary society’, British Journal of Criminology, vol. 36, no. 4, pp. 445–71. Gerard, A & Pickering, S 2012, ‘The crime and punishment of Somali women’s extra-legal arrival in Malta’, British Journal of Criminology, vol. 52, no. 3, pp. 514–33. Gilroy, P 2002, There ain’t no Black in the Union Jack: the cultural politics of race and nation, Routledge, London. Grewcock, M 2009, ‘Detention, punishment and children’s rights: an Australian snapshot’, Howard Journal of Criminal Justice, vol. 48, no. 4, pp. 388–400. — 2011, ‘Punishment, deportation and parole: the detention and removal of former prisoners under section 501 Migration Act 1958’, Australian & New Zealand Journal of Criminology, vol. 44, no. 1, pp. 56–73. Griffiths, M 2013, ‘Living with uncertainty: indefinite immigration detention’, Journal of Legal Anthropology, vol. 1, no. 3, pp. 263–86. Guia, MJ,Van der Woude, M & Van der Leun, J (eds) 2013, Social control and justice: crimmigration in the age of fear, Eleven Publishing, Amsterdam. Guild, E 2005, ‘A typology of different types of centres in Europe’, Report for the European Parliament: Directorate General Internal Policies of the Union, Centre for European Policy Studies, viewed 13 October 2013, http://www.libertysecurity.org/article1181.html Hall, A 2010, ‘“These people could be anyone”: Fear, contempt (and empathy) in a British immigration removal centre’, Journal of Ethnic and Migration Studies, vol. 36, no. 6, pp. 881–98. — 2012, Border watch: cultures of immigration, detention and control, Pluto Press, London. Hansen, R 2000, Citizenship and immigration in post-war Britain: the institutional origins of a multicultural nation, Oxford University Press, Oxford. Hatzis, N 2013, ‘Detention of irregular migrants and the European public order’, European Law Review, vol. 38, no. 2, pp. 259–76. Heeren, G 2010, ‘Pulling teeth: the state of mandatory immigration detention’, Harvard Civil Rights: Civil Liberties Law Review, vol. 45, no. 2, pp. 601–34. Hernandez, DM 2008, ‘Pursuant to deportation: Latinos and immigrant detention’, Latino Studies, vol. 6, no. 1, pp. 35–63. Home Office 2013, Immigration statistics, January to March 2013, Home Office, London. Jureidini, J & Burnside, J 2011, ‘Children in immigration detention: a case of reckless mistreatment’, Australian and New Zealand Journal of Public Health, vol. 35, no. 4, pp. 304–6. Kaufman, E & Bosworth, M 2013, ‘Prison and national identity: citizenship, punishment and the sovereign state’, in D Scott (ed.), Why prison?, Cambridge University Press, Cambridge, pp. 170–88. Khosravi, S 2009, ‘Sweden: detention and deportation of asylum seekers’, Race & Class, vol. 50, no. 4, pp. 38–56. Kordan, B 2002, Enemy aliens, prisoners of war: internment in Canada during the Great War, McGill-Queen’s University Press, Montreal. Lawston, JM & Escobar, M 2009, ‘Policing, detention, deportation, and resistance: situating immigrant justice and carcerality in the 21st century’, Social Justice, vol. 36, no. 2, pp. 1–6. Leerkes, A & Broeders, D 2010, ‘A case of mixed motives? Formal and informal functions of administrative immigration detention’, British Journal of Criminology, vol. 50, no. 5, pp. 830–50. Lorek, A, Ehntholt, K, Nesbitt, A, Wey, E, Githinji, C, Rossor, E & Wickramasinghe, R 2009, ‘The mental and physical health difficulties of children held within a British immigration detention center: a pilot study’, Child Abuse & Neglect, vol. 33, no. 9, pp. 573–85. Mainwaring, C 2012, ‘Constructing a crisis: the role of immigration detention in Malta’, Population, Space and Place, vol. 18, no. 6, pp. 687–700. Majcher, I 2013, ‘“Crimmigration” in the European Union through the lens of immigration detention’ Global Detention Project Working Paper No. 6, Graduate Institute of International and Development Studies, viewed 19 October 2013, http://www.globaldetentionproject.org/fileadmin/publications/ Crimmigration_EU_final.pdf Makaremi, C 2009, ‘Governing borders in France: from extraterritorial to humanitarian confinement’, Canadian Journal of Law and Society, vol. 24, no. 3, pp. 411–32.

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Malloch, MS & Stanley, E 2005, ‘The detention of asylum seekers in the UK: representing risk, managing the dangerous’, Punishment & Society, vol. 7, no. 1, pp. 53–71. Martin, LL 2012, ‘“Catch and remove”: detention, deterrence, and discipline in US noncitizen family detention practice’, Geopolitics, vol. 17, no. 2, pp. 312–34. Martin, LL & Mitchelson, ML 2009, ‘Geographies of detention and imprisonment: interrogating spatial practices of confinement, discipline, law, and state power’, Geography Compass, vol. 3, no. 1, pp. 459–77. McCulloch, J & Pickering, S (eds) 2012, Borders and crime: pre-crime, mobility and serious harm in an age of globalization, Palgrave Macmillan, New York. McGregor, J 2011, ‘Contestations and consequences of deportability: hunger strikes and the political agency of non-citizens’, Citizenship Studies, vol. 15, no. 5, pp. 597–611. Mountz, A 2011, ‘The enforcement archipelago: detention, haunting, and asylum on islands’, Political Geography, vol. 30, no. 3, pp. 118–28. Mountz, A, Coddington, K, Catania, RT & Loyd, JM 2013, ‘Conceptualizing detention: mobility, containment, bordering, and exclusion’, Progress in Human Geography, vol. 37, no. 4, pp. 522–41. Moylan, J 2013, ‘Desperation, displacement and detention: Australia’s treatment of asylum seekers, past and present’, Prison Service Journal, 205, pp. 16–22. Nakache, D 2011, The human and financial cost of detention of asylum-seekers in Canada, United Nations High Commissioner for Refugees, viewed 19 October 2013, http://www.unhcr.ca/resources/documents/ RPT-2011-12-detention_assylum_seekers-e.pdf Ochoa, KC, Pleasants, GL, Penn, JV & Stone, DC 2010, ‘Disparities in justice and care: persons with severe mental illnesses in the U.S. immigration detention system’, Journal of the American Academy of Psychiatry and the Law, vol. 38, no. 3, pp. 392–9. Omatsu, M 1992, Bittersweet passage: redress and the Japanese Canadian experience, Between the Lines, Toronto. O’Nions, H 2008, ‘No right to liberty: the detention of asylum seekers for administrative convenience’, European Journal of Migration and Law, vol. 10, no. 2, pp. 149–85, viewed 7 June 2013, http:// booksandjournals.brillonline.com/content/10.1163/157181608x317336 Parr, A 2005, ‘The deterritorializing language of child detainees: self-harm or embodied graffiti?’, Childhood, vol. 12, no. 3, pp. 281–99. Paul, K 1997, Whitewashing Britain: race and citizenship in the postwar era, Cornell University Press, Ithaca, NY. Pickering, S & Lambert, C 2001, ‘Immigration detention centres, human rights and criminology in Australia’, Current Issues in Criminal Justice, 13, pp. 219–23. Pratt, A 2005, Securing borders: detention and deportation in Canada, UBC Press,Vancouver. Robjant, K, Hassan, R & Katona, C 2009,‘Mental health implications of detaining asylum seekers: systematic review’, The British Journal of Psychiatry, vol. 194, no. 4, pp. 306–12. Rygiel, K 2011, ‘Bordering solidarities: migrant activism and the politics of movement and camps at Calais’, Citizenship Studies, vol. 15, no. 1, pp. 1–19. Sampson, RC & Mitchell, G 2013, ‘Global trends in immigration detention and alternatives to detention: practical, political and symbolic rationales’, Journal on Migration and Human Security, vol. 1, no. 3, pp. 97–121. Schinkel, W 2009, ‘“Illegal aliens” and the state, or: bare bodies vs the zombie’, International Sociology, vol. 24, no. 6, pp. 779–806. Schuster, L 2005, ‘A sledghammer to crack a nut: deportation, detention and dispersal in Europe’, Social Policy and Administration, vol. 39, no. 6, pp. 606–21. — 2011, ‘Dublin II and Eurodac: examining the (un)intended(?) consequences’, Gender, Place & Culture, vol. 18, no. 3, pp. 401–16. Sheikh, M, Macintyre, C & Perera, S 2008, ‘Preventive detention: the ethical ground where politics and health meet. Focus on asylum seekers in Australia’, Journal of Epidemiology and Community Health, vol. 62, no. 6, pp. 480–3. Silove, D, Austin, P & Steel, Z 2007, ‘No refuge from terror: the impact of detention on the mental health of trauma-affected refugees seeking asylum in Australia’, Transcultural Psychiatry, vol. 44, no. 3, pp. 359–93. Simanski, J & Sapp, LM 2012,‘Immigration Enforcement Actions: 2011’, US Department of Homeland Security Annual Report, viewed 13 October 2013, http://www.dhs.gov/sites/default/files/publications/ immigration-statistics/enforcement_ar_2011.pdf Simon, J 1998, ‘Refugees in a carceral age: the rebirth of immigration prisons in the United States’, Public Culture, vol. 10, no. 3, pp. 577–607.

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Steel, Z, Momartin, S, Silove, D, Coello, M, Aroche, J & Tay, KW 2011, ‘Two year psychosocial and mental health outcomes for refugees subjected to restrictive or supportive immigration policies’, Social Science & Medicine, vol. 72, no. 7, pp. 1149–56. Stefanelli, JN 2011, ‘Whose rule of law? An analysis of the UK’s decision not to opt-in to the EU asylum procedures and reception conditions Directives’, International & Comparative Law Quarterly, vol. 60, no. 4, pp. 1055–64. US Immigration and Customs Enforcement 2011, Detention management, fact sheet, viewed 13 October 2013, http://www.ice.gov/news/library/factsheets/detention-mgmt.htm Venters, H, Foote, M & Keller, AS 2011, ‘Medical advocacy on behalf of detained immigrants’, Journal of Immigrant and Minority Health, vol. 13, no. 3, pp. 625–8. Welch, M 1996, ‘The immigration crisis: detention as an emerging mechanism of social control’, Social Justice, vol. 23, no. 3, pp. 169–84. — 2002, Detained: immigration laws and the expanding I.N.S. jail complex,Temple University Press, Philadelphia, PA. Welch, M & Schuster, L 2005, ‘Detention of asylum seekers in the US, UK, France, Germany, and Italy: a critical view of the globalizing culture of control’, Criminology & Criminal Justice, vol. 5, no. 4, pp. 331–55. Whyte, Z 2011, ‘Enter the myopticon: uncertain surveillance in the Danish asylum system’, Anthropology Today, vol. 27, no. 3, pp. 18–21. Wilsher, D 2011, Immigration detention: law, history, politics, Cambridge University Press, Cambridge. Zion, D, Briskman, L & Loff, B 2012, ‘Psychiatric ethics and a politics of compassion: the case of detained asylum seekers in Australia’, Journal of Bioethical Inquiry, vol. 9, no. 1, pp. 67–75.

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7 The incarceration of foreigners in European prisons Thomas Ugelvik

Introduction Prison populations have grown in most European countries over the last few decades. Simultaneously, the profile of the prison populations has changed considerably in many jurisdictions. Western European correctional services are, to varying degrees, waking up to the reality of having to cope with increasing numbers of foreign nationals in their institutions. Eastern European governments, on the other hand, have to deal with growing numbers of their citizens incarcerated in foreign countries and foreign governments putting pressure on them to accept the return of these prisoners to serve out the rest of their sentences in their country of origin. The everyday difficulties associated with housing scores of foreigners who might have different wants and needs from those which one commonly finds among domestic prisoners, combined with the ever-growing task of transferring prisoners and deporting newly released former prisoners, will be a formidable challenge for European criminal justice systems in years to come. This development has consequences on many different levels. Staff are often frustrated at the lack of knowledge (and time to develop such knowledge) and available resources to work constructively with foreign nationals. Foreign national prisoners are frequently frustrated at the general uncertainty, discrimination, and racism they often experience, as well as the many everyday mundane problems resulting from their status as foreigners. In short, the rapid growth of foreign nationals in prison is creating all sorts of problems and frustrations on both sides of the table across Europe. No wonder then, that the foreign national prisoners – in a not-so-distant past appropriately characterized as ‘forgotten prisoners’ (Prison Reform Trust 2004; Kalmthout, van der Meulen and Dünkel, 2007; Bhui 2009) – increasingly are being placed at the top of the priority list. These changes are part of a wider development of global social change. On the one hand, processes of globalization bring new possibilities: goods, services, ideas and privileged human beings are mobile and able to circulate across vast distances and old borders in ways unthinkable only a generation or two ago. On the other, globalization also comes with its own specific problems and challenges. From the point of view of a specific nation state, increased circulation of human beings will result in a need to actively administer and control an increased influx of non-citizens. Many are travelling irregularly, even if they may be pursuing legitimate and understandable goals like the dream of a better future for themselves and their families. Within 107

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the framework of EU legislation, systems and practices, an explicit goal is to give what is considered a common European problem a common European solution. Currently, police and border control cooperation, shared asylum systems and a common responsibility for returning illegal immigrants to their country of origin are examples of related issues which are all given high priority at an EU level. As a result, the administration (and even criminalization) of some forms of immigration have become key aspects of the governance of many late-modern democracies (Genova 2002; Stumpf 2006; Aas 2007; Dauvergne 2008; Dal Lago 2009; Aas 2011; Ugelvik 2013). States are increasingly spending their control resources on foreign nationals; according to the Norwegian Supreme Court justice, Knut H. Kallerud (2011), in 2010, for the first time, more foreign nationals than Norwegian citizens were arrested by the police in the capital city of Oslo. Politically, the question of foreign nationals’ criminality is a hot potato because it combines two areas that routinely inspire a great deal of public anxiety: crime and immigration. News reports will often serve to strengthen the connection between immigration and crime risk that is already strong in the public imagination (Wacquant 1999). According to Banks, ‘The habitual portrayal of the immigrant as criminal has fused the otherness of the stranger into the otherness of the deviant, evoking a “new” moral panic over outsiders’ (2011: 185). The question of non-citizens’ criminality and over-representation in the crime statistics is too complicated to tackle properly here (but see inter alia Albrecht 1987; 1993; Carr-Hill 1987; Finstad 2000; Holmberg and Kyvsgaard 2003; Sollund 2006; Kochel, Wilson and Mastrofski 2011; Solvetti 2012). A few snapshots from different European countries will have to suffice as illustrations. In Germany, studies have shown that foreign nationals consistently exhibit a criminalization rate of up to three-and-a-half times higher than for nationals (Dollinger and Kretschmann 2013). In Greece, more than 60 per cent of the prison population consists of noncitizens, overwhelmingly from non-EU states. Sentences given to non-citizens are considerably harsher – almost double – than the ones given to Greeks in one study (Karydis and Koulouris 2013). Migration may also be linked to specific types of offences, like prostitution and trafficking in women and drugs. In Italy, Nigerian woman are often incarcerated for promoting prostitution (‘pimping’), according to Gonnella (2013); in fact, they constitute around 10 per cent of all women in Italian prisons. With the criminalization of immigration offences, many countries are incorporating new crimes that only foreigners can commit into their legislations (Stumpf 2006; Dauvergne 2008). There is considerable variety between different European jurisdictions, however. Given all this, it is startling how little we have until recently known about foreign nationals in prison and the challenges they experience and represent.The question of foreign nationals has in many ways been decidedly under-researched; a knowledge ‘blind spot’. In this chapter, I hope to contribute to remedying this. I will discuss the rapid increase of foreign nationals in European prisons, employing a dual focus emphasizing both the government and prisoner perspectives.The chapter will offer a specifically European analysis. Despite the explicit focus on the European situation, I believe that many of the problems faced both by governments and incarcerated foreign nationals in Europe will be similar to challenges experienced in other parts of the world. In addition to the still rather scant literature on the field, I will base my discussion on a total of eight months of fieldwork (in 2013) at the Police Immigration Detention Centre at Trandum just north of Oslo, Norway, and at Kongsvinger Prison, Norway’s only prison specially adapted to its exclusively foreign national population, as well as three day visits (in the spring of 2012) to UK prisons: HMP Wormwood Scrubs (a so-called hub prison, on which more will be revealed below), and HMP Canterbury and HMP Huntercombe, at the time two out of three UK prisons for foreign national prisoners only.1 108

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What is a foreign national prisoner? According to Banks (2011), in 2010, the UK prison system’s foreign national population comprised 169 different nationalities. The foreign national prison population is diverse, and in many countries increasingly so. In most jurisdictions, ‘foreign prisoners’ will obviously constitute a very complex and heterogeneous group, whose only common distinguishing features are incarceration combined with a relationship of non-belonging vis-à-vis a specific nation-state.We are all foreigners once we, as tourists, move across a domestic border and venture into foreign territories. Both parts of this composite term – ‘foreign’ and ‘prisoners’ – need clarification. In their encyclopedic Foreigners in European Prisons, Kalmthout, van der Meulen and Dünkel (2007) use the term ‘prisoner’ in a wide sense, including not only people who have been deprived of their liberty following a criminal conviction, but also people detained under administrative law in separate (often very prison-like) institutions, such as failed asylum seekers or irregular migrants incarcerated in preparation for their deportation or expulsion. In this chapter, however, I will focus on foreign nationals incarcerated in penal institutions, not immigration detention centres; a ‘foreign national prisoner’ will thus either be remanded in custody pending trial or imprisoned following a criminal conviction. This choice may be controversial; the difference between immigration detention centres and prisons is not always as clear-cut as one might wish. Some jurisdictions, such as France and the UK (Wacquant 1999; Banks 2011; Bosworth 2011; Kaufman 2012) imprison people on an immigration order in regular prisons, alongside prisoners serving a penal sanction. This often happens following a penal sanction, when the immigration authorities have not been able to effectuate deportation in time for the release date. When deportation procedures are put on hold, deportable former prisoners are just kept in prison in these cases, sometimes for months or even years on end. This has been a particularly salient problem in the UK (English and Welsh) prison system. Over the last decade, the non-criminal prison population in the UK has almost trebled. According to Banks, ‘Official statistics provide irrefutable evidence that the increase in foreign nationals in prison has, in part, been fuelled by the marked growth in the non-criminal prison population’ (2011: 190). When it comes to ‘foreigner’, the term simply refers to the fact that the person in question is not a citizen of the country where she or he is imprisoned. There is often a considerable overlap between the categories of ‘foreign national prisoner’ and ‘ethnic minority prisoner’; according to Bell (2013), 62 per cent of foreign nationals in the English and Welsh prison system are also minority ethnic. As long as the difference between nationality and ethnicity is observed properly, this fact creates few problems. The two categories are, however, often confused (Bosworth 2011; 2012; Kaufman 2012; Phillips 2012); citizens with an ethnic minority background are categorized as foreigners, while majority ethnic (‘European’) foreigners are mistakenly identified as citizens. Richards et al. (1995b) asked their contact persons in the prisons they visited to provide them with a list of all the foreign national prisoners. Of the 669 names provided, 314 turned out to be UK residents; most of these were in fact also British subjects. This kind of confusion is common, and is particularly problematic for prisoners who appear to be foreign but whose identity cannot be formally determined, and who therefore will have a hard time convincing immigration authorities that they have a legal right to stay in the country after their sentence is served. In many cases, if you look foreign, meaning ethnic minority, you are treated as a foreigner, or, as one of Kaufman’s interviewees put it: ‘If you’re black, you’re going back’ (2012: 704). Bhui (2009) found that foreign nationals who were also black had a wider range of negative experiences of imprisonment than those who were not visibly different from the majority population. One prisoner quoted by Bhui felt that prisoners who are recognized as

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Europeans share the culture of officers and are therefore treated better. In Norway, citizenship is often used as a proxy for issues related to race and culture, since the prison authorities for historical reasons are not allowed to register ethnic background. ‘Foreign’ is therefore often used to signify ‘racially and culturally different’, even though the term properly should refer to citizenship. Adoptees, then, may be seen as foreign, as may immigrants who have acquired Norwegian citizenship, whereas Swedish and Danish prisoners may look very Norwegian and be treated accordingly. Even if citizenship legally is something you either have or don’t have, in practice, the ‘foreignness’ of foreign nationals is not a simple ‘yes and no’ question; there may be degrees of ‘foreignness’ that result in different experiences for different groups of foreign national prisoners.

The statistical view The foreign national prison populations have increased in all Western European countries in recent years. According to Kalmthout, van der Meulen and Dünkel (2007), there were more than 100,000 foreign prisoners in European countries in 2006. Although the numbers varied greatly per country – from less than 1 per cent (Latvia) to 75 per cent (Luxembourg), the average percentage of foreigners in the total European prison population was over 20 per cent. In the years since 2006, the development has basically continued. According to figures made public by the International Centre for Prison Studies,2 and if we limit ourselves to the 28 EU countries only, almost 19 per cent of the prison populations combined, or more than 117,000 prisoners, are currently foreign nationals. Table 7.1 shows that more than two decades after the fall of the walls dividing Europe into two, there is still a pronounced difference between east and west. The old Western European countries3 combined have more than 112,000 foreign nationals in their prison system with an average proportion of 26 per cent. In stark contrast, the old Eastern Bloc countries4 combined only house about 5,000 foreigners in their prisons. Their average proportion of foreign national prisoners is less than 3 per cent. As stated already, the number of foreign national prisoners in the UK system (England and Wales) trebled between the early 1990s and 2006, increasing from 3,446 (7.8 per cent of the total prison population) in 1993 to 10,289 (13 per cent) in April 2006 (Bhui 2008); Irish nationals constitute almost one quarter of this number, however. We can see from the more current figures in Table 7.1 that the number of foreign prisoners in the UK system has been relatively stable since 2006, both in absolute (10,802) and relative terms (12.8 per cent), making the UK one of the jurisdictions in Western Europe with the smallest proportion of foreign national inmates. In Italy, the proportion of foreign nationals is much higher. According to Table 7.1, 35 per cent of prisoners in Italian prisons are foreign nationals. Gonnella (2013) operates with a slightly higher number; according to him, 36.1 per cent of prisoners in Italian prisons are foreign nationals. He offers a structural explanation: the criminalization of unregistered migrants pushes them further into illegality. In practice, they are forced to stay within the semi-legal or illegal economy, making a penal sanction more probable. Italy’s geographical position is obviously also an important part of the picture.The forces of globalization make it impossible for states to have perfect control over who enters or leaves their territories. Some states have an easier time, however: where the UK is positioned safely off the European mainland, far removed from the main irregular migration routes into Europe and outside the borderless EU Schengen area, Italy is, along with Greece, geographically positioned at the apex of irregular migration into Europe. 110

Foreigners’ incarceration in European prisons Table 7.1 Foreign nationals in European prisons, 28 EU countries

Austria Belgium Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden United Kingdom (England and Wales) United Kingdom (Northern Ireland) United Kingdom (Scotland) Totals

Prison population Prison rate (per 100,000 of population national population) total

Foreign prisoners, percentage of prison population

98 108 151 108 106 157 73 227 58 100 77 111 186 89 105 304 329 131 145 82 209 137 158 184 66 145 67 148

8273 12126 10996 4741 905 16568 4091 3036 3134 67050 63317 12479 18388 4120 64047 6117 9729 717 610 13749 80482 14324 33510 9981 1357 66995 6364 84392

48.6 44.2 2 5.7 53.8 8.8 26.8 39.9 14.5 17.5 27.1 63.2 3.5 14.3 35 1.3 1.2 72.2 40.3 24.6 0.7 18.5 0.6 2 10.7 31.7 30.5 12.8

4021 5360 220 270 487 1458 1096 1211 454 11734 17159 7887 644 589 22416 80 117 518 246 3382 563 2650 201 120 145 21237 1941 10802

101

1866

6.3

118

146

7808

3.4

265

631272

Foreign prisoners, estimated approximate absolute numbers

117391

Source: The World Prison Brief (n.d.).

In contrast, Eastern European countries generally have very small numbers of foreign national prisoners, ranging from Poland and Romania, both with less than 1 per cent of foreigners in their prison populations, to Slovenia, in this context the most ‘western’ of the Eastern European countries with 10.7 per cent foreigner prisoners.The Slovenian prison system is thus close to the UK situation when it comes to the incarceration of foreigners. The obvious exception to the Eastern European rule is Estonia, where foreign prisoners constitute 39.9 per cent of the total prison population. This may seem strange at first glance, 111

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especially when compared to Estonia’s two Baltic neighbours Latvia (1.3 per cent) and Lithuania (1.2 per cent). The reason for the statistical outlier status, however, is the strict Estonian citizenship rules, not an extraordinary influx of migration. When Estonia gained its independence in 1991, several minority groups (mainly people hailing from Russia, Ukraine and Belarus) suddenly found themselves living in a foreign country. Although they have permanent residence in Estonia, they have never been granted full Estonian citizenship (unlike the situation for similar populations in the two other Baltic countries) and are thus counted as foreign nationals in the prison statistics.5 In addition to being an interesting statistical aberration, Estonia is thus an example of how the foreign prisoner population is directly influenced by variations in State projects, optics and prison policies at the national level.

Foreign nationals, the state and deportability From the point of view of the Western European governments and their prison officials, foreign national prisoners represent a range of new challenges. One thing is the increasing numbers of them; they all have to be housed somewhere in a prison with an appropriate security level.This has led many European states to focus on return schemes where prisoners are returned – voluntarily or forcefully – to a prison in their country of origin to serve out their sentence there. Another recent development is that some countries are opening prison wings on neighbouring soil; notably, Belgium is leasing a prison in the Dutch city of Tilburg to cope with its overcrowding problem. The Norwegian government recently approached the Swedish authorities to find out whether a similar deal could be made. The latest development in that case seems to suggest that the Norwegian plan will not come to fruition, however; a Swedish legal amendment would be necessary to make it possible for Swedish prison officers on Swedish soil to exert power on behalf of the Norwegian State. Even though this kind of arrangement raises difficult questions in regards to state sovereignty and the legitimacy of state power, other European states might want to follow the Belgian example in future for obvious economic reasons. Most foreign prisoners in European prisons, however, will stay where they are and serve out their sentences in prisons designed for national citizens. European prison authorities are (to varying degrees) becoming aware of their growing numbers and the specific challenges they represent. Although most countries do not have special prisons for foreign nationals (the UK and Norway are among the exceptions), foreign nationals are often concentrated in a few (often large) prisons. In the famous La Santé prison in France, remand prisoners are divided into four units, one for ‘Europeans’, one for ‘Africans’, one for ‘North Africans’ and one for ‘Rest of the world’ (Décarpes 2007).Variations of this kind of concentration policy seems to be common all over (Western) Europe, either formally, in officially designated foreign nationals’ prison wings, or informally. In the UK, the prison estate has been reorganized around the question of nationality. Non-citizens have been concentrated in selected so-called ‘hub prisons’, prisons ‘embedded’ with full-time immigration control (UKBA) staff (Kaufman 2012; 2013). As part of this development, prison staff have been given a range of new tasks. Wing officers at the local level are now expected to identify foreign nationals to immigration authorities, so that the prison, when necessary, may detain prisoners facing deportation beyond the length of their criminal sentences. Every UK prison now also employs a so-called foreign national coordinator. As suggested above and in particular in a multicultural society like the UK, it is not always easy to separate foreign national prisoners from ethnic minority prisoners. In the UK, determining 112

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citizenship at least initially depends on self-identification; prison officers simply ask where new arrivals are born. Kaufman (2012) shows that this strategy is far from flawless. She finds that the attempts to find foreigners in practice often depend on racialized assumptions about what constitutes ‘Britishness’ and ‘foreignness’. As a result, the experience of imprisonment is altered for members of visibly different minorities who have to be able to prove that they belong and are entitled to stay in the country post release. Part of ‘seeing like a state’ (Scott 1998) is employing a specific optic which makes it possible to focus resources and control efforts where they make most sense. Modern bureaucratic societies are high-intensity information users and producers, as are their prisons. To be imprisoned is to be made visible, legible and, not least, countable. An average prisoner will have a comprehensive computer file full of information for prison officers to consider in decision-making processes. Most foreign national prisoners, however, lack such a history, and often look like walking and talking question marks from the perspective of the prison officers responsible for making, for them, important and life-changing decisions. Even states that routinely produce detailed statistical analyses of their prison populations often do not know fairly basic information about this group. As a result, important decisions that will impact prisoners’ lives in profound and direct ways, that are normally taken based on sound knowledge and detailed information gathered from different cooperating state agencies, will be based on ‘best guesses’ in the case of foreign nationals. And prison officers, being prison officers, will often decide to err on the side of safety, especially when it comes to risk assessment decisions.The unavailability of important information (e.g. about any previous convictions or history of mental illness) may thus work to the foreign national prisoners’ disadvantage.As one prison officer in Kongsvinger prison, the single Norwegian prison dedicated to foreign nationals, explained to me: ‘He seems like a nice enough bloke. But of course, he could have murdered 30 people in his own country before coming here. We just don’t know.’ The result is, predictably, that foreign nationals more often get a negative answer on applications for e.g. temporary release on licence or a transfer to another prison with a more open regime (Kalmthout et al. 2007), despite the fact that a recommendation made by the Council of Europe in 2012 explicitly states that ‘Foreign offenders sentenced to imprisonment shall be entitled to full consideration for early release’ (Council of Europe 2012, CM/Rec (2012) 12, section II:6). This may, in turn, lead to feelings of being the victim of discrimination, favouritism and even racism. Staff may also be frustrated by a lack of information, of course, and – at least those staff members who are committed to a rehabilitation and reintegration ethos – by being expected to keep foreign national prisoners under inappropriately strict conditions, in some cases past their sentence. The more welfare-oriented a criminal justice system is, the more sophisticated the information it will depend on, and the more problematic foreign nationals may turn out to be. Human rights were conceived as placeless (Sennett 2011). Civil rights, like the right to specialist medical care and higher education, are, on the other hand, dependent on membership of a particular community. In everyday practice, criminal justice officials must decide precisely where the boundary between human rights and civil rights should be drawn. Many foreign national prisoners have a deportation order added to their prison sentence, either by the court as part of sentencing, or by the immigration authorities in a separate process. In practice, it will often be down to the prison locally to effectuate the deportation together with police and immigration officers. The prison is thus made part of the ‘deportation machine’ (Fekete 2005). In short, the question of deportability (Genova 2002) is taking centre-stage when prison officers are making everyday decisions. From the perspective of Western European prison officials, foreign nationals are increasingly being seen more like potential deportees than potentially rehabilitated members of society; as risks to be managed and expelled, rather than individuals with individual needs. 113

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This change affects prisoner–officer relationships in many ways. ‘Model prisoners’ are no longer just low-risk, readily governable and good workers; they are also in practice deportable and ideally also motivated to leave the country voluntarily. Furthermore, model prisoners today hail from countries that are willing to accept them, and that have helpful embassies that will provide the prison with new travel documents when these are missing or have been destroyed. As one UK Ministry of Justice employee quoted by Bosworth puts it: In an ideal world a prisoner comes in, is obviously foreign, has a passport or declares his nationality, wants to return to his country, and an order to deport him is attached to his sentence, and UKBA [the UK Border Agency] arranges to remove him. In an ideal world, that would happen. (2011: 583) Needless to say, in the sphere of foreign nationals in prison, the world is not always ideal. Prisoners may be undeportable in practice for different reasons. Some countries refuse to issue travel documents; others simply take a very long time doing so. Communication between the criminal justice and immigration systems may also be poor, meaning that even in cases where prison officers are helpful, relevant information may still be unavailable. One arm of the state does not always know what the other is doing.

Specific challenges for foreign national prisoners According to the Council of Europe’s European Prison Rules, all prisoners, including those of foreign nationality, retain all rights not necessarily taken away by the fact of imprisonment (Council of Europe 2006, Rec(2006)2, section I:2). It is, however, a recurring risk throughout European jurisdictions that foreign prisoners may not be able to exercise their rights effectively, including their fundamental human rights (Kalmthout et al. 2007). To a certain extent, the challenges foreign prisoners are facing are similar to challenges experienced by prisoners in general. Even though ‘foreign nationals in prison’ as detailed above are obviously a very complex category with a great deal of internal variety, foreign nationals also have many common experiences and needs, usually connected to the primary problems of family contact, immigration difficulties and language, that make it meaningful to consider them as a distinct group with distinct needs (Bhui 2009). Many foreigners are isolated, not just literally, but also symbolically and culturally. Their foreigner status thus formally and informally creates specific challenges unique to them. A series of UK studies (inter alia Richards et al. 1995a; 1995b; HM Inspectorate of Prisons 2006; Bhui 2008; 2009; Banks 2011) have identified key specific problem areas including immigration status-related problems; language problems and a lack of information about and understanding of the prison and criminal justice systems; isolation and limited family contact and associated psychological distress; a lack of proper preparation for release; and racism within prisons. In the following I will in particular consider difficulties and challenges associated with language barriers, medical care, rehabilitation processes, culture clashes and prison visits and family contact.

Language issues The most common and significant problem faced by foreign nationals in general is the lack of knowledge of the national language. In many cases, both verbal and written communication are 114

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severely limited. This may again lead to feelings of social isolation, uncertainty and helplessness. A lack of understanding of the native language will colour every part of the everyday prison experience. Prisoners are frustrated at not being understood by staff, at having little to read in their own language and missing out on basic provisions because they have not understood instructions. Upon entering a prison, prisoners are routinely informed about the prison regulations, prison ‘house rules’, aspects of daily prison life, disciplinary sanctions, visits schemes, transfer procedures, opportunities for legal assistance and above all their rights and duties inside the institution. For foreign prisoners, it is essential that this information is available in a language that they can understand. Often, fellow prisoners will be available to act as translators and guides for new arrivals. In the everyday life of the prison, the informal prisoner grapevine handles much of the information needs of new arrivals. This is problematic, of course, when the information is inaccurate or when fellow prisoners are asked to translate sensitive information. Some prison systems, like the Danish and Norwegian ones, are actively recruiting prison officers from various ethnic minority backgrounds for this reason (Storgaard 2007). In other countries, institutions offer language courses to foreign prisoners to help them communicate with staff and fellow prisoners. Does the prison provide foreign language television channels? Can the prison library get books and DVDs in Farsi? In extreme cases, language problems may lead to what we might call cultural deprivation. Many prisons attempt to place people of the same language and nationality together on the same wings to help foreign prisoners cope. However, the mixing of different nationalities can also be seen as beneficial in avoiding creating subcultures, ‘strong groups’ and ethnic conflicts among prisoners. Sometimes armed conflicts from half a world away are made relevant and important in the everyday life on prison wings far removed in time and space. Mixing Serbs and Croats or Hutu and Tutsi in the same prison wing may work perfectly fine, and then again it may lead to conflict and violence. Prison managers at the local level have to make decisions like this all the time, again more often based on experience and a gut feeling than verifiable information and solid evidence.

Medical care issues The Council of Europe recommendations also state that foreign national prisoners ‘shall have access to the same health care and treatment programmes that are available to other prisoners’ (Council of Europe 2012, CM/Rec (2012)12: 31.1). ‘The same as other prisoners’ might not be adequate for this group, however. New arrivals to the prison may have experiences of trauma, torture and war, experiences that create new and unknown challenges for the prison systems and the prison staff who have to deal with them in daily life. Providing appropriate and relevant treatment may be more difficult when the patient only speaks a foreign language. Many (but certainly not all) European psychologists may be comfortable treating people in English, but where can one, on short notice, find an available trained psychologist fluent in Bengali? Mental illness may be exacerbated by difficulties of communicating symptoms in a foreign language. A UK study (Borill and Taylor 2009) shows that self-inflicted deaths in England and Wales were at a ten-year low in 2006 but rose in 2007, largely attributed to an unexpected increase in self-inflicted deaths by foreign national prisoners. In 2007, 16 per cent of UK prisoners were foreign nationals, but they accounted for 28 per cent of self-inflicted deaths. According to Borill and Taylor, This increase in FN [foreign nationals] suicides occurred following policy changes in 2006, when the Home Office responded to strong public pressure to prevent any 115

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FN prisoner from being released without full consideration of whether they should be deported. (ibid.: 888) On the other hand, giving basic medical care may be easier inside a prison than outside. Irregular migrants may have – both legally and in practice – severely curbed or even totally absent rights vis-à-vis the national health care system in many jurisdictions (Johansen 2013). In the Czech Republic, national prisoners are given medical care free of charge, while foreigners lacking health insurance have to pay, except in emergency cases (Skvain 2007). In Norway, the same is the case for irregular migrants outside the prison walls – legally, they have a right to emergency medical attention only (Søvig 2013) – but not the irregular migrants in prison; the Norwegian government has decided that as long as they are held against their will, foreign prisoners are entitled to the full resources of the Norwegian health care system in the same way as an imprisoned citizen. In some cases, a prison sentence may actually be beneficial for the health situation of people living at or beyond the margins of society.

Rehabilitation/reintegration issues As detailed above, in many countries, foreign prisoners are excluded from the right to be placed in (semi-)open institutions even when their sentence length is relatively short or when they have nearly finished their sentence.The main reasons for this practice is the fear of escape and the lack of a permanent home address. Foreign nationals are also seldom allowed prison leave. In Poland, prison leave is only granted to foreign prisoners under escort (Stando-Kawecka 2007). In Lithuania, no prison leave was granted to foreigners at all in 2005 (Malisauskaite-Simanaitiene 2007). The decision to grant prisoners early release is often based on a risk assessment where the previous criminal and prison records are important parts of the decision-making process. For foreign prisoners, such information is frequently unavailable. Again, prison and court officials often decide to err on the side of safety. Foreign nationals are also very unlikely to be given home detention curfew and release on temporary licence, regardless of the fact that they often have very good prison records and may be regarded as ‘model prisoners’ (Bhui 2009). Foreign prisoners are also often unable to attend work or school in prison, because of selection criteria that keep them out even if they have ‘the same rights’ as citizens (Kalmthout et al. 2007; Kaufman 2012; Westrheim and Manger 2012). In sum, even though they may have the same rights as citizens, foreign prisoners in practice are frequently denied the ‘ladder of progression’ designed to aid them in their rehabilitation process (Smit and Snacken 2009; Ugelvik 2013). Foreign nationals are also commonly over-represented in pre-trial detention. This is not surprising, given that foreign family ties and strong connections to a foreign community alone are deemed to put someone at risk of absconding in some jurisdictions (Albrecht 1987; CarrHill 1987). Rehabilitation and reintegration measures such as education and vocational training programmes are often not a great priority in such institutions. According to section 33.3 of the European Prison Rules (Council of Europe 2006, Rec(2006)2), ‘All prisoners should have the benefit of arrangements designed to assist them in returning to free society after release.’ In practice, again, foreign nationals tend to be excluded from such arrangements. Such activities are often in short supply, and foreign nationals are not given priority (Kaufman 2012). One reason is that foreign prisoners are expected to leave the country – either voluntarily or forcefully – upon release. Many of the rehabilitation measures are seen as directly connected to the welfare system outside and are therefore not deemed appropriate or relevant for prisoners who will not be part of that society anyway. The default assumption is 116

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that foreign prisoners will be deported. In practice, however, not all foreign national prisoners go home when they are released. This is particularly problematic, when these prisoners have been prepared for their new situation and may for example lack a proper post-release plan. A prison official at HMP Wormwood Scrubs told me in 2012 that the majority of deportable prisoners end up for various reasons being released back into British society anyway. In Norway, the case is not quite as dramatic. At Kongsvinger prison, a prison where every prisoner in principle should leave the country after release, 144 prisoners were legally ‘expelled’ at the end of their sentence (and in most cases in practice deported by the police) in 2013, nine were transferred to other prisons, and 25 were released back into Norwegian society. For these individuals, the preparation for release will have been less than optimal.

Prison visits and family contact issues According to section 17 of the European Prison Rules (Council of Europe 2006, Rec(2006)2), prisoners should be ‘allocated, as much as possible, to prisons close to their homes or places of social rehabilitation’. This is, needless to say, difficult when it comes to foreign prisoners in many cases, even though foreign nationals in Polish prisons who hail from Eastern Europe are put in prisons close to the Eastern border to facilitate family visits (Stando-Kawecka 2007). Foreign inmates are entitled to as many visits as nationals, but in practice they generally receive far fewer for practical and economic reasons. In many jurisdictions, foreigners can get extended visits when family members have travelled long distances to see them (Kalmthout et al. 2007), but family members from Brazil or Afghanistan are still uncommon sights in European prisons. Family members who are living in the country where the prisoners are incarcerated, and therefore available for visits, may be unwilling to visit because of their own irregular immigration status. Pre-trial detention prisoners may often not be allowed telephone calls in their native language. In France, prison staff in general refuse telephone conversations in any language other than French (Décarpes 2007). In the Irish Cloverhill prison, on the other hand, special consideration is being given to foreign prisoners to phone home at times that are appropriate for the families (Moore 2007). Regardless, many foreign prisoners do not have the necessary means to telephone their families, as long-distance phone calls are very expensive compared to the weekly allowance of prisoners in most jurisdictions. With the information and communication technology that is available today, this issue seems a bit archaic, and hopefully soon will be a thing of the past. If made available to prisoners, relatively inexpensive technologies such as Skype would make it possible for prisoners to talk with family members for free. Unfortunately, such technologies are only rarely made available to prisoners today.

Conclusion The increase of foreigners in European prisons has been compared with the over-representation of blacks in US prisons (Wacquant 1999). From one perspective, prisons have a major role in the production of a vulnerable and exploitable workforce. This is exacerbated when, according to Bosworth, ‘the absence of citizenship enables harsher and longer punishments’ (2011: 583).What has been called a process of ‘hyper-criminalization of immigrants’ (De Giorgi, 2010), and in particular of so-called third country immigrants, plays an instrumental role here, and the prison may be seen as a core institution. Are foreign prisoners, as the British Prison Reform Trust (2004) has put it, still ‘the forgotten prisoners’? Or are they, from the perspectives of the various European governments, a group of 117

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such a size, representing such serious and expensive challenges on so many levels, that governments now have grown wise to the fact that they need to be acknowledged when policies and practices are being developed? When it comes to the allocation of resources, they are still easily forgotten in many cases. But I think the days when European governments could afford to simply forget about foreign national prisoners are in the past.The growing numbers of White Papers, evaluation reports and policy documents across European jurisdictions attest to the fact that foreign nationals are no longer ignored. I still think, however, that we are seeing just the start of the shift towards increased attention directed at the challenges foreign national prisoners represent. Being forgotten may not be quite as problematic as being placed at the centre of attention. If I am correct, I would say that it is even more important for scholars to keep close tabs on the development in the future.

Acknowledgements This research has been funded by the European Research Council (ERC Starting grant). I would like to express my gratitude to Katja Franko Aas and Helene Ingebrigtsen Gundhus for insightful comments on an earlier draft.

Notes 1 HMP Canterbury was closed less than a year after my visit, as was the third prison of this kind, HMP Bulwood Hall. As far as I can tell, HMP Huntercombe is currently the only UK prison for foreign nationals (Bhui 2013). 2 The World Prison Brief can be found at http://www.prisonstudies.org/world-prison-brief. The most recent data available for every country was collected in January 2014. 3 Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden and the UK jurisdictions. 4 Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia. 5 Thanks to Andri Ahven at the Estonian Ministry of Justice for this information.

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Bosworth, M 2011, ‘Deportation, detention and foreign-national prisoners in England and Wales’, Citizenship Studies, vol. 15, no. 5, pp. 583–95. — 2012, ‘Subjectivity and identity in detention: punishment and society in a global age’, Theoretical Criminology, vol. 16, no. 2, pp. 123–40. Carr-Hill, RA 1987, ‘“O bring me your poor”: immigrants in the French system of criminal justice’, The Howard Journal of Criminal Justice, vol. 26, no. 4, pp. 284–99. Council of Europe, 2006, Recommendation on the European prison rules (Rec(2006)2), Committee of Ministers, Brussels. — 2012, Recommendation concerning foreign prisoners (Cm/Rec(2012)12), Committee of Ministers, Brussels. Dal Lago, A 2009, Non-persons: the exclusion of migrants in a global society, IPOC,Vimodrone. Dauvergne, C 2008, Making people illegal: what globalization means for migration and law, Cambridge University Press, Cambridge. Décarpes, P 2007, ‘France’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 319–42. De Giorgi, A 2010, ‘Immigration control, post-Fordism, and less eligibility’, Punishment & Society, vol. 12, no. 2, pp. 147–67. Dollinger, B & Kretschmann, A 2013, ‘Contradictions in German penal practices: the long goodbye from the rehabilitation principle’, in V Ruggiero & M Ryan (eds), Punishment in Europe: a critical anatomy of penal systems, Palgrave Macmillan, Basingstoke, pp. 132–56. Fekete, L 2005, ‘The deportation machine: Europe, asylum and human rights’, Race & Class, vol. 47, no. 1, pp. 64–91. Finstad, L 2000, Politiblikket, Pax, Oslo. Genova, NPD 2002, ‘Migrant “illegality” and deportability in everyday life’, Annual Review of Anthropology, vol. 31, pp. 419–47. Gonnella, P 2013, ‘Italy: between amnesties and emergencies’, in V Ruggiero & M Ryan (eds), Punishment in Europe: a critical anatomy of penal systems, Palgrave Macmillan, Basingstoke, pp. 226–44. HM Inspectorate of Prisons 2006, Foreign national prisoners: a thematic review, HM Inspectorate of Prisons, London. Holmberg, L & Kyvsgaard, B 2003, ‘Are immigrants and their descendants discriminated against in the Danish criminal justice system?’, Journal of Scandinavian Studies in Criminology and Crime Prevention, vol. 4, no. 2, pp. 125–42. Johansen, NB 2013, ‘Governing the funnel of expulsion: Agamben, the dynamics of force, and minimalist biopolitics’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 257–72. Kallerud, KH 2011, Lovbrudd begått av personer uten eller med svak tilknytning til riket. Viewed 25 January 2014, http://jura.ku.dk/njm/39/121–32-brott-begaangna-av-personer-utan-eller-med-svag-anknytningtill-riket-red1.pdf/ Kalmthout, AM, van der Meulen, FH & Dünkel, F 2007, ‘Comparative overview, conclusions and recommendations’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 7–90. Karydis, V & Koulouris, NK 2013, ‘Greece: prisons are bad but necessary (and expanding), policies are necessary but bad (and declining)’, in V Ruggiero & M Ryan (eds), Punishment in Europe: a critical anatonmy of penal systems, Palgrave Macmillan, Basingstoke, pp. 263–86. Kaufman, E 2012, ‘Finding foreigners: race and the politics of memory in British prisons’, Population, Space and Place, vol. 18, no. 6, pp. 701–14. — 2013, ‘Hubs and spokes: the transformation of the British prison’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 166–82. Kochel, TR, Wilson, DB & Mastrofski, SD 2011, ‘Effects of suspect race on officers’ arrest decisions’, Criminology, vol. 49, no. 2, pp. 472–512. Malisauskaite-Simanaitiene, S 2007, ‘Lithuania’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 539–74. Moore, M 2007, ‘Ireland’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 453–80. Phillips, C 2012, The multicultural prison: ethnicity, masculinity, and social relations among prisoners, Oxford University Press, Oxford.

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Prison Reform Trust, 2004, Forgotten prisoners: the plight of foreign national prisoners in England and Wales, Prison Reform Trust, London. Richards, M, Mcwilliams, B, Batten, N, Cameron, C & Cutler, J 1995a, ‘Foreign nationals in English prisons: I. Family ties and their maintenance’, The Howard Journal of Criminal Justice, vol. 34, no. 2, pp. 158–75. — 1995b, ‘Foreign nationals in English prisons: II. Some policy issues’, The Howard Journal of Criminal Justice, vol. 34, no. 3, pp. 195–208. Scott, JC 1998, Seeing like a state: how certain schemes to improve the human condition have failed,Yale University Press, New Haven, CT. Sennett, R 2011, The foreigner: two essays on exile, Notting Hill Editions, London. Skvain, P 2007, ‘Czech Republic’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 171–208. Smit, DvZ & Snacken, S 2009, Principles of European prison law and policy: penology and human rights, Oxford University Press, Oxford. Sollund, R 2006, ‘Racialisation in police stop and search practice: the Norwegian case’, Critical Criminology, vol. 14, no. 3, pp. 265–92. Solvetti, LM 2012, ‘Looking for a fair country: features and determinants of immigrants’ involvement in crime in Europe’, The Howard Journal of Criminal Justice, vol. 51, no. 2, pp. 133–59. Søvig, KH 2013, ‘Straffansvar og straffeforfølgning av humanitære hjelpere ved ulovlig opphold’, in NB Johansen, T Ugelvik & KF Aas (eds), Krimmigrasjon? Den nye kontrollen av de fremmede, Universitetesforlaget, Oslo, pp. 156–72. Stando-Kawecka, B 2007, ‘Poland’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 663–90. Storgaard, A 2007, ‘Denmark’, in AM Kalmthout, FH van der Meulen & F Dünkel (eds), Foreigners in European prisons, Wolf Legal Publishers, Nijmegen, pp. 209–48. Stumpf, J 2006, ‘The crimmigration crisis: immigrants, crime, and sovereign power’, American University Law Review, vol. 56, no. 2, pp. 367–419. Ugelvik, T 2013, ‘Seeing like a welfare state: immigration control, statecraft, and a prison with double vision’, in M Bosworth & KF Aas (eds), The borders of punishment: migration, citizenship and social exclusion, Oxford University Press, Oxford, pp. 183–200. Wacquant, LJD 1999, ‘“Suitable enemies”: foreigners and immigrants in the prisons of Europe’, Punishment & Society, vol. 1, no. 2, pp. 215–22. Westrheim, K & Manger, T 2012, ‘Likheter og forskjeller i de nordiske landene’, in K Westrheim & T Manger (eds), Utdanningsbakgrunn, ønsker og behov: En kvalitativ studie av innsatte fra Irak, Polen, Russland, Serbia og Somalia, Nordisk nettverk for fengselsundervisning, Bergen, pp. 173–86.

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8 Reinventing ‘the stain’ Bad character and criminal deportation in contemporary Australia Michael Grewcock

Introduction When it appeared, it would send upper middle-class Australians into paroxysms of social embarrassment. None wanted to have convict ancestors, and few could be perfectly sure that some felon did not perch like a crow in their family tree. Fifty years ago, convict ancestry was a stain to be hidden. (Hughes 1996: 158) Forty years ago, desperate denial described the reaction of some of the First Fleet descendants who would do anything to preserve the idea of a freely arrived pioneer settler. Some families who discovered their ancestor was a convict on the first fleet became notorious for attempting to substitute a soldier’s musket for a prisoner’s manacles. (Smith 2009: 43–4)

There has always been a fundamental relationship between migration policy, criminalization and social control in Australia. Much of this derives from the nation’s colonial origins and the experience of transportation, a relatively benign term describing the forced deportation of an unprecedented 160,000 prisoners from British penal institutions to the Australian colonies between 1788 and 1868 (Hughes 1996: 2). Transportation was one of the multiple forms of forced migration and displacement that characterized the spread of European colonialism. In Australia’s case, it was crucial to the implantation of a white, settler society that adopted prevailing British views about race, national identity and citizenship that were strictly enforced through migration policy (Grewcock 2009). As the above quotes from historians Robert Hughes (1996) and Babette Smith (2009) highlight, transportation also gave rise to a peculiar and pervasive social attitude in Australia for much of the nineteenth and twentieth centuries: the widespread denial of convict heritage and the deviance and shame associated with it. Rejection of ‘the stain’, as it was known, evolved in the mid-nineteenth century as opposition to transportation grew from within both the colonial administration in England and the colonies themselves. Transportation was underpinned by the belief that criminality represented moral degeneration and an existential threat to a society being

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profoundly re-shaped by industrial capitalism. Hughes argues that for the British authorities, transportation to penal colonies was an attempt to expel an entire ‘“criminal class”, whose existence was one of the prime sociological beliefs of late Georgian and early Victorian England’ (Hughes 1996: 1). This belief extended to critics of transportation, such as the penal philosopher Jeremy Bentham, who described the convicts as ‘a set of animae viles . . . that could be projected . . . as it should seem purposely – as far out of sight as possible’ (Bentham 1843). For Bentham, there were alternative methods for dealing with this ‘sort of excrementitious mass’. ‘Delinquents’, he argued, especially of the more criminal descriptions, maybe considered a particular class of human beings, that, to keep out of harm’s way, require for a continued length of time that sort of sharp looking after, that sort of particularly close inspection, which all human beings, without exception, stand in need of, up to a certain age. (ibid.) Thus, the most utilitarian means of combating ‘the immediate sources of crimes – sloth, drunkenness, gaming, venereal irregularities, profaneness, quarrelsomeness, mischievousness, rapacity’ and the ‘general depravity’ of the convict population, lay in his proposed – but unrealized – Panopticon Penitentiary System (ibid.). Within the colonies, being free of ‘the stain’ was a means of distinguishing free settlers and Australian-born children of convicts from their criminal forebears. The ideology of ‘the stain’ pre-supposed a convict social world that normalized degradation and sexual depravity, and threatened to undermine the fledgling free society.This moral paradigm became more hegemonic as the colonies’ emergent political elites began agitating for migrant stocks considered more suited to the tasks of nation-building. According to Smith: The anti-transportation campaign was the vehicle for transferring the convict stain from the minds of the middle-class free settlers, where it had always existed, to that of the working class, including ex-convicts. How many of those who supported the antitransportationists realized that words like ‘pollute’ and ‘contamination’ or ‘contagion’ did not simply refer to crime, but were homophobic in origin, is not clear. Publicly the leaders often adjusted their rhetoric to their audience to emphasize crime, or the need to protect wives and children, and in Sydney particularly where they had to tread delicately, to argue that newly arrived convicts would take work from the free man. Whatever the emphasis, there could be no misunderstanding in anyone’s mind that convicts had gone from being the objects of proud rehabilitation to something repulsive and dirty. For the protection of their families, if not for themselves, it became necessary for the ex-prisoners to hide their past. (Smith 2009: 253) It is difficult to quantify fear of ‘the stain’ as a social phenomenon or pinpoint its exact origins, though clearly it was an expression of the disdain of the criminal class that endured beyond the era of transportation. Whether that can be attributed to the exclusionary impulses of the transportationists or the rectitude of their opponents, ‘the stain’ exemplified how nineteenthand twentieth-century narratives of respectability and legitimacy within Australian civil society were influenced by deeply rooted assumptions about the incorrigible, toxic character of the convicts – the criminal other, whose life experiences and often significant contributions to colonial society were written out of history. 122

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‘The stain’ faded from popular discourse in the late twentieth century, as the direct colonial links with Britain declined and wide-ranging critiques of the colonial experience and the growth of oral and family history challenged conventional representations of Australian history. It is therefore ironical that ‘bad character’ should re-emerge in the 1990s as a device for the Australian state to deport non-citizens with criminal convictions, including many who had lived in Australia for most of their lives.While bad character, defined in terms of a potential risk to the community, does not equate directly with ‘the stain’, and transportation was a form of criminal sentencing that enabled the deportation of citizens as part of the larger processes of colonization, the notion that someone should be expelled permanently from the Australian community after being formally punished through the criminal justice process revives a sense of the stigma that attached to the subjects of transportation. Stripped to its vernacular core, ‘we don’t want people like you around here’ is the sentiment that links the hazardous, sometimes fatal journeys of eighteenth- and nineteenth-century prison ships to the modern jets, security escorts and tranquillizers experienced by contemporary deportees. Drawing on original research, this chapter examines the evolution of Australia’s character test and the renewed resort to deportation of non-citizens with criminal convictions. It identifies this as part of a global trend towards a fusion of criminal sanctions and border policing; the blurring of boundaries between criminal law and immigration law; and an increase in executive and administrative decision-making at the expense of criminal justice due process.

Criminology and deportation Within criminology, there is a growing body of literature devoted to the complex intersections between criminal law, immigration law and punishment (see, for example, Aas 2007; Stumpf 2006; Grewcock 2009; 2011; Bosworth and Kaufman 2011; Weber and Pickering 2011; Aliverti 2012; Bosworth 2012; McCulloch and Pickering 2012; Sklansky 2012; Newstead and Frisso 2013; Weber 2013). The consolidation of this literature is partly reflected by the emergence of specific disciplinary terms such as ‘criminology of the other’ (Aas 2007) and ‘crimmigration’ (Stumpf 2006) that attempt to encapsulate both the merging of immigration and criminal law and the criminalization of particular categories of unwanted or deviant migrant. There are many dimensions to this phenomenon, including the criminalization of unauthorized refugees through mechanisms such as immigration detention and forced removal (Pickering 2005; Grewcock 2009); criminal prosecutions for breaching border controls (Aliverti 2012; Sklansky 2012); and the deportation of foreign nationals as a consequence of criminal offending (Bosworth and Kaufman 2011; Golash-Boza 2012; Newstead and Frisso 2013). The precise dynamics of each dimension and the extent to which they operate across different jurisdictions such as Australia, the United Kingdom and the United States vary considerably. In Australia, for example, mainly because the majority of unauthorized migrants are refugees, breaches of border controls are rarely prosecuted as criminal offences. In the United Kingdom, where ‘almost any breach of immigration rules is a crime . . . only a handful of these offences are enforced in practice’ (Aliverti 2012: 418). By contrast, in the United States, immigration cases now constitute ‘the majority of federal criminal prosecutions’ (Sklansky 2012: 158). There are also significant variations within jurisdictions and a high degree of discretion allowed to immigration and policing agencies. As Sklansky argues in relation to the United States, ‘crimmigration’ is interconnected with ‘ad hoc instrumentalism’, ‘a manner of thinking about law and legal institutions that downplays concerns about consistency and places little stock in formal legal categories, but instead sees legal rules and legal procedures as a set of interchangeable tools’ (ibid.: 161). As a result, ‘officials are encouraged to use whichever tools are most effective 123

Michael Grewcock

against the person or persons causing the problem’ (ibid.: 161). Notwithstanding the significance of discretion as an element of official practice, there remains a clear trend towards the use of deportation, both as a preferred option and a mandatory requirement, in situations where non-citizens have committed criminal offences. Beyond forced removal, the deportation of convicted offenders represents the transformation of legal subjects into criminal outsiders with no claim to legitimacy within civil society. For long-term residents especially, criminality – or the ongoing risk deemed to arise from it – becomes a mechanism for reconfiguring established members of the community as aliens. In Australia, this has been achieved since the 1990s through a combination of mainly administrative legal processes and a formal designation of bad character under the provisions of section 501 of the Migration Act 1958. The means by which deportations are determined and administered can be quite opaque, though in particular cases, governments have made a point of publicly proclaiming the fact that certain individuals have been or will be deported.1 In developed states, deportation practices are embedded within escalating border policing regimes that target unwanted categories of migrants, especially those from the developing world. In Australia, border policing is framed almost exclusively in terms of border protection2 – part of a paradigm of national security that constructs and reinforces popular conceptions of both the legitimate migrant and those deserving of ostracism and removal. Within this framework, the main legal determinant is a valid visa, issued or withdrawn by Australia’s immigration authorities according to shifting criteria and with limited reference to community ties, or in the case of refugees, need for protection and human rights obligations. The current character test provisions in the Migration Act were formulated as part of a wider offensive against unauthorized refugees and the expansion of a legal regime that enables forced transfer and removal of those without visas as an administrative norm (Grewcock 2009). As a consequence of those provisions, bad character provides the basis for refusing or cancelling a visa and is a reflection of the generalized risk to national well-being that all unauthorized migrants are deemed to represent. In this context, the deportation of non-citizens with criminal convictions is not framed as double punishment (Grewcock 2011) but as a public affirmation by the state that certain types of deviance, constructed through arbitrary intersections of criminal offending and immigration status, cannot be accommodated within the community.

Evolution of the character test Since federation in 1901, Australian governments have routinely exercised powers to deport non-citizens, including criminal offenders or those engaged in ‘bad conduct’.3 During the course of the twentieth century, deportees also included those who failed the language test used to enforce the White Australia Policy; Pacific Islanders brought forcibly to Australia since the 1860s to work in the sugar industry; German and Japanese nationals interned during the World Wars; political dissidents, especially those with left-wing leanings; people who had been admitted to psychiatric institutions; and individuals admitted to institutions as result of ill-health or poverty (Nicholls 2007; Grewcock 2009). Until the introduction of the character provisions, deportations for criminal offending occurred as a result of the relevant government minister4 issuing a deportation order. The original Migration Act 1958 re-enacted provisions from earlier legislation5 to an enable a deportation order to be issued when an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, 124

Criminal deportation in contemporary Australia

or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer.6 Under the Migration Act 1958, ‘aliens’ were distinguished from British subjects or Irish citizens, who generally were regarded as ‘immigrants’.7 In their case, orders could only be issued in relation to offences ‘committed within five years after entry . . . into Australia’.8 The lingering impact of these distinctions became apparent when Luigi Pochi, an Italian migrant who had lived in Australia for over 20 years, was issued with a deportation order after he was sentenced to 2 years’ imprisonment for cannabis cultivation in 1977.9 Pochi took the case to the High Court of Australia, which upheld the distinction between ‘aliens’ and ‘immigrants’ and confirmed the Minister’s power to make the order, though Pochi eventually was allowed to stay.10 Partly in response to this case, and as a signal that such distinctions were incompatible with institutional trends towards multiculturalism, the Hawke Labor Government amended the Migration Act 1958 in 1983 to remove references to ‘aliens’ and to prevent the deportation of persons who had been lawfully resident in Australia for 10 years.11 Long-term residents falling within this category effectively were given the same immunity from deportation as citizens. Explaining the amendments, Immigration Minister Stewart West said: Let us say that a 12 year-old Greek or Italian comes here and stays for 15 or 20 years. We will have moulded him. He will have been here for most of his life and will have been through our schools and universities and have lived under our social system. If at the end of that time he does something such as grow marihuana [sic], do we then say: ‘We do not want you.We will send you back from whence you came and that country or government can be responsible for you after we have been responsible for creating the type of citizen you are now?’ That is not acceptable to us . . . [W]e have responsibility for these people after 10 years, whether we like it or not.12 The introduction of the 10-year rule led to an immediate drop in the numbers deported for criminal convictions from 82 in 1982–83 to 24 in 1983–84 (Nicholls 2007: 131). This trend continued throughout the 1980s but the introduction of a character test as a mechanism for issuing or cancelling a visa effectively superseded the 1983 deportation provisions, which remain intact in section 201 of the Migration Act 1958. The character test was introduced by the Keating Labor government in 199213 as part of a legislative package14 that established a visa regime for all non-citizens seeking entry or residence in Australia. As a result of these reforms, failure to hold a valid visa rendered non-citizens effectively aliens under Australian law, regardless of their national origins or the period of time they had lived lawfully in the country. Moreover, any non-citizen failing to hold a valid visa became liable to mandatory detention and removal.15 The main targets of these reforms were unauthorized refugees seeking entry by boat into Australia. Much less attention was focused on the character provisions or thought given to their wider implications. The 1992 amendments empowered the Immigration Minister to refuse entry into Australia or to cancel a visa on the grounds that the person is not of good character. This was loosely defined to include a likelihood of engagement in criminal conduct in Australia or reasonable belief, having regard to past criminal conduct that the person has been or is involved in criminal conduct in Australia.16 The character provisions were further amended in 199817 to provide the foundation for the current framework. In particular, criminal conduct was reframed as ‘substantial criminal record’, which was defined to include a prison sentence of 12 months or more.18 Ministerial power was also extended. Under a new two-track decision-making process, 125

Michael Grewcock

cancellations could be made by the Minister directly or a delegate within the immigration department. Decisions made by the Minister are not subject to review and there is no requirement for natural justice to apply if the decision is made in the ‘national interest’.19 Decisions made by a delegate are made in accordance with Ministerial Directions and are subject to review by the Administrative Appeals Tribunal (see below). These changes reflected the desire of the Liberal-National Party Coalition government, which had won office in 1996, to expand the use of visa cancellation. The introduction of the character test originally had been justified in parliament as a means of preventing entry into Australia of undesirable political activists or known criminals (Joint Standing Committee on Migration 1998; Senate Legal and Constitutional References Committee 2006).Thus, the Labor government refused visas to members of the Hells Angels and Holocaust denier David Irving and the Coalition refused entry to former Black Panther Lorenzo Ervin and Sinn Fein leader Gerry Adams (Nicholls 2007; Harris-Rimmer 2008; Foster 2009). Little mention was made of criminal deportation and the relationship (if any) between the existing deportation power and the proposed visa refusal/cancellation power.

Normalization of the character test As a result of the 1998 amendments, visa cancellation became the normal mechanism for deporting people with criminal convictions by 2002, primarily because it circumvented the 10-year-rule enshrined in section 201 of the Migration Act 1958 (Commonwealth Ombudsman 2006; Joint Standing Committee on Migration 2008).This was reinforced by the High Court of Australia in the case of 43-year-old Stefan Nystrom, whose visa was cancelled in 2004.20 Nystrom was born in Sweden in 1973 but had lived in Australia since he was 27 days old. He had been under state guardianship since the age of 13 and had a substantial criminal record, including a conviction for aggravated rape committed when he was 16 years old. The issue before the High Court was whether it was lawful to cancel the visa of someone who had no meaningful links with his country of birth and had previously been considered ‘absorbed’21 into the Australian community, even though his parents had never applied for citizenship on his behalf. The High Court held that there was nothing in the wording of the legislation that prevented cancellation in these circumstances and that there was no requirement to pursue deportation using section 201 of the Migration Act. Nystrom was subsequently deported to Sweden in 2006 and has lived there since. In 2011, the United Nations Human Rights Committee found that his deportation was arbitrary and constituted arbitrary interference with his family in breach of the International Covenant on Civil and Political Rights.22 But the Australian government is not bound by the Committee’s views and declined to allow or facilitate Nystrom’s return.23 The Labor governments that ruled between 2007 and 2013 continued the use of section 501 visa cancellations in preference to section 201 criminal deportations. Although there are serious deficiencies with the official data,24 not least because visa cancellation due to bad character is not always triggered by criminal convictions and does not lead to removal in all cases, Tables 8.1 and 8.2 illustrate both the shift away from the use of section 201 and the expanded use of visa cancellation under section 501 since 2002.25 The extended use of section 501 for cancellation of visas is mirrored by its increasing scope for refusing visas. Following a series of escapes and protests by immigration detainees, section 501 was amended in 2011 to enable the Immigration Minister to refuse to grant a protection visa to a refugee convicted of an offence while in immigration detention.26 In the short term, it seems likely that those refused visas on such grounds will face indefinite detention, given the Australian government’s international obligations not to return a refugee to a situation of danger.27 126

Criminal deportation in contemporary Australia Table 8.1 Use of sections 201 and 501 of the Migration Act, 1998–2002 1998/1999 1999/2000 Deportation orders served under s201 Deportation warnings issued under s201 Deportations under s201 Visa cancellations under s501

2000/2001 2001/2002 2002/2003

83

91

20

0

0

67

19

13

0

0

56 46

19 63

13 104

0 137

0 236

Sources: Department of Immigration and Multicultural Affairs, Annual Reports, 1998–2001; Department of Immigration and Multicultural and Indigenous Affairs, Annual Report 2001–2002.

Table 8.2 Visa cancellations under section 501 of the Migration Act 1958, 2003–13 2003/ 2004

2004/ 2005

2005/ 2006

2006/ 2007

2007/ 2008

2008/ 2009

2009/ 2010

2010/ 2011

2011/ 2012

2012/ 2013

1121

1052

Not known3

116

103

86

58

132

157

139

Sources: Department of Immigration and Multicultural and Indigenous Affairs, Annual Reports 2001–2006; Department of Immigration and Multicultural Affairs, Annual Reports, 2006–2007; Department of Immigration and Citizenship, Annual Reports, 2007–2013. Notes:

1 2

3

Data not reported in Annual Report. Figure from Commonwealth Ombudsman (2006: 9–10). Data not reported in Annual Report. Figure from Commonwealth Ombudsman (2006: 9–10). Information only available up to March 2005. No published data available.

In June 2013, the Liberal-National Party Coalition, which won government in September 2013, indicated the likely trajectory of Australia’s deportation practices when it announced plans to automatically cancel the visas of any non-citizen, including refugees, convicted of an offence carrying a maximum penalty of 12 months’ or more imprisonment. The convicted person would not need to be sentenced to 12 months’ imprisonment and there would no right of appeal (Lee 2013). How and when this policy will be pursued is not yet clear but the introduction of such an arbitrary process raises the prospect of mass banishment of foreign nationals. As Table 8.3 illustrates, removing the current warning system alone could increase visa cancellations by several hundred per annum. Moreover, the abolition of any right to appeal would also remove a significant brake on visa cancellation decisions, deny due process and transparency and hinder independent scrutiny.

Mapping the unwanted Official data reveals little about the lives of those removed pursuant to section 501.The Australian Deportation Project28 sought to address this shortfall through an extensive study of 271 review decisions affecting 256 people made by the Administrative Appeals Tribunal of Australia (AAT) between 2005 and 2011. This study necessarily overlooks those who do not appeal against visa cancellation but the sample is sufficiently large to provide an insight into the visa cancellation and removal process.This research has yet to be published fully but a significant finding, illustrated by Table 8.4, is that the majority of non-citizens challenging visa cancellations were long-term residents otherwise protected by the 10 year rule in section 201. 127

Michael Grewcock Table 8.3 Visa cancellation decisions under section 501 of the Migration Act 1958, 2006–13

Warnings Cancellations

2006–7

2007–8

2008–9

2009–10

2010–11

2011–12

2012–13

334 116

617 103

149 86

864 58

1146 132

1240 157

888 139

Sources: Department of Immigration and Multicultural Affairs, Annual Reports, 2006–2007; Department of Immigration and Citizenship, Annual Reports, 2007–2013.

Table 8.4 Applicants to AAT by years resident in Australia Years

No.

(%)

0–9 10–19 20–29 30–39 40+ Unknown Total

69 93 64 15 6 9 256

27.0 36.3 25.0 5.9 2.3 3.5 100

Source: Australian Deportation Project.

It also appears from Tables 8.5 and 8.6 that visa cancellation is applied across the spectrum of criminal offenders and that the 12-month prison sentence threshold exposes relatively minor offenders to deportation. As previous surveys of those removed following visa cancellation reveal, the deportee cohort is relatively representative of the prison population, with typical vulnerabilities and risk factors associated with substance abuse, mental health problems and social marginality (Grewcock 2011). It is also significant, given both the long history of British and European migration into Australia and the operation of the White Australia policy until 1973 (Grewcock 2009), that section 501 has been used predominantly against more recent, ethnically distinctive migrant Table 8.5 AAT decision by offence division (Australian Standard Offence Classification) Offence (most serious according to ASOC)

No.

(%)

Homicide and related offences Acts intended to cause injury Sexual assault and related offences Acts endangering persons Robbery, extortion and related offences Unlawful entry with intent/burglary, break and enter Fraud, deception and related offences Illicit drug offences Public order offences Offences against justice procedures (breach violence order) Total

28 75 36 1 43 9 6 59 1 1 259

10.8 29.0 13.8 .4 16.6 3.5 2.3 22.8 .4 .4 100

Source: Australian Deportation Project.

128

Criminal deportation in contemporary Australia Table 8.6 Convictions of section 501 visa cancellations in detention as at 7 May 2008 Crime

Number of individuals

Break and enter, break, enter and steal, larceny, auto theft, burglary, theft, shoplifting Violent robbery, armed robbery, assault, actual bodily harm, grievous bodily harm, malicious wounding Drug importation, supply, possession, attempted administration Driving offences Firearms offences Possession stolen/prohibited goods, receiving stolen goods Murder, manslaughter, kidnapping Malicious property damage Trespass, perjury Escape from lawful custody Deception Child sex offences

23 22 10 9 7 6 4 3 3 2 2 1

Source: Reproduced with kind permission from the Joint Standing Committee on Migration (2008: 49).

groups. Table 8.7 illustrates the disproportionate numbers of New Zealanders (typically of Maori or Pacific Islander heritage in the cases surveyed) and Vietnamese nationals whose visas have been cancelled. In relation to both cohorts, race has not officially been a rationale for visa cancellation but the public association of deportation with the policing of gangs, illicit drugs and organized crime (Maher and Dixon 2001; Dixon and Maher 2004;Weber 2013 ), in areas where there are significant migrant populations from non-English-speaking backgrounds contributed to the ongoing discourses around ‘ethnic crime’ that developed during the 1990s (Collins et al. 2000). Proximity and close political ties facilitate deportations to New Zealand, as illustrated in 2009 by the use of a private jet to fly one high profile deportee to Auckland after commercial airlines refused to carry her.29 Deportations to Vietnam have been more problematic for the Australian government given that deportees will often have been resettled in Australia as refugees and are Table 8.7 Applicants to AAT by major country group (Standard Australian Classification of Countries) Major Country Group (SACC)

No.

(%)

Oceania (predominantly New Zealand) North-West Europe (predominantly United Kingdom) Southern and Eastern Europe North Africa and the Middle East South-East Asia (predominantly Vietnam) North-East Asia Southern and Central Asia Americas Sub-Saharan Africa Unknown Total

148 23 11 5 36 5 7 11 5 5 256

57.8 9.0 4.2 2.0 14.0 2.0 2.7 4.3 2.0 2.0 100

Source: Australian Deportation Project.

129

Michael Grewcock

protected by the Australian government’s non-refoulement obligations under the Refugee Convention.30 Vietnamese citizens convicted of drug offences overseas are also liable to ‘be examined for penal liability in Vietnam’, and potentially subject to the death penalty.31 The Australian government nevertheless negotiated a confidential Memorandum of Understanding with the Vietnamese government in 2001,32 which it used to justify deporting 59 Vietnamese nationals, mostly with convictions for drug-related offences, between June 2001 and December 2004.33

Challenging deportation Currently, non-citizens seeking to challenge visa cancellation can seek a review by the Administrative Appeals Tribunal of Australia (AAT) unless the decision is made directly by the Minister. The function of the Tribunal is to arrive at the ‘correct or preferable’ decision ‘on the material before the Tribunal’.34 Appeals to the AAT afford the first opportunity for cancellation decisions to be made through a public and transparent legal process, and, for many applicants, the first opportunity to have proper legal representation.The impact of this is clear from the relatively high success rate. A review of cases heard by the Tribunal between 2003 and 2008 found that 38 per cent of cancellation decisions were set aside (Bostock 2010). The review of 271 AAT decisions conducted by the Australian Deportation Project between 1 January 2005 and 31 December 2011 identified a similar pattern. In relation to 12 decisions, the AAT declared it had no jurisdiction because the decision was made either directly by the Minister or the appeal was lodged outside of the strictly enforced nine-day limit.35 Of the remaining 259 cases, 101 (39 per cent) of the original decisions were set aside. Analysing AAT decisions provides insight into the nature of discretionary decision-making in relation to visa cancellation and the variable conceptions of risk that are applied. There are several examples of the Tribunal coming to different decisions in relation to broadly similar factual situations36 and of different Tribunal members reaching different conclusions in separate hearings regarding the same applicant.37 The criteria by which decisions are made are set by the Immigration Minister. Between 23 August 2001 and 15 June 2009, decisions were made subject to Ministerial Direction 21, which set out three primary considerations: (1) the protection of the Australian community; (2) the expectations of the community; and (3) in all cases involving a parental or close relationship between a child or children and the person under consideration, the best interests of the child or children. Under this Direction, length of time spent in the community and the scope of family ties beyond links to children, was not a primary consideration – an approach reflected clearly in the case of Nystrom. Direction 21 was replaced by Direction 41, which gave greater consideration to the person’s individual circumstances, including ‘both good and bad conduct’.38 The three primary considerations were changed to: the protection of the Australian community from serious or other harmful conduct, particularly crimes involving violence; whether the person was a minor when they began living in Australia; the length of time that the person had been ordinarily resident in Australia prior to engaging in criminal activity or relevant conduct; and relevant international obligations. Ministerial Direction 41 operated until July 2012, when it was replaced by Ministerial Direction 55, which is outside the scope of the present research. As Tables 8.8 and 8.9 illustrate, the number of decisions set aside by the AAT applying Direction 41 was marginally higher than for Direction 21, though it is difficult to determine the extent to which community ties were a factor. The wider scope of Direction 41 certainly appeared to have an impact in some cases. For example, in the case of Amanda Pemberton, who arrived in Australia aged 2 from New Zealand 130

Criminal deportation in contemporary Australia Table 8.8 AAT decision by Ministerial Decree (MD) No. 21 by years resident in Australia (where known) Direction No. 21

Years resident

AAT decision

0–9 10–19 20–29 30–39 40+ Total

No. % No. % No. % No. % No. % No. %

Total

Affirmed

Set aside

13 52.0% 37 66.1% 23 67.6% 10 76.9% 2 50.0% 85 64.4%

12 48.0% 19 33.9% 11 32.4% 3 23.1% 2 50.0% 47 35.6%

25 100% 56 100% 34 100% 13 100% 4 100% 132 100%

Source: Australian Deportation Project.

Table 8.9 AAT decision by Ministerial Decree (MD) No. 41 by years resident in Australia (where known) Direction No. 41

Years resident

AAT Decision

Total

Number of affirmed (%) Number of set aside (%) 0–9 10–19 20–29 30–39 40+ Total

25 (55.6) 27 (67.5) 15 (45.5) 3 (100) 0 70 (56.9)

20 (44.4) 13 (32.5) 18 (54.5) 0 2 (100) 53 (43.1)

45 40 33 3 2 123

Source: Australian Deportation Project.

and was convicted of murder committed when she was 17, the Tribunal and the Federal Court of Australia found that given the extent of her family ties in Australia, ‘she should be given the opportunity to rebuild her life . . . with the support of her family and the parole and other community facilities available in this country’.39 Nevertheless, as illustrated by Table 8.10 overleaf, it remains the case that the more serious the offences triggering visa cancellation, the less likely it is that the AAT will set the decision aside.

Ministerial intervention Decisions by the AAT to set aside a cancellation can still effectively be over-ruled by the Minister directly making an unreviewable fresh decision to cancel the visa.40 This is a unique power within Australian law that enables political interventions in cases that may be politically sensitive or where the Minister simply wants to send a message to the Tribunal.The Australian Deportation

131

Michael Grewcock Table 8.10 AAT decisions by offence divisions, 2005–11 Offence Homicide and related offences Acts intended to cause injury Sexual assault and related offences Robbery, extortion and related offences Illicit drug offences Other offences1

Affirmed Set aside Affirmed Set aside Affirmed Set aside Affirmed Set aside Affirmed Set aside All decisions

No.

(%)

19 9 47 28 22 14 26 17 35 24 18

67.9 32.1 62.7 37.3 61.1 38.9 60.5 39.5 59.3 40.7 100

Source: Australian Deportation Project. Note: 1 Unlawful entry with intent/burglary, break and enter (9 cases); fraud, deception and related offences (6 cases); acts endangering persons (1 case); public order offences (1 case); offences against justice procedures (1 case).

Project has identified eight cases where this occurred in 2010–11.41 In each case, the Minister decided that the ‘seriousness and nature of the offences’ meant it was in the national interest to cancel the visa, stating that it was for ‘the protection of the Australian community’.42 The Tribunal is clearly aware of the tensions between the executive and the judiciary that can arise in these situations. Referring to some of the eight cases, the President of the Tribunal commented in 2011: It must be recognised, however, that these cases suggest that with respect to some recent decisions of the Tribunal, the Minister, where he has the right to make the final decision, has formed the opinion that community values or standards have pointed in favour of cancelling visas when the Tribunal has come to a different conclusion. These are matters which the Tribunal should take into account for future in assessing in similar cases what ‘is in the national interest’ and what is required by community values or standards. . . . A necessary consequence of the Minister having this unusual power to overrule the tribunal is that the Tribunal should take note of occasions in which this power is exercised.43 The President’s observations seem to imply that the Tribunal should be taking a more cautious approach to setting aside visa cancellations. It remains to be seen whether this occurs or whether the Coalition government renders the AAT redundant by implementing its election promise to introduce a regime of automatic cancellation and removal. Either way, it highlights the overtly political nature of deportation policy and practice.

Risk, punishment and removal The increasing use of criminal deportation is one of the less acknowledged dimensions of the ‘punitive turn’ in criminal justice policies identified by writers such as Garland (2001) and Wacquant (2009). It is also an example of the ways in which governments use law and order policies as a means of exercising political authority and sustaining their own legitimacy in relation both to crime (Simon 2007) and migration (Grewcock 2009). 132

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Criminal deportation practices highlight how exceptional categories of risk are being created by reference to border controls. The intersection of crime and migration generates notions of risk that are both local and national. The 1990s policing operations designed to eradicate street drug markets in Cabramatta, a working-class suburb in western Sydney with a large concentration of Vietnamese migrants, were presented as a way of reducing risk both to the local community and to the nation as a whole by removing unsuitable migrants (Dixon and Maher 2004). However, linking crime to particular categories of migrant is more of an ideological statement than a risk reduction exercise.Visa cancellation and removal do nothing to address the complex causes of offending behaviour nor do they attempt to address risk, to the extent that risk can be quantified, beyond the state’s jurisdiction. Once a person has been removed, the deporting state absolves itself of any interest or responsibility. This has potentially serious consequences for both victims and perpetrators. For example, Stefan Nystrom reportedly has been arrested several times since being returned penniless and without meaningful social support to Sweden in 2006.44 Simon Wilson, who had lived in Australia since he was 2 years old and served sentences for murder and rape, was charged with malicious wounding and attempted rape in London three months after being deported in 2008 (Press Association 2012). In 2009, 43-year-old Andrew Moore, who had lived in Australia since he was 11 years old, died of a drug overdose within 48 hours of being left by Australian immigration officials at Heathrow airport.45 The emphasis on protection of the community as a primary consideration when interpreting section 50146 positions visa cancellation and deportation as permanent and additional forms of punishment extending beyond the temporal limits of criminal sentencing. None of the people deported under the visa cancellation regime have been sentenced to indefinite periods of imprisonment. Even those who have committed the most serious offences have been sentenced in accordance with principles that include rehabilitation and reintegration into the community through parole. The use of administrative procedures or direct political intervention to cancel visas and trigger deportation breaks the nexus between sentencing and punishment and the individual and their social networks in the most profound ways. Responses to criminal offending normally are limited to sentencing processes that focus on specific offences and the individual circumstances of the culprit with a view to transforming individual or group behaviour. Visa cancellation compounds punishments arising from criminal sentencing by denying any possibility of reintegration into the Australian community. It ensures that risks of reoffending that might otherwise be deemed tolerable, albeit undesirable, are constituted as an irremediable and illegitimate character flaw justifying permanent expulsion from the community. Consequently, often long-term residents of Australia are being transformed into foreign criminals, protection from whom is defined as being in the national interest and an important responsibility of government. The association of criminal activity and attendant notions of risk with identified national or ethnic groups, such as Pacific Islanders and Vietnamese, further racializes this process, which can only occur because the individual concerned has not fulfilled the legal formalities of citizenship. With immigration status the ultimate legal determinant of the right to reside in the community, criminal deportation increasingly is a vehicle for constructing citizenship as a privilege to be earned. More inclusive notions of citizenship based, for example, on residence, social and family ties, histories of schooling, participation in the workforce, voting rights, personal identification, sense of belonging, entitlement to services and protection are conditional upon compliance with state-defined conceptions of good character. 133

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Conclusion This chapter has focused on the evolution of Australia’s criminal deportation regime, in particular the powers to remove long-term residents. The introduction of the character test as a vehicle for cancelling the visas of non-citizens has considerably extended the capacity of the Australian government to remove people who have extensive social and community ties. This is notwithstanding the formal protections of the 10-year rule in section 201 of the Migration Act 1958 and a review process that enables some scrutiny of immigration department decisions.The nexus between migration and criminal offending is no longer perceived in terms of ‘the stain’ but criminal offending remains a marker of character justifying permanent expulsion. While Australia’s regime has its unique features and operates within a specific historical context, the expanding use of the character test to trigger deportations is consistent with a trend displayed by comparable developed states towards the deportation of non-citizen offenders. A number of general features can be associated with this trend. First, deportation illustrates how migration controls are an important driver of criminalization. The ability of the state to qualify an individual’s criminal status by reference to their place of birth or formal standing in relation to citizenship enables the construction of various forms of ‘foreign criminal’, whose alien status is central to defining the illegitimacy of their presence and the risk they are deemed to pose. Second, deportation bridges the domains of criminal and migration law and the distinct legal and decision-making processes associated with them. Positing deportation as an administrative exercise removes it from the realm of criminal justice and the formalized procedures of sentencing and punishment. Goals of rehabilitation and reintegration are abandoned in favour of enforcing compliance with state-determined and bureaucratically administered standards of appropriate behaviour and character. Third, the rise in criminal deportations reflects a growing focus on border controls and the widespread forced transfer and removal practices that target unauthorized migrants. The normalization of deportation practices facilitates their use against those with previous rights to live in the community and shields the extent and abusive character of the state force deployed. Fourth, deportation challenges inclusive notions of citizenship, identity and rights. This is particularly the case in relation to long-term residents or those with extensive social ties. As the case of Stefan Nystrom demonstrated, failure to fulfil the legal requirements of citizenship could not be remedied by lifelong membership of a community, a sense of Australian identity and formal rights under international law. Ultimately, deportation represents the use of migration controls to regulate deviance and enforce a particular vision of the national interest. In Australia, what constitutes this interest is subject to interpretation by both the executive and the judiciary and conflicting approaches towards risk and protection of the public resonate throughout the decisions of the Administrative Appeals Tribunal. While Australia seems headed towards a more arbitrary and uncompromising use of deportation against non-citizen offenders, the discretionary use of visa cancellation will be the subject of further detailed analysis by the Australian Deportation Project.

Acknowledgements The tables in this chapter were compiled by researcher Helen Gibbon, at the University of New South Wales, as part of her analysis of AAT cases for the Australian Deportation Project: available at: http://artsonline.monash.edu.au/thebordercrossingobservatory/research-agenda/internalborder-control/the-australian-deportation-project/the-australian-deportation-project-overview/.

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Notes 1 See, for example, the case of the Taufahema brothers, discussed in Grewcock (2011). 2 Following the 2013 federal election, Australia’s immigration department was re-named Department for Immigration and Border Protection. 3 See Immigration Restriction Act 1901 and Aliens Deportation Act 1948. See also Nicholls (2007: 62–4, 104–6). 4 Minister for External Affairs or Minister for Immigration. 5 See Explanatory Memorandum, Migration Bill 1958. 6 Section 12 of the Migration Act 1958. 7 Section 5(1) of the Migration Act 1958. 8 Section 13(a) of the Migration Act 1958. 9 This was a politically charged case at a time when there was considerable focus on the role of Italian organized crime in cannabis cultivation and distribution in Australia. See Ministerial Statement of Ian McPhee, Minister for Immigration and Ethnic Affairs, House of Representatives, Hansard, 24 February 1982, 518. 10 Pochi and MacPhee and Another (1982) 151 CLR 101. For a detailed legal analysis of this and subsequent cases, see Foster (2009). 11 Migration Amendment Act 1983. See also Ministerial Statement of Stewart West, Minister for Immigration and Ethnic Affairs, House of Representatives, Hansard, 4 May 1983, 166. 12 Parliamentary Debates, 24 August 1983, 236. 13 Migration (Offences and Undesirable Persons) Amendment Act 1992. 14 In particular, Migration Reform Act 1992. 15 As a matter of constitutional law, the new visa regime shifted the source of the federal government’s legislative authority from Article 51 (xxvii) (the Immigration/Emigration power) to the less restrictive Article 51 (xix) (Naturalization/Aliens power). See Foster (2009). 16 Section 180A Migration Act 1958 inserted by S5 Migration (Offences and Undesirable Persons) Amendment Act 1992. Section 180A was renumbered in 1994 to become section 501 of the Migration Act 1958. 17 Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998. 18 Section 501(6) of the Migration Act 1958. See also Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998. 19 Section 501(3) of the Migration Act 1958. 20 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. 21 The High Court concluded that Nystrom held two visas: an Absorbed Person Visa and a Transitional (Permanent) Visa. 22 UN Human Rights Committee, Communication No. 1557/2007, 18 July 2011. 23 Response of the Australian Government to the Views of the Committee in Communication No.1557/2007, Nystrom et al v Australia. 24 Research into deportation is hampered by an absence of consistent and coherent data.The immigration department does not routinely provide statistics regarding criminal deportations. Visa cancellations under section 501 normally would be on the basis of criminal convictions but could simply be deemed by the Minister to be in the national interest. See also Nicholls (2007: 155–6) and Harris-Rimmer (2008). 25 The 2001–2 Annual Report notes at para.1.3.4: Following amendments to the Migration Act relating to character and conduct in June 1999, cases involving non-citizen criminals began being considered for visa cancellation under section 501. As a result the figures for deportation under sections 200 and 201 have decreased. In 2001–2, all new cases involving non-citizen criminals were considered for visa cancellation under section 501. 26 Section 501 (6)(aa) Migration Act 1958, inserted by Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011. See also Grewcock (2012). 27 In particular, Article 33, 1951 United Nations Refugees Convention. 28 See acknowledgment above. 29 See discussion of Patricia Toia in Grewcock (2011). 30 Article 33, 1951 United Nations Refugee Convention. 31 Articles 6 and 194, Penal Code of the Socialist Republic of Vietnam 1999.

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32 A Freedom of Information request by the Australian Deportation Project for this document was declined on 4 September 2013 on the grounds that it was a ‘document affecting national security, defence and international relations’. 33 Department of Immigration and Multicultural and Indigenous Affairs, Media release, 16 December 2004. See also HREOC (2001) and Nicholls (2007: 151–2). 34 See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR at 419. See also the comments by the Tribunal President in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at para. 52. 35 See, for example, Re Gonzales and Minister for Immigration and Citizenship [2011] AATA 812. 36 Compare, for example, the decisions in Re Kertz [2006] AATA 247 and Re Fortune [2006] AATA 823. 37 Compare, for example, the decisions of Walker J and Groom J in relation to Danish national, Tom Schulz [2007] AATA 1015 and [2007] AATA 1865. 38 Ministerial Direction 41, para.7.3.1. 39 Minister for Immigration and Citizenship v Pemberton [2010] FCA 430 at para. 32. 40 Section 501A of the Migration Act 1958. 41 Gerald Adamson, Thomas Gbojueh, Daniel Lomas, Charlie Maurangi, Motekiai Taufahema, Hayden Tewao, Daniel Tumai and Joseph Williams. Copies of the Minister’s reasons for these decisions were obtained through Freedom of Information requests. 42 See Statements of Reasons for Cancellation of Visa Under S501A(2) Migration Act 1958 re the eight individuals cited above. 43 Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at paras 86–87. 44 Interview with Stefan Nystrom, available at: http://www.sbs.com.au/ondemand/video/11826243779/ Stefan-Nystrom-extended-interview. 45 See Grewcock (2011). 46 Protection of the community is a primary consideration in Ministerial Directions 21, 41 and 55.

References Aas, KF 2007, ‘Analysing a world in motion: global flows meet “criminology of the other’’’, Theoretical Criminology, vol. 11, no. 2, pp. 283–303. Aliverti, A 2012, ‘Making people criminal: the role of the criminal law in immigration enforcement’, Theoretical Criminology, vol. 16, no. 4, pp. 417–34. Bentham, J 1843, ‘Panopticon versus New South Wales’, in J Bowring (ed.), The works of Jeremy Bentham, vol. 4, viewed 5 November 2013, http://oll.libertyfund.org/title/1925/116509 Bostock, C 2010, ‘Procedural fairness and the AAT’s review of visa cancellation decisions on character grounds’, Australian Journal of Administrative Law, vol. 17, no. 2, pp. 77–91. Bosworth, M 2012, ‘Subjectivity and identity in detention: punishment and society in a global age’, Theoretical Criminology, vol. 16, no. 2, pp. 123–40. Bosworth, M & Kaufman, E 2011, ‘Foreigners in a carceral age: immigration and imprisonment in the United States’, Stanford Law and Policy Review, vol. 22, no. 2, pp. 429–54. Collins, J, Noble, G, Poynting, S & Tabar, P 2000, Kebabs, kids, cops and crime, Pluto Press, Sydney. Commonwealth Ombudsman 2006, Administration of section 501 Migration Act 1958 as it applies to long-term residents, Report 01/2006, Commonwealth Ombudsman, Canberra. Dixon, D & Maher, L 2004, ‘Containment, quality of life and crime reduction: policy transfers in the policing of a heroin market’, in T Newburn & R Sparks (eds), Criminal justice and police cultures: national and international dimensions of crime control, Willan Publishing, Cullompton, pp. 234–66. Foster, M 2009, ‘An “alien” by the barest of threads – the legality of the deportation of long-term residents from Australia’, Melbourne University Law Review, vol. 33, no. 2, pp. 483–541. Garland, D 2001, The culture of control: crime and social order in contemporary society, Clarendon Press, Oxford. Golash-Boza, T 2012, Due process denied, Routledge, London. Grewcock, M 2009, Border crimes: Australia’s war on illicit migrants, Institute of Criminology Press, Sydney. — 2011, ‘Punishment, deportation and parole: the detention and removal of former prisoners under section 501 Migration Act 1958’, Australian and New Zealand Journal of Criminology, vol. 44, no. 1, pp. 56–73. — 2012, ‘Public criminology, victim agency and researching state crime’, State Crime, vol.1, no.1, pp. 109–25.

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Harris-Rimmer, S 2008, ‘The dangers of character tests: Dr. Haneef and other cautionary tales’, Discussion Paper 101, Australia Institute, viewed 1 December 2013. Hughes, R 1996, The fatal shore, The Harvill Press, London. Human Rights and Equal Opportunities Commission (HREOC) 2001, Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights, HRC Report 13, HREOC, Sydney. Joint Standing Committee on Migration (JSCM) 1998, Deportation of non-citizen criminals, Commonwealth of Australia, Canberra. — 2008, Immigration detention in Australia: a new beginning, Commonwealth of Australia, Canberra. Lee, J 2013, ‘Coalition to deport most foreign criminals’, Sydney Morning Herald, 1 July, viewed 29 October 2013, http://www.smh.com.au/federal-politics/political-news/coalition-to-deport-mostforeign-criminals-20130630-2p5ek.html Maher, L & Dixon, D 2001, ‘The cost of crackdowns: policing Cabramatta’s heroin market’, Current Issues in Criminal Justice, vol. 13, no. 1, pp. 5–22. McCulloch, J & Pickering, S (eds) 2012, Borders and crime: pre-crime, mobility and serious harm in an age of globalization, Palgrave Macmillan, Basingstoke. Newstead, C & Frisso, G 2013, ‘Asserting criminality and denying migrant belonging: the production of deportability in US judicial court hearings’, Theoretical Criminology, vol. 17, no. 3, pp. 377–95. Nicholls, G 2007, Deported: a history of forced departures from Australia, UNSW Press, Sydney. Pickering, S 2005, Refugees and state crime, The Federation Press, Sydney. Press Association 2012, ‘British rapist Leslie Cunliffe deported from Australia’, The Guardian, 23 March, viewed 20 November 2013, http://www.theguardian.com/uk/2012/mar/23/british-rapist-lesliecunliffe-deported-australia Senate Legal and Constitutional References Committee 2006, The administration and operation of the Migration Act, Commonwealth of Australia, Canberra. Simon, J 2007, Governing through crime: how the war on crime transformed American democracy and created a culture of fear, Oxford University Press, New York. Sklansky, D 2012, ‘Crime, immigration and ad hoc instrumentalism’, New Criminal Law Review: an International and Interdisciplinary Journal, vol. 15, no. 2, pp. 157–223. Smith, B 2009, Australia’s birthstain: the startling legacy of the convict era, Allen and Unwin, Sydney. Stumpf, J 2006, ‘The crimmigration crisis: immigrants, crime and sovereign power’, American University Law Review, vol. 56, no. 2, pp. 367–419. Wacquant, L 2009, Punishing the poor: the neoliberal government of social insecurity, Duke University Press, Durham, NC. Weber, L 2013, Policing non-citizens, Routledge, London. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke.

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Part III

The politics of migration, security and crime

9 Border militarization, technology and crime control Dean Wilson

Introduction Since the fall of the Berlin Wall in 1989 and the demise of Cold War bi-polarity, borders have, far from disappearing, become progressively more fortified and militarized. No longer dividing the West from the East, their rationale has shifted to new targets – most specifically to the exclusion of a range of cross-border threats which have formed a ‘security continuum’ in which questions of borders, terrorism, crime and migration have become intertwined (Huysmans 2006). If the threat of nuclear Armageddon has receded, for many security professionals it was the visualization of a new desolate planet of failed states and guerrilla movements and warlords trafficking diamonds, cocaine and heroin from a chaotic ‘third world’, in tandem with the spectre of ‘a massive flux of people fleeing these countries with the associated risk of importing their political disputes into the first world’ which materialized as a grim surrogate (Bigo 2006: 387). While few academic commentators would now subscribe to the view that ‘everything changed’ after September 11, it did, nevertheless, puncture the notion that threats could be isolated from the Global North, and sequestered within what – viewed through the metropolitan imaginaries of security professionals – appeared as the dystopian wild zones of the Global South. In such a context, the traditional Westphalian binary of internal and external security has largely dissolved, even if its historical residue continues to echo. Consequently, within this shifting security landscape – which melds outside and inside – novel assemblages of security professionals, often transnational in composition, have materialized. These border security assemblages include varying combinations of military, specialist police units, border authorities, local police, intelligence services and a variety of non-state actors including (but not limited to) private security and manufacturers of military hardware and IT systems. Whether such assemblages are analysed using Bourdieu’s concept of the ‘field’ of ‘professionals in the management of unease’ (Bigo 2002: 64) from critical security studies, the widely engaged Deleuze-inspired rhizomatic concept of the ‘surveillant assemblage’ (Haggerty and Ericson 2000) or the idea of ‘nodal governance’ more frequently encountered in criminology (Wood and Shearing 2007), the imperative point is that these networks are internally

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dynamic, fractious and unequal, if all the while sharing a common habitus.The centrality of these networks for border militarization and its enmeshment with technology is that the field of security exercises its ‘force’ or ‘capacity of attraction’ by its power to impose on other agents through the belief that the insiders of the field possess, as ‘experts’, the secrets that only professionals may have. (Bigo 2008: 25) Moreover, ‘this belief is reaffirmed through everyday routine work, technologies and “exchange and sharing of information,” as a certain approach to social change, risks, threats and enemies that is constantly evoked and reconfirmed’ (ibid.: 25). The integration of private actors within these assemblages, particularly manufacturers of technology, is of particular note. Mappings of the interconnectedness of the private interests of the ‘security-industrial complex’ – consisting of major armaments and IT corporations (Hayes 2006; 2010) – with border control networks demonstrates that they are not just suppliers, but active and influential actors within the field of border control professionals. The European Agency for the Management of External Border Controls (FRONTEX), for example, has as one of its key missions ‘serving as a platform to bring together Europe’s border-control personnel and the world of research and industry to bridge the gap between technological advancement and the needs of border control authorities’ (FRONTEX 2014a). While it is possible to question the degree of internal coherence and singularity of purpose that the term ‘security-industrial complex’ implies, the detailed empirical work of Ben Hayes (2006; 2010) certainly indicates the active participation of manufacturers of security artefacts in border control assemblages, and their consequent participation in shaping securitization discourses, practices and policy directions. Conceptualizing global assemblages (though not security assemblages specifically) Saskia Sassen has suggested that they ‘can constitute particularized “normative” orders internal to each assemblage which easily amount to mere utility logics’ (2008: 62). Border security assemblages demonstrate this phenomenon, where technology emerges as a source of symbolic and practical capital internally, with its worth being assessed upon its use-value within the assemblage, rather than upon broader ethical or moral questions about whether it should be engaged at all. The role of border security assemblages is imperative, as it is through these assemblages – and their framing of cross-border security threats – that processes of militarization are operationalized. Following Graham (2010: 60), ‘militarization’ is here defined as ‘the normalization of military paradigms of thought, action and policy’ combined with ‘efforts at the aggressive disciplining of bodies, places and identities deemed not to befit . . . nation, citizenship or body’. Thus border militarization is significantly more than the highly visible presence of military personnel and artefacts at the borderline, or the adoption of overtly ‘military’ tactics (though this is certainly an important aspect of it). It also encompasses the militarized and pre-emptive logics embedded and operationalized through the architectures of digital ‘deterritorialized’ borders (Walters 2006). It is also appropriate to posit that there is a distinct border militarization/technology nexus. In the 1990s, the end of the Cold War stimulated questioning of the US military’s vast technocratic structures. In 1994, the US Attorney General and the Deputy Assistant Secretary for Defense signed a memorandum of understanding on ‘operations other than war’ in which they agreed to the development of technologies and systems that could be used for both law enforcement and military application (Haggerty and Ericson 2001: 57). Thus, ‘dual use’ technologies, such as sub-lethal weapons and Unmanned Aerial Vehicles (UAVs), emerged as growth markets for military manufacturers, who increasingly targeted domestic law enforcement agencies. Meanwhile, 142

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advances in military thought both extended the military research and development landscape, and increased the tendency of military planners to interrogate evolving technologies in the commercial sector – particularly those relevant to communications, identification and tracking – for potential military application. Notable in this was the so-called ‘Revolution in Military Affairs’ (RMA), which envisaged the informatization of warfare granting the strategic advantage of ‘full spectrum dominance’, thereby enabling the avoidance of combat and minimizing risk. This was to be achieved by overpowering adversaries in the field via superior speed and the application of precision killing-at-a-distance through computerized weapons systems (Wilson 2012: 274). The design of RMA to secure overwhelming informational advantage also energized concepts such as ‘the system of systems’ – based on the notion that diverse platforms could be fused together forming a central ensemble, enabling a flexible informatized military to ‘dominate battlespace awareness’ (Rasmussen 2006: 54).The penultimate vision of this is war by remote control – robot wars (Singer 2009) – which are bloodless (at least for those commanding the technology) and in which the enemy is overwhelmed by a fusion of high-power data-processing speeds and automated weaponry. These aspirations have also propelled military research towards specific areas, including satellite tracking, robotics and computerized remote-control weapons delivery systems. Recent military theories also reflect the overall clouding of inside and outside that has transformed both the security field and the highly mobile and deterritorialized threats it identifies and pursues. An increasingly dominant idea in military thought is that of ‘battlespace’ – a notion so broad that there is, in theory, no sphere outside the military orbit. As Graham describes it ‘nothing lies outside battlespace, temporally or geographically. Battlespace has no front and no back, no start nor end’ (2010: 31).The collapsing of the outside/inside dichotomy has influenced not only the space of warfare, but also its imagined objects, with conceptions such as ‘fourth generation warfare’ melding criminal and insurgent threats. In consequence warfare can be waged both inside and outside, and against adversaries who haze into civilian populations. US military theorist William Lind wrote that in ‘fourth generation war’ ‘invasion by immigration can be at least as dangerous as invasion by a state army’, going on to contend that migrant populations already within the Global South could launch ‘a homegrown variety of Fourth Generation War, which is by far the most dangerous kind’ (cited in Graham 2010: 28). Within this resides a powerful strand of pre-emptive logic, and contemporary military thinking is pervaded by ‘the presence of the future’ – as Rasmussen observes, ‘Generals are traditionally blamed for fighting the last war; today they are fighting the next war before it has even happened’ (2006: 65). The mobilization of pre-emptive logics and future risk-thinking in the post-9/11 context, and their diffusion within multiple contexts, have received considerable interdisciplinary attention (Aradau and Van Munster 2007; 2008; Amoore and De Goode 2008; McCulloch and Pickering 2009; Wilson and McCulloch 2012). Importantly, such scholarship maps a significant reconfiguration of risk that courses through border control security assemblages. While actuarial risk calculations based upon probability have long been noted within domestic criminal justice institutions (Feeley and Simon 1994; Ericson and Haggerty 1997) there is a distinct shift towards possibility based on future-casting. Moreover, as Amoore argues, ‘Risk in the mode of possibility rather than strict probability, does not govern by the deductive proving or disproving of scientific and statistical data but by the inductive incorporation of suspicion, imagination and pre-emption’ (2013: 10). While new imaginaries of possible risks do not displace conventional probabilistic actuarial risk knowledge based on calculations, they are significant in guiding border control practices, often channelled through imagined ‘worst case scenarios’ that energize the targeted intensification of controls and the entwining of border control in cascading layers of technology. The mobilization of this pre-emptive logic was evident in recent advice to the EU border 143

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agency, FRONTEX, that ‘security technology adoption should not be done on the basis of trying to “fight the last war” but in view of the possible next one’ (Liron Systems Ltd. 2011: 92). This chapter will commence with an account of what is conventionally understood as border militarization: the fortification of the border and the involvement of military and para-military personnel in border control. This will be followed – using the European Border Surveillance System (EUROSUR) as a case-study – with an examination of how militarized pre-emptive logics, with evident affinities to those emerging from the ‘Revolution in Military Affairs’ (RMA), inform the design and operationalization of informatized and militarized border control. It will then examine how the ‘virtual border’ is militarized, drawing upon Amoore’s (2009) notion of ‘algorithmic war’. The chapter subsequently concludes with a consideration of the limits, current trends and consequences of high-technology border militarization in the Global North.

Militarization: hardware The term ‘border militarization’ has primarily entered the academic lexicon through the work of scholars focused upon the US-Mexico border (Heyman 2008; Andreas 2009; Nevins 2010). This is hardly surprising on a number of fronts, given the pivotal space the US-Mexico divide occupies in discussions of the movement between the Global North and the Global South, and a recent history which has seen direct military involvement in border policing, and a controversial and substantial wall construction project. Moreover, it has been replete with military technology since the 1990s, including Vietnam-era magnetic footfall detectors, night vision equipment from the 1991 Persian Gulf War and military X-ray technology initially developed to detect Soviet missile warheads (Andreas 2003: 90). This section will delineate some of the key features of this conventional understanding of border militarization as manifested across two key fault-lines between the Global South and the Global North: the US-Mexico border and the southern Mediterranean edges of the European Union.While each of these is situated within its own geo-political context – one being the most traversed international land border and the other being the maritime edges of a unique supranational entity – they exhibit sufficient similarity for comparative analysis and the delineation of general patterns. The central leitmotif of US-Mexico border militarization has been the construction of a fortified barrier along the border line. Rather than a single uniform wall, the US-Mexico barrier is a series of fortifications ranging from triple-reinforced 60-ft concrete and steel barriers, to stretches of ‘virtual fencing’ assembled via a range of surveillance technologies including thermal and infrared sensors and surveillance cameras, to desert zones with rudimentary cement posts to obstruct vehicles (Brown 2010: 35).The US Border Patrol commenced building the first section segment of the barrier in 1990, using welded-steel army surplus landing mats from the Vietnam War.The ‘San Diego fence’ completed in 1993 extended inland from the Pacific Ocean covering a span of 14 miles (Haddal, Yule and Garcia 2009). The 2005 Real ID Act overrode existing legislation that prohibited construction, while the 2006 Secure Fence Act authorized construction of a new series of barriers with funding for barrier construction rising from US$3 million in 2001 to US$674 million for 2007 (Jones 2012: 49). Similar fortification has been evident in the Spanish enclaves of Ceuta and Melilla on the edges of Morocco, where six-metre-high fences buttressed by surveillance cameras, heat and motion detectors and watchtowers are patrolled by the Spanish Guardia Civil and Moroccan army units (Carr 2012). In her analysis of contemporary wall-building projects, political theorist Wendy Brown has suggested that such walls represent anxious assertions of the sovereignty of nation states at the very historical juncture that witnesses the ‘waning relevance and cohesiveness of the form’ 144

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(2010: 24).They function, Brown suggests, ‘theatrically, projecting power and efficaciousness that they do not and cannot actually exercise’ (ibid.: 25). Nevertheless, as Brown herself notes (ibid.: 27), border fortification projects along the dividing lines between the Global South and the Global North – the spaces where, to borrow Anzaldúa’s evocative description of the US-Mexico border, ‘the Third World grates against the First and bleeds’ (cited in Gregory 2011: 242) – have become a generative locus for militarized security assemblages knitted together through technology and military logics. The direct involvement of the military at the US-Mexico border dates back to the 1980s, and has its gestation in the relaxing in 1982 of a federal law that restricted the role of the military in domestic policing and the formation of Joint Task Force 6 (JFT-6), a military force formed in 1989 and drawing the Pentagon in to fight the ‘war on drugs’ along the US-Mexico border alongside border agents (ibid.). JFT-6 participated in a series of joint operations along the border, including Operation Blockade in El Paso, Operation Gatekeeper in San Diego, Operation Safeguard in Arizona and Operation Rio Grande in Texas, which aimed to deflect border crossers away from urban areas and into the hostile sparsely populated desert expanses in between (Nevins 2010; Gregory 2011). The transfer of military doctrines to border control has also long been evident on the US-Mexico border, as ‘immigration and drug enforcement efforts in the US-Mexico border region during the 1978–92 period coincided to a significant extent with the precepts of LIC (Low Intensity Conflict) doctrine’ (Dunn 1996: 146).The involvement of the military in border operations was accompanied by strong voices of support, and in 1991 one former army officer was suggesting that with demise of the Cold War, patrolling borders would be an ‘easily accomplished mission’ for the military and one which would provide ‘excellent training’. Shortly after, another military analyst was suggesting that the ‘domestic employment of the military appears an inevitable part of our own future, at least on our borders and in some urban environments’ (cited in Andreas 2009: 150).Visible frontline involvement of the military was less evident after 1997, following the shooting of an 18-year-old high school student out herding goats near Redford, Texas, by a marine attached to JTF-6 (Nevins 2010: 170). Nevertheless the military maintains a significant, if largely backstage, involvement in the task of border policing. In Arizona border guards train with the Marines, while the National Guard has for some time been involved in inspecting vehicles in California (Payan 2006). The Mediterranean edges of the European Union have also witnessed escalating deployment of military and para-military forces in border control. Since the early 1990s, this has been evident in the regular deployment of naval forces in immigration control, often rationalized by the argument that national maritime police forces lack the operational capacity to carry out such tasks (Lutterbeck 2006). In 2002, about a quarter of the Italian Navy’s total navigation hours were expended on operations to combat irregular border crossing. Another noticeable development has been the frequent conduct of multilateral operations by combined European naval forces. In January 2003, for example, the navies of the UK, France, Spain, Portugal and Italy participated in Operation Ulysses, aimed at thwarting irregular migration across the Straits of Gibraltar and towards the Canary Islands. At the European Mediterranean boundary, North Atlantic Treaty Organization (NATO) naval capacities have also been deployed, such as in 2002 with Operation Active Endeavour, putatively aimed at combatting terrorism, but which also encompassed the prevention of irregular migration and human trafficking within its mission (ibid.). The militarization (and extension) of the border through naval interdiction practices are also evident in other borderzones, notably in the USA and Australia (Grewcock 2009; Frenzen 2010). In addition, paramilitary policing agencies have also progressively absorbed migration control into their mandate. In Italy, the semi-military Guardia di Finanza, originally focused upon illicit economic traffic, has emerged as the key agency acting against irregular 145

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migration. A similar development is evident in Spain, where the paramilitary Guardia Civil has emerged as the lead agency dedicated to securing the southern borders of Spain against irregular migration and narcotics traffic from North Africa (Lutterbeck 2006). The militarization of border policing has, however, also been advanced through the weighty expansions of budgets and personnel evident across the Global North. As Nevins observed, the transformation and militarization of the US-Mexico boundary have been the outgrowth of a ‘massive infusion of resources’ since the mid-1990s (2010: 5). Between 1994 and 2000, the number of border control agents increased from 4,200 to 9,212 – by the end of 2009, the number had reached 20,000 (ibid.: 5). Similar trends have been evident across the Atlantic. The Italian Guardia di Finanzia tripled its budget between 1989 and 2000 while its staffing increased by 28 per cent during the same period (Lutterbeck 2006). While such upward trajectories in financing and staffing undoubtedly accelerated in a post-9/11 context, the most striking development, notably in the US, has been the reprioritizing of border control agencies around a counter-terrorism agenda (Andreas 2009; Jones 2012; Nevins 2010). This refocusing of border agencies mission was accompanied with escalating budgets, personnel and technology, as the concept of deterritorialized and highly mobile insurgencies threatening national security melded into the security continuum of transnational threats and attached to them all. Thus while the direct participation of military and para-military forces in border control is plainly important, it is only one component of the multifaceted high-technology militarization of border security assemblages.

From battlespace to borderzone The precepts of RMA – attended by military theories such as ‘fourth generation war’ – envisage warfare as a ‘permanent boundless exercise, pitting high-tech militaries and security operations – along with private sector outsourcers and military corporations – against a wide range of nonstate adversaries’ (Graham 2010: 27). The question of whether there is a consequent broader societal militarization is beyond the scope of this chapter. Nevertheless, concepts such as ‘perpetual war’, ‘unending war’, ‘the forever war’ and ‘the everywhere war’ (Gregory 2011) – where military action is directed at non-state actors and enacted within and beyond the Global North – fairly seamlessly bleed into the missions of transnational border and crime control. Indeed, post 9/11, and intensified by the ‘war on terror’, the collapsing of inside/outside distinctions in conceptions of security, warfare and crime control has drawn border control into the ‘military formations’ of ‘network-centric warfare’ where, as Dillon notes, they ‘no longer simply rally around the flag, they form up, mutate and change around information networks’ (2002: 73). This seepage of militarized precepts and thinking into border control is well illustrated by the EU’s European Border Surveillance System (EUROSUR) project – a vast integrated surveillance system across the entire European border and beyond. With obvious affinities to the central tenets of RMA, the EUROSUR project adopts a ‘system of systems’ approach based on the idea of ‘total interoperability’. The EUROSUR project consequently intends to connect a multitude of systems, including existing systems such as Spain’s SIVE (Sistema Integrado de Vigilancia del Estrecho), national border surveillance systems, stationary and mobile sensors operated by national authorities (such as the Israeli Army anti-terrorist radar systems used by the Italian Guardia di Finanza to monitor the Adriatic coast since 2000 (Lutterbeck 2006)), patrols on border surveillance and other missions, regional networks of third countries, ship reporting systems and, rather vaguely ‘any other sources’ (Hayes and Vermeulen 2012). Thus the entire European border line and its ‘pre-borders’ are visualized as an expansive informatized battlespace 146

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amalgamated vertically and laterally through a dense grid of interconnected surveillance systems and military hardware. At the apex of the EUROSUR project is FRONTEX, which becomes the receiving point for the intensive informational flows forwarded through National Coordination Centres (with 16 of these being operational within the Schengen area by the end of 2011). Information is exchanged between the NCCs and the FRONTEX Situation Centre (FSC) which combines ‘national situation pictures’ into a multi-layered European Situational Picture. Risk analysis has been one of FRONTEX’s key missions since its inception in 2004 (Neal 2009) – a capacity projected to escalate in significance once the reams of information amassed through EUROSUR are entered into its systems. Risk analysis is fed back to individual member states, who then divide their external borders into three different risk levels – high, medium and low. In the case of ‘high impact level’ border areas, member states may request operational assistance in the form of a joint operation or the intervention of FRONTEX RABITs (Rapid Border Intervention Teams) (FRONTEX 2014b). Importantly, FRONTEX’s risk analysis and surveillance extend beyond the frontiers of Europe to incorporate the ‘pre-frontier’. An explanatory memorandum for the EUROSUR project notes that ‘co-operation with neighbouring states is crucial for the success of EUROSUR’. Consequently FRONTEX envisages developing a ‘Common Pre-Frontier Intelligence Picture’ assembled from data provided by ‘NCCs, immigration liaison officers in third countries, other relevant European and international organizations, third countries, and any other sources’ (Hayes and Vermeulen 2012: 19). EUROSUR is envisaged as a key tool of proactivity and pre-emption, as data swarms into the FRONTEX Situation Centre, is combed in the Risk Analaysis Unit for patterns and trends, and then circulated back through border control nodes shaping operations and assisting ‘decisionmakers’ in ‘setting priorities, developing counter-measures and determining future goals’ (FRONTEX 2014c). There is consequently a deep institutional valence towards pre-emption and prediction, as ‘maximising effectiveness in preventing cross-border crime’ is considered to rest upon ‘predicting future trends and proposing remedies’ (ibid.). As a recent empirical study of security technologies and practices in the EU has noted, professionals in the field of border control are ‘strongly leaning towards the “monitoring of the future,” i.e. the privileging of proactivity, prevention and profiling in the management of insecurity . . . which orients security practices towards prediction’ (INEX 2011: 13–14). However, such practices – foregrounded in the context of the ‘war on terror’ – while represented as scientific calculations are largely instinctive imaginaries of looming catastrophes arising from little more than ‘gut feeling’. As McCulloch and Pickering argue, methods of ‘monitoring the future’ are not so much ‘joining the dots’ as they are ‘a wholly unscientific project of crystal ball gazing’ (2009: 635). Risk-based calculations, which endeavour to bring the future into the present, consequently infuse the assemblages of security professionals coalescing around questions of border control, even if such calculations are based less on actuarial science than they are upon purely speculative imaginings. As Bigo has noted, there is an increased engagement of ‘a proactive logic which anticipates the risks and threats, locating the potential adversaries even before they have a consciousness of being a threat to others’ (2005: 86). This proactive logic was clearly articulated in a study of the future of border control commissioned for the FRONTEX Risk Analysis Unit. Advancing various future scenario types ranging from ‘probable futures’ to ‘wild cards’, the report noted that ‘planning cannot be based on specific predictions of trends or “likely” developments. With current knowledge, the future will always be unpredictable’ (Liron Systems Ltd 2011: iii). The report subsequently recommended the education of border guards in ‘future thinking’, including a revealing quotation from management guru Peter Drucker that ‘the best way to predict the future – is to create it’ (Liron Systems Ltd. 2011: 1). 147

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The pre-emptive impetus inherent in this future mentality energizes a powerful drive to immobilize potential cross-border threats before they materialize. Spatially, this has propelled the border control practices of the Global North deeper and deeper into the Global South – both virtually and materially (Weber 2007; Wilson and Weber 2008; Vaughan-Williams 2010). The United Kingdom Border Agency (UKBA), for example, maintains an extensive Risk and Liaison Officers Network (RALON) posted in international locations, who, within their remit, aim to ‘filter out high risk or undocumented individuals before they appear’ (Cabinet Office 2007: 21). Through a web of bilateral and regional agreements, the Global North also exports border control hardware, software and practices to the Global South to responsibilize ‘risky states’ with the border work of the Global North, and neutralize potentially menacing transnational flows at the (perceived) source. The construction of the anticipatory ‘pre-border’ also deputizes a whole new raft of actors into the service of security assemblages. Sending and transit countries, airline staff, travel agents and freight carriers, are all inducted to perform ‘remote control’ border policing tasks before the border (Guiraudon 2003).

Militarization: software The advent of high-technology border surveillance systems that integrate hardware and software evidences how border militarization is both material and virtual. Scholars have for some time noted that the policing of global mobility increasingly transpires within ‘informated’ space, via networks aimed at the ‘bureaucratic production of knowledge of suspect populations’ (Sheptycki 1998: 70). The frenetic assembling of databases – particularly connected to biometrics with their promise of ‘fixing’ identity – has also been perceived as a ‘silver bullet’ to the potential dilemma of ensuring maximized capital flows while simultaneously interdicting and excluding mobile security threats – in short, in striking the balance between economy and security. The practices through which this bifurcated modulation of global mobility (what Bauman memorably referred to as ‘the extraterritoriality of the new global elite and the forced territoriality of the rest’ (2000: 221)) is enacted have consequently been the focus of sustained interdisciplinary attention (for an overview, see Aas 2011). While evident prior to 9/11, the ‘war on terror’ propelled the passion of security professionals for information and algorithmic calculation, and an attendant drive to ‘join the dots’ through practices of ‘data mining’ – a technique originating from the field of consumer marketing and profiling. Thus potential threats could be targeted through algorithmic combinations of digital traces – both human (airline tickets, visa applications) and non-human (financial transactions, cargo). In this it is useful to engage with Amoore’s (2009) notion of ‘algorithmic war’. Drawing upon Foucault’s inversion of the Clausewitzian aphorism that ‘politics is the continuation of war by other means’, Amoore suggests that wider security practices mobilized against a range of perceived threats ‘are actually sanctioning and reproducing war-like relations of power’ in that they ‘target individual bodies, designate communities as dangerous or risky, delineate safe zones from targeted locations, invoke the pre-emptive strike on the city streets’ (Amoore 2009: 50). If the fabrication of the virtual border facilitates the advent of ‘ubiquitous borders’ (Wilson and Weber 2008), it also exponentially extends the potentials for the enactment of exclusion and/or violence weaving through labyrinthine meshes of data and dispersed passage-points. The tendency of risk profiling more generally to intensify processes of social exclusion and discrimination through ‘social sorting’ and ‘digital discrimination’ has been the subject of sustained attention, particularly from scholars in the interdisciplinary area of surveillance studies (Lyon 2003; van der Ploeg 2006; Wilson 2006). Within the context of the militarized border, where a continuum of security threats is pursued and anticipated through digital traces and their 148

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perpetual recombination, the ‘war-like architecture’ of the virtual border is largely hidden beneath a glow of technological detachment. Digital profiling practices – extending from preemptive logics – are, as Amoore suggests, ‘concealed in the glossy techno-science of algorithmic calculation’ (2009: 49).The ascription of risk is therefore presented as an abstracted and scientific calculation that dispassionately sorts friend from foe and the safe from the dangerous. The ‘algorithmic war’ then reinvents and extends in digital form the concept of ‘virtuous war’ (Der Derian 2001;Wall and Monahan 2011) where ‘precision-guided missiles’ and ‘smart bombs’ were promoted as faultlessly discerning between legitimate and illegitimate targets. ‘Algorithmic war’ is driven by the aspiration of preventing the future from happening, underpinned by notions of prevention, proactivity and pre-emption. As Bigo argues, the aura of technological neutrality makes the designation of specific identities as ‘high risk’ appear ‘reasonable and not subject to classic racism’ as it relies upon ‘an anticipation process in which the computer has no soul and, therefore, does not have the human defect of classifying persons according to skin colour’ (2007: 30). Critical scholarship, particularly that focusing upon biometric technology, suggests that despite the aura of high-technological abstraction and neutrality, digital databases, and the pre-emptive algorithmic profiling enacted through them, are saturated with historic codes of racism, colonialism and criminalization (Wilson 2007; Pugliese 2010; Gates 2011; Maguire 2012).The scientific calculation of future threats is then informed by more ‘instinctive’ stereotypes garnered from the Global North’s historical gallery of suspect and mobile populations (for a discussion, see Weber and Bowling 2008).Thus the colonial dispossessed and the internally marginalized of the past are digitally reconstructed as the enemies and insurgents of the future, to be immobilized and expelled in the present. Moreover, the imperative of security professionals to incessantly augment data flows to fuel ever more complex calculations of future risks, converges with the military aspirations extending from the RMA that envisage ‘total system operability’ reaching a crescendo in the final realization of the ‘system of systems’. A ceaseless pursuit of interoperability and the prising open of databases to ever more agencies has certainly been evident in the European Union. Following the Madrid bombings in March 2004, the EU Declaration on Combating Terrorism suggested the European Commission ‘explore the creation of synergies between existing and future information systems (SIS II,VIS and Eurodac) in order to exploit their added value . . . in the prevention of and fight against terrorism’ (cited in Baldaccini 2008: 45). Such an institutional drive towards the accumulation of ever more information is evident in border security proposals for the EU Stockholm Programme, which critics remarked possessed a marked tendency ‘towards the proliferation of computerized systems of information exchange and processing, with little regard to the question of proportionality’ (Bigo and Jeandesboz 2009: 1). There is consequently a powerful drive within security agencies to interconnect databases, and a corresponding tendency towards ‘function creep’, whereby the original purpose of databases centrifugally expands, drawing in a wider and wider span of identities and traces to propel risk analysis and neutralize security threats.

Border militarization: limits, trends and consequences A report in New Scientist from 2010 outlined the following science-fiction-style scenario: A migrant makes a furtive dash across an unwalled rural section of a national border, only to be confronted by a tracked robot that looks like a tiny combat tank—with a gimballed camera for an eye. As he passes the bug-eyed droid, it follows him and a border guard’s voice booms from its loudspeaker. He has illegally entered the country, he is warned, and if he 149

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does not turn back, he will be filmed and followed by the robot, or by an airborne drone, until guards apprehend him. (cited in Carr 2012: 258) The article was reporting on ‘Transportable Autonomous Patrol for Land Border Surveillance’ (TALOS), an EU research project which includes many well-known arms manufacturers: Sagem, Thales Security Systems, Israeli Aerospace Industries and a Polish company, PIAP – a manufacturer of combat robots. Robots are also now operational on the US-Mexico border, exploring the networks of tunnels used to transport goods and people illicitly that have emerged in response to the wall building project and its attendant surveillance canopy. UAVs, which have entered the public imagination primarily through their association with targeted killings in Pakistan,Yemen and Afghanistan, have been flying over the US-Mexico border since 2005, and their numbers are rising (Wall and Monahan 2011: 244). US Customs and Border Protection have also considered arming drones with ‘non-lethal weapons designed to immobilize targets of interest’ (Lynch 2013). Both the EU and Australia are likely to engage drones over their borderzones in the near future. The European Border Surveillance System EUROSUR, already partly operational, transplants the conflict template of the informated battelspace from overtly military encounters, such as those in Afghanistan and Iraq, to the Mediterranean borderzone. The relentless thirst for yet more digital fragments to feed through algorithmic programs, in the hope that the future will reveal itself, evidences no sign of abating. Nevertheless, while such developments are clearly indicative of the intensification and militarization of borderzones – both virtual and material – in the Global North, they are also often based upon technophilic fantasies of total control that seldom unfold with their imagined security potential. Imaginings of ever larger systems, and their associated promise of integrating wider and deeper levels of surveillance with enhanced capacities for generating risk knowledge through data, frequently collapse under the weight of their own conception. The Secure Border Initiative (SBI-net) led by Boeing Corporation – a US$3.7 billion initiative to construct a ‘virtual fence’ using a complex network of high-tech surveillance equipment along the entire northern and southern borders of the United States – was abandoned by the Obama Administration in 2011 and condemned as a ‘colossal failure’ (Hayes and Vermeulen 2012: 71). Moreover, efforts to fabricate ‘systems of systems’ are commonly destabilized through outbreaks of internecine squabbling between the agencies these ventures connect. Recent INEX research revealed that ‘the convergence of military and police technical systems . . . is undermined by the turf battles opposing the various groups of (in)security professionals for symbolic and material rewards’ (2011: 14). Andersson’s recent ethnographic fieldwork with FRONTEX indicates struggles between agencies are likely to scuttle the operationalization of the EUROSUR project – as one of his informants (who was a zealous architect of the project) ruefully reflected: ‘Nobody wants to give up anything,’ Antonio sighed. ‘If I give up the information,’ the border agencies reasoned, ‘I will give up responsibility and my funding will be diminished.’ (Andersson 2012: 10) As this chapter has suggested, processes of border militarization are largely propelled by technology. Moreover, borders are saturated with, and sometimes exclusively constructed from, a vast armoury of technological devices – satellites, drones, X-ray scanners, heat and motion detection systems, RFID chip readers, etc. – that blanket both the delocalized border and the physical border points of airports and land and sea crossings. Faith in technology as the solution 150

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to problems of border security infuses security assemblages. And, ironically – faced with technological failures, system incompatibility and overwhelming swirls of fragmented data – it is likely that solutions will be sought in the introduction of yet more technology, and the devising of ever more complex algorithms that hold out the promise of subjugating the future. This is noted by Rose (1999: 260), with his observation in relation to technologies of risk assessment and management, that ‘incompleteness, fragmentation and failure’ are ‘merely a perpetual incitement for the incessant improvement of systems, generation of more knowledge, invention of more techniques, all driven by the technological imperative to tame uncertainty’. Border security dreams are driven by an aspiration to ‘targeted governance’ (Valverde and Mopas 2004), based upon the accumulation of ‘risk knowledge’ and software-sorted through a future-oriented frame that aspires to immobilize threats before they materialize. Inspired by militaristic logics of the pre-emptive strike, the border control of the Global North pushes further out into the ‘pre-border’ through a range of digital and material techniques – advanced passenger processing, third country agreements, security collaborations and exports of technology and expertise. The border also diffuses its capillaries through the inlands of the Global North. The consequences of this thickening and militarizing of the border are manifold. Both academics and activists have drawn attention to the escalating body count along militarized border zones as border control agents mobilize their high-technology armature to shut down transit routes (Doty 2011; Weber and Pickering 2011). In the Mediterranean, ‘push-back operations’ have been argued to circumvent the EU’s obligations under the Geneva Convention, and to breach the non-refoulement principle that prohibits the transfer of persons to territories where they may face torture or degrading or inhuman treatment (GammeltoftHansen 2008). The militarized border also stimulates acts of resistance that are the ‘weapons of the weak’ (Scott 1985) in border wars, but in the process also generates intensified risks and harms – what has been termed ‘border iatrogenesis’ (Weber and Pickering 2011: 200–1). SubSaharan migrants embark on perilous journeys in inflatable toy boats across the Straits of Gibraltar to skirt radar detection (Andersson 2012: 10), while others reaching the physical edges of, or even inside, the EU boundaries mutilate their fingerprints with burning hobs, razors, glue or acid to avoid biometric capture and the bleak prospect of expulsion (Jones 2014: 5). Additionally, the militarized border, far from extinguishing cross-border threats, animates their mutation, adaptation and continual reinvention. The FRONTEX joint operation HERA II, designed to shut down the migratory route from Africa to Europe via the Canary Islands, radically inflated the price of passage and stimulated the professionalization of smuggling activities (Vives 2009). Similarly, journalist Jeremy Harding observes that ‘little by little, the routes asylum seekers once took to safety have been choked off.The formidable growth in underground “travel agencies” – document forgers, chaperones, drivers, boatmen – is the result’ (2012: 16). However, the emergence of new forms of deviant enterprise, rather than leading to strategic policy change, activates spirals of security amplification whereby newly emergent threats and security risks form the rationale for enlarged funding, the development and deployment of an escalating array of technological devices and systems and intensified militarization. As Andreas phrases it, ‘escalation, in other words, feeds on itself ’ (2009: 144).

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Grewcock, M 2009, Border crimes: Australia’s war on illicit migrants, Institute of Criminology Press, Sydney. Guiraudon, V 2003, ‘Before the EU border: remote control of the “huddled masses”’, in K Groenendijk, E Guild & P Minderhoud (eds), In search of Europe’s borders, Kluwer, The Hague, pp. 191–214. Haddal, C, Yule, K & Garcia, M 2009, Border security: barriers along the U.S. international border, Congressional Research Service, Washington, DC. Haggerty, K & Ericson, R 2000, ‘The surveillant assemblage’, British Journal of Sociology, vol. 51, no. 4, pp. 605–22. — 2001, ‘The military technostructures of policing’ in P Kraska (ed.), Militarizing the American criminal justice system: the changing roles of the armed forces and the police, Northeastern University Press, Boston, pp. 43–64. Harding, J 2012, Border vigils: keeping migrants out of the rich world,Verso, London. Hayes, B 2006, ‘Arming big brother: the EU’s security research programme’, TNI Briefing Series, no. 2006/1, Transnational Institute, Amsterdam. — 2010, ‘ ‘‘Full spectrum dominance’’ as European Union security policy: on the trail of the ‘‘NeoConOpticon’’ ’, in K Haggerty & M Samatas (eds), Surveillance and Democracy, Routledge, London, pp. 148–69. Hayes, B & Vermeulen, M 2012, Borderline: the EU’s new border surveillance initiatives, Heinrich Böll Foundation, Berlin. Heyman, J 2008, ‘Constructing a virtual wall: race and citizenship in US-Mexico border policing’, Journal of the Southwest, vol. 50, no. 3, pp. 305–34. Huysmans, J 2006, The politics of insecurity: fear, migration and asylum in the EU, Routledge, London. INEX 2011, ‘Converging and conflicting ethical values in the internal/external security continuum in Europe’, D.7.4 Final Report, PRIO, Oslo. Jones, C 2014, ‘11 years of Eurodac’, Statewatch Analysis, viewed 17 January 2014, www.statewatch.org Jones, R 2012, Border walls: security and the war on terror in the United States, India, and Israel, Zed Books, London. Liron Systems Ltd 2011, EU/Frontex futures of borders: a forward study of European border checks, viewed 22 January 2014, www.frontex.europa.eu Lutterbeck, D 2006, ‘Policing migration in the Mediterranean’, Mediterranean Politics, vol. 11, no. 1, pp. 59–82. Lynch, J 2013,‘Customs and Border Protection considered weaponizing drones’ Electronic Frontier Foundation DeepLinks Blog, web log post, 2 July, viewed 20 December 2013, https://www.eff.org/deeplinks/2013/07/ customs-border-protection-considered-weaponizing-drones Lyon, D 2003,‘Surveillance as social sorting: computer codes and mobile bodies’, in D Lyon (ed.), Surveillance as social sorting: privacy, risk and digital discrimination, Routledge, London, pp. 13–30. Maguire, M 2012, ‘Biopower, racialization and new security technologies’, Social Identities, vol. 18, no. 5, pp. 593–607. McCulloch, J & Pickering, S 2009, ‘Pre-crime and counter-terrorism: imagining future crime in the “war on terror”’, British Journal of Criminology, vol. 49, no. 5, pp. 628–45. Neal, A 2009, ‘Securitization and risk at the EU border: the origins of FRONTEX’, Journal of Common Market Studies, vol. 47, no. 2, pp. 333–56. Nevins, J 2010, Operation Gatekeeper and beyond: the war on ‘illegals’ and the remaking of the US-Mexico boundary, 2nd edn, Routledge, New York. Payan, T 2006, The three US-Mexico border wars: drugs, immigration and homeland security, Praeger Security International, Westport, CT. Pugliese, J 2010, Biometrics: bodies, technologies, biopolitics, Routledge, London. Rasmussen, M 2006, The risk society at war: terror, technology and strategy in the twenty-first century, Cambridge University Press, Cambridge. Rose, N 1999, Powers of freedom: reframing political thought, Cambridge University Press, Cambridge. Sassen, S 2008, ‘Neither global nor national: novel assemblages of territory, authority and rights’, Ethics and Global Politics, vol. 1, nos 1–2, pp. 61–79. Scott, J 1985, Weapons of the weak: everyday forms of peasant resistance, Yale University Press, New Haven, CT. Sheptycki, J 1998, ‘The global cops cometh: reflections on transnationalization, knowledge work and policing subculture’, British Journal of Sociology, vol. 49, no. 1, pp. 57–74. Singer, P 2009, Wired for war: the robotics revolution and conflict in the twenty-first century, Penguin, New York.

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Valverde, M & Mopas, M 2004, ‘Insecurity and the dream of targeted governance’, in W Larner & W Walters (eds), Global governmentality, Routledge, New York, pp. 233–50. van der Ploeg, I 2006, ‘Borderline identities: the enrolment of bodies in the technological reconstruction of borders’, in T Monahan (ed.), Surveillance and society: technological politics and everyday life, Routledge, New York, pp. 177–93. Vaughan-Williams, N 2010, ‘The UK border security continuum: virtual biopolitics and the simulation of the sovereign ban’, Environment and Planning D: Society and Space, vol. 28, no. 6, pp. 1071–83. Vives, L 2009, ‘Over the fence: the militarization of the Senegalese-Spanish sea border’, African Geographical Review, vol. 28, no. 1, pp. 5–9. Wall,T & Monahan,T 2011,‘Surveillance and violence from afar: the politics of drones and liminal securityscapes’, Theoretical Criminology, vol. 15, no. 3, pp. 239–54. Walters, W 2006, ‘Border/control’, European Journal of Social Theory, vol. 9, no. 2, pp. 187–203. Weber, L 2007, ‘Punitive preemption in Australian offshore migration control’, Social Justice, vol. 34, no. 2, pp. 77–93. Weber, L & Bowling, B 2008, ‘Valiant beggars and global vagabonds: select, eject, immobilize’, Theoretical Criminology, vol. 12, no. 3, pp. 355–75. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke. Wilson, D 2006,‘Biometrics, borders and the ideal suspect’, in S Pickering & L Weber (eds), Borders, mobilities and technologies of control, Springer, Dordrecht, pp. 87–109. — 2007, ‘Australian biometrics and global surveillance’, International Criminal Justice Review, vol. 17, no. 3, pp. 207–19. — 2012, ‘Military surveillance’, in K Ball, K Haggerty & D Lyon (eds), Routledge handbook of surveillance studies, Routledge, London, pp. 269–76. Wilson, D & McCulloch, J 2012, ‘(Un)controlled operations: undercover in the security control society’, in J McCulloch & S Pickering (eds), Borders and crime: pre-crime, mobility and serious harm in an age of globalization, Palgrave Macmillan, Basingstoke, pp. 163–78. Wilson, D & Weber, L 2008, ‘Surveillance, risk and preemption on the Australian border’, Surveillance and Society, vol. 5, no. 2, pp. 124–41. Wood, J & Shearing, C 2007, Imagining security, Willan, Cullompton.

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10 Deciphering deportation practices across the Global North Leanne Weber

From the Panopticon to the banopticon Across the liberal and social democracies of Europe, North America and Australasia, deportation or removal1 of rejected asylum seekers and of non-citizens who have breached immigration and/ or criminal law is becoming a widespread means of population control. Academic commentators speak of the ‘deportation turn’ taken by these governments (Gibney 2008), point to the exploitation of insecure and ‘deportable’ groups by governments, employers and communities (de Genova 2002; Kittrie 2006; Coutin 2010), and characterize the impetus to exclude outsiders as a form of ‘enemy penology’ (Krasmann 2007). Increases in the use of administrative detention and deportation (Welch and Schuster 2005), sometimes accompanied by convergences between criminal and immigration law (Stumpf 2006), point to contestation over the boundaries of belonging (Anderson, Gibney and Paoletti 2011) and suggest that governments are using these exclusionary techniques to ‘govern through migration control’ (Bosworth and Guild 2008). As a technique of contemporary governance, the widespread urge to exclude problematic populations has been described by Bigo (2011) as the replacement of the ‘panopticon’, based on institutions that promote containment and visibility, with the ‘banopticon’, which aims to separate public enemies from protected populations.Techniques of banishment may include the use of detention as a form of internal containment. But in the case of non-citizens, the possibility exists to effect the ban through physical expulsion from territory. The increasing recourse to the supposedly ‘last resort’ technique of deportation has generated concern about its social impacts which extends well beyond academia. Non-governmental organizations (NGOs) and human rights campaigners have documented instances of asylum seekers or minors being returned to situations of danger (Edmund Rice Centre n.d.; Fekete 2005; 2007; Jimenez 2009; Human Rights Watch 2013), noted the human cost of separating individuals from families and communities (Human Rights Watch 2007; Institute of Race Relations 2010; Migreurop 2010) and identified the large-scale deportation of non-citizen offenders as a significant human security issue from the point of view of receiving nations, whole regions, and for the uprooted individuals themselves (Pereira 2011). In response to increasingly strident deportation programmes, NGOs have formed in many countries to resist individual expulsions and protest against deportation policies (Anderson, Gibney and Paoletti 2011; Barker forthcoming), and groups as varied as French schoolchildren (Aljazeera 2013) and Glasgow grandmothers (Stevenson and Grant 2008) have mobilized in support of a more inclusionary vision. 155

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The increasing use of deportation appears to be a universal phenomenon across the Global North, driven by uncertainties arising from globalization and the ubiquity of the governmentality of unease’ (Bigo 2002). However, against this broad backdrop of apparent uniformity, it is important to ask what differences can be discerned between localities, countries and regions so that the factors that promote and moderate the will to exclude can be better understood. Researchers have begun to take on this task through in-depth studies of deportation in individual countries, e.g. Khosravi (2009) in relation to Sweden, Gibney (2008) and Bosworth (2011) in relation to Britain, Pratt (2005) in relation to Canada, and various contributions in the collection by de Genova and Peutz (2010). Others have engaged in comparative research which analyses deportation trends and practices in two or more countries, e.g. Broeders (2010) in relation to Germany and the Netherlands, Schuster (2005a) in relation to Germany, France, Italy and the UK, and Ellermann (2009) in relation to Germany and the United States.The use of deportation has also been studied from a historical perspective (Walters 2002; Schuster 2004; Bloch and Schuster 2005; Nicholls 2007), while other studies have focused on sub-national variations in migration control practices (van der Leun 2003; Provine 2013). In this chapter I add to this body of tightly focused research by conducting a broad survey of statistical trends in deportation practices across ten European countries plus Australia and the US, using official data that was collected to provide comparative context for the Australian Deportation Project.2

Globalizing the criminological study of deportation Viewed within the context of globalization, deportation is a response to increasingly unsettled relationships between people and territory, in which governments seek to assert their prerogative to put individuals into their ‘correct’ place (Walters 2002). Applying a globally aware perspective to the study of contemporary deportation seems to call for research methodologies that also embody new conceptions of the locatedness and determinants of human action. Pakes (2010) contrasts the emphasis on the rich exposition of the particular that characterizes traditional comparative criminology with an emerging globalized criminology that attempts to take the interconnectedness of the world into account. Since they occupy different analytical dimensions, he argues that criminological research can be both comparative and attentive to the exigencies of a globalizing world. In practice, this can mean attending to the influence of the supranational level on the practice of individual states – which in the present case would include membership of the European Union, bilateral relations with other countries and international human rights norms; and to sub-national nodes of governance or social relations – such as differences in practice between towns, counties or federated states. Pakes (ibid.: 20) notes that globalized criminology, in contrast to traditional comparative criminology, is more about ‘agility than stamina’ as it requires an ability to move deftly between these levels of analysis. Rather than travel to another country, learn the language and become deeply immersed in its history and culture (following Pakes’ description of classic comparative research), this study mobilized an international network of researchers to access basic data about deportation law and practice in 14 countries. Data on 12 of these countries is reported here (France, Germany, Greece, Hungary, Italy, the Netherlands, Norway, Spain, Sweden, the UK, the US and Australia). Researchers with relevant language skills, many of them graduate students studying migration control,3 collated official data on annual deportations from their allocated country from 2000 to 2011/2012. An expansive definition of deportation was applied, namely: ‘any departure from territory which is required by government’ (see also note 1). The researchers also provided briefings and reference material on policies, practice and the legal framework for deportation. 156

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The analysis in this chapter presents basic quantitative data on deportations, as a first step towards building a more complete understanding of practices and trends. Much more ‘stamina’ would be needed to fully understand the significance of some of the observations and provide adequate answers to questions about why certain practices or trends have emerged in some countries but not others. This would require a protracted period of study of a much narrower selection of countries of the kind pursued by Pratt (2008a; 2008b) and later Pratt and Eriksson (2013) in their comparative study of imprisonment in selected Nordic and Anglophone countries. As a purported example of globalized criminology, this chapter is further limited by its focus on the nation state as a whole. This is still the level at which most information is reported, though the need to conceptualize deportation as an international practice involving dynamic relationships between state actors, and also consider local variations in practice, was immediately apparent once the analysis of the data began. As Pakes (2010: 20) has noted, ‘Official statistics, particularly when taking a comparative perspective, hide as much if not more than they reveal.’ Clearly, statistics are a product of specific social and institutional processes, the details of which cannot always be known to the end user. Unfortunately, it is difficult to see an alternative starting point for an exercise such as this, and the processes leading to the final figure can sometimes remain a matter for speculation or become the object of inquiry themselves. While every effort was made to collect the statistical data in a comprehensive and consistent manner, inevitably significant variations persist. Appendix 1 on p. 170 shows the types of exclusionary practice that have been included in the overall deportation figures for each country. These practices range from the unsupervised, assisted and forced removal of rejected asylum seekers and irregular migrants, to summary returns at the border following refused entry or expedited asylum claims, to the deportation of previously legal residents following criminal convictions. A basic rule of thumb in any type of comparison is that comparing apples with oranges is to be avoided. Appendix 1 reveals that attempting to compare deportation figures across so many jurisdictions has produced not just apples and oranges, but a metaphorical fruit salad. Within a particular country different national agencies may have responsibility for each of the disparate functions identified in the table, or several agencies may share a similar function and each collect their own (often different) data.Within federal systems, some border control responsibilities may be devolved to local levels and, to complicate the picture still further, recording practices may have changed during the collection period, with or without clear documentation to pinpoint the change. In some jurisdictions data is publicly available and published regularly; in others, special requests had to be forwarded to authorities in order to obtain the data. The annual deportation figures collected by the research team are included in Appendix 2 on p. 170. An inclusive approach has been adopted towards the data, with rejections at the border (which could be classified more as border control than deportation) and so-called voluntary departures that involve some kind of state intervention (and are often arguably less than voluntary) counted in the overall figure when available. Since 2008, data on third country nationals expelled from a wide range of European countries has been available from the Eurostat website. The Eurostat data for each of the countries included in the study is also presented in Appendix 2 for comparison. Of course, the Eurostat data is compiled from data submitted by EU member states and is open to all the vagaries that are inherent in this kind of process. Nevertheless, significant discrepancies between the two data sources are immediately apparent. Rather than viewing this merely as an ‘error’, the task of explaining the differences yields some interesting insights into differences in state practice, and raises questions for further investigation. As an example of the former, the figures obtained by the researcher for France are significantly and consistently higher than the figures reported by Eurostat. This discrepancy probably arises 157

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from the highly controversial practice in France of deporting EU nationals in large numbers – notably Roma of Romanian or Bulgarian origin, using exceptional measures available to declare individuals a burden on the welfare state. Since Eurostat only reports the expulsion of third country nationals, these exclusionary practices – often mass expulsions resulting from the dismantling of Roma encampments – are excluded from official EU data, and thereby hidden from view. They are, however, included in national data collections. In Norway, the consistently higher figures reported by the country researcher probably arise from the inclusion of ‘transfers’ to other EU countries under the Dublin Convention, which form a very high proportion of deportations from that country (discussed later), but which are reported separately in Eurostat data. The comparison also yields examples of disparities that require further investigation. In 2008, for example, the Eurostat figure was more than three times the number of deportations reported by the Greek researcher for that year, so the Greek data used in the analyses that follow should be treated as undercounted, possibly due to the omission of returns at the border.The convergence to something much closer to parity between the two data sources by 2010/2011 is suggestive of some significant change in reporting practices or on the ground over that time. Furthermore, the data collected for Sweden is consistently higher than the Eurostat record throughout the collection period, for reasons that are yet to be explained but may concern the recording of voluntary departures. Internal disputes may also occur about the recording of deportation practices. In Italy, the figures reported by Eurostat are closer to the data produced by the Department of Civil Liberties and Immigration, whereas the researcher involved in this study has opted to use figures from the Department of Public Security which are significantly higher but are more comprehensive and include refusals at the border. It was also necessary to take an ‘educated guess’ about which of the disparate sets of data provided by various government departments in Sweden best represented the overall incidence of deportation. Deportation statistics provided by the Swedish National Police and the Swedish Migration Board differ significantly, but a particular dataset produced by the Migration Board was finally settled upon. Although there is no Eurostat comparator for the figures produced for the US, it is a matter of public record that the inclusion of voluntary (but required) departures in publicly released deportation statistics has been controversial, with critics accusing immigration authorities of doing this to deliberately inflate the figures (Becker 2010; Dinan 2012). On the other hand, we have chosen to include these figures in our collection, where available, in order to present the most comprehensive picture. While maintaining a healthy scepticism about the capacity of official data to represent complex practices, there is no choice but to bear in mind these ambiguities when trying to decipher what these coded traces of official practice are telling us about the use of deportation powers. The remainder of the chapter is devoted to this task. Given the heterogeneity observed in the data, I approach the examination of deportation practices across the Global North as if I were looking through a kaleidoscope rather than a microscope. In other words, rather than presenting a forensic, in-depth examination, the discussion focuses selectively on some colourful patterns that catch the eye and provides a series of glimpses into what must be understood to be highly elusive and dynamic official practices.

Some glimpses of deportation practices across the Global North Is the use of deportation on the rise? In 2008, Gibney (2008: 146) noted that: ‘Deportation has been on the rise as a way with dealing with failed asylum seekers, as well as foreigners convicted of crimes, in many Western countries, 158

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including the United States, the Netherlands, Germany, Canada and Australia.’ He dubbed this phenomenon the ‘deportation turn’. Despite the difficulties inherent in interpreting deportation data that were canvassed in the previous section, the data collected by our team should be relatively robust in monitoring trends within countries – as opposed to the more complex task of comparing rates between countries. The main complication in this case is that significant changes in recording practices within a country could create a misleading impression of actual practice on the ground. With this caveat in mind, on the basis of the data reported in Appendix 2, it can be seen that trends in deportation from 2000 to 2012 do not show a relentless rise in all jurisdictions, but that the patterns are more mixed. For ease of discussion, the countries have been grouped into three categories according to whether their deportation figures are showing an upward, downward or variable trend. The data presented in Figure 10.1 does indeed confirm that deportation continues to be on the rise in France and the US. While there has been concerted international media attention on the record-breaking number of deportations carried out by the Obama administration in the US (Lopez and Gonzalez-Barrera 2013), overall deportations have actually risen more sharply in France, where more than three times as many people were deported in 2011 than in 2000, compared with a doubling of deportation numbers in the US over the same period. For some countries, the ‘deportation turn’ may be yet to arrive. Although the 2012 data was not made available to our researcher, deportations from Greece could be expected to increase significantly from that year onwards following the establishment of the ironically named ‘closed hospitality centres’ and the instigation of Operation Xenios Zeus by Greek police which is aimed at arresting irregular migrants. While the Eurostat data on total returns from Greece (see Appendix 2) is difficult to decipher, Eurostat figures in Appendix 4 show a marked increase in transfers out of Greece under the Dublin Convention in 2012. In some countries, however, there is a consistent pattern of steadily reducing levels of deportation from 2000 to 2011 (see Figure 10.2). This is not to say that a longer time series of data would not reveal earlier periods in which, statistically at least, these countries also experienced 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 0 2000

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Figure 10.1 Deportations 2000–2011 in selected countries with clear upward trend Source: Author’s research data

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Figure 10.2 Deportations 2000–2011 in selected countries with clear downward trend Source: Author’s research data

a ‘deportation turn’. This is particularly noticeable in relation to Germany where the data suggests that much of the serious work of divesting the country of unwanted populations may have occurred before the study period. According to earlier data supplied by the German researcher, particularly high numbers of departures were reported in 1999 and 2000 on the ‘voluntary development’ programme alone – 61,332 and 75,416 respectively. In the Netherlands (where the trends from 2000 to 2011 appear to be more mixed) data not shown in Appendix 2 also suggests that much higher levels of deportation were sustained in the late 1990s. Broeders (2010) has attributed the subsequent drop largely to reductions in the numbers of asylum applications received after that time. Practical and legal difficulties in effecting expulsions are another possible explanation for declining, or at least stabilizing, levels of deportation in many countries. This is an explanation that does not require a change in government attitudes or political communications about the desirability of excluding unwanted populations. For example, the capacity for detaining migrants was observed to be increasing in Germany and the Netherlands around 2010 at the same time that the number of expulsions was decreasing, which Broeders (ibid.) attributed largely to the growth of undocumented travel and the associated phenomenon of ‘undeportable’ migrants. The third group of countries have a more fluctuating pattern of deportation figures across the data collection period (see Figure 10.3). For illustrative purposes, only the data for Spain, Hungary and Australia is included in Figure 10.3. In these cases it is interesting to speculate on what legal, political or economic factors might account for sudden drops or spikes in deportation levels. In Spain, a rapid increase in deportations up to 2004 was suddenly reversed thereafter – probably because an amnesty for irregular migrants in 2005 significantly reduced the deportable population. In Hungary, a sudden drop in recorded deportation figures is evident from around 2007. Closer examination of the figures reveals this is mainly due to reductions in rejections at the border. This would appear to coincide with Hungary’s accession to the European Union in 2004, the passing of its first asylum legislation in 2007 and entry into the Schengen Agreement in 2008 – all factors which are likely to result in changes in border control practices. 160

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Figure 10.3 Deportations 2000–2012 in selected countries with variable trend Source: Author’s research data

The undulating pattern of deportation from Australia over this period is also possible to explain. After a particularly zealous period of immigration enforcement in the early 2000s, a scandal erupted concerning the wrongful detention and deportation of hundreds of overseasborn Australian citizens. Following the publication of several highly critical inquiry reports in 2005 (McMillan 2005; Palmer 2005), extra procedural safeguards were imposed along with a change of government that promised, at first, to put a more humane face on immigration control. After an initial dip, deportation numbers once again began to rise, driven by a shift towards less coercive approaches to encouraging ‘voluntary’ departure (Pickering and Weber 2012).

Is the USA the world leader in deportation? The sheer numbers of non-citizens deported from the United States eclipse all other countries included in this study. The rush to expel unwanted populations from the US seems to coincide with the ‘punitive turn’ that has been observed within the criminal justice sphere, as most clearly evidenced by the mass incarceration of criminal offenders (Garland 2001; Simon 2001; Bosworth 2010). Even taking into account population sizes, the imprisonment rate in the US dwarfs that of other advanced democracies. However, standardizing the deportation figures reported in Appendix 2 by overall population size reveals the deportation rates of other countries in this collection in a new light. Figure 10.4 shows that the United States has company at the top of the deportation league table. On the basis of this data, the small countries of Hungary, Sweden and Norway are revealed to deport non-citizens at a higher rate per capita than does the United States. Since the Greek figures do not include returns at the border, it is possible that this country might also have a higher rate of deportation relative to population than is apparent from this analysis. Moreover, at the height of Germany’s deportation drive in 2000, the deportation rate was a massive 229 per 100,000 population rather than the more modest 14 per 100,000 that applies a decade later.4 161

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Figure 10.4 Deportations per 100,000 population (latest available year) Source: Author’s research data

While standardizing by general population figures is a routine practice when making statistical comparisons between countries, a more accurate measure of deportation rates would take into account only that section of the population that is ‘deportable’. Unfortunately, it is not an easy task to assign figures to this socio-legal concept. Some categories of potentially deportable noncitizens, such as asylum seekers awaiting the outcome of their applications and foreign-born criminal suspects awaiting the outcomes of prosecutions, may be under the close scrutiny of the state. Other categories, such as clandestine entrants or overstayers, may not be under the surveillance and control of the state and their numbers are notoriously difficult to quantify. The data provided for some of the study countries includes expulsion orders that have been issued but have not led to a departure; however, this is not available for all of the countries included in the collection and in any case only reflects the number of deportable people who have come to the active notice of authorities. To add further complexity to an already complex picture, deportability is an inherently unstable descriptor, since individuals may move in and out of legal status (Schuster 2005b) due to individual changes in law or circumstances, or may benefit from mass amnesties such as those enacted at specific junctures in France, Spain, Hungary and the Netherlands, and on a more regular basis in Italy. Due to these difficulties, the number of residents in each country living outside their country of birth as published by the World Bank, has been used as a proxy measure for the deportable population (see Appendix 3 on p. 173). Both the population data and the deportation data used in this analysis relate to 2010. Clearly, it is not the case that all foreign-born residents in any given country are deportable.This would be an alarming suggestion, as it takes no account of differences in legal status and the special protections offered by citizenship. It might also be argued that when standardizing deportation figures by population size, whether referring to legally or illegally resident populations, rejections at the border should be excluded from the count since these practices are not directed towards populations already present in a particular territory. However, disaggregated deportation data is not available for all jurisdictions, so the overall figures in Appendix 2 have been used for all the analyses presented in this section. With all these 162

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3135 1955

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caveats in mind, the rates of deportation per 100,000 foreign-born population are presented in Figure 10.5. The data displayed in Figure 10.5 retains a very similar ranking of countries as the previous analysis, with Scandinavian countries, Hungary and Greece all deporting a much higher proportion of their foreign-born populations (bearing in mind that some of these deportation figures may include returns at the border) than other countries included in this study. Arguably the most appropriate measure of all in terms of the efficiency with which countries identify and remove deportable populations would be achieved by standardizing deportation figures by the unlawfully present population.The overall size of the irregular migrant population across the 27 member states of the EU has been estimated at between 1.9 million and 3.8 million for 2008 (Vogel, Kovacheva and Prescott 2011).This figure is minute compared with the estimates of more than 11 million in the USA – and Vogel, Kovacheva and Prescott note that it is significantly less than figures quoted rather loosely in 2007 by the European Commission. After conducting a thorough examination of the data collected by the pan-European Clandestino Project, these authors concluded that the irregular migrant population had been in decline in Europe since 2002, influenced by EU enlargement and legalization programmes. Focusing on irregular migrant populations takes us closer still to a representation of deportable populations, though these figures are still subject to inaccuracy due to the dynamic nature of ‘legality’ and ‘illegality’, and to the immense difficulties of enumerating a largely hidden population that were identified above. Estimates are available for the unauthorized populations of all the countries included in the study, though their accuracy is inherently questionable. For the majority of European countries the most authoritative source is the Clandestino Project (see Appendix 3). Even though they are considered to be the best available figures, the numbers are often published as very wide ranges rather than as a precise figure, and some of the estimates date back as far as 2005. For standardization purposes the mid-point was used as the estimate where it was expressed in the Clandestino data as a range. For consistency with the previous analysis, deportation data from 2010 was used, though this will not align in all cases with the date 163

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Figure 10.6 Deportations per 100,000 estimated irregular population using 2010 deportation data Source: Author’s research data.

of the irregular population estimate. Moreover, the interpretation of this analysis is also affected by the inclusion of returns at the border in the deportation figures, as discussed above. For the purposes of standardization, publicly notified estimates of undocumented migrants published by the Pew Center were used for the US; Statistics Norway was the source for Norway; and official figures published in annual reports by immigration or statistical authorities were used for Australia and Sweden. The deportation rates obtained by standardizing the deportation figures in Appendix 2 by the best available estimates of the irregular migrant population of each country are presented in Figure 10.6. Given the multiple caveats applying to the data, the precise figures must be regarded with caution (and indeed, substantially different figures were obtained by substituting deportation data from other years). However, some tentative observations can be made based on the relative rankings.This time, Australia and the Netherlands join the Scandinavian countries as jurisdictions where the expulsion of the deportable population seems to be at its most efficient. At the other end of the scale, Italy and the US seem to be making relatively little impact on the pool of potentially deportable people in their territory.

Does Nordic exceptionalism apply to deportation? In their detailed study of imprisonment rates in selected Scandinavian and Anglophone countries, Pratt and Eriksson (2013) contrasted the punitivism of the latter with the non-punitive approach to criminal justice that is apparent in the former. In the face of sky-rocketing imprisonment rates and the imposition of deliberately harsh prison conditions in English-speaking countries, the Nordic zone shines out as a beacon of social democracy, maintaining a commitment to

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rehabilitation and social inclusion. If there is any hint of a ‘punitive turn’ in Scandinavian countries, Pratt and Eriksson locate it in the increasing cultural heterogeneity of what were previously relatively homogeneous societies, united by their cultural solidarity. It is therefore particularly interesting to consider whether the so-called ‘Nordic exceptionalism thesis’ holds in relation to coercive practices carried out against those who are not members of these close-knit social democracies. Barker (2013), for example, argues that the cultural solidarity underpinning Nordic exceptionalism leaves others – particularly foreign nationals – vulnerable to social marginalization and exclusion. The statistical data presented in the previous section suggests that the inclusionary ideals that characterize Norway and Sweden in relation to criminal justice practices are not replicated with respect to non-members. Although there are many limitations on the data, deportations relative to the various population measures suggest that these countries are very efficient at expelling non-members. This conclusion is supported by arguments made by Ugelvik (2013) that the pressures of maintaining a social democratic form of governance in the face of the new demands of globalization have led to a fundamental practical and philosophical shift. According to Ugelvik, and in line with Barker’s analysis, this tension has produced a bifurcated system based on inclusion within the safety net for members, alongside strident efforts to exclude non-members. While the statistical evidence seems strong, questions about relative punitivism can also be asked in relation to deportation practices. This concerns more than just deportation numbers. Alongside imprisonment rates, Pratt and Eriksson (2013) also considered the quality of prison environments and commitment to rehabilitative regimes, finding Nordic countries, once again, to be far less punitive on these measures than English-speaking ones. Exploring these questions in relation to Norway and Sweden would require a much more in-depth analysis than can be attempted here, but there are some glimpses from the available data and literature that we can draw upon. The Norway researcher working on this project observes that detention in that country is very rarely for more than one night, with forced deportations generally being carried out through arrest and overnight detention. This contrasts markedly with practices elsewhere. In the Netherlands, deteriorating detention conditions, the threatened criminalization of undocumented residence and the indefinite detention of individuals who cannot be deported have attracted considerable criticism on human rights grounds (Amnesty International 2008). Despite repeated admonitions from the United Nations Human Rights Committee, Australia operates a mandatory detention policy that applies in law to all illegally present individuals, but in practice is directed mainly towards criminal deportees and asylum seekers who arrive without visas by boat (Crock and Berg 2011).The UK is now the only EU member state not to designate a time limit on administrative detention and NGOs have documented abusive treatment of deportees by security personnel during deportation (Granville-Chapman, Smith and Moloney 2004; Wistrich, Arnold and Ginn 2008). Deaths during deportation have been recorded in a number of EU countries, with accelerated removals policies in many countries identified as the main factor driving the increasing use of force (Institute of Race Relations 2010). The European Committee for the Prevention of Torture (CPT) has expressed increasing concern over the violence of deportation across Europe, and the European Court of Human Rights has found living conditions in Greece both inside and outside detention to be so deplorable that it ruled in 2010 that asylum seekers should not be returned there under the Dublin Convention (MSS v Belgium and Greece [2011]). In the US the inhumanity of splitting families (Human Rights Watch 2007) and concerns about abandoning unaccompanied minors across the US-Mexican border (Jimenez 2009) have been the particular focus of criticism. There is therefore mounting evidence that deportation and the infrastructure 165

Leanne Weber

of arrest and detention that is needed to support it are producing a level of harm that can only be described as punitive. The Nordic exceptionalism thesis might encourage us to speculate that, while deportation rates are relatively high in Norway and Sweden, the process by which those deportations are carried out will be less punitive in nature than elsewhere. A full exploration of this hypothesis is beyond the scope of this chapter, but there are some reasons to challenge this view. Both Norway and Sweden make use of charter flights, where the treatment of deportees cannot be monitored, though not to the extent of some other EU countries, notably Spain, Germany, the UK and the Netherlands. Norway’s expeditious deportation operations described earlier as involving arrest and overnight detention might be thought to be less punitive than the protracted and sometimes open-ended use of detention elsewhere. On the other hand, it is impossible to say without further research whether the urgency of such operations might involve the use of ‘surprise tactics’ such as the dawn raids deployed in the UK which have attracted high-level criticism there (Travis 2010). In Sweden, Khosravi (2009) reported average pre-deportation detention periods of around 18 days in 2005, noting that longer periods were allowable in law. Both Khosravi (2009), in the case of Sweden, and Ugelvik (2013), in the case of Norway, have argued that efforts to reduce detention to a minimum are driven primarily by considerations of cost, in order to direct state expenditure to the well-being of citizens. In Norway, the percentage of deportations described in official data as ‘forced’ has remained above 80 per cent since 2003, with a slight drop to 72 per cent in 2011. By way of comparison, forced deportations reached a peak of 84 per cent in 2007 in the Netherlands, but were significantly lower at other times in the study period, with an average of 65 per cent from 2000 to 2012. In Sweden, the percentage of forced returns seems to be rather lower at around 33 per cent over recent years. However, there is good reason to look beyond the veneer of apparent ‘voluntariness’. Following intensive ethnographic research, Khosravi (2009) concluded that efforts to manufacture ‘voluntariness’ within the Swedish system occurred alongside particularly harsh treatment of those who resist deportation, including humiliation through the removal of clothing and other human rights abuses in detention. It is important also to consider the techniques through which apparent consent to expulsion is achieved. In the UK, NGOs have for many years criticized what they describe as policies of immiseration, whereby failed asylum applicants have been so marginalized from any capacity to meet their basic needs that decisions to return to their country of origin can barely be seen as a choice. More generally, voluntary return programmes such as those organized by the International Organization for Migration (IOM) have been criticized as being less than voluntary since decisions are often made in the context of misleading information and against a backdrop where forced deportation may be the only other alternative (Webber 2010).

How is geo-political context reflected in deportation practices? If we dig beneath the surface of the aggregate figures shown in Appendix 2 it is immediately apparent that geo-political factors shape deportation practices in a dramatic fashion. Italy, Spain and Greece at the southern perimeter of the EU have been the primary focus for offshore measures such as FRONTEX patrols aimed at preventing irregular arrivals. But their frontline status is also reflected in the relatively high proportion of their deportations that are a result of refusals of entry at the border. In Spain, for example, the proportion of total deportations that arise from apprehensions at the border (i.e. retornos and devoluciones) reached a peak of 78 per cent in 2006, though it has varied widely from year to year. Hungary performed a similar role previously as the eastern buffer of the European Union until its accession to the EU in 2004 166

Deportation practices across the Global North

shifted the gatekeeping role further east to the Ukraine. As reported earlier, deportations that arose from border refusals dropped significantly from 2007 onwards, reflecting these altered geo-political circumstances. In the relatively more insulated countries of Sweden and Norway, transfers under the Dublin Convention to other countries that are points of first arrival in the EU are a prominent feature of the mix of deportation practices. Although it is not a member of the EU, Norway participates in the Dublin process, and so-called ‘transfers’ to EU countries (a bland bureaucratic term that seems designed to neutralize the misery that these processes create) account for a particularly high proportion of deportations. In 2011, for example, Dublin Convention transfers accounted for 23 per cent of all deportations (according to national, not Eurostat records). Using Eurostat records, it is apparent that countries that are farther removed from the main points of irregular entry into Europe are the most able to take advantage of the Dublin Convention to return asylum seekers to countries of transit or former residence, without considering their asylum claims. If the figures in Appendix 4 can be relied upon (and, once again, discrepancies with national data identified by researchers raise significant questions about reliability), then they tell a story in which Germany, Sweden and the Netherlands were able to reduce their population of asylum applicants significantly in 2010, while the asylum seeker populations of Italy and Greece were increased in the same year due to transfers under the Dublin Convention. Where deportation statistics are disaggregated by nationality and legal category, they give some indication of who is perceived as ‘the enemy.’ In Greece, while it has become the entry point for the majority of asylum seekers and irregular migrants trying to enter Europe, data supplied to the project shows that deportations are overwhelmingly enforced against Albanian nationals from the neighbouring state. In France, the mass expulsions of Roma to Eastern Europe have been highly controversial because of their openly discriminatory character. In the US, the massive deportation effort has been mobilized primarily with undocumented Mexican and other Latin American workers in mind, while in Norway, Ugelvik (2013) argues that a particularly sharp line is drawn between deserving refugees and undeserving groups of rejected applicants and criminal aliens, suggesting that illegality and criminality are powerful definers of enemy status. Migrants who commit crimes are a relatively small but politically significant target for deportation in many jurisdictions (e.g. see Pratt 2005, on Canada). Van der Leun and van der Woude (2013) have argued that this is particularly so in the Netherlands, where it is no coincidence that a proposal to criminalize illegal residence has been hotly debated.

Influences below and beyond the state While deportation seems to be an archetypal expression of sovereign will, it is important to acknowledge its inherently transnational character (Walters 2002). Efforts to exclude may be thwarted by the refusal of alleged countries of origin to accept undocumented returnees. The importance of international cooperation has given rise to an explosion of bilateral agreements for the return of rejected asylum seekers and irregular migrants (see Table 10.1 in relation to the EU). These readmission agreements are often brokered by the promise of easier visa access for the citizens of the country of return, or through other incentives, though even formally concluded agreements can be thwarted by obstructionist measures by the receiving state (Ellermann 2008). According to Cassarino (2007), individual EU countries, notably Italy, France and Spain, are increasingly opting for informal arrangements that are more flexible than formal readmission agreements and enable operational adjustments to be made in response to shifting security concerns, developments that reflect the ongoing tension between national autonomy and a more coordinated EU-wide approach. While regional arrangements are very different in 167

Leanne Weber Table 10.1 EU and bilateral return agreements Country

Number of agreements

France Germany Greece Hungary Italy Netherlands Norway Spain Sweden UK EU*

70 38 21 26 52 35 33 36 24 26 14+6

Note: *Six agreements under negotiation at 10 Feb. 2014.

Australia and the US, these countries also rely on bilateral agreements to broker the return of citizens of other states. The US has extant agreements with Mexico, Vietnam, Cambodia and Cuba, while Australia has concluded a range of memoranda of understanding, the most important of which were to facilitate the return of Vietnamese criminal deportees and rejected Afghan asylum seekers. The legal landscape for deportation has also been irrevocably altered by the advent of the EU and other regional bodies, and the increasing reach of international human rights law.An example in the European context is the EU Return Directive.Adopted in 2008, the agreement encourages member states to participate in voluntary return programmes run by the IOM. Attempts to harmonize procedures, such as the use of detention during deportation, have reportedly resulted in many states increasing their detention limits (Migreurop & New Internationalist 2012). Although the bilateral approach is still dominant, the EU has had the competence to negotiate readmission agreements with non-EU countries on behalf of all member states since 1999. At the time of writing, EU Readmission agreements had been concluded with 15 countries in Eastern Europe, Africa and Asia, while agreements with Turkey, Morocco, Algeria, Belarus, China and Azerbaijan were pending. Migreurop note that there is often an expectation on receiving countries to subsequently negotiate their own return agreements so as to create a ‘cascading effect’ sending migrants farther and farther from Europe, a practice which the French NGO argues creates ‘even greater inequality for EU “partners”’ (Migreurop 2013: 98). In recent years, the pan-European border agency FRONTEX, established initially to mount perimeter offshore patrols, has assumed a major role in coordinating mass deportations via charter flights. This enables groups of member states to band together to deport individuals of a specified nationality on the same flight, achieving cost efficiency and also insulation from possible interference or public scrutiny. Information supplied by researchers on this project suggests that Germany, Spain and the Netherlands have participated actively in this programme, while Hungary has been limited by budget constraints. The Dublin Convention is another supranational influence on state deportation practices in Europe, and was discussed in a previous section. The US and Canada have a similar arrangement entitled the Canada-US Safe Third Country Agreement that enables each country to return asylum seekers who venture across their common border.

168

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The influence of the European Court of Human Rights has also been felt in the field of deportation. Following the decision in MSS v Belgium and Greece, which was mentioned earlier, many EU countries began to suspend their Dublin Convention returns to Greece. The sharp drop in recorded returns to Greece is reflected in the Eurostat figures for 2011 and 2012 (see Appendix 4). With human rights courts at the European level thwarting efforts to return asylum seekers to Greece, it seems that the UK has sought to tackle the issue in a different way, by funding an IOM ‘voluntary returns’ programme in Greece on the rationale that this will prevent onward travel through Europe (Webber 2014). This research has not explored sub-national influences on deportation practices, but it is highly likely that the national deportation figures reported here obscure significant regional differences in many countries, particularly where immigration enforcement functions are devolved to local level. Van der Leun (2003) found differences in local responses to the Linking Act in the Netherlands which was aimed at increasing detection rates by recruiting service providers into immigration enforcement roles. And in the United States Provine (2013) charted differences in state-level legislation restricting the rights of undocumented migrants.

Conclusion This chapter has barely scratched the surface of the complex web of local, national and supranational factors that influence deportation practices across the Global North. Moreover, the figures cited should be treated as indicative only, given the doubts over comparability explained in detail throughout the discussion. Still, the ‘kaleidoscope’ approach to analysing the data has revealed some interesting patterns that are worthy of more in-depth exploration. Although deportations appear to be declining in number in some countries included in this study, the banopticon consisting of arrest, detention, deportation and soft power techniques of persuasion appears to be gaining momentum in others. Even where deportations are declining in frequency, significant numbers of people are caught up in this machinery of expulsion, and lasting changes are occurring in institutions and official practices that will also affect resident populations well into the future. A globalized criminology of deportation needs to address these developments by combining the intellectual agility to decipher the complex interplay of local and global forces that drive both the will and the capacity to exclude, with the stamina to examine detailed practices on the ground.

Acknowledgements Every member of the international research team (see note 3) played a vital role in collecting and interpreting the data reported in this chapter. An additional acknowledgement is due to Rebecca Powell, who assisted in collating the data from all the countries included in the study and sought out additional specialized information, as well as collecting primary data for Australia and the UK.

169

Yes* Yes Yes Yes

No No Yes^ No

Yes* Yes Yes Yes

Yes Yes No Yes

No Yes

Yes

Yes

Yes

Yes

Yes

Yes

Germany Greece

Yes No

No

No

Yes

Yes+

Yes

Yes*

Hungary

Yes No

Yes

Yes

Yes

Yes

Yes

Yes

Italy

No Yes

Yes

No

Yes

Yes+

Yes

Yes*

Netherlands

Yes Yes

Yes

Yes

Yes

Yes+

Yes

Yes

Yes Yes

Yes

No

Yes

No

Yes

No

Norway Spain

No Yes

No

No

Yes

Yes+

Yes

Yes

Sweden

Yes^ No

No

No

Yes

Yes+

Yes

Yes*

UK

Yes n/a#

Yes

Yes

Yes

No

Yes

No

US

Yes n/a

Yes

Yes

Yes

Yes+

Yes

Yes*

Australia

Notes: * Voluntary departures only included in deportation figures if seek government assistance (France), departure is notified to authorities (UK), or part of organized programme (Australia) + Voluntary departures of asylum seekers are included if depart through an organized programme (Norway, Netherlands), their departure is notified to authorities (UK, Sweden), are only recorded from 2002 in Australia, and are included but reportedly occur very rarely in Hungary. Otherwise, voluntary departures are not included in the figures. ^ Refusals at the border (generally interpreted to be immediate refusal of entry at the geographical border) also include juxtaposed, i.e. extra-territorial controls in the case of the UK, and expedited asylum processing at airports in Germany. # The USA has a similar agreement with Canada that asylum seekers will be processed in the first country of arrival. There is no equivalent agreement in Australasia.

Departure required following breach of immigration law – voluntary/unsupervised Departure required following breach of immigration law – supervised/forced/escorted Asylum seeker required to leave after rejected refugee application – voluntary/unsupervised Asylum seeker required to leave after rejected refugee application – supervised/forced/ escorted Non-citizen required to leave after criminal conviction – voluntary/unsupervised Non citizen required to leave after criminal conviction – supervised/forced/ escorted Individuals refused entry at the border Individuals transferred out under Dublin Convention

France

Table 10.2 Categories of expulsion included in deportation statistics for each country

Appendix 1

France Germany Greece Hungary Italy Netherlands Norway Spain Sweden UK US Australia

75448 16548

46993

50627 189026 9563

25206

39732

46647

8876

9000 109946 13332

2001

9000 183486 24253

2000

68629 165168 10894

77125

9000 99151 11780 24802 88501 21070

2002

64390 211098 13878

12870 91761 14993 26610 65153 29500 8393 93951

2003

61158 240665 12689

16850 72535 15720 27411 59965 22400 5956 121121

2004

58216 246431 12524

54306 14878 3508 92638

19841 46205 21238

2005

63867 280974 10501

23831 44709 17650 25426 45449 12947 2754 52814

2006 23196 28712 17077 13486 26779 11900 2628 55938 10816 63367 319382 9489

2007

Table 10.3 Deportation data gathered by researchers (as per Appendix 1) vs Eurostat returns data

Appendix 2

29796 24172 20555 7156 24238 9170 2882 46246 15732 67981 359795 8404

2008

18361 10330 4359 38129 22007 67214 393457 6818

29288 24037 20342

2009

28026 19533 17340 11538 20287 11780 5733 30163 25536 60244 385100 8825

2010

32912 11295 11357 13577 25163 10790 6556 30792 24323 52526 391953 10175

2011

10785

10090 6641 26457

2012

14,295 11,900 13,895 14,075 13,855

68,565 62,850 51,785 10,585 16,650

Greece

Direction of discrepancy varies

Eurostat figures consistently higher

Eurostat figures consistently lower

19,470 18,400 17,045 20,425 22,760

Germany

1,745 2,245 2,445 4,610 5,440

Hungary

7,140 5,315 4,890 6,180 7,365

Italy

9,350 8,980 10,355 9,475 9,635

The Netherlands

4,415 3,735

1,665

Norway

29,785 28,865 21,955 23,350 18,865

Spain

9,015 11,980 14,645 13,470 16,140

Sweden

47,455 64,945 53,615 53,600 54,180

UK

Notes: Last update: 8 Jan. 2014. Eurostat counting rules for third country nationals returned following an order to leave: Third country nationals who have in fact left the territory of the Member State, following an administrative or judicial decision or act stating that their stay is illegal and imposing an obligation to leave the territory (see Art. 7.1 (b) of the Council Regulation (EC) no 862/2007). On a voluntary basis Member States provide Eurostat with a subcategory which relates to third country nationals returned to a third country only. Persons who left the territory within the year may have been subject to an obligation to leave in a previous year. As such, the number of persons who actually left the territory may be greater than those who were subject to an obligation to leave in the same year.These statistics include forced returns and assisted voluntary returns. Unassisted voluntary returns are included where these are reliably recorded. Data does not include persons who are transferred from one Member State to another under the mechanism established by the Dublin Regulation (Council Regulation (EC) No 343/2003 and (EC) No 1560/2003; for these cases, see related Dublin Statistics). Each person is counted only once within the reference period.

Source: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirtn&lang = en

Key

2008 2009 2010 2011 2012

France

Table 10.4 Eurostat data on third country nationals returned following an order to leave, annual data (rounded)

Appendix 3 Table 10.5 Population figures (from national census and projections) Country

Population

Year

France Germany Greece Hungary Italy Norway Spain Sweden Netherlands UK US Australia

65,350,000 80,200,000 10,780,000 9,980,000 56,460,000 4,990,000 46,100,000 9,420,000 16,700,000 63,700,000 311,591,919 21,507,717

2011 2011 2011 2011 2011 2012 2012 2011 2012 2012 2011 2011

Greece

250,000

2010

2005

2011

390,000

10,758,061 1,132,794

300,000

6,684,842

Germany

2006/8

125,000

368,076

Hungary

Norway

2008

651,000 2008

18,000

4,463,413 485,444

Italy

2009

345,000

6,900,547

Spain

45,000

1,306,020

Sweden

UK

US

Australia

2005/7

88,116

2008

618,000

2011

11100000

2011

58,400

1,752,869 6,955,738 42,813,281 5,522,408

Netherlands

Source for foreign-born populations: World Bank ‘migrant stocks’ (all 2010): http://data.worldbank.org/indicator/SM.POP.TOTL. Source for irregular migrants: Clandestino Project: http://irregular-migration.net// (unless indicated by shading; midpoint used where range specified in source)

Foreign-born population Irregular population Year of irregular population estimate

France

Table 10.6 Foreign-born and irregular populations

2012

403

89

322 996 324

989 1270

451 368

820 1258 1202 938 1800 323 0

827 964 949 695 1041 432 0 432 0 268

1046 1083 55 411 1801 1239 0 456 0 271 0 728 0 262

923 1371 38 335 1639

1217

8

783 2122 10 60 112 1195

1010 2932 8 90 41 1458 1130 14 1086 995

2009 883 2380 11 178 62 1683 716 13 1146 995

2010

487 2754 84 70 14 1239 792 14 1045

2011

706 22 1741 714

598 3062 314 126 5

2012 –56 –1416 938 517 979 –1251 –716 419 –1146 –727

Nett effect 2010

Source: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr{_}dubti&lang = en (incoming); http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr{_}dubto&lang = en (outgoing).

France Germany Greece Hungary Italy Netherlands Norway Spain Sweden UK

2011

2008

2010

2008

2009

Asylum seekers sent out by each country

Asylum seekers sent back to each country

Table 10.7 Eurostat data on Dublin Convention transfers

Appendix 4

Leanne Weber

Notes 1 Deportation and removal may have specific meanings in particular legal jurisdictions and may refer to slightly different legal processes. However, both terms refer to the expulsion of individuals who have been deemed to have no legal right to remain in a particular territory. For the remainder of the chapter. I will use the term ‘deportation’ to refer to all processes of expulsion. 2 Exporting Risk: The Australian Deportation Project, funded by Australian Research Council Discovery Grant (DP110102453): Chief investigators Sharon Pickering, Leanne Weber, Marie Segrave (Monash University), Mike Grewcock (The University of New South Wales). 3 The recruitment of this international network was made possible through the support of an Australian European University Institute (EUI) Fellowship which enabled me to visit the EUI in Florence, Italy, for several weeks in 2013. It was the cosmopolitan character of that institution, and the talented multilingual students I met there, that inspired me to recruit an international network of researchers to gather the data reported here. Those researchers were Francisco Alonso (France), Andriani Fili (Greece), Julia Iván (Hungary), Kimberly Klein (USA, Canada), Sigmund Mohn (Sweden, Norway), Rebecca Powell (Australia, UK), Lea Schönfeld (Germany), Anne van Es (the Netherlands), Francesco Vecchio (Italy) and Jonathan Zaragoza (Spain). 4 For convenience, this calculation uses the 2012 population figure and the 2000 deportation figure. It would be methodologically preferable to use a population figure closer to 2000.

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— 2008b, ‘Scandinavian exceptionalism in an era of penal excess: Part II: does Scandinavian exceptionalism have a future?’, British Journal of Criminology, vol. 48, no. 3, pp. 275–92. Pratt, J & Eriksson,A 2013, Contrasts in punishment: an explanation of Anglophone excess and Nordic exceptionalism, Routledge, London. Provine, DM 2013, ‘Disappearing rights: how states are eroding membership in American society’, in MJ Guia, M van der Woude & J van der Leun (eds), Social control and justice: crimmigration in the age of fear, Eleven Publishing, The Hague, pp. 115–26. Schuster, L 2004, The exclusion of asylum seekers in Europe, Oxford Centre on Migration, Policy and Society, Oxford. — 2005a, ‘The continuing mobility of migrants in Italy: shifting between places and statuses’, Journal of Ethnic and Migration Studies, vol. 31, no. 4, pp. 757–74. — 2005b, ‘A sledgehammer to crack a nut: deportation, detention and dispersal in Europe’, Social Policy and Administration, vol. 39, no. 6, pp. 606–21. Simon, J 2001,‘Fear and loathing in late modernity: reflections on the cultural sources of mass imprisonment in the United States’, Punishment and Society, vol. 3, no. 1, pp. 21–33. Stevenson, R & Grant, H 2008, ‘Land of no return’, The Guardian, 13 June, viewed 3 March 2014, http:// www.theguardian.com/uk/2008/jun/13/immigration.immigrationpolicy Stumpf, J 2006, ‘The crimmigration crisis: immigrants, crime and sovereign power’, bepress Legal Series Working Paper 1635, bepress Legal Repository. Travis, A 2010, ‘Immigration inspector criticises dawn raids on families facing deportation’, The Guardian, 27 July, viewed 5 March 2014, http://www.theguardian.com/uk/2010/jul/27/asylum-families-dawnraids-deportation Ugelvik, T 2013, ‘Seeing like a welfare state: immigration control, statecraft, and a prison with double vision’, in M Bosworth & KF Aas (eds), The borders of punishment: migration, citizenship and social exclusion, Oxford University Press, Oxford, pp. 183–200. van der Leun, J 2003, Looking for loopholes: processes of incorporation of illegal immigrants in the Netherlands, Amsterdam University Press, Amsterdam. van der Leun, J & van der Woude, M 2013, ‘A reflection on crimmigration in the Netherlands’, in MJ Guia, M van der Woude & J van der Leun (eds), Social control and justice: crimmigration in the age of fear, Eleven Publishing, The Hague, pp. 41–60. Vogel, D, Kovacheva,V & Prescott, H 2011, ‘The size of the irregular migrant population in the European Union – counting the uncountable?’, International Migration, vol. 49, no. 5, pp. 78–96. Walters, W 2002, ‘Deportation, expulsion and the international police of aliens’, Citizenship Studies, vol. 6, no. 3, pp. 265–92. Webber, F 2010, The politics of voluntary returns, Institute of Race Relations, London. — 2014, Repatriations and visa auctions: the two sides of the migration business, Institute of Race Relations, London. Welch, M & Schuster, L 2005, ‘Detention of asylum seekers in the US, UK, France, Germany and Italy: a critical view of the globalizing culture of control’, Criminal Justice, vol. 5, no. 4, pp. 331–55. Wistrich, AH, Arnold, F & Ginn, E 2008, Outsourcing abuse: the use and misuse of state-sanctioned force during the detention and removal of asylum seekers, Birnberg Peirce & Partners, Medical Justice and NCADC, London.

Case MSS v Belgium and Greece [2011] Application no. 30696/09, European Court of Human Rights.

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11 Surviving the politics of illegality Francesco Vecchio and Alison Gerard

Introduction In 2010, during fieldwork we conducted in Hong Kong, we were very fortunate to meet an outspoken asylum seeker from a West African country who very lucidly likened the dangers he confronted in his country to the situation he faced in the Hong Kong Special Administrative Region (HKSAR). He said that in both circumstances he felt threatened. Making sense of the frustration he had experienced over years of living in poverty, trying to eke out an existence while awaiting a decision on his asylum claim, he vividly described the stress he had been facing for far too long. ‘At home people have real guns,’ he said, ‘but here also they have other types of guns, shooting at you, because you are like a target. Every day they shoot you. It is the same death you live every day.’ These words, and the bitterness with which he pronounced them, made a lasting impression on us. Surviving the politics of illegality is a daily challenge for many ‘unwanted’ people around the world as they face the ‘guns’ aimed at their exclusion. In particular, asylum seekers are caught between international legal frameworks of refugee protection and increasingly stringent (external and internal) border controls meant to protect national interests. In official and popular discourses asylum seekers are often associated with illegal economic migrants. Their arrival raises anxieties and security concerns (Mountz 2010). And their movement is to be deterred in order to minimize the purported risk they pose to the porous borders that enable globalization (Aas 2011; Weber and Bowling 2008). International refugee law makes overtures of humanitarian protection and access to specific legal, economic and social rights to people who seek refugee status. However, asylum seekers are conveniently labelled as undesirable under a logic of border protection that fosters suspicion and obfuscates human rights (Zetter 2007). Employing different mechanisms of border control, this ‘securitization of migration’ approach (Guild 2009) seeks to dilute the rights and protection awarded to those crossing international borders in search of a safe haven, and increases the chance that asylum seekers become and are effectively treated as illegal migrants (Schuster 2011) and criminals. Based on extensive empirical research, this chapter examines the socio-legal and economic consequences of the politics of illegality.We analyse its impact on the lives of asylum seekers who cross international borders seeking refugee protection, only to become ensnared in internal

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border control systems of exclusion and destitution as a consequence of states’ objectives of deterring others from making the same journey. We make use of extensive ethnographic work conducted in Hong Kong with a core group of 75 asylum seekers in 2010–11, and follow-up fieldwork with six asylum seekers in 2013. In so doing, we explore these asylum seekers’ agentic strategies of survival and how they can, and indeed do, lead to their illegalization and criminalization – merging the pillars of migration and penality. Relying on notions of strain theory (Agnew 1992), our contention is that asylum seekers are forced into spaces of immiseration and socio-spatial segregation, where they are largely compelled to exert their agency in ways that necessarily amplify their supposed deviancy, thereby giving effect to the rationale underlying stringent border controls. Morally degrading and criminal refugee behaviours thus emerge in a context that enables their entrapment. However, while asylum seekers conform to this framing and effectively reproduce their own segregation and criminalization, they also furnish the authorities with a powerful mechanism of border and social control which has the capacity to regulate specific sectors of the labour market, and potentially all the people involved. In this chapter we provide a theoretical account of how asylum seekers are forced into such a process of entrapment. We introduce the case study we carried out in Hong Kong which informs our theoretical account, and outline the methodology upon which this empirical research was based. And we turn to examine how asylum seekers negotiate and survive the politics of illegality and resultant criminalization. In doing so, we make the case for the disassembly of architectures of entrapment currently in operation and suggest areas for future research.

Divide et impera: borders that construct entrapment The issue of asylum seeking has been on the political agenda of many countries for decades. Zetter (2007) argues that globalized processes and patterns of unsolicited and mixed migration flows have forced states in the Global North to rethink their approach to asylum, and thereby to reformulate the label of refugee, which is now deliberately politicized and blurred with that of the illegal economic migrant. Governments have consequently moved towards protecting their borders amid growing popular and official anxieties over the ability of states to retain their identity, sovereignty and security (Melossi 2003; Dauvergne 2008). Several scholars have noted how more punitive and stringent border controls have been enacted to keep out unwanted people, notwithstanding states’ legal obligations towards asylum seekers (Weber and Pickering 2011; Gerard 2014). On this view, Melossi (2003) argues that the migrants who are attracted by the promise of a ‘peaceful life’ in the Global North, and subjected to the disruption of their country’s traditional way of living (Wallerstein 1979), absurdly become guilty of the ‘crime’ of modernity; that is, they are rendered immobile before and beyond national borders (Gerard and Pickering 2012) for wishing to benefit from the opportunities that globalization affords to a limited group of global citizens (Hardt and Negri 2004). Globalization has indeed altered the nature of border control by increasing its impact in everyday life (Weber 2006). Border controls sort and divide individuals, shaping and redefining the degree of control to which foreigners and citizens are subjected (Bosworth and Guild 2008). Importantly, new mechanisms of socio-spatial control aimed at managing unwanted people have been devised both at the state and municipal level. For example, Beckett and Hebert (2008) explain in the context of the neoliberal city how specific classes of marginalized individuals are contained by the borders that the municipality legally institutes to exclude certain behaviours from inner urban areas, in order to explicitly replace the poor with a population better suited to advancing the city’s economic development. In so doing, the authorities’ capacity 180

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to define the contours of exclusion and deviancy, and thus to manage people, is significantly expanded (Aliverti 2013). Welfare policy and practice have also become tools for controlling and discouraging unsolicited arrivals of asylum seekers and other populations. Webber (2004) argues that changes in policy aimed at reducing the assistance provided to asylum seekers in the United Kingdom have resulted in the segregation, spatial confinement and overall impoverishment of these people, often as many opted out from accommodation schemes to stay in familiar environments (Block and Schuster 2002). Indeed, as they are drawn away from their social networks, asylum seekers are compelled by such dispersal schemes to live in ‘controlled poverty’, which in turn emphasizes their difference, especially within communities that may resent them for competing with them for scarce local resources (Zetter 2007). It is in this context that asylum seekers find themselves entrapped in a condition similar to what Haugen (2012) calls a ‘second state of immobility’. After fleeing their home country, those migrants who are heavily impacted by border controls often end up living a life of forced deprivation, illegality and ensuing risk. Núñez and Heyman (2007) talk in terms of multiple ‘entrapment processes’ that interact to immobilize these migrant populations by increasing the risks they must take in order to conduct a normal life. In this sense, the concept of entrapment can be refined by borrowing from its accepted legal usage, whereby in some jurisdictions entrapment constitutes a valid legal defence to criminal charges brought by law enforcement agencies using an element of deception to gather evidence against an offender (Bronitt 2008). Unauthorized migrants are thus ‘stuck’ in a context of fewer options, while asylum seekers are deceived by the promise of refugee protection (Coutin 2005), which instead comprises poverty and protracted delays while their asylum claim is pending. What these people consequently experience is a ‘near-permanent sense of liminality, involving [the] nearly constant presence of fear, anxiety, and stress’ (Núñez and Heyman 2007: 357). We argue that it is this process of entrapment that impacts asylum seekers’ survival strategies. Asylum seekers’ agency is necessarily shaped by the environment and socio-legal process that foster their exclusion. Martinez and Slack (2013) write that when unauthorized migrants in the United States are institutionally denied legitimate opportunities to achieve their desired goals (or survival), they may resort to illegitimate means to relieve the tension between the misalignment of reality, and their needs and expectations (Agnew 1992). At the same time, Martinez and Slack (2013) contend that unauthorized migrants can de facto be encouraged to engage in criminal activities as they are exposed to certain networks, norms and values to which they may not have been previously exposed. In the context of external border protection, Weber and Bowling (2008) refer to this process as ‘deviancy amplification’, or a process that renders asylum seekers more visible under certain conditions. This process arguably increases migrant vulnerability. Indeed, not only do these people become subject to increased policing (O’Neil and Loftus 2013), but they may also be exposed to various forms of exploitation, which emphasizes and reproduces the ‘physical borders of nation-states in the everyday life’ (De Genova 2002: 439) – a scenario that thus offers a privileged standpoint from which to identify and read the outcomes of deterrent policies. It is noticeable that while certain policies may be presented as based on largely popular arguments of containing public expenditure and protecting national security, these policies may often conceal more subtle aims (Ambrosini 2013). To illustrate this, the socio-spatial control that practices of internal border controls exert on certain populations may not be immediately visible or explicit, but their power to exclude and effectively relocate specific people to certain areas is nonetheless immense. At the same time, government-disbursed humanitarian assistance can function as a potent mechanism of border and social control, enlisting non-governmental 181

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organizations (NGOs) and other actors in a diffuse and deregulated effort to manage a population for reasons that do not appear to be entirely referable to the stated government objective. In this case, we argue for a more attentive investigation of the economic outcomes of asylum seeking. In order to situate the construction of asylum seekers’ liminal existence and highlight the resources and decisions which reveal the consequences of current government policy, this chapter begins by outlining the legal framework in the context of which asylum seekers reside in Hong Kong and the method pursued to conduct this empirical research.

Research with asylum seekers in Hong Kong This chapter draws on extensive ethnographic research comprising over 100 asylum seekers, NGO workers and segments of the local population in Hong Kong who normally interact with asylum seekers. The purpose of this research was to examine the lived experiences of asylum seekers and the extent to which these experiences are impacted by both structural and individual agency factors. In so doing, we advance understandings of the use of asylum seekers in processes of economic informalization in a geographical region that is relatively marginal to current debates on the movement of unwanted people. Despite the Hong Kong Government having not extended the Convention Relating to the Status of Refugees to the territory, Hong Kong receives a small proportion of the global number of asylum seekers. Under its ‘one country, two systems’ policy, the territory retains its borders and exercises a significant degree of autonomy in immigration matters.The Hong Kong Government allows the United Nations High Commissioner for Refugees (UNHCR) to identify mandated refugees in the territory for their resettlement in other countries. Additionally, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) applies to the territory, and over 12,600 CAT applications have been lodged since 1992 (Immigration Department 2013). Critically, pending a determination on UNHCR and CAT claims, asylum seekers are afforded no legal or economic rights. On humanitarian grounds, they are only provided with temporary assistance, through the government-contracted NGO, the International Social Service (ISS). Asylum seekers’ dependency on government assistance is thus fostered while they are prevented from actively contributing to their livelihood and well-being through work and other opportunities. Currently, Hong Kong hosts about 6,000 people who have lodged an asylum claim with either the UNHCR office or the Immigration Department, or both.1 The great majority of these asylum seekers are CAT claimants. Remarkably, recognition rates are very low in Hong Kong, at less than 10 per cent for the UNHCR and 0.2 per cent for the Immigration Department (Vision First 2013). Asylum seekers come in the vast majority from countries in South Asia and Sub-Saharan Africa. Since 1992, over 9,600 CAT claims have been lodged by male applicants. This population has formed the main focus of this research, and thus its findings necessarily reveal gendered survival strategies. We did meet with a few women who had sought asylum following the termination of their working contracts as foreign domestic helpers, or had travelled to Hong Kong in search of asylum. The number of women applying for asylum has increased in recent years, and comprises almost one-third of the total number of CAT claims. The survival strategies of women claimants are analysed with reference to the limited number of women whom we met during the fieldwork. Qualitative data was collected via observations and interviews conducted in the form of both semi-structured and less formal unstructured discussions. This method was aimed at capturing the greatest insight into the subject population and the social dynamics in which these asylum seekers were embedded (Burns 2000; May 2001). Considerable time was spent developing 182

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trustful relationships with the participants in order to further reliability (Madden 2010). In this regard, a non-probability sampling technique was used, including snowball sampling, quotas for key explanatory variables, and a variety of starting points (May 2001). Issues of access were negotiated with the assistance of local charity personnel and our daily wandering in areas where asylum seekers lived, occasionally meeting potential participants. This approach proved effective as people who resided in remote areas and possessed no knowledge of the charities usually located in the city centre could be included in the research. The findings of this research are not necessarily generalizable to all male asylum seekers. The discussion below examines the decision-making process we observed the asylum seekers undertaking in relation to the main strategies of survival they adopted. Additionally, the more the participants relied on charity and church support, the more they were equipped to lower the risks involved with survival, though this meant their dependency on such help increased (Ticktin 2011). However, these organizations were located in the city centre and provided limited resources in most cases. Thus, many participants were unable to access this aid. Others complemented it, by deploying strategies for survival which are examined below.

Enforcing the entrapment of asylum seekers Hong Kong’s asylum policies are designed to be deliberately harsh on asylum seekers in order to deter other travellers from following in their footsteps. For this reason, the assistance that is provided is in kind and disbursed solely in a form that would ‘prevent a person from becoming destitute while at the same time not creating a magnet effect which can have serious implications on the sustainability of our current support system and on our immigration control’ (Legislative Council 2013). On the basis that asylum seekers’ needs are catered for by the government, harsh prison sentences are imposed on those who unlawfully engage in income-generating activities.2 Indeed, the perception is widespread in Hong Kong that asylum seekers are economic migrants exploiting asylum to prolong their stay and work illegally (Refugee Concern Network 2013). In order to prevent abuse of the system by those who would consider the prospect of living on paltry amounts of welfare assistance attractive, a delicate balance is said to be struck by the government between meeting the needs of those who are offered humanitarian support and mitigating the threat that these same people would engender were their number to increase. Civil society groups argue that this balance is strongly skewed towards enhancing border controls rather than meeting the needs of vulnerable asylum seekers (Refugee Concern Network 2013). In turn, asylum seekers are unfairly criticized – and legally criminalized – when they seek to ensure their survival by engaging in ‘negative coping strategies’ such as unlawful work (Wisniewski Otero 2013). In light of the above, we found that the entrapment of asylum seekers is largely evinced by their accommodation arrangements and food and services disbursed in ways that hinder their mobility and survival, and consequently impose serious risky decisions. Health services and education also impact asylum seekers’ entrapment (Ager and Strang 2008). However, here we examine only the barriers that effectively applied to all of the participants, most notably in the interlocking of the social, spatial and economic spheres. The rationale for them behaving and devising strategies that emphasize their so-called deviancy is found most convincingly in relation to this process of homogenization of their needs.

Socio-spatial and economic catalysts of entrapment In the New Territories in Hong Kong, a long path from the main road in a rural area led to legally questionable dwellings where a group of asylum seeker participants lived. A rusty gate 183

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concealed a cluster of several huts where rooms were rented for a low price. A couch and some chairs furnished the open space between them.The residents said that they would sit there in the night to talk about their lives and dreams. The rooms were small, and despite the visible efforts of the residents to maintain a semblance of decorum, mould on the ceiling exposed obvious structural flaws. A simple kitchen was located outdoors, partitioned by waist-high walls, next to a very basic toilet and shower. These asylum seekers paid HK$1,300 for rent and HK$300 for utilities per month. At the time of the research, the ISS subsidized only HK$1,000 per month and covered no utilities. The basic in-kind assistance offered to asylum seekers comprises accommodation, sometimes in a limited number of shelters provided by the ISS but in most cases in rooms self-arranged by asylum seekers, for which a rental allowance – HK$1,200 in 2013 – is paid to the landlord. Several bags of foodstuffs are provided monthly at designated grocery stores. Toiletries are also available and a basic transportation allowance is provided to enable asylum seekers to report to the Immigration Department and the UNHCR, attend medical appointments, carry out religious worship, and meet legal representatives. While these services may appear to cover most of the basic needs of asylum seekers, in reality their provision is highly discretional, and in most cases insufficient. Our research identified that housing was the most significant problem in view of the high cost of renting a room in a city as expensive as Hong Kong.Very few participants said that they had found accommodation for the amount provided by the ISS, including furniture and utilities. A considerable majority also stated that they were required to pay a deposit to their landlords, generally in the form of one or two months’ rent plus half a month’s rent for agency fees, in case their services were used. This was regarded as one of the greatest obstacles to securing accommodation, as the ISS generally refused to help cover these costs. The cheapest rooms were found only in squatter houses in the rural areas of the New Territories, sometimes built of wooden walls and iron sheets, or in old buildings in certain impoverished districts of Kowloon, where privately owned apartments were partitioned into tiny rectangular rooms at times barely large enough for a mattress, many with a shared toilet and no kitchen. Several asylum seekers revealed that they needed at least HK$200 to top up their monthly rent and cover the utilities.They said that their landlords would at times increase the rent without notice or overcharge for utilities. The attitude of ISS case workers was censured for what the participants saw as throwing them into the housing market without the practical tools to compete. For example, one African participant claimed that he was told by the ISS that he needed to look for a room by himself or rely on friends for help, but he was new to the city and knew no one who could help him. The insufficient provision of food and toiletries further evinces the desperate need for cash of people whose stay is meant to be temporary but who reside in the city for many years. The average period of residence in Hong Kong among the participants was three years, with some of them having resided in the territory for up to eight years. Some participants questioned the willingness of the government to help support their livelihood. For example, one South Asian asylum seeker showed me a list of basic monthly expenses, amounting to over HK$1,000, which he had compiled to demonstrate the cost of living in Hong Kong. As he laconically observed, he would receive only one razor per month, which forced him to buy replacements himself. Eggs, bread and vegetables were bought at the market because what he received from the ISS was said to be insufficient and was ‘hurting our dignity’ as human beings. In response to popular and official perceptions of asylum seekers travelling to Hong Kong to seek economic profit, another participant argued that he was a teacher in his country, but said, ‘Look at me now! If I really had come to gain – I’m a beggar now.’ As he explained, water was not provided, and where he lived 184

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he had no drinkable water. He needed to boil it, which cost money whether done on a stove or by kettle. However, gas cylinders and kettles were rarely provided, inflating his basic expenses. Another participant said: ‘I bought these boxes of tissues because no one provides them . . . And now I’m tired of taking money from my country, from my brother and relatives.’ The money for public transport provided by the ISS was largely insufficient, limiting asylum seekers’ mobility in the city. In particular, the farther participants lived from the city centre, the less they appeared to benefit from the assistance offered by the very few charities that offered support to asylum seekers in urban Hong Kong. The ISS provided funds for transport according to the cheapest route available, which at times involved a significant amount of walking. One participant said that he would spend HK$25 to go to the Immigration Department, but the ISS would reimburse him for only HK$12. Nonetheless, he argued that ‘The bus I should take for HK$12 takes a very long time and I don’t want to miss my appointment.’ Lamenting that the system was increasing his hardship, he added, ‘If you are given HK$12 today to be used next week, but you don’t have the money to go home today, what do you do?!’ Whether money for transportation was reimbursed following or prior to appointments, the in-kind support system clearly forced its beneficiaries into a state of physical immiseration and precarity. In turn, the asylum seekers’ socio-spatial containment was effectively enforced through the systematic denial of the opportunity to secure a decent home. And this situation impacted their agency. In this context, the adoption of specific livelihood strategies can be said to be a result of the dire circumstances they face. As we were told by an African participant:‘Sometimes we have to go out and try to do something’ because ‘everything is expensive [and the] ISS is not doing enough.’ In a similar fashion, another interviewee complained that he was still young, and that the situation of protracted uncertainty he faced was difficult to understand. He argued that he had the drive and capacity to improve himself, but was prevented by the system from doing so. His entrapment was thus the source of his frustration: I’m young, sometimes I need to buy a drink, razors – they give you one razor, no foam, no lotion. If you see the razor, it is open, no package. And then they bind our hands, you cannot work. Today is an important feast for Muslims. We are supposed to eat and invite people to our home to eat, but last night we only ate noodles and went to sleep – Even to get food, I need money for the bus. This means I need to do something, right? I need the HK$40 to get food because if you miss it [food collection] even once they cut it. (South Asian participant) The above discussion illustrates how the homogenization of asylum seekers’ needs and experiences with regard to their physical survival effectively diminishes their options, in turn, forcing them to make risky decisions.

Co-ethnic networks of entrapment Our research examined the asylum seekers’ social networks (Massey et al. 1993), to understand how certain social environments enable survival strategies in contexts of diminished options (Agnew 1992). Very rarely did the participants have family networks in Hong Kong. Lacking pre-established social bonds in the country of migration, asylum seekers rely significantly on the resources available to them in Hong Kong (Engbersen and van der Leun 2001), which at times exposes them to exploitation in the housing and labour market (Grzymala-Kazlowska 2005). In most cases, we found their life to be shaped by occasional encounters and information shared within the community of co-national or co-ethnic asylum seekers – a process which we 185

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understand is strengthened by the practice of the ISS of providing assistance often several weeks after an application for help is received and a home is found. A common experience upon arrival in Hong Kong was described by one South Asian participant who found himself in desperate need of food and accommodation when the agent with whom he travelled disappeared, leaving him alone. This young participant argued that he approached some fellow countrymen on the streets for help, and was taken by one asylum seeker to the New Territories. Here, he met several other asylum seekers who had previously been in his situation, and he said that he ‘slowly, slowly learned everything about Hong Kong’ from this network. He explained how he was told of the ISS and asylum, and adapted to his roommates’ ‘way of living’ in order to procure safety and an occasional income. Another participant similarly revealed that the place where he lived was known in the community as a sort of ‘Bangladesh city’. ‘We don’t know each other, but maybe our relatives in the village at home know or hear of others who have someone in Hong Kong, and they mostly stay [here]’, he said. Based on these examples, we found that co-national and co-ethnic networks function as effective critical service providers that facilitate the insertion of new arrivals into Hong Kong life. Illegal means can be pursued as a result. And some networks, or the lack thereof, may facilitate resources that increase the likelihood of arrest. An example of this was offered by one South Asian participant who endured a very hard time because a co-national man offered him a job in a scrapyard. The scrapyard was raided by the police a few months later and he injured himself while attempting to escape: ‘At that time I was like a baby, I didn’t understand about the police, illegal work – many police came to our place. I had to jump a fence . . . [and] I cut my wrist on the fence. It was so painful.’ Similarly, a couple of participants served a prison sentence for robbing a 7-Eleven. As one of them explained: ‘We suddenly saw money and we got crazy, because we were hungry, had no money, and nobody helped.’ We found that the sorts of networks established with co-nationals thus impacted on accommodation arrangements and place of residence, which in turn influenced the types of livelihood strategies adopted. Many asylum seekers revealed that they or their friends devised strategies either in response to the opportunities available in or near their place of residence, or by changing their living arrangements in order to find ways to complement or increase their meagre income. In this regard, work opportunities were available mostly in labour-intensive sectors in the New Territories, or in services in the retail and trading sectors in Kowloon.

Economic segregation: providing labour and services in niche ethnic markets In our research we asked several questions about the involvement of the participants in incomegenerating activities. Our interest was in determining which and how work opportunities became available. It is notable that most of the participants revealed a desire not to jeopardize their security by doing anything illegal. Even among those who had travelled to Hong Kong with the intention of working – a fact that does not necessarily conflict with a genuine asylum application (Zetter 2007) – the participants understood the risk of being convicted. In a very few cases, some participants had experienced prison terms for engaging in unlawful work. Pending a determination on their asylum case, they argued that it was not their intention to return to prison. Others complained that they found their situation of uncertainty mentally and physically stressful. As one African participant vehemently argued: I came here to gain my safety, not to lose it . . . Does the Immigration want me to stay here four or five years, just sitting in a corner and eating ISS food? I have never been idle like this. 186

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The participants were often distressed and ‘unhappy’, expressing their dissatisfaction with being unable to provide for themselves. On the one hand, their concerns were centred on their financial problems and the lack of lawful opportunities to work. On the other, their social and economic segregation was a source of frustration. Many affirmed that they could not simply sit and wait for someone to care for them. In this regard, the asylum seekers’ social environment provided them with the contacts and means to mitigate their immiseration, mostly by working in economic sectors that are largely driven by foreign demand, where asylum seekers undertake casual work. Asylum seekers were found mostly in ethnic sectors, either in jobs provided by small and micro enterprises that relied largely on informal relations of production to generate a profit, or working as touts and selfemployed entrepreneurs in niche markets. Here, they would service the tourists and tourist traders from developed and emerging economies who travelled to Hong Kong in search of cheap Chinese-manufactured fake watches, clothing and mobile phones. During the fieldwork we identified two major sectors of employment – recycling and trading. As reported elsewhere (Vecchio 2013), in the recycling sector asylum seekers work generally from two or three up to 20 days a month, often for different employers and performing different tasks depending on the items handled in the scrapyards.This was said to be ‘hard’ and ‘dangerous’ work, often performed for over 12 hours a day, dismantling and separating components of air-conditioners, refrigerators and second-hand cars. Asylum seekers also worked in this sector as casual refuse collectors, sometimes supervisors of other workers, and intermediaries who guide foreign buyers to the scrapyards and second-hand dealers. In the transnational trading sector, asylum seekers buy Chinese-manufactured electronics and clothes and/or act as middlemen for the export of these products. We found that asylum seekers functioned as informal but reliable agents who proactively furnished local businesses with their knowledge of overseas markets and advanced their co-nationals’ opportunities to take advantage of Hong Kong’s retail markets. Importantly, in both sectors asylum seekers did not appear to compete for jobs with the local resident population. Due to the low-value-added production output in recycling and certain forms of trading, these services require cheap, physically strong and flexible workers, who may not be readily available in the formal labour market. Further, local residents may not possess the skills or knowledge required to make stable connections between emerging, low-end transnational consumer markets and services that often require trust between parties to succeed. Risky decisions undertaken by asylum seekers concerning the sector of employment related to their perception of law enforcement. Mathews (2013) argues that in a neoliberal economic environment such as Hong Kong, the police largely limit their intervention in order to allow business to grow. Consistent with Mathews’s analysis, trading activities were considered to be largely safe by the asylum seekers in our study. Some participants believed that trading did not constitute work per se, as this was not performed in a closed space for fixed wages. Conversely, the risk of apprehension in the recycling sector was believed to be higher. Trading activities were indeed developed precisely ‘because we can’t work’, a young, resourceful African participant explained. However, trading activities involved significant financial risk, and though preferred to working in labour-intensive jobs, such an opportunity was only available to asylum seekers who had the skills, resources and networks to engage in trading at a profit (Haugen 2012). In this regard, it is notable that for some participants the length of imprisonment for working illegally was (unfairly) much longer than the time they would serve for selling drugs (Martinez and Slack 2013). Nonetheless, none of the participants said that they would become involved in drugs, as they did not intend to become criminals. 187

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Gendered entrapment Another common way for men to raise an income, which was often complementary to the above strategies, was to rely on female companions, most often foreign domestic helpers. Since the early 1980s, foreign domestic helpers have been increasingly employed by Hong Kong’s families to relieve local educated married women of their domestic duties (Constable 1997; Young 2004). As in many countries around the world, domestic workers are vulnerable to abuse, including physical and sexual abuse. Their stringent conditions of stay and work, and the ‘racialization’ they face, lead to their marginalization from mainstream social life (Ladegaard 2013). Our research reveals that this situation has meant that foreign domestic workers are more likely to meet asylum seekers, and that they often support each other’s needs, and thus lower the risks facing asylum seekers. Despite their limited spending power, foreign domestic workers help with their boyfriends’ rent and utilities, clothes, cooking utensils and other daily needs. When asked how they managed to pay their rent when the ISS assistance was insufficient, our participants would often answer along the following lines: ‘I manage as anyone else. I have a girlfriend.’ At times these relationships would result in unexpected pregnancies, which would end with the mother’s entry into the asylum system, following the likely termination of her employment. This would in turn increase the pressure facing the father to provide for the new family. Some women would give up their regular employment, which requires working for only one employer at a time, from morning till night for a low wage. While no doubt is cast on the genuineness of their asylum claims, in some cases the decision to engage in irregular work was dependent on the expectation of working by the hour while being frequently available for their family. Women in this situation performed tasks in domestic work, at times for the same family who had previously employed them but did not want to provide their maid with accommodation and food, or families who did not want to be bound to a domestic helper through a full-time, yearlong contract. One former domestic helper explained that she earned about HK$40 per hour in domestic work. If six hours of work per day were secured, instead of the regular salary of just over HK$3,000, one’s monthly income could be raised substantially. This practice, however, significantly raised the risk of remaining unemployed, which at times led to extreme poverty. Further, the asylum claims of former foreign domestic helpers are largely understood in public and official quarters as an indication of asylum abuse (Eastweek 2013, pp. 22–6). And female asylum seekers who have previously worked in the city as domestic helpers generally receive no or limited services, because in the words of one ISS worker: ‘It is rather ironical to claim torture when you have been allowed to go home every year.’ Foreign domestic helpers in Hong Kong appear to be enmeshed in processes that extend the ‘chain of care’ beyond affluent households to asylum seekers (Kofman and Raghuram 2004). However, this happens at a significant cost, highlighting an area of entrapment which certainly warrants further research.

Discussion The above discussion shows how asylum seeking has become a politicized issue, which we understand to be fuelled by what Italian scholar and novelist Umberto Eco (2013) calls ‘noise’. This noise is information which is given disproportionate attention over other information that may be equally or more important, most likely in response to some hidden agenda. In other words, hegemonic discourses of deterrence and abuse captivate our attention to conceptualize asylum seekers as posing a serious threat to society. In turn, reduced welfare and stringent immigration policies are enforced to discourage unwanted arrivals.Whether or not this argument

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stands up against empirical investigation (Block and Schuster 2002), it is clear that the consequences of such policies shape the lives of many asylum seekers. Limited assistance based on the logic of deterrence has the effect of funnelling unaware migrants into conditions that aggravate their vulnerability. It homogenizes their needs, while exposing them to practices, networks and risks that necessarily affect their agency (Agnew 1992). In Hong Kong, asylum seekers are exposed to illegitimate means structures that increase their chances of being arrested, which confirms public and official views of the threat they pose to the territory. Their alleged deviancy is routinely produced through their networks and by their unlawful engagement in income-generating activities, and is evinced in reports and photos of asylum seekers being escorted by military-uniformed police officers (Eastweek 2013, p. 26; Ming Pao 2009) and police struggling to enforce the law when dealing with drug dealer asylum seekers (Carney 2013). The politics of illegality thus produces a cycle of events that ensnares protection while driving asylum seekers to adopt survival strategies that result in the manifestation of their deviancy and criminalization, as captured in Figure 11.1.

Securitisation of Migration (Minimal welfare; IIlegalization and Prohibition on working; Criminalization)

Humanitarian Protection (Refugee and CAT)

Entrapment

Survival Strategies

(Immiseration; Segregation)

(Social networks; Unlawful work)

Figure 11.1 The humanitarian protection cycle

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Important to furthering the above framework is to probe beyond an understanding of the socio-legal consequences of entrapment, and to question the economic advantage provided by ‘controlled poverty’ environments, where the asylum seekers’ dispersal does not deprive them of their social networks. Rather, it inserts them in specific socio-spatial and economic structures. In this regard, we have described survival strategies that seem to span a process that reveals clear opportunities for the Hong Kong Government to enhance control capacity over extended strata of the resident population. On the one hand, we established that insufficient in-kind humanitarian assistance engenders deviancy. On the other, it spatially confines asylum seekers in areas where their segregation provides benefits to certain local residents who generally lack the human and social capital to compete in a knowledge-based economy (Vecchio 2013).The economic benefit of having a large army of occasional and flexible workers has been evinced by many scholars, such as De Genova (2002), who writes of the ‘spectacle’ of border controls as a means to differentiate, inferiorize and discipline unauthorized migrants into providing cheap and expendable labour (Calavita 2003). Along these lines, we ought to question the basis of certain ‘noise’ which insists on maintaining deterrent priorities when the vulnerability and marginality inflicted on asylum seekers appear to positively affect certain residents (Beckett and Hebert 2008). Finally, critical to the process of entrapment is the collaboration of non-state actors enlisted to operate as tools of government control. Civil society and NGOs generally mobilize either to resist state power or to provide legitimacy to government actions and policy, for instance, by implementing practices that produce social control (Green and Ward 2012). As Noxolo (2009) writes, the work of NGOs can transform people into governable subjects. Their practices and strategies have the capacity to translate state power, and effectively enable state actors to govern ‘at a distance’ (Garland 1997). Based on the narratives of our participants, it is evident that the asylum seekers’ suffering was in large part a consequence of humanitarian assistance. And in this regard we argue for the disassembly of the complex architecture of entrapment, in order to consider the impacts of the politics of illegality and its various ramifications, not only for asylum seekers, but for society at large.

Acknowledgements Some data in this chapter has also been presented in Vecchio, F. (2015) Asylum Seeking and the Global City, Routledge, London.

Notes 1 Statistics elaborated by the authors on documentation provided by the Immigration Department and country data available on the UNHCR website (www.unhcr.org), as of January 2013. Immigration data reveals the number, gender and nationality of CAT claimants. 2 In the High Court judgment HKSAR v Usman Butt and others (HCMA70/2010), sentencing guidelines were provided as a matter of consistency, imposing 15 months’ imprisonment on illegal immigrants and others pending removal who are caught working illegally. As per the judgment: A genuine torture or refugee claimant deserves sympathy and should not be left in a destitute state during the determination of his status. However, his basic needs such as accommodation, food, clothing and medical care are provided by the Government . . . The provision of that assistance clearly removes the need of a genuine claimant to seek employment pending the determination of his claim. (HCMA70/2010: 52–3)

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12 (Un)knowing and ambivalence in migration Temporary migration status and its impacts on the everyday life of insecure communities Claudia Tazreiter

Introduction If people do not [migrate], they are like water that stays in one place and therefore it gets dirty, but if it flows, it will stay clean and give benefits to its surroundings. (INDG201)1

This chapter focuses on temporary migrants, delving into the relationships, tensions and anomalies in the everyday lives of migrants. The bureaucratic and political management of migration is commonly framed and debated as if it were a set of issues separate from the needs and interests of migrants as well as residents and citizens. The seemingly straightforward binary of state practices and the everyday life of persons with regular or irregular, temporary or permanent status in a society is a fundamental problematic in migration studies and migration research. Although this view of separate spheres and domains of life and governance is by now thoroughly in question and destabilized, not least by the interventions of those articulating a critique of methodological nationalism (elaborated further below), the binary of migration management/citizenship management nevertheless remains. This binary provides an easy retreat to a default setting of moral panics over human migrations and mobility. From this starting point, two approaches to theorizing the experience of precarious, irregular migrants will be outlined and later utilized in view of the empirical data of the everyday experience of temporary migrants: first, the creativity of ‘unknowing’, and, second, the role of ambivalence as a coping strategy deployed by migrants in precarious situations. Before considering this theorization in more detail, the chapter first turns to briefly consider some key developments in contemporary migration management and research. Contemporary migration is a phenomenon of multiple movements and circularity rather than one-way movement such as the permanent migrations of the past where people migrated for a range of economic, family, socio-cultural or political factors and tended to settle in the

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country of immigration for life, or at least long periods of time. Patterns of human mobility today are fluid and unpredictable; South–South, North–South as well as South–North. New migration patterns are influenced by the prevalence of shifting and less secure work and the need for a highly mobile workforce. Economies are increasingly globalized, reactive and adaptive, and similarly human mobility has adapted to globalized forces, with individuals and families planning and responding to market forces as well as to the regulation and re-regulation of borders. To be sure, the recruitment of skilled, low-skilled and unskilled labour at short notice has escalated in scale and dimension, with an attendant flow of authorized and unauthorized workers across and within national borders (Sassen 2006; Dauvergne 2008; Castles 2011; Hugo 2011). These shifts are of critical importance to planning and also imagining futures at local, regional and global scales. The planning and imagining of futures are furthermore not merely the remit of states, bureaucracies and business enterprises, but very much a social process. Individuals, families and communities plan and imagine futures in cycles of reactive and adaptive practices displaying creativity and resilience alongside caution and ambivalence. In other words, temporary migrants, just like other individuals, groups and communities, draw on affective registers of intimacies as well as instrumental decision-making that may appear to the observer to be in conflict with each other. The chapter draws on fieldwork conducted as part of a study of temporary migrants in the Asia Pacific, the project ‘Fluid Security in the Asia Pacific’. A small sample of in-depth interviews is presented, drawn from a larger sample with Indonesian nationals who currently reside in Australia on a temporary basis for study and/or work, and interviews in Indonesia with family members who are temporary migrants residing in Australia, and Indonesians who desire migration for work or study but have not yet migrated. The three criteria for selection required (1) participants to be Indonesian nationals; (2) them to have a temporary migration status in Australia; and (3) they had to be 18 years of age or over. Recruitment was through Indonesian community groups, non-governmental organizations and networks of family and friends of temporary migrants. It is notable that in the Australian sample it proved difficult to recruit people willing to be interviewed. This was particularly the case for migrants on the 457 short businessstay visas.The larger project from which the interview material discussed in this chapter is drawn develops a critique of existing human security approaches that are often subsumed under the more dominant national security frames (Edwards and Ferstman 2010). It is notable that human security debates and concerns emerged from empirical evidence of extreme poverty and ‘maldevelopment’ documented in successive United Nations Human Development Reports since 1994. Importantly, human security has also served as both concept and empirical guide in other contexts such as the intersection of migration and security (see Weber, Pickering and Tazreiter, 2014 forthcoming). It is not the aim of this chapter to offer a discussion of human security, nor to debate the relative merits or weaknesses of human security as a concept. If it serves no other purpose than to refocus attention away from the language of security as naturally aligned with the state, with territorial borders and with violent force, and rather to allow a reclaiming of the language of security as a humanizing idea, then human security serves a deep purpose with great import for vulnerable populations. This ‘ideal’ of human security is demonstrated, for example, through its attachment to people and their everyday concerns in sustaining life and building resilient communities and hence, leaves it in tension with other prior conceptions of security.

Mobility and stasis: human migration as the rule, not the exception Aligned to the changes in migration patterns and the increase in temporary, rather than permanent migration outlined above, are new problems that relate to social change within host 194

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societies as well as neighbouring states and countries of origin.The impact that migrants have on host societies has been the focus of considerable research. Of critical importance is attending to an untangling of migrant categories to reveal the lived experience of migrants as well as paying attention to migrant voices in bringing to the fore the self-understanding of migrants’ experience, which would at the same time highlight various modes and strategies pursued to gain security in the everyday circumstances of survival. Migration is experienced in qualitatively unique terms in relation to economic and socio-cultural security not merely due to the relative rewards for different types of work, skills and education, but rather due to the invisibility of the rights deficits (‘rightlessness’) that irregular migrants face when compared with regular migrants (Barchiesi 2011; Pickering et al. 2013; Tazreiter 2013a; 2013b). The migrant groups of primary focus in this chapter encompass temporary migrants, including those on short-term work visas, students who often wish to regularize their stay during and after a period of study, and migrants without an official status or visa. For these individuals the official migration category as a bureaucratic sorting and allocating tool and visa type is often as fluid and changeable as the social status or indeed stigma attributed to them in public and media discourses as well as in everyday interactions with long-term residents and citizens.The fluid, often contested nature of such categories, the labels associated with them and their administrative corollary in the complexity of the regulatory frameworks associated with immigration and citizenship bureaucracies are in turn likely to contribute to the precarious circumstances of individual migrants (Castles 2010; 2011; Ness 2011; Hugo 2011; Landau 2012). Do migrants constantly adapt to changing conditions in negotiating migration systems regardless of the normative architecture in place? Or, would a different model of governance at the national, regional or international level be the key to improving the everyday circumstances for precarious migrant workers? Is, for example, the increasing mobility of precarious migrant workers a feature of their low-skilled and irregular status or is such ‘hyper-mobility’ likely to become a common feature of other categories of more advantaged migrant workers, the high-skilled ‘cosmopolitan elite’? It can be argued that a causal relationship exists between failures in the implementation of guiding principles on the rights of migrant workers and their families in the national and regional contexts and increased levels of hyper-mobility and precariousness. Hyper-mobility may well lead to increased insecurities, driving individuals and families into vulnerable circumstances including illicit border crossings, engaging smuggling networks to facilitate travel, and working in unsafe or bonded conditions. No doubt, states are faced with complex and fast-changing priorities in balancing the rights of temporary workers with the interests of business and of long-term residents and citizens. The treatment of migrant workers, both by their employers as well as through the process of applying for temporary visas and permanent residency, also has an impact on the conditions of employment for residents and the native-born. A pathway to a regular migration status and to permanent residency or to citizenship is one marker of basic rights. Temporary migrants in precarious circumstances may well be invisible both to institutions and to citizens and residents in the countries where they work (Bigo 2002; Davis 2004; Boltanski and Chiapello 2005; Appadurai 2006; Duffield 2008). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) was adopted by the General Assembly of the United Nations in 1990, entering into force on 1 July 2003. While it is a significant guide for countries hosting migrant workers, no Western state has as yet signed or ratified the Convention. Mindful of the lack of international legal obligations toward migrant workers, the International Labour Organization (ILO) has produced a multilateral framework on labour migration as a set of non-binding principles for a ‘rights-based’ approach to labour migration. In articulating these principles to guide states in national policy and bi-lateral and 195

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multi-lateral agreements, the ILO principles acknowledge the need for new approaches to rights and entitlements for temporary non-citizens. The gap in international norms identified by the ILO is exacerbated at the level of national migration governance, where the state-based model of citizenship and attendant obligations leaves temporary migrant workers in vulnerable circumstances. In recent years, the Australian Government has also shifted the priority of its migration programme to temporary employment visas. This shift has provided greater opportunities for workers to enter Australia’s employment market, including workers in the Asian region. This policy shift was underscored in the Australia in the Asian Century White Paper, delivered on 28 October 2012. The White Paper highlights the transformative changes underway in Asia, economically and culturally, and calls on Australian businesses and other stakeholders to take advantage of these changes by forging partnerships in the Asian region. An example of a popular temporary worker visa used to engage Asian employees in Australia is the Business Longstay – Standard Business Sponsorship (subclass 457) visa.There are currently around 620,000 temporary work visa-holders in Australia (Ronson 2012). Key to the success of the management of migration in the twenty-first century will be the strategies adopted to regulate the other side of temporary migrations: unplanned and unauthorized migration. Policies and practices ought to be sensitive to the changing patterns of migration as they relate to the labour market, local and transnational cultures, and the transnational lives of migrant communities. Temporary employment arrangements for foreign workers are one important facet of an increasingly precarious global labour landscape that impacts on both migrant workers and domestic workers. The Australian Council of Trade Unions (ACTU) estimates that 40 per cent of Australia’s population is engaged in ‘precarious employment’ (ACTU 2011; Howe 2012). However, migrant workers from poorer countries of the Global South experience particular precariousness through forms of discrimination and exploitation due to a range of factors, including low levels of education and skills training, and limited knowledge, and access to collective bargaining workplace rights. The phenomenon of being a denizen, whereby migrants experience life on the fringes of society, unable to access residency or citizenship rights and live ‘shadow lives’ while often paying taxes and contributing to their host society in other ways, is a growing problem in many parts of the world, including Australia. In such a scenario, residents and citizens become ‘free riders’ of the labour of precarious migrants (Rubio-Marin 2000; Carens 2013). Individuals, groups and families seek to use migration as a pathway to fulfilling basic needs through paid work as well as imagining alternative futures. At the same time, states restrict pathways for some groups of migrants, often in reaction to domestic political currents (Burawoy 2013). A ‘regimes of mobility’ approach, adopted by Nina Glick Schiller and Noel Salazar (2013) offers a framework that addresses not only migration but also its relationship with immobility or stasis; the connections between localization and the transnational; the experiences of migration and the ways of imagining it; as well as rootedness and cosmopolitan possibilities. The ‘regimes of mobility’ approach seeks to reveal, for instance, the co-dependence between privileged movement and the movement of stigmatized, hidden and vulnerable irregular and temporary migrants:‘It is the labour of those whose movements are declared illicit and subversive that makes possible the easy mobility of those who seem to live in a borderless world of wealth and power’ (ibid.: 188). The regimes approach offers a highly flexible theorization of mobility as intersecting regimes that at once normalize the movements of some (travellers) while criminalizing and entrapping others. As discussed further below, the regimes approach aligns with the approach of other scholars eschewing the naturalized link between mobility and freedom (Standing 2011; Ness 2011). 196

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Knowing, (un)knowing and migrant ambivalence Knowledge, evidence and truth are well understood as troublesome and shifting for social researchers, both in terms of concepts and in the methods deployed to secure them. That is, though these questions appear to be the key and foundational driving force for research, the debate on the efficacy of knowledge production is itself ongoing and open. Researchers engaged in detailed ethnographies return with regularity to the problematic ‘knowledge’; its production and the exchange or the contest of knowledge systems. A historical view of knowledge production clarifies the place of not knowing in social relations, as well as the creativity of ‘unknowing’, a deliberate turning away, distinct from the common-sense equivalent of ignorance, erroneous belief or a false consciousness associated with unknowing (Geissler 2013: 15). In this vein, particular societal arrangements or ways of doing things may over time become ‘public secrets’ that are as constitutive of forms of domination and power as the overt and visible architecture of border control and of migration management. Drawing on Taussig (1999), Geissler explains such public secrets as [C]onstitutive of social order through a double bond with power: making domination unspoken, silencing critique and resistance, and exacerbating power differentials, since the force of making violence unknowable exceeds that of the violent act itself. Power rests thus not just in knowledge; ‘unknown knowns’ are the apotheosis of power. (2013: 15) (Un)knowing is potentially a form of creative dissent, a deconstruction of privileged or takenfor-granted meanings and systems, as well as an attitude or set of dispositions that social actors may embrace in conscious or unconscious actions and reactions to social situations or to the architectures of regulation and control. Here, (un)knowing is deployed in the context of irregular migration from the perspective of the immigrant. Do immigrants with precarious official or social status deploy strategies of unknowing, or making things ‘ghostly’ or opaque in situations of insecurity or ‘fluid security’? Is unknowing, or the use of public secrets also a productive way of analysing public or official discourses on irregular migrants and their effects on those same irregular and insecure migrants? As I have discussed elsewhere, negative public discourse and moral panics about one group of ‘others’ or outsiders can have effects not only on the intended group but also on a wider group of migrant arrivals. In the Australian case, the visceral public debates on asylum seekers, for instance, have generated a ‘politics of crisis’ with effects on other newcomers or unwelcome, uninvited ‘others’ (Tazreiter 2012). In pondering the relevance of (un)knowing to the migrant experience, and in particular the circumstances of irregular migrants with a precarious official and/or social status, the concept of ambivalence emerges as an interesting category of analysis in circumstances of insecurity and precarity. That is, a social actor is held to be rational when guarding commitment and deep emotions to persons, objects or symbols they engage with (Smelser 1998). If an engagement between persons, parties or ‘things’ is uncertain, a degree of precautionary ambivalence is not unusual; indeed, it ought not to be unexpected. Yet it can be postulated that ambivalence in migrants can be read by the native-born as disloyalty – even as a provocation. In the lives of temporary migrants, ambivalence can be understood as one aspect of survival strategies. In situations where individuals have limited control over external factors such as administrative decision-making over visa status, the tenure of residency rights and access to other rights, as well as limited opportunities to shape and actively participate in social and cultural life in host societies, ambivalence may well be an astute response or attitude.

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The case study explored in some detail below encompasses extracts from an ethnographic study of Indonesians with temporary migration status living in Australia as well as those planning, or hoping for, future migration to Australia. The extracts presented in this chapter focus on several examples of individuals and families who live ‘shadow lives’ on temporary or expired migration status.These lives in the shadows and the relationship between the precarious everyday life of temporary migrants and the administration of migration in the Australian case are articulated below by an Australian Migration Agent who acts on behalf of temporary migrants to assist in negotiating the channels of governance in obtaining a visa: There’s always a combination of factors and ultimately what drags people to Australia or what pushes them away from the source country are things which are outside, and they’re intrinsically unknowable for us. We have to take the evidence that clients give us and we take the evidence that we can obtain independently and we put together a construct and ultimately one of the biggest variables or [a] constant difficulty, if you like, is the fact that the Department of Immigration stands as the gatekeeper and a large part of our work is understanding the department’s received opinions, vulnerabilities, issues, concerns and manipulating those through the case officers who are appointed to do that work. So that is one degree removed from the clients. The clients have just expressed a view that they want to come and then we assess with them what possibilities there are for them. Yeah, but it’s difficult to say what their motivations are. That’s always a construct, on my part, if you like, I’m guilty of Orientalism and I impose on them what I think they want. . . . I think there are a series of insights that one obtains from groups of individuals from particular countries which is not always devoid of some sort of weirdly racist underpinning in one’s own analysis of what one sees . . . we’re all citizens and we can all vote and weirdly enough I never get a strong indication from my clients, when they become citizens, that their vote is determined by the migration struggle. It’s almost as if they’ve closed the door behind them. And they move on.Yeah, the same door that I close so that I can move onto the next client they’ve also shut, and often they seem to think that they deserved it and it also reassures them, I think, to know that the next people coming in will also find it hard so they don’t want other people to find it easier than they did, but, yeah, I never see our clients responding to any degree of racism, any perception of hostility. They just seem to be able to move on, which is weird, isn’t it? Well, when you look at temporary migrants and you see what they’re doing for the 457s [business short-stay visa] at the moment, much smarter people than us are manipulating public opinion in ways which show that the public can be persuaded to be infinitely hostile towards them and I wonder whether publicity about the Indian students last year [2011] and the year before is also related to that and when you see publicity about crimes being committed, a temporary migrant is always mentioned, isn’t it, whereas it should be irrelevant. So, you know, public opinion has the potential to stop it completely, I think, if it’s manipulated in that way. I don’t know, I mean, 457 visas we can live without them, students can live without them and at some stage, you know, the economic graduates have to take over and . . . yeah, command the debate, but it’s not going to happen. I mean, just that visceral xenophobia is so strong. (INDG303) Although the above comments and reflections on temporary migrants were made in relation to Australia, the sentiments of loss of control and feelings of a liminal, in-between existence expressed by this Migration Agent are conditions of temporariness not particular to the Australian 198

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case. The actions of the Australian state described in the above extract, of fiendishly detailed gatekeeping while churning highly active public opinion rhetoric on migrants, are not dissimilar to the repertoires of other states in both the Global North and Global South (Standing 2011). Recent migration scholarship has challenged the prevailing approaches and methodologies applied to the study of human migrations in order to understand the lives of migrants who live in, and between, host societies, and often undertake multiple migrations for survival. In part, this challenge is conceptual and in part, it emerges from practical issues. Conceptually, migration has long been theorized primarily through the prism of the nation-state and its economic and demographic needs, applying a logic that proceeds with a vision of the nation state as a ‘container’ of peoples, identities and culture (Amelina et al. 2012; Wimmer and Glick Schiller 2003). Over some two decades, migration scholars and legal scholars have increasingly pointed to the problems in policy development and in socio-cultural relations that result from the dominant conceptual logic that understands the social realm as co-extensive with the national. This logic has not only dominated the theorizing of migration and belonging but has also embedded itself in the administrative and policy-making functions of the state, resulting in forms of tangible and symbolic exclusion of some individuals and groups. Scholars working on the nexus between human migrations, rights and belonging have built new empirical evidence of the ‘shadow lives’ lived by significant populations situated outside the protections of any state. These scholars have also made significant contributions to theorizing the abject life of populations who are often invisible to institutions, have variable access to basic rights and live in the ‘global borderlands’ (Bigo 2002; Benhabib 2004; McDowell and Wonders 2010; Nyers 2010; Papastergiadis 2010). Such borderlands are distinct from the physical borders that have long been the dominant focus of migration research. Global borderlands are at once imagined spaces that may foster new and transformative exchanges and networks, while also being the places of new horror, extraction and disappearance. In this world, abject populations live alongside the ‘winners’, making their beds, collecting their refuse, even tending to them in old age, yet find themselves subject to continual cycles of invisibility and ‘nothingness’. To overcome the problems outlined above, attention to methodologies ought to accompany and enrich the new theorization of global borderlands and mobility. To avoid the pitfalls of methodological nationalism and assuming the dominant position of the nation state, researchers ask for sensitivity to context and mindfulness of the still dominant trope of the nation state as the container of migrants (Weiss and Nohl 2012). Ethnographic approaches, for example,have faced the challenges of globalized, transnational contexts by using ‘transnational social fields’; following ‘the people’, ‘the thing’, ‘the metaphor’, ‘the story’, ‘the biography’, and ‘the conflict’ (Marcus in Weiss and Nohl 2012: 106).

‘Regimes of mobility’ in practice: the everyday logic of temporary migrants This chapter draws on the interview material introduced earlier, focusing in particular on select interviews where the subtle processes of ‘unknowing’ are discernible; the actions, strategies and attenuations of disconnecting and de-linking oneself from systems, knowledge and hierarchies of social and/or institutional ‘flows’. Such flows may be uni-directional or open to side-channels and smaller fissures and capillaries less visible than the major arteries of communication and power. The following section draws on extracts from an in-depth interview with an Indonesian couple with two children. They discuss their temporary migration status in Australia and their 199

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circumstances as ‘illegal overstayers’ once the temporary visa on which they had entered Australia expired.This couple’s story is a vivid example of ‘knowing unknowing’ as coping with uncertainty and a lack of control over one’s own life course. This (un)knowing or unlearning of certainties and life plans is evident as a coping strategy of the couple. Interestingly a ‘knowing unknowing’ is also discernible in the approach of employers and officials. [T]he bridging – they [the Australian authorities] rejected the bridging visa. Then one year. This way, after one year, we become, like, illegal. [The situation was] tricky. But, luckily, I got a permanent job when I come here. This way we still keep going. I got the job. This way – it’s important. This is important that we are – economically, it’s not as bad, you know, because I got, like, a permanent job. Nobody helped us, honestly, because when we are illegal, we keep quiet because [long pause]. (INDG101) The couple recount a period of time living a shadow life or half-life of hiding. During this period the husband is employed full-time and their two children are at school. They talk of support from a few members of the Indonesian community. Otherwise they live an isolated existence, afraid of a knock on the door. And then until probably – I’m not sure, probably someone reported us about being . . . illegal. Because the Immigration [officials] come to our house. And then my solicitor just told us, ‘Yeah, someone has already reported you’, because this – this is the only difficult part when we are living in Australia. And then they catch us and . . .That’s right, when I come in Australia, the luck is I got a permanent job straightaway, that’s lucky. And we still pay the tax. Pay the tax. I’m not sure because why they didn’t ask, what’s your visa, something like that, because when I’m coming in the job, apply for the job, and then I can – I get this with a job and then the boss is, ‘Okay’ . . . Happy. [the boss says] ‘you’ve got permanence.’ They don’t ask anything. (INDG101) In the candid reflections of this couple, the ‘knowing unknowing’ outlined earlier is evident in multiple layers of migrants’ experience as well as enacted through semi-official and official regimes. The temporary migrants are aware of the ‘unknowing’ that operates at the local level of neighbourhood, school and everyday engagements of meeting the basic needs of life. They also engage in their own forms of ‘unknowing’. In their everyday interactions in meeting daily needs, in interactions with schools, shops, even places of work, the respondents are not asked difficult questions by residents and citizens for long periods of time, and when it becomes evident that an unknown party has exposed their ‘irregular’ migration status, the couple retreat to a largely hidden life, waiting for an official ‘knock on the door’. Moreover, ‘knowing unknowing’ is evident in several layers of governance: workplace, school, government service providers, immigration bureaucracy, taxation bureaucracy. A strategy or deployment of (un)knowing on the part of temporary migrants, however subtle or working at the level of the unconscious, follows from the conditions of the fragile, ever-changing nature of temporariness. In this context, for example, ambivalence is an aspect of an affective repertoire of coping with uncertainty. In stark contrast, the knowing unknowing on the part of several layers of official or semi-official actors highlights a deliberative force either of dissent or of exploitation. Dissent toward regulation and exploitation of the labour of temporary migrants – akin to Rubio-Marin’s (2000) ‘free rider’ phenomenon whereby citizens benefit in 200

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inverse proportions from the labour of those who contribute to a society through taxation regimes without the reciprocal benefit that residency or citizenship grants. A recurrent theme that emerges in the narratives of temporary migrants is that of belonging and forms of ‘cultural security’ in the host society. Drawing on the earlier concept of ambivalence as a response in situations of uncertainty and limited ‘rootedness’, the section below draws on interview discussion of the impact of temporary status on migrants’ lives, asking open-ended questions about what ‘feelings’ temporariness elicit. For now, before I feel like this is temporary, in Australia, in Sydney, it’s only temporary. But for now I cannot – I cannot do the same like that. I have to follow what people do in here, how they act, how they behave. I have to follow like to adapt with them. So I cannot say, I’m Indonesian, I complain, I just keep complaining like that. That’s what we [are] learning, even in Indonesia we have like a prayer, what is that, set of prayers – wherever you live, you have to adapt.Yeah. It is my plan after I finish my study I just enjoy my time in Australia here, and to make – like I said, at the beginning it’s hard to adapt. We still keep learning, see – learn how to adapt in Australia. And now we are it’s getting better, so we know how to adapt and then just enjoy life. Make – if you feel lonely, yes, make a friend and then make yourself happy. I don’t want to be sad. My mind is still in Indonesia now. Before it was like, Indonesia is better like this, like this, like this. Now, I don’t want to compare. I like Australia. It makes me happy . . . so before it’s very hard. I just thinking Indonesia is much better. I used to compare but now like the saying, the prayer said, wherever you live, you have to adapt, you do like what the people [do]. So just make me happy and enjoy the time in Australia and then go back to my country. (INDG103) The following extracts are selections from interviews conducted in Indonesia with family members of migrants in Australia as well as with Indonesians hoping to migrate to Australia for study or work. Interviewees planning to migrate to Australia initially on a temporary basis for work and/or study were asked what aspects of their lives or particular events led them to the decision to migrate. To be honest, I really have a dream to go abroad again.Well, my first time travel was not that really abroad – like, I spent a few months there and so I really wanted to go to Australia and I have tried once and, yeah, I think Australia’s just the best place to go because [laughs] as I arrived, on the Internet the status they show that Australia is just one of the best places in the world to go for study, and some ranked universities in the world are Australian universities, so that’s one of my motivations to go to Australia . . . and probably to the US or the UK. (INDG213) An advocate for migrant workers in an Indonesian NGO, who has been a migrant domestic worker herself for many years, comments on the ongoing problem of temporariness: Is always on a temporary basis. Because for the contracts organization . . . because now, in the reality, in the now globalization, all the workers is being contract position. So because of this also we are doing – of course, first we want to be permanent workers. But until now, there’s no way about this. So – except you are married with the local, so you can become [regularized]. (INDG401) 201

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Interviewees were also asked what they imagined would be the benefit of migrating to Australia for a temporary period for themselves and for their family and community. The response below is from a young woman who had spent a number of years as a temporary worker in neigbouring countries such as Malaysia, with the ultimate hope of working in Australia. If I go overseas to Aussie, ‘cause I can say thanks, God – okay. And then, because my dream come true, and then I can study and then I can take the shorter part-time, and then I can sort my money, everything, and I can send to my mum and everything. And I can sort money for my future. I want to open the business, like that, and finish study. I think I can take the first job in Aussie. If don’t have, I can come back with this but I have money and before I save. Yeah. But I don’t want the shopping, everything that I don’t. I just want the focus how my future. I can send money and work and study. And then if I can have my family like my mum’s family, like this one, because they also poor but only that my dream. And one, my dream, if I can save my money and I can say to my mum, Mum, this is my money. I want to go to you to Bethlehem.Yeah.That’s my dream. Because I have only mum. Yeah. I want to make she happy. Yeah. Only that’s my dream. Not thinking anything. I’m don’t thinking I want a car, I want a house, big house. No, no, no. I’m not thinking like that. I just want thinking I have home, I have food, I have money, and I can study, I can make you happy, all my family. I don’t think anything. (INDG209) A parent of an Indonesian living in Australia on a temporary visa reflects candidly on the scale and the impact of migration on family networks and changes over time in keeping in contact with the diaspora: Indonesian people, in general, regardless their religion or ethnic [background] want to migrate to other places to try their fortune and to become successful people. Even if their children are sent overseas for working after they finish their study, the parents feel really proud of them and this is a pride for the family. So not only for studying, but also for working, the parents would feel really proud and this is really desired by Indonesian people. And even in Islamic tradition, if people do not [migrate], they are like water that stays in one place and therefore it gets dirty, but if it flows, it will stay clean and give benefits to its surroundings. And there’s another proverb that encourages people to pursue knowledge even if they have to travel to China. People will not get much if they stay in their hometown, but if they travel overseas, they’ll learn a lot more and more life experiences, know other languages, other cultures. So they’ll have rich experiences. Because when they travel overseas, they will not only gain formal knowledge, but they’ll have valuable life experiences from living in different countries or different places. So, it’s really a pride if Indonesian families have relatives or children who live overseas. At first, we felt lonely [when children emigrate] and we really missed them a lot. But then we started to get used to this distance. The communication technology makes us closer. Because of the internet and the telephone, I feel as if they lived just next door. In fact, even if they didn’t live overseas, say they lived in a neighbouring city, [name deleted] for instance and I live here in [name deleted], still we couldn’t meet every day nor every week. In the past, when I decided to leave my parents back home in the village to go to Jakarta, my parents could only send a letter when they were missing me and so could I because there was no telephone. But today, I can even see their faces, we can talk and face each other. 202

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That’s why I don’t really feel lonely now. (INDG201) This chapter has sought to apply the concepts of (un)knowing and ambivalence to the everyday lives of migrant workers to elicit the subtleties from detailed, trusting conversations and to acknowledge and appreciate that which is not said. We can discern the liminal in the lives of temporary migrants, with ambiguity as an intermediate state of being. For temporary migrants this can feel like being in a ‘stuck place’ – not being able to move forward or backward. For some with an official status which becomes irregular, this can also lead to invisibility and hiding. A full life can be suspended – or even quite permanently withdrawn – such as in the context of permanent circularity of mobility in pursuit of survival without status. Mindful also of the ‘regimes of mobility’ approach introduced earlier, the nuances, the unseen and the unspoken in the ebbs and flows in social and economic relationships of unequal power that delineate different forms of mobility (Glick Schiller and Salazar 2013: 194): By defining movement and stasis within social and economic relationships rather than in relation to geographic borders, a regimes-of-mobility approach can facilitate a scholarship that is neither confined by nor ignores national and Territory. Whilst not seeing like a nation-state, we must be aware of the role of national mythscapes that confine our ability to analyse the dynamic relationship between stasis and movement. (ibid). The social anthropologist Liisa Malkki in her extended ethnographic work with refugee communities in Tanzania notes that the success of the fieldwork hinged not so much on a determination to ferret out ‘the facts’ as on a willingness to leave some stones unturned, to listen to what my informants deemed important, and to demonstrate my trustworthiness by not prying where I was not wanted. (1995: 51) Drawing on Feldman, Malkki notes, ‘in order to know, I had to become expert in demonstrating that there were things, places and people I did not want to know’ (ibid.).

Acknowledgements The project ‘Fluid Security in the Asia Pacific’ is funded by the Australian Research Council Discovery Grant, number DP1093107. Chief Investigators are Sharon Pickering, Leanne Weber, Claudia Tazreiter, and Marie Segrave.

Note 1. The abbreviation INDG indicates coding used in the research project to ensure anonymity of the informants. It indicates Indonesian interviewees.

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13 Intuiting illegality in sex work Julie Ham

Introduction In the sex work sector, the link between migration and crime is most pronounced in discourses around human trafficking. Human trafficking – that is, the recruitment or transportation of persons through deceptive or coercive means for the purposes of exploitation (UNODC 2004) – is still strongly associated with sex work, despite empirical evidence that trafficking in the sex work sector is not as prevalent as suggested by media or anti-prostitution organizations (e.g. Agustin 2007; GAATW 2007; Jeffreys 2009; Mai 2009; 2012; Segrave, Milivojevic and Pickering 2009;Weitzer 2011).The strong public association between human trafficking and sex work contributes to the aura of illegality that surrounds immigrant or migrant1 women in sex work. Immigrant or migrant sex workers (or those assumed to be) may often find themselves relegated to one of two simplistic categories in anti-trafficking discourses, representing either the passivity and weakness of racialized sex workers (as trafficking victims) and/or the foreign threat of criminality (as ‘illegal’ migrants engaging in oft-criminalized work). This chapter investigates the link between illegality, migration and ethnicity in indoor sex work, by exploring how immigrant, migrant and racialized women sex workers in the Greater Vancouver2 area define and manage ideas of illegality in sex work. First, an overview of the legal environment for sex work in Canada is provided. Second, the meanings and different interpretations of illegality in sex work (as perceived by sex workers) are discussed. Third, I discuss how sex work renders citizenship suspect for non-White immigrant citizens in Canada. The preoccupation by government authorities with sex workers’ citizenship status contrasts sharply with how workers discussed the effect of sex work on their practice of citizenship. I conclude with a comment on the relevance of these findings for law enforcement, policymakers and other stakeholders. Thirty-seven women in the Greater Vancouver area were interviewed between August and December 2013. Interviews were part of a broader research project concerning sex work, migration and women’s agency. In order to interrogate the category of ‘migrant sex worker’, the recruitment criteria were kept deliberately broad in order to capture the range of what ‘immigrant’ and ‘migrant’ mean in sex work. In summary, research participants included interviewees who self-identified as immigrant or migrant, participants legally defined as migrant

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or immigrant, and participants who may be assumed to be non-citizens and targeted by antitrafficking measures (e.g. non-White women who speak English with non-Western accents). The vast amount of resources channelled into anti-trafficking efforts globally has often resulted in invasive and punitive measures against sex workers (Brock et al. 2000; Suthibhasilp, Petroff and Nipp 2000; Busza 2004; 2005; GAATW 2007; Ditmore 2009; Jeffreys 2009; O’Doherty 2011; RATS-W Team & Empower Foundation 2012). In the Greater Vancouver area, a glaring example of this was the anti-trafficking raids by law enforcement in 2006 of 18 massage parlours predominantly staffed by Asian women (Vancouver Sun 2006). Although the ostensible aim of these raids was to identify victims of trafficking, more than 100 Asian women sex workers were arrested. Further investigation revealed that most of the workers were Canadian citizens or permanent residents3 and that none reported exploitation. This demonstrates an anti-trafficking sector that, while well-financed, still continues to use ethnicity and racial difference as a clumsy stand-in for migrant status. There remains a public certainty that migrant sex workers are at risk of being trafficked, but much less certainty about who the ‘migrant’ is. In public and city government discourses, there also remains an association between illegality and ethnicity in the sex work sector. Despite public or policy assumptions that the majority of non-White sex workers are either trafficked or not legally allowed to be working in Canada, the majority of research participants were immigrants who had obtained citizenship (n = 21 or 57 per cent) or permanent residency (n = 6 or 16 per cent) in Canada. Those who were not immigrant citizens or permanent residents were international students (n = 2 or 5 per cent) and Canadian-born citizens (n = 4 or 11 per cent). Citizenship status was not identified for 3 participants (8 per cent).

Sex work in Canada: criminalized but not criminal The Canadian criminal laws governing sex work are structured so that sex work itself is not illegal but it is very difficult to undertake sex work without committing a criminal offence. Sex workers’ rights advocates are specifically concerned about four laws that criminalize aspects of consensual adult sex work: (1) owning or occupying a ‘bawdy house’ (i.e. a place regularly used for sex work); (2) living on the avails of prostitution (e.g. earnings); (3) talking in a public place to arrange a commercial sex transaction; and (4) procurement, or assisting anyone to work in sex work (e.g. security, receptionists, accountants, etc.).4 On 20 December 2013, the Supreme Court of Canada struck down three criminal laws on sex work as unconstitutional and a violation of workers’ right to security of person: (1) s.210 (keeping or being found in a common bawdy house); (2) s.212(1)(j) (living on the avails of prostitution); and (3) s.213(1)(c) (communicating in public for the purpose of prostitution) (Bennett 2013; Fine 2013).The Supreme Court of Canada has stayed their ruling for one year (i.e. the decision will not be put into effect for one year) (Bennett 2013; Fine 2013). These laws essentially criminalize sex workers’ agency and safety strategies. Practising sex work within the limits of the Canadian Criminal Code – that is working alone, working at unfamiliar locations for each interaction, and not negotiating terms with the client – may decrease the risk of arrest but it also decreases the amount of power sex workers can exercise with their clients. Strategies such as negotiating with clients, working with others, and having a regular workplace have been reported to decrease the risk of client violence (Sanders 2004; 2005; Lewis 2006; Sanders and Campbell 2007; Chez Stella 2010; Krüsi et al. 2012; BCCEC n.d.), but would put workers at increased risk of arrest. In essence, these laws set up an extremely difficult choice for sex workers between increasing their vulnerability with clients or increasing their vulnerability with law enforcement. 207

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The criminalization of sex work can perhaps be understood as a moral statement regarding sex work, rather than an effective strategy to address the harms of sex work.There is an increasing amount of evidence that criminalization produces more harm than benefit, for both sex workers and the communities they work in. Criminalization approaches to sex work have been shown to do the following: • • • • •

encourage a culture of corruption (Harcourt, Egger and Donovan 2005; Crofts and Summerfield 2006); threaten public health objectives (Crofts and Summerfield 2006; O’Doherty 2011; Ross et al. 2012); suppress the rights of sex workers (Harcourt, Egger and Donovan 2005); foster the isolation of sex workers and deter sex workers from seeking help (O’Doherty 2011); increase the economic vulnerability and risk of violence by law enforcement personnel and clients (van der Meulen and Durisin 2008; Shannon 2010; Bungay et al. 2011; O’Doherty 2011; Shaver, Lewis and Maticka-Tyndale 2011; van der Meulen 2011).

The intersections between Canadian sex work and migration policy suggest an ambivalent orientation towards both sex work and migration, as well as confusion about what trafficking is. The most prominent example of this may be what has been referred to as Canada’s ‘stripper visa’ (i.e. temporary work permits for exotic dancers). In the 1970s and 1980s, this temporary work permit allowed American dancers to cross the border to work in Canadian exotic dance clubs (Macklin 2003). When the Canadian exotic dance industry shifted to lap dancing with more physical contact in the 1990s, Canadian and American dancers protested these industry changes (Bouclin 2006), and more Asian and Eastern European dancers applied for these visas (Macklin 2003). The changes in worker demographics resulted in heightened public concerns about trafficking, and immigration officials agreed to deny visas to women suspected of entering for the purposes of employment in the sex work sector (though the visa category was retained) (ibid.). In 2012, the Canadian Parliament passed Bill C-38, which prohibits Canadian employers from hiring temporary foreign workers in the sex work sector (Payton 2012a). It has also given immigration officials more discretionary power to refuse migrants entry into Canada on the basis that they might be exploited in sex work (Payton 2012b; CBC News 2012).

Intuiting illegality The majority of women interviewed were either Canadian citizens (including both immigrants who had obtained citizenship and Canadian-born women) or permanent residents. A number of women had experienced administrative migration status checks by government authorities and law enforcement in sex work businesses but issues of immigration status were largely not a concern for the majority of women interviewed. Rather, it was the confusion around the illegality or legality of the sex work sector that shaped how women worked on a day-to-day basis. The ambiguity of both sex work and migration regulatory frameworks in Canada can create confusion about what is technically legal or illegal, leaving workers in a context where illegality may be (wrongly) assumed (O’Doherty 2011). Interestingly, women’s notions of illegality and legality had relatively little to do with the actual criminal laws concerning sex work. Instead, ideas about illegality and legality revolved around anticipating or trying to intuit what events might trigger punitive responses by law 208

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enforcement and other regulatory bodies. On a day-to-day basis, ‘illegal’ appeared to be defined as anything that might invite an unwanted law enforcement response (even if the triggering event is legally permitted), rather than what is defined in the Canadian Criminal Code. In some instances, this involved workers going to great lengths to protect themselves against activities that were not illegal and/or using strategies to protect their safety that are illegal under the Canadian Criminal Code. When asked about the laws that sex workers needed to be mindful of, typically interviewees paused, appeared struck by the question, and stated that they actually weren’t sure what the laws were. Although a few women were aware about the criminal laws around sex work, most felt a very strong need to avoid detection and interference by law enforcement. In particular, the longterm consequences of a criminal record were recognized to be quite serious. Women were concerned that a criminal record for prostitution-related offences would jeopardize their ‘day job’ or would result in having their child taken away by child protection services. Several women felt clients were aware of workers’ reluctance to call the police in situations of violence and were able to use this as leverage against sex workers. Another perceived consequence was the risk of losing one’s job or business. One worker argued that calling the police in situations of violence would only result in attracting the attention of ‘bad police’ or the closure of their workplace by law enforcement authorities. ‘Isabella’,5 an immigrant citizen and ‘massage shop’6 worker, thought that involvement in sex work would threaten her application for Canadian citizenship and waited until she had obtained her citizenship before applying for a job in the sex work sector: Isabella: I was doing, like, minimum wage job, but then I was scared that, what if the police caught me. I wasn’t aware of the law, and then, like, I’m going to lose my citi-, not my citizenship, I’m going to lose my working permit.Then I got residence, then I’m going to lose my resident. Then citizen, even though I have a citizenship, Canadian passport, it could be taken, revoked – that’s what I think, like, no? Julie: No, no, no. They, they can deport permanent residents. But they can’t deport citizens. Isabella: Yes! Julie: Although, but with citizens, I mean, citizens can go to jail, right? Isabella: Well, the jails here are like so, like, 5-star hotels. If I have to go to jail, this is the best place to go. Women also identified prohibitions against working from their home as a rule they had to consider, though this more often referred to specific property/strata rules against home-based businesses rather than the criminal law against keeping a ‘bawdy house’. Women correctly identified solicitation as an illegal activity, but were confused whether solicitation referred to selling sex or selling sex in public view. I just know we have to keep it discreet. And I have been asked by clients, cause they’ll be, like, ‘Is this ok? We have to lock the doors. Will cops bust into this?’ And I was just, like, ‘We were discreet about it and I honestly don’t know.’ Because, I mean, it confuses me because, if someone really did want to do a bust, it’s actually quite easy. I mean, in the [media], there’s a whole section where it’s like erotic services or something . . . I mean if you did a search-up on Google or the Net, it’s quite easy to find. So that’s why if someone did want to do a crackdown, it’s – I mean, it’s, it’s just right in their hands. (Nara, massage spa worker, Canadian-born Asian) 209

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The other perceived offences that were identified were largely outside women’s experiences. For example, one worker felt law enforcement were only interested in finding undocumented migrant workers, underage workers, and trafficked workers; as these categories did not apply to her, punitive law enforcement responses were not a concern. One worker said that operating without the appropriate business licence would be illegal, so that a shop with a ‘massage licence’ would be allowed to do [sensual] ‘massage’ while businesses with a ‘beautician’ licence would not be permitted to provide [sensual] ‘massage’. There were two kinds of strategies workers used to avoid triggering punitive law enforcement responses: (1) strategies that relied on social inclusion and ‘fitting in’; and (2) using language to re-frame worker–client interactions. When they were asked how workers could protect themselves from law enforcement, social acceptance and understanding were common underlying themes. Women stressed staying ‘under the radar’, being a good citizen, and not being someone anyone would have any complaints about. In some instances, operating ‘legally’ was not permitted to workers who wanted to do so: The place I worked at before wanted to change to a Health Enhancement Centre (HEC).7 The City didn’t give the licence because they advertised on Craigslist. But the Craigslist ad didn’t say sexual services, it just said her size, not saying anything about sexual services.They didn’t give her the HEC licence and the place had to close down. This very affected the owner, who signed a lease.They don’t want problems but they don’t want it public with the police.They say no [to a licence] but they [the applicants] don’t know why, don’t know how seriously to follow. (April, massage spa worker, permanent resident, Asian) One common strategy of remaining ‘under the radar’ was concealing one’s involvement in sex work. It was routine for many research participants to conceal their work from friends, family and communities. One worker said she had also not submitted taxes because she was not sure how she should define her work. Another worker said disguising one’s working relationships with clients as personal relationships or personal dates could be a strategy she could use if she came under law enforcement scrutiny. But in addition to these strategies, staying ‘under the radar’ also meant monitoring the perceived impact of their presence on their neighbours and in their communities and taking care to appear ‘ordinary’. I know that as long as I don’t cause problem with neighbours, I treat them with respect, do ‘what makes sense’, it’s not just law – also about not booking too early or too late, having general respect for my neighbours, no scenes, asking clients to be quiet, being appropriate inside and outside . . . Respect for everybody . . . I don’t read the laws, I just keep quiet or discreet. No one could complain what I do, but if they do, then I change what they’re asking for, or move on, find another place. (Jenny, apartment-based worker, immigrant citizen, Eastern European) For ‘Lily’, an Asian permanent resident, not ‘sticking out’ also meant not being too successful or working in popular, well-known businesses. She spoke about the reasons for choosing the massage shop she currently worked in and said ‘I prefer a quieter place.’ She doubted law enforcement would check her relatively low-profile workplace in a less affluent neighbourhood, where ‘nobody care about you, it’s more safe.’ 210

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The second group of strategies women used to avoid triggering harmful law enforcement responses revolved around language. Although issues of English-language literacy and fluency often arise in public discussions about immigrant and migrant sex workers, research participants also spoke about understanding how to use the English language in a criminalized sex work sector. The Canadian legal context for sex work demands proficiency in talking about sex work without explicitly talking about sex work. Euphemisms are commonly used around payment and services provided. Sex workers advertising online commonly referred to rates and prices as ‘donations’ or ‘honoraria’. In massage shops, workers spoke about ‘tips’. But basically, I think, it’s, it’s on how you ask. Like there’s codes, like ‘donations’, how much are your ‘donations’? And it’s, like, you know, you don’t say ‘Do you want to do, you know, service now?’, you just say ‘Is there anything else you’d like?’, right. And it’s all ok, I think. (Pia, massage shop worker, immigrant citizen, Asian) In addition to discussing payment in terms of donations and tips, workers also re-framed their work in various ways, with several workers specifying payment for their time or companionship, rather than sex. You don’t really call it rates, you kind of call it donation, honoraria, gifts, roses, whole different things, but then not put the dollar sign. So that and then a lot of girls will put up a little thing saying, ‘The donation is for my time, and time only. Anything that happens during that time is between two consenting adults.’ So that keeps you safe. (Amra, apartment-based worker, international student, South Asian) So when I talk to clients, I obviously do not say ‘Do you do this?’. I say, I say, ‘Sorry, we can’t discuss these terms,’ you know, I use kind of the acronyms, like FS for full service. (Fatima, apartment-based worker, Canadian-born citizen, Asian/European) The use of language can have serious consequences, as one worker noted: This girl got busted – the police and the city – they used [hotel], a very nice hotel in [Edmonton]. And they call all this callgirls. So she show up for the appointment and she pay for her licence, OK. So she didn’t have a problem. So the guy ask her: ‘I’m gonna pay you 300 dollars, what are you gonna to do with this 300 dollars?’ And she said: ‘I’m going to give you a massage.’ ‘So, for 300 dollars, you’re going to give a massage?’ ‘Yes.’ And then a woman came out from the washroom and she told them: ‘I don’t do couples.’ And they’re, like, ‘No, this is the police.’ And then the City person, and she’s, like, ‘Eh, I know you. I just paid my licence. What is this?’ And she said: ‘Well, you said the word “massage”. You were to use the word “body rub” because you’re not licensed for massage.’ So she have to pay this fine. I think it was 500 or a thousand dollars. Are you kidding me? And, and then she said that, if she didn’t pay this fine, then it goes into criminal. And then it’s in your criminal record. (Isabella, massage shop worker, immigrant citizen, Latin American) The contradictory and hypocritical nature of Canada criminal laws around sex work (in which sex work is not illegal but working in a brothel or providing information to clients is) means that workers have to expend considerable effort determining what is meant by the terms in 211

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anti-prostitution laws, such as ‘solicitation’ and ‘prostitution’. The interview excerpt below provides an example of how the laws are a confusing terrain for sex workers who are trying to work within the confines of the law. Natasha (apartment-based worker, immigrant citizen, European): Julie: Natasha:

Julie:

Natasha: Julie: Natasha:

So, like, I don’t post on my website, ‘I do handjobs.’ I’m not sure about the legality of it . . . Yeah, but I don’t think I’m even in the wrong, law-wise. I just do it in case. . . . having sex for money is not illegal. Oh, I thought it was, like, you could pay for companionship but not for sex itself. That’s what I was under the impression of . . . So I can say that I do handjobs on my website and that’s not – You could, well, it’s, I mean, according to the federal law, that wouldn’t be . . . you wouldn’t be breaking any laws. But then in the criminal code, it’s, like, if you talk about it, then that’s solicitation and then that’ll get you in trouble. So I don’t know how – What if I phrase it and say ‘upon re-’, no, ‘upon request’? But then, I mean, I have come across workers’ websites that say ‘I do handjobs but nothing else.’ So, it’s – Cause handjobs are not penetration . . . So they’re not considered sex. Whereas oral sex is considered sex, anal sex is sex, so it’s, like, maybe they have that distinction. Cause it could be part of massage . . . I could just maybe say, part of the massage is massaging your penis or something or say ‘for therapeutic reasons’ (laughs) . . . But it’s good to know that sex for money is not illegal itself.

For all the confusion in determining what the criminal laws around sex work permit and what they don’t, being informed of the laws may still reduce fear or concern about law enforcement. A couple of workers discussed how realizing the hypocrisy of the laws around sex work helped reduce concerns about the legality or illegality of one’s own work practices. To be honest, it’s quite weird. I used to be so scared when I was younger of being caught by the police or in a brothel. Actually, now I don’t care at all. I would actually be happy if a police came to me – . . . I know it sounds crazy, but maybe it’s because I studied laws and how they are, you know. So I would feel like, OK, arrest me, you know, please do this, it will give me a lot of fuel to what I write later. So, I, I really don’t care.Yeah, I don’t really care. (Fatima, apartment-based worker, Canadian-born citizen, Asian/European)

Undermining citizenship, practising citizenship The presence of diverse ethnicities in the Greater Vancouver area is prevalent and valued as an indicator of the region’s tolerance, progressive attitudes and status as a global city. However, in the sex work sector, non-White ethnicities and non-Western accents are more likely to be taken as (inaccurate) indicators of vulnerability to exploitation or illegality (i.e. undocumented status) by law enforcement personnel and regulatory bodies. This section considers how sex work enables or obstructs the practice of citizenship or one’s day-to-day life as a citizen, resident or member of society. Ethnicity is a significant element in the sex work sector, particularly in advertising. The prevalence of ethnicity as an integral part of 212

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business in the sex work sector contrasts with government’s and law enforcement’s suspicion of ‘migrant’ (or ethnically diverse) women in the sex work sector. Within Canadian public discourses, law enforcement and border control systems, non-White ethnicities and non-Western accents in the sex work sector still carry strong connotations of illegal migrant status. For instance, a number of research participants in predominantly Asian businesses reported having their identification checked at their workplace by government authorities or law enforcement personnel. The aura of illegality around ethnicity in the sex work sector is perhaps due to a number of factors. As an occupation, some workers perceived sex work as a chance to earn ‘quick money’, although they specified that ‘quick’ money is not the same thing as ‘easy money’. Sex work is perceived as a sector where English language fluency is not required. And there still unfortunately remains a strong association between trafficking and racialized women in sex work, despite evidence that this link is unsubstantiated in many contexts (e.g. Agustin 2007; GAATW 2007; Jeffreys 2009; Segrave, Milivojevic and Pickering 2009; Mai 2009; 2012; Weitzer 2011). There is also an extensive body of feminist scholarship that argues that this link has more to do with colonial ideas about non-White women than it does with actual incidences of trafficking (e.g. Kempadoo 1998; 1999; Doezema 2001; Jeffrey 2005; Agustin 2006; 2007; Kim and Fu 2008). This results in a sex work sector where the citizenship of non-White sex workers who speak English with non-Western accents continues to be regarded with suspicion or disbelief. This is despite the fact that non-White citizens, both immigrant citizens and Canadian-born citizens, do work in the sex work sector. For example, there are a large number of Asian women in the sex work sector in the Greater Vancouver area, which includes immigrants who have gained citizenship or permanent residency, Canadian-born Asians, international students, and temporary migrants, to name a few examples. The preoccupation of Canadian law enforcement and border security systems with nonWhite sex workers’ citizenship status contrasts sharply with the interview narratives that emerged about workers’ citizenship practice or their day-to-day lives as citizens, residents or members of society. Citizenship status was secure for the vast majority of interviewees and was only mentioned in regards to administrative checks in the workplace. Instead, what emerged was deeper discussion about women’s relationship to the society or city they worked and lived in. In interviews, women spoke about what sex work enabled them to accomplish. These objectives included caring for their children and families, subsidizing their Canadian education, learning English, enjoying the city, and accumulating economic security. I had a problem since I moved to Canada because we didn’t have a good income with my ex-husband. So, but, it was a big help for my family. I, I increased my, you know, my life with that, you know, with the job. But as I, you know, know more people, know more experience, so I got the, you know, like, get my own home, get like a good car, like a, and take care of my two little kids very well. So this is, I’m happy God gave me this power, to be staying by myself, even I didn’t have good support from my ex-husband. (Jasmine, home-based worker, immigrant citizen, Middle Eastern) The relationship between motherhood and sex work is complex. On the one hand, workers spoke about their fears of having their children taken away by child protection authorities because of their involvement in sex work, and their fears of having their children taken away if they placed them in daycare while they worked. Workers worried about how the stigma around sex work would affect their children’s future opportunities. The emotional labour involved in concealing their work from their family was also a concern. However, motherhood was also 213

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strongly invoked in interviews to legitimize or explain one’s involvement in sex work. Women felt that the risk of engaging in a marginalized work sector such as sex work demonstrated one’s commitment to spending time with one’s children (permitted by the liveable part-time income that sex work affords). Motherhood was also associated with a commitment to safe sexual health practices among workers. As Lisa, an Asian worker explained, ‘I always use condom, I care. I’m a mom, I have to be responsible.’ I’m alone here [in Canada], my parents, mom passed away, there’s no one I can rely on. I’m responsible for my son so I have to be really safe, never take chances – keep it short and sweet. (Jenny, apartment-based worker, immigrant citizen, Eastern European)

I decide to stay with my kids and take care of my kids and work at home. Just for my kids. Yeah, after two years, my daughter born and I can, I have two kids at home. But I, I want to be with my kids because my kids need me. (Lucy, apartment-based worker, immigrant citizen, Middle Eastern) Sex work also enabled women to finance their studies, pay their children’s university tuition fees and avoid accruing personal debt. Furthering one’s education in Canada was identified as an aspiration but also as a necessity by some, particularly if one’s international university education was not deemed sufficient for the Canadian labour market. One worker, ‘Lisa’, emphatically stated that ‘even if they offered a million dollars’ she would not engage in sex work in her country of origin but that sex work in Canada was preferable to the risks of accruing expensive Canadian student loans with no guarantee of a liveable wage after gaining a Canadian education. When I first came here [to Canada], I was going to school, I didn’t know much English, I wanted time to learn language, spend time on my studies. The only thing that would give me flexibility to work anytime I wanted, and get more money was through this . . . When I was going to school, I had a baby, that’s why I keep going on. (Jenny, apartment-based worker, immigrant citizen, Eastern European) Sex work provided avenues to practising citizenship that other employment options did not, given its relatively higher income compared to other employment options available, the work environment with relatively longer periods of ‘downtime’ or time between bookings, and the relative flexibility of hours. Sex work also became an option when women were excluded from the mainstream Canadian labour market or found the mainstream labour market insufficient to ensure income security. Women spoke about the de-valuing of international credentials and international experience in the Canadian labour market. Educated immigrants found themselves in a quandary as their credentials and experience were de-valued in the Canadian labour market; yet the fact that they had higher education also excluded them from ‘unskilled’ labour opportunities. The theme of resilience was present in many interviews. Although workers expressed different levels of comfort with the sex work sector, many expressed pride that they were employed. ‘Lily’ (Asian permanent resident working in a massage shop) said that as someone coming from another country, her attitude was to ‘steady here . . . every day I have to go out, find something better, always searching for better. . . . I have to try, I have to make money.’ 214

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I need a job, I need cover my life . . . If I talk [ask] government, government don’t pay, government don’t give you money. (Kiki, massage shop worker, Asian) Indeed, numerous workers placed sex work in a hierarchy and valued it over accessing welfare or other perceived ‘social ills’, particularly drug use. Workers commonly argued for the sex work sector by comparing it favourably to welfare or drug use. ‘Lisa’ admitted to feeling guilty for engaging in sex work and guilty for concealing her work from her family, but explained that she tried to reduce feelings of guilt by comparing sex work to other, less desirable options: ‘I didn’t get government money, I didn’t spend others’ taxes, I use my body . . . better than stealing or welfare.’ We’re new citizens, we’re immigrants and we’re trying to do the right thing. We want to study, we want to survive. But other jobs doesn’t provide enough and we don’t want to take welfare. (April, massage spa worker, permanent resident, Asian) Although women spoke at length about how their involvement in sex work allowed them to fulfil their numerous responsibilities (to their family, in their community), they also suggested limits on the responsibilities they felt to the state. For example, ‘Lily’ (massage shop worker, permanent resident, Asian) argued that while that sex work was a job, she didn’t agree that income from sex work should be taxed. She was adamant that income from sex work was to ‘feed family, not country’ and that income from sex work should not be used to bolster government economies: ‘How do other countries respecting that country’ if ‘female citizens [sex workers] supporting the whole economy of the country’? She argued that instead, countries such as Canada were already routinely bringing in many immigrants each year ‘to support country’ and that the income derived from the immigration system (e.g. fees) was part of how the government sustained pensions, child benefits, and national development. While workers spoke about trying to ‘do the right thing’ as long as it didn’t threaten their health or their family’s security, they also stated they did not know, not only the laws governing sex work in Canada, but also what this meant for their other legal responsibilities. One worker spoke about not paying taxes for several years because she was unsure how she should report her occupation and her worry that disclosing her occupation to the government would result in her child being taken away by child protection authorities.

Conclusion In Vancouver, a city that prides itself on its multiculturalism and global identity, ethnic communities are for the most part taken for granted in the urban culture. In the sex work sector, however, ethnicity still continues to be viewed with suspicion by immigration and law enforcement, even as advertising and performing ethnicity remain a routine part of the sex work sector.This is likely due to the public anti-trafficking discourse in Canada, of which the ‘migrant sex worker’ remains a central figure. The administrative immigration checks in predominantly Asian businesses in some districts of the Greater Vancouver area suggest that law enforcement and immigration officials continue to be suspicious about non-White sex workers who speak English with non-Western accents. The preoccupation with sex workers’ legal status stands in sharp contrast to interviewees’ in-depth discussion about their day-to-day lives as residents and citizens in the Greater Vancouver 215

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area. Women spoke in detail about trying to find the healthiest balance between their work and their private lives, and reflected on how their work enabled or hindered their other roles as mothers, partners, community members, taxpayers, consumers and workers (in non-sex work sectors). Women’s narratives also challenge the public and government focus (or some would argue, paranoia) concerning foreign sex workers crossing Canadian borders for work. Most of the women interviewed had entered sex work after they obtained citizenship or permanent residency. For researchers, policymakers and other stakeholders concerned about the experiences of ‘immigrant’ and ‘migrant’ sex workers in Canada, it may be more productive to consider how structures and social norms on citizenship in Canada come to situate sex work as a viable employment option, rather than tracking potential sex workers at national borders (Pickering and Ham 2014) or undocumented migrants in sex work businesses. These findings are particularly relevant for Canadian policymakers and law enforcement personnel. On the one hand, the statement that non-White sex workers with non-Western accents can be citizens sounds embarrassingly obvious and a little racist. However, national antitrafficking efforts in Canada suggest that convincing law enforcement personnel and policymakers of this fact will continue to be a struggle. As of early 2014, the Ottawa Police Service announced an anti-trafficking initiative focusing on the sex industry that included City Police Services in every province except for British Columbia (where Vancouver is located) and Prince Edward Island (Ottawa Police Service 2014). In addition, the Royal Canadian Mounted Police (RCMP) has also announced their intention to scrutinize immigrants in erotic massage establishments as an anti-trafficking strategy (Hachey 2013; Lalonde 2013;Valiante 2013). Another question remains for sex workers and their allies about whether emphasizing the citizenship, social inclusion and belonging of non-White sex workers in Canada is enough to neutralize law enforcement suspicion. At local, micro-interaction levels, reinforcing messages about ‘immigrant’ and ‘migrant’ sex workers’ inclusion and residency in the Greater Vancouver area may help as a basic self-defence strategy. In a conversation with an Australian sex worker activist (personal communication, 27 June 2013), it was pointed out that humanizing oneself when faced immediately with a potential abuser is a common self-defence strategy. In this context, the more often local law enforcement personnel can recognize non-White sex workers as likely citizens or residents may reduce suspicion of or harassment of non-White sex workers in anti-trafficking efforts. Anderson, Gibney and Paoletti’s (2011) analysis of anti-deportation campaigns in the UK have outlined the limitations of using affective narratives about individual and family struggles to change an immigration apparatus that is ultimately concerned with administrative citizenship and legal status. However, it may be that disseminating messages about ‘immigrant’ and ‘migrant’ sex workers’ belongingness, residency and citizenship can help reveal the anti-immigrant sentiments that continue to ground Canada’s anti-trafficking framework.

Notes 1 For the purposes of this chapter, ‘immigrant’ refers to persons who have moved to Canada from another country for the purposes of settling and achieving residency or citizenship in Canada. I use the term ‘migrant’ to describe persons who live and work in Canada temporarily and/or persons who do not hold the legal rights that citizens or permanent residents have (e.g. international students). 2 The term ‘Greater Vancouver area’ refers to what is known locally as the ‘Lower Mainland’. It includes the City of Vancouver and the surrounding cities and municipalities, including Burnaby, New Westminster, Richmond and Surrey. 3 Citizenship and Immigration Canada defines a permanent resident as ‘A person who has legally immigrated to Canada but is not yet a Canadian citizen.’ See: http://www.cic.gc.ca/english/helpcentre/ glossary.asp#p. 216

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4 Sections 210–13 of the Canadian Criminal Code. For more information, see http://lawslois.justice. gc.ca/eng/acts/C-46/. 5 All names have been changed to protect the interviewees’ identities. 6 ‘Massage parlour’ is the term commonly used in the media but almost no interviewees used this term. Interviewees used a variety of terms to describe businesses providing sexual services (though not all provided sex). The most common term used was ‘shop’ and this is used in this chapter, rather than ‘parlour’. 7 The City of Vancouver has a business licence category for ‘Body Rub Parlours’. However, given the numerous restrictions and expensive fees required for this licence, many ‘massage parlours’ opt for the less expensive and less restrictive ‘Health Enhancement Centre’ business licence.

References Agustin, L 2006, ‘The conundrum of women’s agency: migrations and the sex industry’, in R Campbell & M O’Neill (eds), Sex work now, Willan Publishing, Cullompton, pp. 116–40. — 2007, Sex at the margins: migration, labour markets and the rescue industry, Zed Books, London. Anderson, B, Gibney, MJ & Paoletti, E 2011, ‘Citizenship, deportation and the boundaries of belonging’, Citizenship Studies, vol. 15, no. 5, pp. 547–63. BCCEC (British Columbia Coalition of Experiential Communities) n.d., Trade secrets: health and safety in the sex industry, viewed 14 March 2014, http://tradesecretsguide.blogspot.com.au/ Bennett, D 2013, ‘Canada v. Bedford – the decision in 705 words’, PIVOT Legal Society – The PIVOT Blog, blog post, viewed 14 March 2014, http://www.pivotlegal.org/canada_v_bedford_a_synopsis_ of_the_supreme_court_of_canada_ruling Bouclin, S 2006, ‘Dancers empowering (some) dancers: the intersection of race, class, and gender in organizing erotic labourers’, Race, Gender & Class, vol. 13, no. 3–4, pp. 98–129. Brock, D, Gillies, K, Oliver, C & Sutdhibhasilp, M 2000, ‘Migrant sex work: a roundtable analysis’, Canadian Women Studies, vol. 20, no. 2, pp. 84–91. Bungay, V, Halpin, M, Atchison, C & Johnston, C 2011, ‘Structure and agency: reflections from an exploratory study of Vancouver indoor sex workers’, Culture, Health & Sexuality, vol. 13, no. 1, pp. 15–29. Busza, J 2004, ‘Sex work and migration: the dangers of oversimplification: a case study of Vietnamese women in Cambodia’, Health and Human Rights, vol. 7, no. 2, pp. 231–49. — 2005, ‘How does a “risk group” perceive risk? Voices of Vietnamese sex workers in Cambodia’, Journal of Psychology & Human Sexuality, vol. 17, no. 1/2, pp. 65–69. CBC News 2012, ‘Strippers sent packing because of policy change’, 8 August, viewed 14 March 2014, http://www.cbc.ca/news/canada/windsor/story/2012/08/06/wdr-strippers-foreign-worker-visas. html Chez Stella 2010, A sex worker handbook: XXX guide, 5th edn, Chez Stella, Montreal. Crofts,T & Summerfield,T 2006, ‘The licensing of sex work in Australia and New Zealand’, Elaw (Murdoch University Electronic Journal of Law), vol. 13, no. 2, pp. 269–87. Ditmore, M 2009, Kicking down the door: the use of raids to fight trafficking in persons, Sex Workers Project at the Urban Justice Center, New York. Doezema, J 2001, ‘Ouch!: Western feminists’ “wounded attachment” to the “Third World Prostitute”’, Feminist Review, no. 67, pp. 16–38. Fine, S 2013, ‘Supreme Court strikes down Canada’s prostitution laws’, Globe and Mail, 20 December, viewed 14 March 2014, http://www.theglobeandmail.com/news/national/supreme-court-rules-onprostitution-laws/article16067485/ GAATW (Global Alliance Against Traffic in Women) 2007, Collateral damage: the impact of anti-trafficking measures on human rights around the world, GAATW, Bangkok. Hachey, I 2013, ‘Une escouade contre la traite des personnes’, La Presse, 10 December, viewed 14 March 2014, http://www.lapresse.ca/actualites/montreal/201312/09/01–4719368-une-escouade-contre-latraite-des-personnes.php?utm_categorieinterne = trafficdrivers&utm_contenuinterne = cyberpresse_ vous_suggere_4722072_article_POS1 Harcourt, C, Egger, S & Donovan, B 2005, ‘Sex work and the law’, Sexual Health, vol. 2, no. 3, pp. 121–8. Jeffrey, LA 2005, ‘Canada and migrant sex-work: challenging the “foreign” in foreign policy’, Canadian Foreign Policy, vol. 12, no. 1, pp. 33–48. Jeffreys, E. 2009, ‘Anti-trafficking measures and migrant sex workers in Australia’, Intersections: gender, history & culture in the Asian context, no. 19, viewed 14 March 2014, http://intersections.anu.edu.au/issue19/ jeffreys.htm 217

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Kempadoo, K 1998, ‘Introduction: globalizing sex workers’ rights’, in K Kempadoo & J Doezema (eds), Global sex workers: rights, resistance, and redefinition, Routledge, New York, pp. 1–28. — 1999, ‘Slavery or work? Reconceptualizing Third World prostitution’, Positions, vol. 7, no. 1, pp. 225–37. Kim, JK & Fu, M 2008, ‘International women in South Korea’s sex industry: a new commodity frontier’, Asian Survey, vol. 48, no. 3, pp. 492–513. Krüsi, A, Chettiar, J, Ridgway, A, Abbott, J, Strathdee, S & Shannon, K 2012, ‘Negotiating safety and sexual risk reduction with clients in unsanctioned safer indoor sex work environments’, American Journal of Public Health, vol. 102, no. 6, pp. 1154–9. Lalonde, M 2013, ‘Be on lookout for human trafficking victims, RCMP urges’, Montreal Gazette, 23 October, viewed 21 January 2014, http://www.montrealgazette.com/news/lookout+human+traffic king+victims+RCMP+urges/9072226/story.html Lewis, J 2006, ‘”I’ll scratch your back if you’ll scratch mine”: the role of reciprocity, power and autonomy in the strip club’, The Canadian Review of Sociology and Anthropology, vol. 43, no. 3, pp. 297–311. Macklin, A 2003, ‘Dancing across borders: “exotic dancers”, trafficking, and Canadian immigration policy’, The International Migration Review, vol. 37, no. 2, pp. 464–500. Maher, J, Pickering, S & Gerard, A 2012, Sex work: labour, mobility and sexual services, Routledge, London. Mai, N 2009, Migrant workers in the UK sex industry: final policy relevant report, London Metropolitan University, viewed 13 June 2013, http://www.londonmet.ac.uk/research-units/iset/projects/esrc-migrantworkers. cfm — 2012, ‘Embodied cosmopolitanisms: the subjective mobility of migrants working in the global sex industry’, Gender, Place & Culture: A Journal of Feminist Geography, vol. 20, no. 1, pp. 107–24. O’Doherty,T 2011, ‘Criminalization and off-street sex work in Canada’, Canadian Journal of Criminology and Criminal Justice, vol. 53, no. 2, pp. 217–45. Ottawa Police Service 2014, ‘Ottawa Police takes part in a national focus on young women coerced into sex trade’, news release, viewed 14 March 2014, http://www.ottawapolice.ca/en/MediaRoom/ NewsReleases/14-01-28/8c3172c6-7799-4b38-a93e-bd5ab9f0f4cf.aspx Payton, L 2012a, ‘Exotic dancer no longer eligible job for foreign workers’, CBC News, 4 July, viewed 14 March 2014, http://www.cbc.ca/news/politics/exotic-dancer-no-longer-eligible-job-for-foreignworkers-1.1151414 — 2012b, ‘Sweeping immigration changes to give new power to minister’, CBC News, 20 June, viewed 14 March 2014, http://www.cbc.ca/news/politics/story/2012/06/20/pol-new-law-deport-foreignerscrimes.html Pickering, S & Ham, J 2014, ‘Hot pants at the border: sorting sex work from trafficking’, British Journal of Criminology, vol. 54, no. 1, pp. 2–19. RATS-W Team & Empower Foundation 2012, Hit & run: the impact of anti-trafficking policy and practice on sex worker’s human rights in Thailand, Empower Foundation, viewed 14 March 2014, http:// www.empowerfoundation.org/sexy_file/Hit%20and%20Run%20%20RATSW%20Eng%20online. pdf Ross, MW, Crisp, BR, Månsson, SA & Hawkes, S 2012, ‘Occupational health and safety among commercial sex workers’, Scandinavian Journal of Work, Environment & Health, vol. 38, no. 2, pp. 105–19. Sanders, T 2004, ‘A continuum of risk? The management of health, physical and emotional risks by female sex workers’, Sociology of Health & Illness, vol. 26, no. 5, pp. 557–74. — 2005, Sex work: a risky business, Willan Publishing, Cullompton. Sanders, T & Campbell, R 2007, ‘Designing out vulnerability, building in respect: violence, safety and sex work policy’, The British Journal of Sociology, vol. 58, no. 1, pp. 1–19. Segrave, M, Milivojevic, S & Pickering, S 2009, Sex trafficking: international context and response, Willan Publishing, Cullompton. Shannon, K 2010, ‘The hypocrisy of Canada’s prostitution legislation’, Canadian Medical Association Journal, vol. 182, no. 12, pp. 13–88. Shaver, F, Lewis, J & Maticka-Tyndale, E 2011, ‘Rising to the challenge: addressing the concerns of people working in the sex industry’, Canadian Review of Sociology/Revue Canadienne de Sociologie, vol. 48, no. 1, pp. 47–65. Suthibhasilp, N, Petroff, L & Nipp, D 2000, Trafficking in women including Thai migrant sex workers in Canada, Toronto Network Against Trafficking in Women, Multicultural History Society of Ontario & Metro Toronto Chinese and Southeast Asian Legal Clinic, viewed 14 March 2014, http://www.mhso.ca/ mhso/Trafficking_women.pdf

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UNODC (United Nations Office on Drugs and Crime) 2004, United Nations Convention Against Transnational Organised Crime and the Protocols Thereto, viewed 14 March 2014, http://www.unodc.org/unodc/en/ treaties/CTOC/ Valiante, G 2013, ‘La Ville part en croisade contre les salons de massages érotiques’, TVA Nouvelles, 1 December, viewed 14 March 2014, http://tvanouvelles.ca/lcn/infos/regional/montreal/ archives/2013/12/20131201–103010.html Vancouver Sun 2006, ‘18 massage parlours raided, 100 arrested’, 9 December 2006, viewed 14 March 2014, http://www.canada.com/vancouversun/news/story.html?id=431cc5d2-4496-4400-b367– 403d9a07a454 van der Meulen, E 2011, ‘Sex work and Canadian policy: recommendations for labor legitimacy and social change’, Sexuality Research & Social Policy, vol. 8, no. 4, pp. 348–58. van der Meulen, E & Durisin, EM 2008, ‘Why decriminalize? How Canada’s municipal and federal regulations increase sex workers’ vulnerability’, Canadian Journal of Women and the Law, vol. 20, no. 2, pp. 289–311. Weitzer, R 2011, ‘Sex trafficking and the sex industry: the need for evidence-based theory and legislation’, Journal of Criminal Law & Criminology, vol. 101, no. 4, pp. 1337–69.

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Part IV

Migration, law and crime

14 The state’s contradictory response to the exploitation of immigrant workers The UK case Lea Sitkin

Introduction In 2004, the bodies of 21 Chinese illegal immigrants were found on the shores of Morecambe Bay in the northwest of England. Hired by gangmasters to pick cockles – a type of British shellfish delicacy – the group, mostly made up of young men in their twenties and thirties, were trapped by incoming tides and died as a result. The high-profile tragedy shone the spotlight on the underground world of local gangmasters and more generally, highlighted the risks and dangers of clandestine migration into the British economy. The reaction of the British state to the exploitation of immigrant workers – as well as native workers – has been to criminalize the actors directly committing the abuses. Immediately following the Morecambe Bay tragedy, the then Labour government introduced the Gangmasters Licensing Act 2004, which requires all labour providers in the agriculture, food processing and shellfish gathering industries to be licensed by a centralized authority, on pain of criminal sanction.1 That same year, the Asylum and Immigration (Treatment of Claimants) Act introduced criminal offences for trafficking for the purposes of slavery and forced labour.2 This was the first time that trafficking for non-sexual offences had been subject to criminal law. The Immigration, Asylum and Nationality Act 2006 repealed previous legislation on employer sanctions and introduced a civil penalty regime alongside a criminal offence for knowingly employing adults subject to immigration controls. The number of employers subject to sanction has increased dramatically since the introduction of the civil penalty regime, though criminal prosecution figures remain low (Aliverti 2013: 44). Following criticism of the UK legal regime on forced labour in two cases before the European Court of Human Rights,3 the Coroners and Justice Act 2009 created criminal offences of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour (s.71). Most recently, Home Secretary Theresa May has pledged a ‘modern-day slavery crackdown’, promising new criminal offences, greater resources allocated to enforcement and tougher sanctions for traffickers and gangmasters.4 In these endeavours, the British state is taking on a particular role as the protector of exploited workers, placed in direct opposition to a guilty party – the greedy employer; the trafficker, the 223

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gangmaster – whose nefarious practices it is trying to control. However, framing the issue in such a way denies the state’s complicity in rendering a specific group of workers – immigrant workers – uniquely vulnerable to exploitation (Anderson 2010). In particular, a burgeoning body of literature argues that it is the fact that migrant workers face the constant threat of arrest, imprisonment, detention and ultimately deportation that undermines their ability to negotiate on an equal footing with employers (Calavita 1992; 1998; 2003; Wacquant 1999; De Genova 2002; 2004; Melossi 2003; Palidda 2005; 2009; Bauder 2006; De Giorgi 2006a; 2006b; 2010; Escobar 2010; Nagels and Rea 2010). In this analysis, borders operate not to exclude foreign nationals, but rather as flexible gateways that define immigrants’ subordinate position in host country labour markets. In turn, as the enforcer of border control, the state plays an integral role in fostering foreign nationals’ subordinated inclusion in the workplace. The relationship between immigration status and exploitation is most acute for irregular immigrants, who fear that their employers – and indeed, anyone aware of their legal situation – may denounce them to the authorities. In turn, employers and other parties use the threat of denunciation to the authorities as a method of exerting extra control over immigrants (Heyman 1998). However, the threat of detention and deportation also affects regular immigrants’ labour market behaviours, since their immigration status is often tied to specific employment obligations such as the requirement to stay with a particular employer, or a compulsory ‘live-in’ aspect. Where workers do not abide by these conditions, they – like irregular immigrants – are liable to deportation. Thus, these conditions work so as to ‘cheapen the labour power of a growing number of people once they are inside the country and to leave them vulnerable to all forms of market relations’ (Sharma 2001: 417). Furthermore, borders’ ‘power-effects’ are projected inside the nation-state through the institutionalization of a stratified system of socio-legal entitlement that limits the options available to immigrants who are seeking to meet their basic needs (Bloch 2000). Far from being a neutral and objective dispenser of justice, the unique power of the employer over his or her foreign worker is propped up by the state. The present chapter explores the contradictory response of the state: on the one hand, criminalizing those perpetrating abuses; and on the other, fostering immigrant workers’ particular susceptibility to exploitation. To this end, it analyses the conditions attached to four different types of immigration status currently available in the UK: (1) Tier 2 (general) visas; (2) domestic workers in private households; (3) A2 nationals working under the ‘freedom of establishment’; and finally (4), irregularly resident workers. Importantly, understanding the effect of immigration status on workplace requires an analysis of immigration law’s interaction with other bodies of law, most notably, labour and social welfare law. Data for the chapter was collected through legal methodology (most notably, the collection and analysis of cases), official statistics, academic and ‘grey’ literature reviews, and finally, semi-structured interviews with lawyers, migrant rights activists and immigrant workers, recruited through snowball sampling. As a nonrandom method of sampling, snowball sampling is limited in terms of its representativeness. Importantly, the chapter does not argue that the experiences discussed in this chapter happen to all immigrant workers – instead, it intends to illuminate the ways in which immigration status leaves immigrants in an institutionally vulnerable position. The chapter concludes that the current government have employed a dual tactic of criminalizing the immediate perpetrators of exploitation and restricting avenues for legal immigration. In turn, these efforts obfuscate wider issues of labour regulation and immigration policy (Fudge and Strauss 2014: 13). Although the European Courts offer some possibilities for challenges to the UK’s legal regime, the essential political tensions between the desire to protect business interests, limit immigration and protect immigration workers’ rights means that it is 224

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likely that the contradictory legal regime on migrant workers’ exploitation will continue, with devastating consequences for those caught in its net.

Work permit holders The UK used to have an ‘open’ labour migration category for highly skilled migrants, which allowed anyone with a sufficient number of ‘points’ to immigrate to the UK and look for work or self-employment opportunities. Significantly, the ‘Tier 1 (General)’ category for highly skilled immigrants did not require applicants to have a job offer or a sponsoring employer. Foreign nationals on this visa enjoyed total freedom of occupation and the ability to change employer. Subsequently, the Coalition government has realigned the immigration admissions system, so that ‘sponsorship is at the heart’5 of the immigration system. In the UK, the largest labour migration category – accounting for 35 per cent of visas in 2010 – was Tier 2, for ‘foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker’.6 There is a quota of 21,000 places for jobs paying below £152,000; jobs paying more than this do not fall within the limitation. The stated aim of the programme is to attract the ‘best and brightest’ of a highly skilled and mobile global elite. However, critics have warned that the restrictions contained within the Tier 2 visa programme are likely to discourage would-be applicants, who are aware of the implications of these conditions. The key issue is the lack of ‘employment portability’, that is, the ability to change employment. Visa holders are not allowed to take employment outside of that which is stated in the Certificate of Sponsorship – and they face deportation if they lose their job.7 Furthermore, since April 2012, a cooling off period has been in operation, which means that any Tier 2 migrant whose visa has been cancelled or has expired and who has left the UK having not made a fresh in-country application is subject to a 12-month ban from making an application to reapply in the same category. Thus, Tier 2 workers are reliant on their employer not only for their livelihood, but for their right to stay in the country.This leaves workers on this programme vulnerable to a form of ‘hyper-dependence’,8 which goes beyond the personal dependence and subordination British nationals experience in their employment relationships. Employers have been known to take advantage of immigration status and the threat of deportation as a means of exercising control over work permit holders, including forbidding union membership (Walia 2010). Although it is difficult to conclude how widespread this issue is, a survey of employment advisors carried out by the Trades Union Congress found that 39 per cent of advisers were commonly or very commonly approached by migrant workers whose employers had threatened to deport them if they reported problems at work (Trades Union Congress 2007: 53). Similarly, Alan Ritchie of construction union Union of Construction, Allied Trades and Technicians (UCATT) said:‘Bosses often falsely suggest that workers will be deported if they join unions or report abuses.’9 Furthermore, migrants on work permits may be conscious enough of this possibility to police themselves through, for example, working for less money, avoiding industrial disputes and more generally, staying with an unsatisfactory employer (Anderson 2010). Migrant workers consistently claim that the lack of freedom to change employers is the main reason for remaining in exploitative conditions (MRCI 2010). This self-regulation may in fact be more widespread than overt threats on the behalf of the employer: as one respondent10 said: ‘Employers don’t threaten . . . [because immigrants] never complain.’ Similarly, a lawyer interviewed for the study argued that: Even the legal people . . . they are often asked to do more than their colleagues; they are often asked to do the work that isn’t most people’s cup of tea . . . and naturally their chance 225

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for promotion is less because it’s the type of job that people don’t want to do and you have less opportunity to shine. The reason why is that they know, their visa, Tier 2, must be attached to that employer. If you want to change, they cannot. So, in a way, the company implies that, just be nice, at least for five years. And a lot of people suffer in silence. (Immigration solicitor, interviewee 3, 20 June 2012) Finally, the lack of employment portability undermines possibilities for migrants to access Employment Tribunals, should they want to enforce a claim. In the UK, an employer may withdraw the Certificate of Sponsorship at any time if the work finishes or is no longer available or if the worker is unsuitable and the migrant will have to leave the UK within 60 days if they have not found another authorized sponsor. The predictable result of this condition is that: If [Tier 2 visa holders] get dismissed . . . it can be difficult to remain in the UK for a sufficient time when the case is going on, financially . . . and maybe they can’t stay in the country . . . and some employers will use that to their advantage. (Immigration solicitor, ibid.). The only exception to the requirement to leave the country occurs in cases of suspected trafficking, when a 45-day reflection and recovery period means victims cannot be deported. This right follows the UK’s ratification of the Council of Europe (CoE) Convention on Actions against Trafficking in Human Beings in 2008. However, leave beyond this reflection period is discretionary. Furthermore, as former Parliamentary Under-Secretary of State for the Home Office Mr Alan Campbell has said, immigration officers are often suspicious that irregular migrants might be claiming to be victims in order to get round immigration rules.11 Most of all, the ‘grace period’ only applies to trafficking and not to other labour market crimes and offences. Thus, the vast majority of immigrants on work permits do not have the practical means to prosecute or make claims against their employers.

Freedom of establishment: a new hole in the legal regime A great deal of intra-European labour mobility occurs under the aegis of the freedom of establishment and of services, as opposed to the freedom of movement of workers. The freedom of establishment (Art 49) includes ‘the right to take up and pursue activities as self-employed persons and to set up and manage undertakings in other EU states’. While the transitional restrictions on Romania and Bulgaria meant that nationals of these countries had restrictions on their right to work as employees, their right to freedom of establishment was unaffected, meaning they could work as self-employed. The predictable result of this has been a siphoning of Romanian and Bulgarian immigrants into self-employment. Although official statistics are not kept, estimates suggest that the rate of self-employment is 42 per cent among nationals from these countries – around five times higher than the rate among the previous generation of East European accession immigrants, whose immigration to the UK was not limited by transitional arrangements (Rolfe et al. 2013: 24). For example, the UK construction labour market shows a ratio of 11 to 1 in terms of self-employment over direct employment for workers entering from East Europe (Memorandum, UCATT 2009).12 For optimists, increases in self-employment reflect a change in work attitudes within the labour force: a trend towards a new spirit of entrepreneurism and more autonomous concepts of work (Gottschall and Kroos 2003: 5). Undoubtedly, many self-employed workers are not in a

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precarious situation, but instead enjoy the ‘non-pecuniary’ advantages of self-direction and flexibility that being one’s own boss affords (Benz and Frey 2008a; 2008b). Nonetheless, the funnelling of East European nationals into self-employment has a number of troubling consequences in terms of vulnerability to precarious work. In particular, self-employment is associated with fewer workplace rights in the UK. In British law, employees are subject to labour law, a body of law introduced to intervene in the employment contract and compensate for the market-based subordination of the employee vis-à-vis the employer (Perulli 2003: 6). Recent legislation has established a second category of ‘worker’, which is used for agency workers, with most (not all) of the same rights as employees. These apply to all contracts where an individual agrees to personally carry out work without running a genuine business of their own, and include working time, minimum wage levels, disability discrimination, part-time work and protection from unauthorized wage deductions (Böheim and Muehlberger 2006). By contrast, self-employed persons are understood as their own bosses and seen as equal to the parties they contract with.This distinction is reflected in the legal construction of a difference between contract of services and contract for services. Instead of employment law, the selfemployed are subject to civil and commercial law (Buschoff and Schmidt 2009).This means they do not have employment rights, because they are their ‘own boss and can therefore decide, for example, how much to charge for [their] work and how much holiday to give [themselves]’.13 Although they have the right not to be discriminated against14 and are entitled to a safe and healthy working environment on their client’s premises, they are exempt from some of the most basic employment rights, including the statutory minimum wage,15 legislation on working time and rest breaks and unauthorized deductions of pay. Instead of claiming for unfair dismissal in an employment tribunal, they claim for a breach in contract in a small claims court.16 Second, self-employed persons have fewer social rights. Indeed, the fiscal incentives to opt for self-employment are bought at the expense of some longer-term disadvantages in terms of access to state benefits. In the UK, the general contractor – that is, the person who enters into a contract with the self-employed worker – avoids the National Insurance contribution, which constitutes around 12.8 per cent of employees’ gross wage payment. At the same time, the selfemployed worker pays a lower contribution, representing a saving of about 7 per cent on gross earning (Briscoe, Dainty and Millett 2000). However, exclusion from contributions means that self-employed workers are excluded from sick pay and contribution-based unemployment benefit.These benefits are important in terms of avoiding exploitation because they give workers means of survival should they fall ill or leave their employment. Furthermore, deprived of any pension entitlements, self-employed workers face an old age of means-tested poverty – unless, without a designated retirement age, they work until they die (Harvey 2001). Finally, much self-employment is ‘bogus’: that is, it does not reflect the reality of the employment relationship. This issue is particularly acute in the UK’s construction industry: one estimate suggests that as many as 80 per cent of the taxed self-employed would be designated employees if they were to go to employment tribunal (ibid.: 21). It is extremely difficult to control bogus self-employment, particularly where both the employer and employee are complicit. Demonstrating the mismatch between the contract – or, if there is no written contract, the actual terms of engagement – and the reality of the working situation can be extremely difficult. Furthermore, self-employment is defined according to numerous dimensions which carry equal weighting. This means that many circumstances fall into a grey zone between ‘pure’ self-employment and employment. In the UK, the challenge of prosecuting bogus selfemployment is also complicated by the use of agencies or payroll service companies (Elliot

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2012). Once an individual signs a contract with the third party company, they no longer have a legal relationship with the general contractor but instead are legally defined as self-employed subcontractors or ‘freelance operatives’ of the payroll company itself. The implication of this is that the general contractor is protected from liability for employment or tax issues – despite the fact that they retain the right to ‘negotiate the provision of labour’ with the ‘freelance operative’ (ibid.). To date, none of the legal challenges initiated by Her Majesty’s Revenue and Customs (HMRC) against payroll companies have been successful. Romanian and Bulgarian workers who are ‘bogus self-employed’ find themselves in a particularly difficult situation. Instead of being reinstated as employees – and reimbursed for the wages/social rights that they were previously excluded from – they are often dismissed. A particularly noteworthy case was the dismissal of 200 Romanian workers on the Olympic Park site, after inspectors from the UK Border Agency found that they were, in reality, working in an employment relationship.17 Notably, the construction union UCATT supported the Romanian workers’ dismissal, given the ban they had negotiated on self-employment on the Olympic Park site. In this case, limiting A2 nationals to self-employment constituted a real-life, de-facto restriction on their employment portability.

Domestic workers In February 2012, the government announced that instead of abolishing the overseas domestic work visa,18 it would limit its duration to a maximum of six months, with no extensions, or until the employer leaves the UK, whichever was sooner. A migrant domestic worker may only enter the UK with a non-British employer who has been granted the right to reside in the UK through a separate category, or with a returning UK expatriate. These (mainly female) workers come from a variety of countries such as India, Indonesia, the Philippines and Sri Lanka, while their employers are mainly Middle Eastern, Indian or British nationals (Wittenburg 2008: 5).The programme is intended to make the UK attractive to wealthy transnational migrants by allowing them to relocate not only themselves but also their households, including their domestic staff (Fudge and Strauss 2014: 2). In 2012, around 15,553 visas were granted in the ‘domestic worker in private household category’.19 Domestic workers are some of the most vulnerable workers in the UK. In general, the homebased nature of domestic employment poses unique challenges in terms of monitoring living and working conditions. Furthermore, employers’ discomfort with the idea of bringing a market relationship into the home can translate into blurry boundaries in terms of what it is appropriate to ask the worker to carry out (Anderson 2007). In such cases, the idea of the domestic worker as a ‘member of the family’, rather than an employee, obfuscates the duty of the employer to respect the worker’s employment rights, as well as their right to privacy and time off. The conditions attached to the domestic worker visa only exacerbate workers’ susceptibility to exploitative working practices. First, domestic workers in the UK have to live with their employers. This allows employers to call on their workers at any time. As one respondent described it: ‘If you stay [at home, the] employer ask you to do some jobs without pay. Much more misuse.’20 Furthermore, the employer/host family has the power to control access to the means of survival – accommodation and food – as well as power over wages and social intercourse (Anderson 2007: 255).Thus, domestic workers suffering exploitation are isolated in a unique and troubling manner. The live-in requirement is also implicated in another problem domestic workers face in terms of their employment rights. Domestic workers in the UK are excluded from a number of labour standards, such as the maximum weekly working time, restrictions on the duration of night work 228

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and occupational health and safety legislation.21 In addition, if domestic workers are ‘treated as a member of the family’, they fall under an exemption to the national minimum wage.22 These issues affect all domestic workers, including British nationals. However, foreign nationals are more likely to fall under this exemption because of the live-in requirement, which constitutes one of the main legal tests for deciding whether a domestic worker is a member of the family.23 In reality, most foreign domestic workers fall under the exemption. For instance, in a recent conjoined appeals case,24 one of the defendants – Ms. Nambalat – was found to fall within the exemption, given that she shared meals with the family, would watch television with them and was invited on family outings. Another worker – Ms. Udin – was found on appeal to fall within exemption despite the fact that her accommodation for part of her time with the family was a mattress on the dining room floor. Here, the court decided that poor standards of accommodation did not necessarily mean that she was not treated as part of the family since other members of the family were also living in cramped conditions at the time. The second major issue with the domestic worker visa is its lack of employment portability. These are even more stringent than those attached to Tier 2 work permits. In particular, from 6 April 2012, the rules regarding domestic workers were amended so that workers are ‘not allowed to change employer while [they] are in the UK or change to a different type of employment’.25 This amendment has been subject to outcry by the charity Kalayaan, who were the drivers of a campaign to end this same restriction in 1997. They argue that the portability of the visa is key to protecting migrant workers: Between May 2009 and December 2010, 1053 domestic workers brought employment tribunal cases against their employers . . . Taking such action would be unthinkable if the worker had to continue working for their employer and residing in their household and would be impossible if workers lost their right to remain in the UK when they fled from an abusive employer. (Lalani 2011: 6) Thus, these changes will increase trafficking for domestic servitude, as domestic workers will have no way of escaping abuse and employers will know therefore that they can abuse and exploit with impunity (Lalani 2011; Moss 2011). The current Coalition government has pursued a two-pronged argument against charges that the aforementioned change to the working conditions attached to the visa will lead to the increased exploitation of domestic workers. First, the fact that employers will have to negotiate an employment contract before they are allowed to bring in domestic workers is conceptualized as a mechanism for encouraging compliance with employment law. On the UK Border Agency website, domestic workers are told that they should ‘be paid . . . at least the minimum wage; not be forced to work excessive hours; be given agreed holiday pay; given [the] notice [they] are entitled to if [their] employment ends’.26 However, the extent to which a leaflet outlining their employment rights at the point of obtaining a visa will be enough to protect them from exploitation is questionable, given that the requirement for a contract is already in place. Furthermore, in over 50 per cent of cases examined in a recent study, the contracts do not contain enough information to ascertain whether the worker is paid the minimum wage (Clark and Kumarappan 2011). More controversially still, the Coalition government has argued that: the biggest protection for these workers will be delivered by limiting access to the UK through these routes.We are restoring them to their original purpose – to allow visitors and 229

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diplomats to be accompanied by their domestic staff – not to provide permanent access to the UK for unskilled workers. (Home Office 2012) This ignores the fact that shutting down a legal avenue for immigration does not stem the flow of immigration. Instead, restrictive admissions requirements contribute to the ‘illegalization’ of domestic work by foreign nationals. In turn, as discussed below, irregular immigrants are even further excluded from the labour protections offered British workers.

Irregularly resident There are two elements that determine the legal framework for illegally resident immigrants’ employment rights: (1) the enforceability of employment rights during undeclared or illegal employment; and (2) the extent to which courts are under a duty to pass on information about immigration status to the relevant authorities. In the UK, judges are not compelled to inform the immigration authorities of irregular migrant status, though they are not prohibited from doing so. The possibility of discovery undoubtedly discourages many irregular resident migrants from making employment claims. More fundamentally, the prevailing doctrine of illegality states that where a contract is not legal,27 the employment rights that it contains are not enforceable (Dewhurst 2012). The justification for this is deterrence and the need to protect the integrity of the judicial system. Despite pressure from Europe, the UK has held steadfastly onto its ‘non-protection’ stance, opting out of an EU Directive that would have provided undocumented migrant workers with the right to recoup unpaid wages.The rationale behind the Directive was based on the principle that the obligation to pay outstanding remuneration could increase the cost and risk of hiring an irregular immigrant, thus undermining one of the key demand factors in illegal foreign employment. However, in response to the European Migration Network Ad Hoc Query on the payment of back wages to foreign illegal workers, the UK reiterated its position that the introduction of provision for back pay of any outstanding remuneration to illegally employed foreign nationals ‘could encourage some illegal workers to work in the knowledge that even if they are identified and removed from the UK they will still be paid in full’.28 The implication of the ‘doctrine of illegality’ is severe for irregular migrants, who are largely prevented by this measure from seeking redress in courts.To date, there have been no cases where the illegal status of the claimant has been known to the courts and they have successfully made a claim on the basis of employment rights. Until recently, questions remained about the right of irregular immigrants (and, more generally, claimants with illegal contracts) to claim for discrimination, because the offence of discrimination is based on statutory remedies as opposed to contractual claims. However, Hounga v. Allen29 has narrowed the possibilities for making a claim on this basis. Ms. Hounga is a Nigerian national who came to the UK in 2007 to work for the Allen family, where she was told she would receive £50 a month to perform housework and look after their children. Her age is unclear but it is estimated that she was between 14–16 years old when she entered the arrangement. In order to obtain her passport and visa, Ms Hounga lied about her age and name and when she arrived in the UK, she lied to the immigration officers, claiming she was in the UK to visit her grandmother. Ms Hounga was assisted by the Allen family throughout this process. During this time she worked for the Allen family, she received no pay, and suffered serious physical abuse from Mrs Allen. She was eventually dismissed. Ms Hounga brought a number of claims before the Employment Tribunal, which rejected her claims for unfair dismissal, breach of contract and unlawful deductions from wages and holiday 230

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pay on the grounds that they arose out of the illegal contract. However, the claim for dismissal on racially discriminatory grounds was allowed because the court agreed that the admitted illegality – the violation of immigration rules – did not bar her claim based on the statutory tort of racial discrimination. The Employment Appeals Tribunal made a similar distinction. However, Ms Hounga’s employers took the case to the Court of Appeal, which decided that all of Ms Hounga’s claims, including the discrimination claim, should be barred, because it was ‘inextricably bound up’ with the illegality in question and therefore to permit her to recover compensation would appear to condone her unlawful conduct. Thus, judges have tended towards a strict interpretation of the doctrine of illegality, to the detriment of migrant workers’ employment rights. Notably, the same issues also affect migrant workers who are legally resident but illegally working. In V v. Addey & Stanhope School & Others,30 V, a Croatian asylum seeker, was given limited leave to remain in the UK, with the condition that he did not obtain any paid employment. In breach of that condition, V undertook paid employment at the Addey and Stanhope School as a trainee teacher. In the process of applying for this position, V made several false representations to the school about his right to work. V was dismissed by the school and subsequently made a complaint of race discrimination contrary to section 4 of the Race Relations Act 1976. However, the claimant’s claim was dismissed on grounds on illegality. Despite these issues, a small number of irregular migrants are in fact making claims in court. This occurs because of the fact that employers might similarly be interested in not having the illegal status of the claimant come to light, because of the risk of penalty. In such cases, the employer and an irregular migrant agree that the latter’s status will not be revealed in court. As one lawyer described, ‘Quite often you get into a game of bluff and counter bluff. They might say, ‘‘The worker is illegal,’’ and then you reply, ‘‘Well, are you going to go out and admit to everyone that you have been employing someone illegally?’’’31 Such cases are often settled out of court.This is one of the rare occasions where third party sanctions have an indirect positive effect on irregular migrants.

Conclusion The first aspect of current Conservative-Liberal Coalition government’s response to migrants’ labour exploitation has been to criminalize and penalize the immediate actors perpetrating the exploitation. For instance, in response to a report by the Salvation Army that it had witnessed an increase in domestic servitude after the visa changes came into effect, the Home Office replied that the most effective way to tackle the problem is to ‘target the criminal gangs behind trafficking, not blame immigration controls’ (Home Office, quoted in Fudge and Strauss 2014: 25). Likewise, the noted problems associated with Romanian and Bulgarian self-employment have mainly been confronted through efforts to control bogus self-employment. This does little to improve the living circumstances of the immigrants themselves. Notably, the preceding Labour government also largely resorted to criminal law, while avoiding responses that could be seen as ‘rewarding’ breaches of immigration legislation. Difficult questions about the rights of immigrants – and indeed, wider questions about the institutionally unequal nature of the British labour market – are put to one side as the political vista focuses exclusively on the criminal actions of more easily identifiable villains. The Coalition government has also argued that one of the key ways of tackling migrant workers’ exploitation is through limiting opportunities for legal immigration. Thus, the government’s overarching populist goal of reducing immigration to the ‘tens of thousands’ is shrouded in humanitarian concern for the immigrants’ welfare. However, a key concern with 231

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shutting down legal avenues for immigration is that it is associated with increases in illegal immigration. The argument here is that people will continue to move to countries – compelled by war or civil strife or attracted by the idea of improving their economic circumstances – whether or not there are legal pathways for immigration. As Nicolas de Genova explores in his article on the history of the USA’s immigration policy on Mexico, ‘ostensibly restrictive immigration laws purportedly intended to deter migration have nonetheless been instrumental in sustaining Mexican migration, but only by significantly restructuring its legal status as undocumented’ (2004: 161). In turn, the exclusion of illegal immigrants from employment rights firmly establishes this population as powerless workers. At present, the most significant possibility for challenge to the UK’s immigration-labour regime has come from the European courts. For instance, while courts in the UK have been firm in their commitment to the doctrine of illegality, it is questionable whether they should be allowed to deny relief to workers in cases where the rights claimed can be derived from EU law, which does not permit derogations on grounds of public policy. In particular, the Race Directive permits no derogations on the grounds of public policy from the general principle of protection against discrimination. On the contrary, the Race Directive clearly states that the right to equality before the law and protection against discrimination constitutes a ‘universal right’ and specifically requests that States take the necessary measures to ensure that any ‘laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished’.32 The question therefore arises as to whether the doctrine of illegality contravenes the Race Directive. Similarly, the role of legal immigration status and its impact on immigration status was recently questioned in Rantsev v Cyprus and Russia.33 Here, the European Court of Human Rights went beyond a ‘criminalization’ approach to trafficking to consider the extent of a member state’s obligations to provide commercial regulation and immigration rules that deter trafficking. In particular, the Court found ‘that the regime of artiste visas in Cyprus did not afford to Ms Rantseva practical and effective protection against trafficking and exploitation’. In particular, it argued that the practice of requiring cabaret owners and managers ‘to lodge a bank guarantee to cover potential future costs associated with artistes which they have employed’ contravened the principle that ‘responsibility for ensuring compliance and for taking steps in cases of non-compliance must remain with the authorities themselves’. Further, both the Aliens and Immigration Service and the Limassol police were criticized for releasing Ms Rantseva from police custody back into her employers’ hands after she left her employment for reasons unknown.34 In total, the Court ruled that the scheme amounted to a violation of Article 4, the prohibition on slavery and forced labour. The Europeanization of law is, however, not the catch-all answer to the problematic issues faced by migrant workers in the UK. As indicated by Theresa May’s recent threat that the United Kingdom might leave the European Convention of Human Rights,35 it is likely that the current government will go a long way to resist improvements in the socio-legal rights of immigrants. Given this context, it is easy to approach discourses of care for migrant workers in a cynical fashion. However, contradictory legal regimes on migrant workers’ exploitation are perhaps better understood in terms of the conflicting priorities that politicians try to balance. In this analysis, politicians are caught between the desire to limit immigration, support business AND protect immigrants’ rights. To some extent, these aims reflect the desires of different groups in society, with the politicians hopelessly trying to reconcile the demands of the public, the lobbying human rights organizations and employers in one fell swoop. More fundamental, however, is the way in which individuals are fully capable of holding entirely contradictory views, in one breath condemning the negative transformations wrought on their 232

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neighbourhood by illegal immigrants and in another, truly horrified and saddened at tragedies such as the one in Morecambe Bay. In this understanding, the state’s ambivalent response to the exploitation of immigrant workers reflects the cognitive dissonance which we all apply to the foreigners in our midst.

Notes 1 The Act also provides a criminal offence for employers using an unlicensed gangmaster, subject to due diligence, see S. 13 (2): 1 Gangmasters’ Licensing Authority 2004. 2 S. 4 (4) (a) of the Asylum and Immigration (Treatment of Claimants) Act 2004: ‘a person is exploited if (and only if)–(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour) . . .’ 3 In both Kawogo vs. UK and CN vs. UK, victims of forced labour had approached the police, but their forced labour was not investigated as a crime. In addition, in Silidain v. France, the European Court of Human Rights argued that member states had an obligation to penalize slavery and forced labour. The offences under S. 71 of the Coroners and Justice Act (2009) were created in order to speak to circumstances where the exploited person was not trafficked or the ‘trafficking element [could not] be proved to the criminal standard’ of proof (see Human Trafficking and Smuggling, Crown Prosecution Service guidance). Furthermore, rather than relying on more general offences such as assault, false imprisonment or labour offences, the new offences also gave prosecutors an option that might more accurately reflect the nature of offending. 4 ‘Theresa May pledges modern-day slavery crackdown’, BBC News, 25 August 2013. 5 ‘Sponsoring migrants under the points-based system’, UK Border Agency. Available at: http://www. ukba.homeoffice.gov.uk/business-sponsors/points/. 6 Non-European Labour migration to the UK, The Migration Observatory. Available at: http:// migrationobservatory.ox.ac.uk/briefings/non-european-labour-migration-uk. 7 Unless they are nationals from Romania and Bulgaria, who have the right to live in the UK but who do not yet enjoy the full right to work. 8 A term used by Mimi Zhou in ‘Panel 2: Socio-legal constructions of precariousness’ at ‘With and beyond citizenship. Lived experiences of contemporary membership’, Refugee Studies Centre, Oxford, 11–12 April 2012. 9 ‘Bulgarian and Romanian workers at risk of exploitation’. Available at: http://www.bdonline.co.uk/ bulgarian-and-romanian-workers-at-risk-of-exploitation-says-ucatt/3098791.article. 10 Migrant worker with leave to remain, Interviewee 1, 20 February 2012 11 ‘The Trade in Human Beings: Human Trafficking in the UK – Home Affairs Committee Identifying victims’. Available at: http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/23/ 2307.htm. 12 Available at: http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/23/23we40. htm. 13 ‘Are you a worker, employee or self-employed?’ Available at: http://www.nidirect.gov.uk/ are-you-a-worker-employee-or-self-employed. 14 S. 39(1) Equality Act 2010, though the right not to be discriminated against only applies to workers (including dependent self-employed) and self-employed with a contract for personal services, see: http://ec.europa.eu/justice/discrimination/files/antidiscrimination_law_review_12_en.pdf p.32. 15 For instance, in 2010, UCATT took a case to an employment tribunal where staff hired to work on another publicly funded hospital building project were being paid just over £4 per hour, way below the national minimum wage. The employment agency which hired them, and which supplies staff to some of the UK’s biggest building contractors, claims they were self-employed and therefore exempt from the legal minimum. In turn, the workers insist they were falsely classified as self-employed in order to cut their employer’s cost. 16 ‘Employment Status and Statutory Employment Rights’, TUC, Available at: : http://www.tuc.org.uk/ workplace/tuc-19836-f0.cfm. 17 ‘UK inspectors quietly sack 200 Romanian Olympic site workers’. The Independent, 02 February 2009. Available at: http://www.independent.co.uk/news/uk/home-news/uk-inspectors-quietly-sack-200romanian-olympic-site-workers-1522970.html.

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18 There are two types of visa available for migrant domestic workers: domestic workers in private households (discussed in this section) and domestic workers in diplomatic households. Under the Vienna Convention on Diplomatic Relations 1961, signatory states have to facilitate the entry of diplomats’ private domestic staff.The conditions relating to domestic workers employed in a diplomatic household differ in two respects from those pertaining to domestic workers in private households: the duration of the visa is tied to the length of the diplomatic posting and diplomats’ domestic workers are able to sponsor dependents. Further, a problematic aspect of the domestic worker in a diplomatic household visa was that the employer can claim diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations. However, State Immunity legislation has recently been challenged in Benkharbouche v Embassy of the Republic of Sudan [2013] UKEAT 0401_12_0410 4 October 2013, when the Employment Appeals Tribunal accepted the appellants’ submission that the 1978 Act was incompatible with fundamental rights as contained in Art. 47 of the EU Charter, and should be disapplied, pursuant to section 2 of the European Communities Act 1972.This case has potentially wide-reaching ramifications for the employees of domestic workers across Europe. 19 Non-European Labour migration to the UK, The Migration Observatory. Available at: http:// migrationobservatory.ox.ac.uk/briefings/non-european-labour-migration-uk. 20 Migrants’ rights activist and former visa overstayer, interviewee 23, 27 April 2013 21 See Regulation 19, Working Time Regulations; Health and Safety Act 1974, s 51. 22 National Minimum Wage Regulations 1999, Regulation 2(2). 23 Other tests revolve around the provision of accommodation and meals (without any liability to pay) and the sharing of tasks and leisure activities. 24 Nambalat v Taher & Anor: Udin v Pasha & Ors [2012] EWCA Civ 124. Available at: http://www. employmentcasesupdate.co.uk/site.aspx?i=ed12810. 25 ‘Domestic workers in private households’. UK Border Agency. Available at: http://www.ukba. homeoffice.gov.uk/visas-immigration/working/othercategories/domesticworkers/. 26 ‘Domestic workers in private households’. Available at: http://www.ukba.homeoffice.gov.uk/visasimmigration/working/othercategories/domesticworkers/conditions/. 27 Illegal contracts are not limited to criminal activity, but instead include those prohibited by law and those ‘which are unenforceable because their object, performance or underlying purpose is socially undesirable’ (p. 3). Illegality may arise from either statute law, where it is established that a contravention of a statute has occurred, or at common law where the courts consider that the terms of the contract offend public policy. See: Gunthrie R. & Tasseff, R. 2007. ‘Dismissal and Discrimination: Illegal workers in England and Australia’, paper presented at Oxford Business & Economics Conference, Oxford, 2007. 28 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_ network/reports/docs/ad-hoc-queries/return/183._emn_ad_hoc_payment_of_back_wages_7dec 2009_wider_dissemination_en.pdf. 29 Hounga v Allen [2012] EWCA Civ 609. 30 V v. Addey & Stanhope School & Others UK/EAT/0565/03/RN. 31 Immigration lawyer, interviewee 4, 26 June 2012. 32 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 14 (a): Member states should take the necessary measures to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. 33 Available at: http://www.coe.int/t/dghl/cooperation/economiccrime/corruption/projects/car_serbia/ ECtHR%20Judgements/English/RANTSEV%20v%20CYPRUS%20%20RUSSIA%20-%20 ECHR%20Judgment%20_English_.pdf. 34 Ms Rantseva arrived in Cyprus in early 2001 on a cabaret visa. After a few days with her employer, she left a note saying she was going back to Russia. Ten days later, the manager of the cabaret found her in a disco and took her to the police asking them to declare her illegal in the country and to detain her. However, the police – in consultation with the Aliens and Immigration Service – concluded that Ms Rantseva was not illegal and asked the manager to collect her from the police station. A day after release, Ms Rantseva was found dead in the street below the apartment to which the manager had taken her. 35 See ‘Conservatives promise to scrap Human Rights Act after next election’, Alan Travis in the Guardian, 30 September 2013. Available at: http://www.theguardian.com/law/2013/sep/30/conservitives-scraphuman-rights-act.

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Heyman, JMcC 1998, ‘State effects on labor exploitation: the INS and undocumented immigrants at the Mexico-United States border’, Critique of Anthropology, vol. 18, no. 2, pp. 157–80. Home Office 2012, Immigration (Employment-related settlement, Overseas Domestic Workers, Tier 5 of the Points Based System and Visitors, viewed 10 February 2014 http://www.parliament.uk/documents/commonsvote-office/February_2012/29-02-12/6.Home-Immigration.pdf Lalani, M 2011, Ending the abuse: policies that work to protect migrant domestic workers, Kalayaan, viewed 10 February 2014, http://www.kalayaan.org.uk/documents/Kalayaan%20Report%20final.pdf Melossi, D 2003, ‘In a peaceful life’, Punishment & Society, vol. 5, no. 4, pp. 371–97. Migrant Rights Centre Ireland (MRCI) 2010, Work permits and exploitation: time for reform, Migrant Rights Centre Ireland, Dublin. Moss, J 2011, Kalayaan response to consultation – questions on MDWs, Kalayaan, viewed 10 February 2014, http://www.kalayaan.org.uk/documents/Kalayaan%20full%20response%20to%20consultation%20 (final).pdf Nagels, C & Rea, A 2010, ‘De la criminalisation des travailleurs sans-papiers’, Champs pénal/Penal field, vol. 7, viewed 24 February 2014, https://dipot.ulb.ac.be/dspace/bitstream/2013/130083/1/ Criminalisation100papiers2010NagelsRea.pdf Palidda, S 2005, ‘Migration between prohibitionism and the perpetuation of illegal labour’, History and Anthropology, vol. 16, no. 1, pp. 63–73. — 2009, ‘The criminalization and victimization of immigrants: a critical perspective’, in WF Mcdonald (ed.), Immigration, crime and justice, Emerald Group Publishing Limited, Bingley, pp. 313–26. Perulli, A 2003, Economically dependent/quasi-subordinate (parasubordinate) employment: legal, social and economic aspects, viewed 10 February 2014, http://www.2 parasubordination_report_en_pdf Rolfe, H, Tatiana, F, Lalani, M, Roman, M, Prohaska, M & Doudeva, L 2013, Potential impacts on the UK of future migration from Bulgaria and Romania, National Institute of Economic and Social Research, London. Sharma, N 2001, ‘On being not Canadian: the social organization of “migrant workers” in Canada’, Canadian Review of Sociology, vol. 38, no. 4, pp. 415–39. Trades Union Congress (TUC) 2007, Hard work, hidden lives: the full report of the Commission on Vulnerable Employment, Trades Union Congress, viewed 10 February 2014, http://www. vulnerableworkers.org.uk UCATT 2009, Memorandum. Available at: http://www.publications.parliament.uk/pa/cm200809/ cmselect/cmhaff/23/23we40.htm Wacquant, L 1999, ‘ “Suitable enemies”: foreigners and immigrants in the prisons of Europe’, Punishment and Society, vol. 1, no. 2, pp. 215–22. Walia, H 2010, ‘Transient servitude: migrant labour in Canada and the apartheid of citizenship’, Race & Class, vol. 52, no. 1, pp. 71–84. Wittenburg, V 2008, The new bonded labour? The impact of proposed changes to the UK immigration system on migrant domestic workers, Kalayaan and Oxfam, Oxford.

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15 Crimmigration Encountering the leviathan Juliet P. Stumpf

Introduction Crimmigration – the interlacing of crime control and migration control – serves as a cauldron of legal and social transformation. Conceived as a convergence of criminal and immigration law (Stumpf 2006), crimmigration law is one of the most rapidly developing fields in the law. In the United States, beginning in the 1980s, a constellation of legislation, immigration enforcement initiatives, and anti-immigrant public sentiment combined to set in motion a radical approach to law enforcement and migration control that ran along lines of ethnicity. Crimmigration is now transnational, appearing in recognizable forms in the United States, Europe, Australia, and Israel. It has resulted in unprecedented levels of deportation and detention, criminalized innumerable noncitizen residents, and instigated the development of a new category of crimes that depend more on citizenship status than on conduct. Crimmigration’s power lies in its talent for transmogrification, in its ability to metamorphose from the criminal realm to the immigration realm and back again. It has offered police a broad pallete of administrative options with which to manage crime; it presents immigration agents with a host of criminal law tools with which to manage migration (Sklansky 2012). It has changed how the public perceives the character and contribution of the immigrant from an uneasy tolerance of unofficial residents to a culture of fear about an invasion of criminal aliens (Stumpf 2006; Parkin 2013). Crimmigration law has emerged as a fully fledged creature of law and society with a set of norms, tools, and legal standards all its own. Scholars and researchers are hard-pressed to keep up with these developments, and advocates and activists struggle to address them.The room that crimmigration law now occupies in both immigration and criminal enforcement has exerted a gravitational influence in social and legal spaces that intersect with crime and migration. It has shaped negative images of noncitizens tied to ethnicity, sowed unease in communities about the effects of migration, and inspired subnational legal measures that seek to exclude or contain migrants, such as the anti-immigrant legislation in Arizona and Alabama (Stumpf 2013).1 Crimmigration compels an intermeshing of policing and border control, such as the Australian immigration officers’ police-like powers and the rise of Australian police involvement in border control (Pickering and Weber 2013; Weber 2013).

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The leviathan of crimmigration law is provoking a response that is at once political and social, manifesting in proposed legislation, political positions, and social activism. Its gravitational pull is creating an arena of study and activity that augurs groundbreaking developments in law and new horizons in academic research (Parkin 2013). The concept of crimmigration has become a gathering place for scholars, advocates, and activists in all areas of crime and migration. It has also inspired academic research and analysis aimed at both charting the contours of crimmigration law and playing a role in the development of a post-crimmigration era. This chapter will sketch the evolution of crimmigration law. It will make the case that crimmigration has distinguished itself in a way that creates a distinct legal field, that its reach is transnational, that it impacts not just legal rules but the daily decisions of immigration agents and police officers, and that it has seeped into the nooks and crannies of the lives of citizens and noncitizens. The chapter will then examine the response to crimmigration law, focusing on the legal actors, advocates, and researchers striving to understand and ameliorate the excesses of crimmigration law.

The origins of crimmigration law: birth of a leviathan Traditionally, criminal law and immigration law operated in autonomous spheres, with little doctrinal or theoretical overlap. In the first centuries of the United States’ existence, the criminal background of a noncitizen could impact whether the noncitizen could enter the country, but it generally did not justify expelling those settled in the young nation. As well, the official response to unlawful entry was usually deportation, not prosecution, and the law afforded some protection against expulsion for those with close family ties or other compelling circumstances. When resident noncitizens such as lawful permanent residents committed crimes, the criminal justice system – not the deportation system – addressed the conduct, doling out sentences and other punishment with the same ladle used for U.S. citizens (Kanstroom 2007). In a way, this historical division between the two areas of law seems peculiar. Aside from national security, criminal law and immigration law are the two legal arenas that wield the greatest government power over the physical liberty of individuals. On the other hand, the division reflected a longstanding theoretical distinction between the two areas of law. The U.S. Supreme Court had declared in Fong Yue Ting v United States that the federal immigration power had its ancient roots in international law, grounded in the sovereign power of the nation in the international sphere, and linked with the exclusively federal concern with foreign affairs.2 In contrast, criminal law was largely a creature of the states and so looked inward, animated by the police power of the states whose sovereignty was bounded by federal constitutional norms (Stumpf 2008). The United States provides a case study of the development of crimmigration law.Throughout the history of the United States, the inevitable intersections between criminal and immigration law have triggered occasional crises of categorization in the courts, moments in which the judiciary has stepped in either to draw lines in shifting sands between criminal and immigration law, or to recognize points of contact between the two legal arenas and define the consequences for law and policy. In the nineteenth century, a pair of Supreme Court cases established the bookends of power over crime and migration. In Fong Yue Ting, the Supreme Court held that the federal government possessed bountiful and exclusive power over immigration questions of entry, expulsion, and the terms under which noncitizens remain. That power was largely unfettered by constitutional rights, and also distinct from the criminal police power that the states exercised; therefore not shared with them.3 238

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In Wong Wing v United States, the Court held that when the government sought to impose criminal punishment for an immigration violation, the Constitution required that the noncitizen receive criminal procedural rights and prohibited merely imposing the punishment as an administrative matter.4 This line-drawing answer begat a line-confounding question: How do we distinguish between criminal-type punishment and the severity of immigration sanctions such as deportation? A half century later, faced with the question of how to categorize conduct such as prostitution that triggered deportation in one system and criminal prosecution in the other, the Supreme Court punted to government authority.5 Bugajewitz v Adams presented the Court with a conundrum: could prostitution form the basis for a state criminal proceeding with criminal consequences and also present a basis for the immigration sanction of deportation, but without the criminal procedural protections? The Court answered in the affirmative, permitting federal immigration officials to prosecute the conduct as an administrative immigration violation and state criminal justice officials to prosecute it also as a crime, dismissing ‘[t]he coincidence of the local penal law with the policy of Congress’ as ‘an accident.’6 The Court thus reached this outcome by imagining criminal and immigration law in separate spheres, and allowing each to revolve freely around its own axis untethered by the other. That holding avoided the difficult line-drawing exercise about whether the criminal justice system or the administrative deportation system was the proper vehicle for determining the lawfulness of a noncitizen’s status or conduct – the Supreme Court’s answer was either, or both.7 It also maximized the government’s power to determine the consequences of a noncitizen’s violation of law, leaving unencumbered the government’s control over the liberty of the noncitizen. This artificial distinction between criminal and immigration law survived largely intact for more than a century,8 until the rise of crimmigration law. In 2010, the case of Padilla v Kentucky presented the question whether a noncitizen was entitled to know that his plea to a criminal charge would likely result in deportation.9 The Court’s affirmative answer arose from its recognition of the rise of crimmigration. Surveying the recent history of the intermeshing of immigration and criminal law, Padilla acknowledged the ubiquity of deportation as a consequence of a criminal conviction. In light of the newly developed merger of criminal and immigration law, the Court imposed a new obligation on a set of criminal law actors – the noncitizen’s defense counsel – to research deportation law and advise their client about clear consequences of a proffered plea. The historical context of Padilla is illuminating. In the 1980s and accelerating through the 1990s, the paper wall between criminal law and immigration law collapsed. The ‘war on drugs’ in the United States inspired legislation that, among other changes, created a category of grounds for deportation based on a variety of crimes regardless of when they were committed, and made newly vulnerable to deportation many long-term resident noncitizens such as lawful permanent residents.10 This classification for ‘aggravated felonies’ underwent a complete transformation over the next decade from a handful of crimes to a lengthy list of offenses that ranged from the serious to the very minor, ultimately including misdemeanors and petty thefts. It also increased the grounds for drug-related deportation and expanded the amorphous category of crimes involving moral turpitude.11 At the same time, the United States took a major step toward making these crimebased deportation grounds unassailable. Congress stripped away almost all of the avenues for relief from deportation based on the criminal grounds.12 In place of a judicial or agency decision about whether an individual’s circumstances and connections to the United States weighed against deportation, these laws walled off relief for most noncitizens with criminal convictions. For noncitizens, a criminal conviction had suddenly acquired a major new 239

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consequence – deportation – that reached beyond the criminal sentence and operated largely outside of the traditional structure of the criminal justice system (Stumpf 2011). Unlawful entry had long been a crime in the United States but it was rarely enforced through the criminal justice system. Deportation was the usual remedy for a violation. With the greater integration of criminal and immigration law, prosecutions for unlawful entry and unlawful re-entry surged, becoming the largest category of federal criminal prosecutions (Chacón 2009). Constructing an impermeable border with Mexico became a rallying cry for those seeking to restrict unauthorized immigration, leading to a build-up of federal law enforcement officers at the border and pushing migration streams into ever more treacherous territory. Similar synergies between criminal and immigration control measures arose elsewhere. In Europe, crimmigration law has developed along two interconnected levels: at the level of the European Union and the Schengen Area, and within the individual member states (Mitsilegas, Monar and Rees 2003).Through the Schengen Agreement and its related covenants, most of the European countries have agreed to a unified migration policy that liberalizes international travel within the Schengen Area while establishing restrictions on migration from nationals outside of the Area.13 The loosening of interior border controls in the Schengen Area coincided with heightened perceptions that connected unlawful immigration and organized crime, and linked them both with internal security – the ‘securitization’ of the European Union. Concerns arose that unlawful migration from outside the European Union might undermine economic stability because of labor competition, have negative social impacts due to employment in twilight industries with inadequate wages and workplace rights, or overburden the welfare structures of the member states (Mitsilegas, Monar and Rees 2003). The links between internal security, control of organized crime, and immigration control became most apparent when the European Union expanded its role in governing migration and border control. These links manifested legislatively, through European Union Directives to criminalize facilitating unlawful entry across the border or facilitating residence in a member state without authorization, including by providing unauthorized employment (Mitsilegas, Monar and Rees 2003:107, citing Council DOCS. 10704/01, Brussels, 17.9.2001 and 11015/01, 6.12.2001). Fears of unchecked flows of crime and migration into the Schengen Area led to the creation of new security agencies, such as FRONTEX and Europol, which seek to monitor and control the movements of non-European Union citizens. Their mandates are to police unlawful border entries and enhance transnational cooperation among European law enforcement entities. The rise of these agencies coincides with a discourse in the European Union that has fueled public concern about the connection between immigration and migration-related criminal acts such as smuggling and human trafficking as well as terrorism (Parkin 2012). In conjunction with these new agencies, Europe has seen a proliferation of surveillance systems justified by the risk of cross-border crime – the Schengen Information System (I and II), the Visa Information System, EURODAC, and EUROSUR (Aas 2011).

The multiple faces of crimmigration law Crimmigration control has resulted in a hybrid that manifests in both administrative and criminal justice systems. Just as crimmigration law has altered the fabric of immigration law, it has also pioneered new approaches to defining crime.

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Three aspects of crimmigration Crimmigration’s effect on criminal law has several aspects. The first is the immigration consequence of traditional crimes, in which a noncitizen’s commission of any of a variety of crimes makes him or her eligible for deportation. Drug crimes, certain crimes involving ‘moral turpitude’ and a list of crimes designated ‘aggravated felonies’14 may form the basis for deportability. The U.S. Supreme Court’s decision in Padilla v Kentucky, which examined the immigration consequences of José Padilla’s conviction for hauling marijuana in a semi-trailer truck, provides an example. In holding that the integrity of a plea bargain to a drug crime depended on defense counsel informing a noncitizen of the clear immigration consequences of the plea, the Padilla opinion reflected on the merging of criminal and immigration law and the predominance of deportation as a consequence of a criminal conviction. A second aspect of crimmigration law is the proliferation of crimes based on conduct related to migration, such as illegal entry, and the heightened enforcement of those crimes. This aspect embodies what Jennifer Chacón has called ‘managing migration through crime,’ in which the criminal law has become a locus for regulating migration (Chacón 2009). The main feature of this aspect of crimmigration law is the legislative construction of migration-related acts as criminal rather than administrative. In the United States, at both the federal and state levels, legislatures have re-framed as criminal conduct what was previously either addressed through deportation law or simply not a violation of law, such as working without authorization from the government. The federal Immigration Reform and Control Act of 1986, which for the first time prohibited employees from working without government authorization, germinated new crimes for related acts such as identity theft for using false documents to obtain work (ibid.). Similarly, localities have passed a raft of criminal laws that target the activities in which undocumented immigrants often engage. For example, Arizona turned clandestine entry of unauthorized migrants into the crime of self-smuggling (Chacón 2009; Eagly 2010) and defined identity theft to permit conviction based on use of an alternate identity, regardless of whether the alternative identity belonged to another person or whether the noncitizen knew he was using someone else’s identity (Chacón 2009). Although unlawful presence is not a federal crime, states and localities have taken steps toward criminalization of unauthorized migration by creating or expanding prohibitions on loitering and traffic offenses that target day laborers, passing housing ordinances that impact landlords who rent to unlawfully present immigrants, and imposing requirements that schools gather information about unlawfully present schoolchildren. In the European Union, unlawful presence is more directly criminalized, though not uniformly. At least 17 member states have criminalized unlawful border crossing or unlawful presence, with fines or detention as the consequence. Other members treat these actions as administrative violations or criminalize repeated offenses (FRA 2011). Like the United States, EU members have criminalized forging or possessing false identity documents, working without authorization, and re-entering a country that has previously prohibited the individual from entry (Parkin 2013). Lucia Zedner has opined that crimmigration is imperiling established understandings of what constitutes a crime (Zedner 2013). Crimmigration law has affected how crimes are defined on two levels: by inspiring the creation of new crimes such as smuggling and harboring (Eagly 2010), and by changing the kinds of elements that constitute a crime (Aliverti 2013; Zedner 2013).

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The criminalization of immigration violations circumvents some of the criminal law principles that have long justified the exertion of the state power to punish (Aliverti 2013; Zedner 2013: 51). If criminal sanctions are reserved for those who do the most harm to society, mass prosecutions of low-level immigration-related crimes, such as entering the country without authorization, seem to contravene that principle. Similarly, when immigration-related criminal offenses lack the element of culpability, such as failure to produce a passport or use of a false identification number, they essentially become strict liability offenses (Aliverti 2012; Zedner 2013: 51). A third effect of crimmigration on the criminal justice system is the use of government police powers for the purpose of controlling unlawful migration. Instead of criminalizing migrationrelated conduct, however, its main feature is the use of criminal enforcement tools to discover unauthorized migrants and exert physical control over them. These powers encompass arrest for administrative violations of migration laws such as unlawful presence, interrogation of noncitizens to discover information relevant to those violations, and authority to administratively detain and transport noncitizens to exclude or expel them (Stumpf 2013; Weber 2013). This use of police power is perhaps the most rarified form of crimmigration, in that the government operates at the apex of its powers to restrain individual liberty and at the same time outside of criminal policing where those powers typically operate. The scope of these powers expands beyond noncitizens when coupled with the transnational, interagency networks of surveillance and technology databases. Law enforcement officials use these databases to detect criminal and migration-related transgressions, but they also gather and store vast amounts of personal data on travelers, migrants, and those who have had contact with the criminal justice system, among others (Aas 2011). The entry of information into these databases is contingent not on a criminal conviction or immigration proceeding, but merely on whether the individual has contact with the government agency that administers the database. As a result, the database collects and retains information about people, such as air travelers or border-crossers, where there is no basis for suspicion of criminal or immigration violations. Nevertheless, their appearance in databases created to assess the risk of criminal, terrorist, or migration-related activity constructs them as potential criminals, potential unlawful migrants, or potential terrorists (Aas 2011; Mitsilegas 2012). Aas suggests that these surveillance networks ‘embody the changing modes of risk thinking and social exclusion, and are inscribed with specific notions of otherness and suspicion’ (Aas 2011).

The significance of detention The expansion of deportation grounds based on criminal convictions and the prosecution of unauthorized migration reflect ways in which immigration law has reached into the realm of criminal law and criminal law has borrowed from immigration law. Detention of noncitizens is a singular blending of the two areas, and a ubiquitous part of crimmigration enforcement. Detention shares the most significant features of pre-trial detention and incarceration: complete control over the physical liberty of the detainee and exclusion from society. Australia is wellknown for its longstanding broad policies of detaining asylum seekers arriving on its shores. More recently, an Israeli court struck down Israel’s policy of placing new asylum seekers in detention for three years, and the country is now experimenting with ‘open’ detention centers that permit noncitizens to enter and leave but impose curfews and check-in requirements that create de facto detention (Harris 2013). In the U.S., the prominence of detention results from two developments in crimmigration law. First, a series of statutes established categories of noncitizens subject to mandatory detention, 242

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largely removing immigration officials’ discretion to decide whether to detain noncitizens or release them on bond.15 Second, Congress expanded the authority of immigration prosecutors and judges to detain noncitizens outside of those mandatory categories.16 By 2011, the United States was detaining about 430,000 noncitizens. Immigration detention resembles criminal detention or incarceration in that both often share the same federal or state prisons and local jails. They both employ the same officials – prison wardens, sheriffs, uniformed guards – and tend to prioritize security as a central organizing principle in setting detention conditions (Bosworth and Kaufman 2011). Detention became a microcosm of crimmigration law’s expansion of the powers of immigration officials. The evolution of detention law, like its cousin deportation law, has tended towards enlarging the affirmative discretion of an immigration enforcement official to detain, while constricting the discretion of immigration judges to make individualized determinations about whether detention is necessary or just in light of the circumstances. U.S. detention law mandates detention of noncitizens arriving at a port of entry unless they are clearly admissible, though they may be released on parole.17 Detention law also authorizes arrest and detention of noncitizens pending a decision whether to deport them.18 These two bases for detention create space for discretionary decisions by immigration officials to detain or release the noncitizen in light of their circumstances. A third basis for detention removes almost all discretion to release a noncitizen who has committed crimes that would constitute reasons for deportation. In essence, Congress predetermined which noncitizens must be detained by setting out broad crime-related categories of deportation grounds, mandating detention of almost all noncitizens within those categories, and forbidding immigration officials and judges from overriding that pre-determination.19 As a result, what determines whether immigration authorities have the discretion to release a noncitizen from detention – formerly the province of judicial consideration or agency policy – has descended to the federal or state arresting officer (Motomura 2011). A police officer’s decision to arrest a noncitizen for a detention-eligible crime and the prosecutor’s decision to charge that crime determine in large part whether the mandatory detention provision of the detention statute applies.That leaves the detained noncitizen beyond the reach of an immigration judge’s power to grant bond. Similarly, an immigration agent’s decision whether to arrest a noncitizen who will be subject to mandatory detention may be the last point of agency discretion that the statute permits20 (ibid.).

The crimmigration leviathan Has crimmigration law matured into a discrete, separate area of law deserving of its own field of study? Within the past decade, the intersection of crime and migration has acquired a label – crimmigration – a collection of websites,21 a blog,22 and a transnational, interdisciplinary network of scholars.23 More to the point, crimmigration law defines an arena in which the action of an individual or official can have two very different legal meanings or legal consequences: for example, a petty theft can be a misdemeanor within criminal law and also an ‘aggravated felony’ in immigration law.24 Holding an individual in a cell can constitute pretrial detention or incarceration in criminal law and also administrative detention under immigration law. The overlap between immigration regulation and criminal law begins to define the geography of crimmigration law. It is the easy slippage from one label to the other that makes it possible for a noncitizen to experience both a criminal law consequence like incarceration and an immigration law consequence like detention or deportation, both resulting from the same act. 243

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Chacón concludes that the federal, state, and local emphasis on prosecuting migration-related crimes represents ‘a wholesale retooling of the criminal justice system to manage migration’ (2009: 147). Crimmigration, however, goes farther. It is carving out its own niche in the law, fostering something distinct from either immigration law unmixed with criminal law or criminal law standing alone. It has shaped a new framework for sanctioning violations of traditional criminal law that applies only to noncitizens. It has fashioned a new form of criminal violation with non-traditional attributes and sparser elements. At the same time, the courts have suppressed the procedural protections that usually limit the criminal justice system and Congress has suppressed individualized consideration of circumstances that traditionally mitigated deportation and detention. With state and local law enforcement stepping into the fray to increase enforcement, the incidence of deportation, civil detention, and incarceration of noncitizens has mushroomed. Crimmigration law, however, has seeped beyond the cross-stitches joining criminal and immigration law. That same slippage from criminal law to immigration regulation presents law enforcement authorities with two different sets of procedural requirements and different levels of rights, expanding the discretion of those officials. Law enforcement officials seeking to maximize the impact of their actions will tend to choose the option with the lowest barriers to reaching their goals (Aliverti 2013: 132–4; Eagly 2010).When criminal law proceedings would provide access to legal counsel at government expense as well as other criminal procedural rights, shunting the noncitizen into deportation proceedings may be the most expeditious course of action for law enforcement. Padilla responds directly to this expansion of crimmigration law by acknowledging the interlacing of criminal and immigration law and asserting a procedural requirement drawn from criminal law of advice of counsel about the immigration law consequence of a plea. More useful than evaluating whether crimmigration law is a distinct legal regime is recognizing how crimmigration has come to function as a medium for innovation in law-creation and law enforcement. Sharon Pickering and Leanne Weber have pioneered the concept of ‘transversal border policing,’ in which migration policing practices ‘run, conceptually, at right angles across established borders,’ opening up new spaces for governance that would be unavailable if policing were contained within territorial borders (Pickering and Weber 2013: 94). When border control functions are performed beyond the border such as at far-flung international airports, or through chains and networks of government actors such as international security information exchanges and private actors such as common carriers, border policing is transformed. The border policing function remains central to the state, ‘but floating apart from [it], able to invest in a cross-border, de-territorialized existence which is unbounded in many respects by temporal or geographic constraint’ (ibid.: 94). The structure of crimmigration, in other words, fosters the expansion of power. It is a wellspring for the regulation of crime, migration, security, and ethnicity. The array of targets it regulates attracts both government actors and private entities: not just national and supranational immigration enforcement, but local police officers seeking to regulate local populations and private prison companies seeking the stability of profits from a reliable migratory stream and government contracts. Whether or not crimmigration has a category of law unto itself, it continues to be an active, flexible, fertile field for innovations in legislation at local, national, and transnational levels, and for new approaches to policing made possible by the expansion of discretion that the slippage between criminal and immigration law fosters. Crimmigration has become a leviathan, but one with chameleon-like properties, shifting across time and space to manifest in a variety of bordered spaces – different nations and transnational frameworks; a variety of categories of law – immigration law, criminal law, national security law; and through 244

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different actors – police and immigration authorities, private and public actors, legislators and law enforcers. The fertility of crimmigration law has inspired a secondary effect in both scholarship and advocacy. Until the escalation of crimmigration law, scholars and advocates had largely worked within their own bordered fields. Research and advocacy tended to focus either on crime or on migration, on social science or law, with the study of ethnicity as their most significant commonality. Crimmigration control has inspired Ben Bowling’s call for ‘an urgent and important theoretical, empirical, and practical project’ (2013: 305). The identification of ‘crimmigration’ as a rising phenomenon has provided a common point of reference, creating a conceptual gathering place for legal and community advocacy and interdisciplinary and transnational scholarship. After Padilla, U.S. criminal defense attorneys and prosecutors turned to immigration lawyers for advice about the consequences of plea agreements. Immigration advocates turned to the criminal defense bar and to criminal sentencing judges, seeking to revise the results of old criminal convictions when they would cause new immigration-related harms (Wright 2011). Scholars in a range of fields independently studying various connections between criminal law, migration, ethnicity, and national security discovered common research interests under the crimmigration umbrella. Scholarship from criminology, law, sociology, psychology, and political science converged on the common ground of crimmigration (e.g. Kanstroom 2000; 2004; Demleitner 2002; Miller 2003; 2005; Legomsky 2007; Stumpf 2006; Chacón 2009; Eagly 2010; Chin 2011a; van der Leun and van der Woude 2011; Aas and Bosworth 2013; Aliverti 2013; Zedner 2013). Sharing empirical data, legal research, insight and ideas, scholars themselves evidence the interdisciplinary, transnational nature of crimmigration control.

In the wake of the leviathan The empirical evidence and practical and theoretical research have revealed at least three larger insights that this chapter has touched on: first, that the crimmigration convergence is impacting how governments and others perceive and approach migration; second, that crimmigration control is bound up with issues of ethnicity; and third, that crimmigration control has called into question the fundamental nature of criminal law. The first set of insights, that crimmigration control impacts perceptions about noncitizens and approaches to migration, is effectively – though not completely – explained through membership theory (Stumpf 2006). As Mary Bosworth explains, the categorization of those who arrive without documentation as ‘illegals’ draws heavily on a criminal justice imagery: ‘Those who fail to follow the rules – such as by arriving without documentation or working without a visa – are dangerous, undeserving, and criminal’ (Bosworth 2008: 205).The power of this criminal justice imagery is great enough to create for noncitizens an ever-present threat of physical confinement, expulsion, and social exclusion, so that full membership in the polity is impossible (Stumpf 2006; Bosworth 2008; Bosworth and Kaufman 2011). This kind of social and physical exclusion combines with ethnicity and nationality in ways that draw membership lines across the globe. Those lines tend to allot membership to the Global North and deny it to the Global South, making it easier for members of migrantattracting states to cross borders or acquire denizenship within the Global North and much harder for members of countries of the Global South. This divides the world through transnational ordering of entry and voluntariness of exit (Lee 2013). It has the overwhelming effect of sorting members by ethnicity, nationality, language, and religion (Bowling 2013), encouraging ethnic profiling (Stumpf 2006; van der Leun 2011; 2012), as well as by gender (Hartry 2012; Lee 2013). 245

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Some of the first empirical research on crimmigration, conducted in the Netherlands, has suggested a close connection between crimmigration control and ethnic profiling (van der Leun and van der Woude 2012; 2011). The ‘merging of migration policy and crime control’ in the Netherlands ‘has put an increasing pressure on law enforcement officials to profile on the basis of race or nationality’ (van der Leun and van der Woude 2011: 445). Crimmigration comes into play through ‘the development of a discourse in which minority groups are increasingly seen and addressed as ‘‘dangerous others’’, comparable to criminals’ (ibid.: 445). Others have made similar observations about Hispanics in the United States, pointing to common claims that unauthorized Hispanic newcomers to the United States threaten the stability of the social fabric and the physical security of American communities (Chin et al. 2010). Finally, crimmigration disaggregates criminal law from its traditional aims. The immigration control justification for large-scale prosecution of minor immigration crimes – deterrence of future unauthorized entry – pushes to the background the criminal law aims of retribution, incapacitation, or rehabilitation of the individual defendant (Aliverti 2013: 137–8). These lowlevel violations tend to be victimless, cases are often uncontested and speedily administered, and the level of prosecution often driven either by prosecution quotas or the individual discretion of the government official. Concerns are often voiced that large-scale unauthorized migration could impact the economic success of native workers, but how much indirect harm the crimes cause is contested (Aliverti 2013: 83–5). Like the principle that reserves criminal law for serious harms, the principle of proportionality meant to constrain government criminal sanctioning power is all but absent from crimmigration law (Stumpf 2009). Crimmigration implicates proportionality in two ways. First, crimmigration disturbs the conventional criminal law principle that the punishment must fit the crime, that the most serious crimes deserve the most serious sanctions and more minor crimes should receive lesser punishment. When deportation is the ever-available sanction for both immigration-related crimes and traditional convictions, proportionality is simply absent. Second is the emphasis placed on prosecution of immigration-related crimes in proportion to other crimes. By criminalizing almost all immigration administrative violations except unlawful presence, crimmigration law creates an expansive pool of prosecution-eligible noncitizens. In the United States, immigration-related prosecutions, mostly of illegal entry or illegal re-entry charges, outnumber all other categories of federal criminal prosecution. This level of federal attention to criminal prosecution of noncitizens, in conjunction with the breadth of the criminalization of migration offenses, calls for empirical research around the question of whether the criminalization and prosecution of immigration offenses are disproportionate to the prosecution of more serious traditional crimes with identifiable victims. Even absent actual prosecution, criminalizing conduct that noncitizens undertake, and that was previously at most an administrative violation, has significant expressive consequences, especially when paired with lesser procedural protections (Stumpf 2006; Zedner 2013). Lucia Zedner has pointed out the adverse implications for noncitizens in ‘the trend toward status offenses and recourse to civil-criminal hybrid preventive orders, designed to restrain and monitor those deemed untrustworthy’ (2013: 41).

Conclusion Although the connections between criminal and immigration law hark back hundreds of years, this vigorous, sustained intermingling of the two areas is recent. Crimmigration has coalesced as a social, political, and legal phenomenon within the recent past, with a swiftness that 246

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has taken advocates, adjudicators, and other repeat players in immigration and criminal law by surprise. Crimmigration has made monumental changes in immigration and criminal law, as well as border control and internal policing. These are not just legislative and administrative policy changes. They are structural changes to how crimes and immigration violations are investigated, prosecuted, decided, enforced, and understood. Policing and migration control have become linked through official and unofficial relationships between police and migration authorities, through surveillance and data collection technology, and through a reconstruction of the role that law enforcement authorities – both police and immigration officials – see themselves as filling. It has shaped who the public and the government perceive as posing a risk of criminal conduct and national security breaches. Crimmigration has stirred up the political forces driven by public perceptions about the risks that migration poses. Its reach has been so extensive that it is hard to imagine untangling its many interwoven threads. Yet, perhaps within the heart of crimmigration lie the seeds of its undoing. When the U.S. Supreme Court in Padilla v Kentucky recognized the merging of criminal and immigration law, the outcome inspired – in fact, required – defense counsel and immigration advocates to acknowledge a common interest and undertake the common goal of raising the level of representation in crimmigration cases. U.S. DREAM Act activists, students and other young people who remained unauthorized despite their long-term residence from early childhood, have similarly transversed crimmigration’s divisions. Making a strategic choice to broaden their message beyond their own plight to include noncitizens caught up in crimmigration’s web (Nicholls 2013), the DREAMers sought to challenge the increasing identification of immigrants with crime and risk to national security. They declined to disassociate themselves from other noncitizens with less sympathetic stories, pushing back against framing unauthorized noncitizens as lawbreakers as a way of resisting the exclusionary effects of modern immigration policy, including crimmigration. By tying their own stories to the stories of noncitizens affected by crimmigration, and advocating for moral and legal recognition of their inclusion in the polity, the DREAMers have shaken public perceptions about themselves and seek to do the same for all unauthorized U.S. residents. Will these efforts work? It is too early to say. At bottom, the interplay between criminal law, immigration law, and national security has the potential to inspire new solutions to old problems. The empirical and theoretical research and collaboration among scholars in response to crimmigration will provide ideas and data for new legal and social arguments about the geography and effects of crimmigration (McLeod 2012). While crimmigration is not new, the pendulum has swung so far towards the extreme end of law enforcement that change has become not just necessary, but inevitable.

Notes 1 Beason-Hammon Alabama Taxpayer and Citizen Protection Act, 2011 Ala. Acts 535 (codified at Ala. Code {§§} 31-13-1 to 31-13-30, § 32-6-9); Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), 2010 Ariz. Sess. Laws 450 (codified as amended in scattered sections of Ariz. Rev. Stat. Ann. Tits. 11, 13, 23, 28, and 41. See also Human Rights Comm., A v Australia, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 (Apr. 3, 1997) (assessing the systematic detention of asylum seekers). 2 Fong Yue Ting v United States, 149 U.S. 698 (1893). 3 Ibid. 4 Wong Wing v United States, 163 U.S. 228, 236 (1896). 5 Bugajewitz v Adams, 228 U.S. 585 (1913).

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6 Ibid. at 591. 7 The Court’s characterization of the similarity between the state criminal law and the federal deportation law as an ‘accident’ raises the question whether a legislature’s deliberate reliance on state criminal law to trigger deportation should be treated differently. 8 Harisiades v Shaughnessy, 342 U.S. 580 (1952). 9 Padilla v Kentucky, 559 U.S. 356 (2010). 10 Anti-Drug Abuse Act of 1988 (Drug Kingpin Act), Pub. L. No. 100–690, § 7342, 102 Stat. 4181, 4469–70 (codified as amended at 8 U.S.C. {§} 1101(a)(43) (2000)) (defining ‘aggravated felony’ deportation grounds to include crimes of murder, drug trafficking, and firearms trafficking). 11 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–32, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.); Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, {§}321, 110 Stat. at 3009–3627 (codified at 8 U.S.C. {§} 1101(a)(43)) (expanding the ‘aggravated felony’ definition). 12 Ibid. 13 The Schengen Area (PDF). European Commission. 12 December 2008. doi:10.2758/45874. 14 See INA {§} 101(a)(43). 15 See INA {§} 236(c), PATRIOT Act. 16 See INA {§} 236(a). 17 See INA {§} 235(b)(2); 8 CFR § 212.5. 18 See INA {§} 236(a). 19 See INA {§} 236(c). 20 Ibid.; see INA {§} 235(b). 21 See crimmigrationcontrol.com and crimmigration.com. 22 Crimmigration.com. 23 Crimmigrationcontrol.com (see ‘Research Team’). 24 See 8 U.S.C. {§} 1101(a)(43) (defining ‘aggravated felony’ for purposes of U.S. immigration law).

References Aas, KF 2011, ‘“Crimmigrant” bodies and bona fide travelers: surveillance, citizenship and global governance’, Theoretical Criminology, vol. 15, no. 3, pp. 331–46. Aas, KF & Bosworth, M (eds) 2013, Borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford. Aliverti, A 2012, ‘Making people criminal: the role of the criminal law in immigration enforcement’, Theoretical Criminology, vol. 16, no. 4, pp. 417–34. — 2013, Crimes of mobility: criminal law and the regulation of immigration, Routledge, London. Bosworth, M 2008, ‘Border control and the sovereign state’, Social & Legal Studies, vol. 17, no. 2, pp. 199–215. Bosworth, M & Kaufman, E 2011, ‘Foreigners in a carceral age: immigration and imprisonment in the U.S.’, Stanford Law and Policy Review, vol. 22, no. 1, pp. 429–54. Bowling, B 2013, ‘Epilogue: the borders of punishment: towards a criminology of mobility’, in KF Aas & M Bosworth (eds), Borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 291–306. Chacón, JM 2009, ‘Managing migration through crime’, Columbia Law Review Sidebar, vol. 109, pp. 135–48. — 2012, ‘Overcriminalizing immigration’, Journal of Criminal Law and Criminology, vol. 102, no. 3, pp. 613–52. Chin, GJ 2011a, ‘Illegal entry as crime, deportation as punishment: immigration status and the criminal process’, UCLA Law Review, vol. 58, no. 6, pp. 1417–59. — 2011b, ‘Making Padilla practical: defense counsel and collateral consequences at guilty plea’, Howard Law Journal, vol. 54, pp. 675–91. Chin, GJ, Hessick, CB, Massaro, TM & Miller, ML 2010, ‘A legal labyrinth: issues raised by Arizona Senate Bill 1070’, Georgetown Immigration Law Journal, vol. 25, no. 1, pp. 47–92. Demleitner, NV 2002, ‘Immigration threats and rewards: effective law enforcement tools in the “war” on terrorism?’, Emory Law Journal, vol. 51, pp. 1061–94. Eagly, IV 2010, ‘Prosecuting immigration’, Northwestern University Law Review, vol. 104, no. 4, pp. 1281–359.

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— 2011, ‘Local immigration prosecution: a study of Arizona before SB 1070’, University of California Los Angeles Law Review, vol. 58, pp. 1749–817. FRA 2011, Fundamental rights of migrants in an irregular situation in the European Union: comparative report, European Union Agency for Fundamental Rights,Vienna. Garland, D 2001, The culture of control: crime and social order in contemporary society, University of Chicago Press, Chicago. Harris, E 2013, ‘African migrants find an uneasy asylum in Israel’, National Public Radio: Weekend Edition, blog post, 6 November, http://www.npr.org/blogs/parallels/2013/11/16/244087004/africanmigrants-find-an-uneasy-asylum-in-israel. Hartry, AS 2012, ‘Gendering crimmigration: the intersection of gender, immigration, and the criminal justice system’, Berkeley Journal of Gender, Law & Justice, vol. 27, no. 1, pp. 1–27. Kanstroom, D 2000, ‘Deportation, social control, and punishment: some thoughts about why hard laws make bad cases’, Harvard Law Review, vol. 113, no. 8, pp. 1889–935. — 2004, ‘Criminalizing the undocumented: ironic boundaries of the post-September 11th “Pale of Law”’, North Carolina Journal of International Law & Commercial Regulation, vol. 29, pp. 639–70. — 2007, ‘Reaping the harvest: the long, complicated, crucial rhetorical struggle over deportation’, Connecticut Law Review, vol. 39, pp. 1911–22. Lee, M 2013, ‘Human trafficking and border control in the Global South’, in KF Aas & M Bosworth (eds), Borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 128–45. Legomsky, SH 2007, ‘The new path of immigration law: asymmetric incorporation of criminal justice norms’, Washington & Lee Law Review, vol. 64, no. 2, pp. 469–528. McLeod, AM 2012, ‘The U.S. criminal-immigration convergence and its possible undoing’, American Criminal Law Review, vol. 49, no. 1, pp. 105–78. Miller, TA 2003, ‘Citizenship & severity: recent immigration reforms and the new penology’, Georgetown Immigration Law Journal, vol. 17, pp. 611–66. — 2005, ‘Blurring the boundaries between immigration and crime control after September 11th’, Boston College Third World Law Journal, vol. 25, pp. 81–123. Mitsilegas, V 2012, ‘Security versus justice: the individualisation of security and the erosion of citizenship and fundamental rights’, in B Hudson & S Ugelvik (eds), Justice and security in the 21st century: risks, rights and the rule of law, Routledge, London. Mitsilegas, V, Monar, J & Rees, W 2003, ‘The securitisation of organised crime and illegal immigration’, in The European Union and internal security: guardian of the people, Palgrave Macmillan, New York, pp. 42–61. Motomura, H 2011, ‘The discretion that matters: federal immigration enforcement, state and local arrests, and the civil-criminal line’, University of California Los Angeles Law Review, vol. 58, pp. 1819–58. Nicholls, W 2013, The DREAMers: how the undocumented youth movement transformed the immigrant rights movement, Stanford University Press, Stanford, CA. Parkin, J 2012, ‘EU Home Affairs agencies and the construction of EU internal security’, CEPS Liberty and Security in Europe Papers No. 53, Centre for European Policy Studies, Brussels. — 2013, ‘The criminalisation of migration in Europe: a state-of-the-art of the academic literature and research’, CEPS Liberty and Security in Europe Papers No. 61, Centre for European Policy Studies, Brussels. Pickering, S & Weber, L 2013, ‘Policing transversal borders’, in KF Aas & M Bosworth (eds), Borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 93–110. Sklansky, DA 2012, ‘Crime, immigration, and ad hoc instrumentalism’, New Criminal Law Review, vol. 15, no. 2, pp. 157–223. Stumpf, JP 2006, ‘The crimmigration crisis: immigrants, crime, and sovereign power’, American University Law Review, vol. 56, no. 2, pp. 367–419. — 2008, ‘States of confusion: the rise of state and local power over immigration’, North Carolina Law Review, vol. 86, no. 6, pp. 1557–618. — 2009, ‘Fitting punishment’, Washington and Lee Law Review, vol. 66, no. 4, pp. 1683–741. — 2011, ‘Doing time: crimmigration law and the perils of haste’, UCLA Law Review, vol. 58, no. 6, pp. 1705–48. — 2013, ‘Preemption and proportionality in state and local crimmigration law’, in JT Parry & L Song Richardson (eds), The constitution and the future of criminal justice in America, Cambridge University Press, New York, pp. 241–59.

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van der Leun, JP & van der Woude, MAH 2011, ‘Ethnic profiling in the Netherlands? A reflection on expanding preventive powers, ethnic profiling and a changing social and political context’, Policing and Society, vol. 21, no. 4, pp. 444–55. — 2012, ‘A reflection on crimmigration in the Netherlands: on the cultural security complex and the impact of framing’, in MJ Guia, MAH van der Woude & JP van der Leun (eds), Social control and justice: crimmigration in the age of fear, Eleven International Publishing, The Hague, pp. 41–60. Weber, L 2013, Policing noncitizens, Routledge, London. Wright, RF 2011, ‘Padilla and the delivery of integrated criminal defense’, UCLA Law Review, vol. 58, no. 6, pp. 1515–42. Zedner, L 2013, ‘Is the criminal law only for citizens? A problem at the borders of punishment’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship and social exclusion, Oxford University Press, Oxford, pp. 40–57.

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16 Criminal immigration law and human rights in Europe Ana Aliverti

Introduction For some time, several scholars have claimed that the increasing use of criminal law institutions, imaginaries and tactics to control immigration by high-income countries is forging a convergence of two regimes – immigration and criminal law – which have traditionally been distinct from each other (e.g. Pratt 2005; Pickering and Weber 2006; Legomsky 2007; Bosworth and Guild 2008). One of the most troublesome features of this trend is that it poses serious challenges to the criminal-civil divide and it perpetuates the view that ‘immigration outside the law’1 is a crime and should be treated as such (Eagly 2010; Chacón 2010; 2012; McLeod, 2012). The novelty of these policy and legal developments – at least on the books – should not be overestimated. Many countries – including the United States, the United Kingdom and several countries in Europe – have deployed criminal law powers to police their shores for some time. Perhaps what is novel about these developments is the intensity with which the criminal law and criminal justice institutions are used to manage – or be seen to manage – an increasingly mobile world. As Catherine Dauvergne (2009: 347) points out, globalization produces highly polarized outcomes: while it enhances privilege for the selected few, it increases the exclusion of those already marginalized. The appeal to criminal law powers is becoming part and parcel of the policies in western countries to deter migration from poor parts of the globe, and to operationalize migrants’ return to their ports of departure. Notwithstanding the fluidity of state policies regarding immigration outside the law, which reveals the failure of states to find a ‘definitive solution for the presence of migrants who are formally not admitted, but are also difficult to expel’ (Leerkes and Broeders 2010: 845), research on the embryonic forms of penality stemming from border controls suggests that increasingly the response to immigrants who defy constraints on their movement imposed by the countries of destination is their confinement. Indeed, detention has become the measure against ‘unruly mobilities’ par excellence. In the form of preventive detention or incarceration, confinement literally puts a halt to the unauthorized exercise of movement, and serves to contain uninvited foreigners while preparing their departure (Leerkes and Broeders 2010; Bosworth and Kaufman 2011; Bosworth 2012; Aliverti 2013). Legal scholars – particularly in the US – have scrupulously documented and harshly criticized the convergence of criminal and immigration laws in its different facets because of its 251

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ineffectiveness and unfairness. Despite objections against these policy trends on legal and moral grounds, they are on the rise even in many countries in continental Europe which are often singled out for their parsimonious use of criminal law and their ability to keep levels of imprisonment down (Whitman 2003; Lacey 2008). Many of these countries have criminalized different facets of unlawful border crossing and residence, and have increasingly used these offences as a means to control the external borders in the wake of the relaxation of internal checks and the growing influx of non-European migration since the mid-1980s. Foreigners are over-represented in the prison population of every European country when compared with their share in the total population; many others are housed in immigration detention facilities awaiting their removal. A proportion of those under custody are held for immigration-related charges alone or in combination with other non-immigration charges. The aim of this chapter is to examine the expansive criminalization of immigration lawbreaking in European countries. The first section looks at the recent rise in immigration prosecutions in the US and argues that this increased punitiveness, rather than being an aspect of the so-called ‘American exceptionalism’ in criminal justice (Lacey 2008; De Giorgi 2010; Lacey and Soskice 2013), represents a more general trend in the ‘developed world’ – albeit magnified by its quantitative dimensions in the US case. It surveys criminal immigration laws in several European countries, and explains the interconnections between criminalization, incarceration and deportation. The emphasis on criminalization does not deny that this is only one aspect of immigration enforcement which encompasses equally questionable punitive practices, such as administrative detention and deportation, which are more frequently used. Yet, criminalization deserves a separate analysis to highlight the symbolic, legal and practical effects of holding illegalized immigrants criminally accountable. Criminal prosecutions are not instigated in lieu of detention and deportation but often are added to immigration law sanctions. Further, making immigration outside the law criminal reduces a complex global issue to merely a matter of lawbreaking and (individual) criminal responsibility. The second section of the chapter explores the potentials and pitfalls of human rights norms, discourses and practices to counter this criminalization trend. Like others (Dembour 2003; Bosworth 2011; Cornelisse 2011), I am sceptical about the promises that human rights hold for immigrants subject to criminalization, particularly in Europe. I argue that the limited impact of human rights norms in this sphere is due to two main reasons: first, the co-option of human rights rhetoric to justify measures on public protection grounds which conflate crime prevention with immigration enforcement policies; and, second, the limited application of human rights protections to non-members, particularly those who are uninvited. I focus on the judgment of the Court of Justice of the European Union (CJEU) in ‘El Dridi’, regarded by commentators as a ground breaking decision in this respect. I argue that this and related decisions are examples of the shortcomings of human rights to challenge states’ treatment of outsiders.

Criminalization and immigration in the US and Europe In a recent report, the US-based non-governmental organization Human Rights Watch (2013) examined the practice of prosecuting immigrants in the US. It reported a sharp increase in the number of these prosecutions in the last decade; indeed, illegal entry and re-entry are the most often prosecuted federal crimes.2 The report also highlighted a change in patterns of prosecutions: while in 2002 just a third of immigration defendants had no convictions or convictions for minor offences, in 2011, they represented almost two-thirds of immigration defendants.3 Human Rights Watch concluded that these crimes are not only being used more frequently, but are routinely enforced against people who do not represent a risk to public safety. 252

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These findings underscore important trends in the use of criminal law and the criminal justice system for policing non-citizens in the US. Even though early federal immigration statutes contained criminal law provisions to enforce rules on entry and residence of foreigners on US soil, such provisions were sparingly used until the mid-1980s when prosecution numbers started to rise (Legomsky 2007: 479; Stumpf 2009: 1706). From 1997 to 2009, immigration prosecutions soared more than tenfold (Sklansky 2012: 166). Some authors argue that the early increase in prosecutions and removals of undocumented migrants was driven by crimeprevention goals: prosecutions targeted migrants with criminal convictions (Demleitner 2004; Chacón 2007). Data on the exponential increase and patterns of prosecutions in the last decade suggests that the criminal justice system is predominantly called forth to perform the work of immigration law, namely immigration screening (Eagly 2010: 1349).4 Although the punitiveness underpinning the expansion of penality in the policing of foreigners might well be interpreted as part of US exceptionalism in penal policy, we can discern certain parallels in the de jure criminalization of immigrants in countries on the other side of the North Atlantic. Since the late 1700s, in Britain virtually every immigration statute has incorporated criminal offences. While these provisions have remained more or less dormant for most of the twentieth century, from the mid-1990s the British government has enthusiastically resorted to the criminal law and the criminal justice system for immigration purposes. Since then, not only has the catalogue of immigration crimes grown considerably but also the actual enforcement of the existing offences reached a record high in the mid-2000s (Aliverti 2012b). Foreigners are frequently prosecuted and convicted for document fraud (including possession of false documents and failure to furnish authorities with a valid passport). In 2009, there were 7,502 convicted foreigners serving a custodial sentence, of whom 928 were convicted for fraud and forgery offences,5 making up 12 per cent of the foreign convicted inmate population (Ministry of Justice 2010: Table 7.23). In 2012, these figures went down: of the total number of convicted foreign prisoners (7,679), only 5.6 per cent of them were convicted for these offences (434). Still, foreigners are more likely to be incarcerated for fraud-based offences than their British counterparts, as only 1.5 per cent of them were in prison for these crimes (Ministry of Justice 2013: Table A1.21). Along with the increasing use of criminal prosecutions against suspected immigration defaulters and their conviction and incarceration for immigration crimes, since the mid-1990s, the population of foreign national prisoners and immigration detainees has risen. In the mid1990s, foreign prisoners represented 8 per cent of the total prison population. A decade later, in 2006, their share in the prison estate had jumped to 14 per cent. In 2013, they accounted for 13 per cent of the total prison population. 62 per cent of them came from ethnic minority groups (Berman 2013: 9). Similarly, the immigration detention estate has been significantly expanded since the 2000s and currently houses around 3,000 people at any one time (Home Office 2013). The story so far suggests that the criminalization of immigration is an Anglo-American invention, including countries which are often grouped together in typologies built upon punitiveness and political economy (Lacey 2008). Yet, many countries in continental Europe have started to match such levels of criminalization (Barker 2012). Particularly since the process of European harmonization on immigration and asylum matters in the mid-1980s, these countries have passed new immigration laws which have incorporated criminal offences into the armament of measures to deal with unruly mobilities. Indeed, while Germany has long incorporated immigration offences such as illegal entry and residence, residence in breach of a condition, and breaches to movement restrictions – at least since the Nazi era in the Aliens Police Regulation of 1938 – the catalogue of offences has been expanded ever since. Although the Nazi law was repealed in 1965, similar offences formed part 253

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of the subsequent immigration laws while others were added (mostly related to document fraud, deception and illegal employment) (Sitkin 2013).6 French immigration law includes offences such as irregular entry and residence, ‘sham marriage’ and non-compliance with removal directions.7 These are ‘real’ offences, and not mere contraventions or regulatory offences,8 and most of them are punishable by imprisonment. Norwegian immigration law imposes fines or short custodial terms for non-compliance with certain rules – such as having no travel documents or visa, crossing through an unauthorized port, or not providing proof of identity when so requested. It also criminalizes various forms of assistance.9 Other countries in Europe, such as Italy and Greece, have been reluctant to impose criminal sanctions on immigration infractions until recently. Italy, a country which has traditionally kept its criminal law separate from immigration regulation, introduced a myriad of criminal offences in the consolidated immigration law passed in 1998 (Law Decree n. 286). It created the crimes of illegal entry and residence, punishable with a fine of up to 10,000 euros, and of breaching a ban to enter the country imposed upon expulsion, punishable with imprisonment of up to four years plus expulsion.10 Foreigners who do not comply with an order to provide an identification document or residence permit when so requested are subject to one year imprisonment and a fine of up to 2,000 euros.11 In addition, foreigners who remain illegally in the country after being ordered to leave are liable to a fine.12 The 1998 law made it a crime to assist the entry and stay of foreigners through breaches to immigration rules13 and to employ foreigners without valid permission to work,14 and imposed administrative liability on carriers transporting unauthorized foreigners into the country.15 Similarly, in 2005, the Greek government passed the Law 3386/2005 in order to harmonize national legislation with EU-level rules on immigration and increase its grip on irregular immigration. The new law incorporated a number of criminal offences for illegal entry into and exit from Greece, and possession of forged documents.16 It also criminalized assisting entry, exit or residence of unauthorized foreigners and imposed criminal sanctions on public bodies, notaries, employers and carriers for breaching their obligations under the law.17 Until recently, the Netherlands had not directly criminalized illegal residence. Instead, foreigners illegally in the country who were convicted of minor immigration offences or were considered a risk to the country could be declared ‘undesirable aliens’ and ordered to leave, under the Aliens Act 2000. Non-compliance with such order carries a six-month custodial term and a fine.18 In December of 2012, the Dutch Parliament introduced a reform in the Criminal Code criminalizing illegal residence, amid long, heated debates and opposition by migrant groups. Illegal residence is subject to a fine which, if not paid, can be replaced by a term in prison. The criminalization of border crossing outside the law is partly to blame for the increasing number of foreigners behind bars in European prisons. Indeed, since the mid-1980s the proportion of foreign prisoners in European seclusion centres has grown to the point that, as some academics have pointed out, it has vastly exceeded their share in the population of those countries (Wacquant 2006: 87; De Giorgi 2010: 157). They represent, on average, 21 per cent of the prison populations in European countries (Aebi and Delgrande 2010: Table 3). Both Loïc Wacquant and Alessandro De Giorgi explain such disproportion in part because foreigners, as opposed to citizens, are criminally liable for crimes of immigration which usually carry imprisonment as sanction. Although there is no consistent data throughout Europe, it is reasonable to estimate that a proportion of those held in these establishments are charged with immigration offences. In Germany, the 1990s witnessed an increase in police apprehensions19 with peaks in 1993 and 1998, particularly for illegal entry and asylum-related offences, when the government toughened measures against illegal immigration, followed by a decline since 2004 (Cyrus and Vogel 2006: 254

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120; Sitkin 2013). In 2011, 4 per cent of foreigners serving a prison sentence were convicted for offences in the Residence Act. Foreigners represented 22 per cent of the total German sentenced prison population.20 In France, Pierre Tournier (1997: 530) reported that the increase in the share of foreigners in the criminal justice statistics since 1973 is in part due to their involvement in the violation of immigration laws. In 1973, only 7 per cent of foreigners suspected by the police were alleged immigration law-breakers whereas this figure climbed to 25 per cent two decades later. Since 2006 there has been a steady decrease in convictions for these offences (Ministère de la Justice 2012: 199). In 2010, around 4 per cent of convicted foreigners for délits have been condemned for offences in the immigration law (Ministère de la Justice 2012: 199).21 Even though the statistics do not specify what proportion of foreigners convicted for immigrationrelated offences received a custodial sentence, the data available shows that 81.5 per cent of those convicted for these délits – French citizens and non-citizens – were sentenced to a custodial term. Illegal entry and residence in France are the délits for which the highest percentage of unsuspended prison sentences are meted out (Tournier 1997: 547). The prison share of foreigners (convicted and in pre-trial detention) has varied from 25 per cent in 2006 to 21 per cent in 2010 (Ministère de la Justice 2012: 213). In Italy, foreigners represented 36 per cent of the prison population in 2011. Half of them were from African countries. Since the 1990s, the population of foreign prisoners has tripled; such an increase has been out of step with the rise among Italian national prisoners. While drug-related charges account for half of foreign national confinements, 9.6 per cent of them relate to immigration crimes. From 2010 to 2011, the number of foreigners incarcerated for these offences decreased sharply due to the reform to the offence of illegal entry mandated by the CJEU (Istat 2012: 6–9). At least since the 1990s the European countries reviewed above have enthusiastically resorted to criminal law to deal with unwanted foreigners. Criminal law has increasingly been called forth to do the work of immigration law. Alongside the increased de jure criminalization, and despite important gaps in enforcement data, it is possible to conclude that criminal law enforcement has intensified during the last two decades. Although the proportion of foreigners convicted for immigration-related offences still represents a relatively small share of the rising numbers of foreigners caught by the criminal justice system in these countries, this criminalization trend is telling of the direct instrumentalization of criminal law powers to aid removal. Criminalization is indeed primarily driven by the goal of containing and expelling (Aliverti 2012a; Aas 2013). Despite the fluidity of migration control policies and practices – a sign of states’ continuous search for ‘solutions’ to the problem of ‘nomadic excess’ – the trends outlined above suggest that criminalization has become a crucial instrument of immigration policy, a common denominator across states with divergent capacities to manage the ‘outsiders’ within.

Countering criminalization in Europe? Continental European countries have been depicted for some time as exempt from the ‘new punitiveness’ wave identified by criminologists in mostly Anglo-Saxon jurisdictions (e.g. Garland 2001; Pratt 2006; Simon 2007). Sonja Snacken (2010), for instance, provides examples of resistance to punitiveness in European countries, asserting that human rights discourses and practices are crucial for protecting unpopular minorities – i.e. the usual clientele of the criminal justice system – from populist penal policies. She observes that ‘[h]uman rights are traditionally seen as a bulwark against criminalization and over-penalization, as the punitive system of criminal law cuts very deep into the freedom of the citizens’ (ibid.: 283; Whitman 2003: 76). Klaus Günther, however, questions such faith in human rights norms to counter (substantive) criminal law expansion in Europe, arguing that constitutional and human rights rules are increasingly 255

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resorted to as ‘door-openers’ to justify more crime prevention. As crime prevention is conceived as part of the state’s duty to protect the human rights of citizens, human rights rhetoric serves to legitimize punitive state intervention, hence disrupting the ‘anti-majoritarian’ role of human rights into ‘a majoritarian right to protection and a corresponding responsibility to protect the majority against the minority of criminal offenders’ (Günther 2013: 89). Günther taps into an important gap in constitutional and human rights law. Indeed, while these norms have incorporated fairly robust procedural safeguards in criminal proceedings, they have been less successful at restricting the growth of substantive criminal law (Stuntz 1996). According to Günther, states have hijacked human rights to protect citizens against ‘dangerous others’ through criminal law – be they terrorists, sex offenders or illegal immigrants. In the field of immigration controls, the exercise of state powers to grant or block entry, to detain, punish and eject is increasingly predicated upon human rights protection of EU citizens, but also of migrants.22 As Bridget Anderson (2013: 154) has pointed out, ‘Immigration enforcement does not ignore liberal values but directly invokes them.’ The enmeshing of border regimes with human rights and humanitarian discourses certainly attempts to legitimize one of the most controversial facets of European integration while making the resulting practices more difficult to appraise through a human rights framework (Aas 2011; Walters 2011; Aas 2013). Another obvious shortcoming of human rights law in challenging the criminalization of border crossing is the preponderance attributed to the principle of territoriality – and the exclusionary powers attached to it – when it comes to right claims by non-members, especially those who are uninvited (Cornelisse 2011).23 In international human rights law, nationality is one of the only permissible grounds for discriminatory treatment.24 States have few constraints in their determination of who should be allowed in and who should be pushed out, especially in Europe.The most important human rights monitoring body in Europe – the European Court on Human Rights – has reiterated in many of its decisions that states enjoy an ‘undeniable sovereign right to control aliens’ entry into and residence in their territory’25 and that the immigration status of the applicant is apt to justify differential treatment, thus lending support to the existence of an ‘immigration exceptionalism’ in the ECHR jurisprudence (Dembour 2003; 2012). Although the Court has not yet ruled on the compatibility of the criminalization of immigration infractions with human rights norms, the wide margin of discretion conceded to member states in immigration controls begs questions about its readiness to challenge those laws. International and regional human rights instruments do not mandate the criminalization of border crossing and related infractions, nor do they prohibit it. Challenges to the use of criminal law for immigration enforcement have been rare. Human rights bodies have voiced their concerns about it, albeit in non-binding instruments.26 Questions about criminal immigration offences have recently been put before the CJEU, with jurisdiction to rule on matters related to EU law, including human rights. All three preliminary questions concerned the compatibility of imprisonment as a result of a criminal conviction for immigration-related offences with the Returns Directive,27 which established minimum standards for returning non-Europeans illegally staying in member states. The first case came from Italy. After having been found without a residence permit, Mr El Dridi was ordered to leave the country – an order with which he did not comply. He was then convicted and sentenced to one year imprisonment.The appeal court of Trento turned to the CJEU on whether a criminal penalty imposed during removal proceedings may thwart the objective of the Directive and whether such a penalty was ‘proportionate, appropriate and reasonable’. In response, the Court held that the criminal penalty imposed on the applicant contravened the gradation of measures for enforcing a return decision and hence jeopardized the effectiveness of the Directive.28 Indeed, while the Directive does not preclude resorting to 256

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coercive measures such as detention, it states that these can only be adopted when other less restrictive measures have been tried without success and insofar as they are necessary to operationalize removal, for instance, for identification purposes. The Court hence did not preclude the imposition of criminal penalties for immigration-related breaches as long as they do not interfere with the removal process.29 The second preliminary question was brought by the appeal court in Paris in relation to the case of Mr Achughbabian, an Algerian national who was stopped by the police during a street raid, found to be without a resident permit and charged with the offence of illegal residence, which is punishable with imprisonment. The Luxemburg Court stated that, although EU law does not preclude member states from criminalizing illegal residence, incarceration during the course of a return procedure is likely to thwart the application of the common procedure and delay the return. Reiterating the conclusions in El Dridi, it confirmed that such sanction is incompatible with EU law.30 It also recognized that when illegal foreigners are convicted for other (non-immigration) crimes, they may be exempted from the terms of the Directive. Hence, they should serve their sentence for non-immigration charges prior to their departure.31 In the last case32 decided by the CJEU in relation to the Returns Directive, the Court once more clarified that criminalization is allowed by EU law to ‘deter and penalise’ foreigners for breaching immigration rules. The case was brought by the appeal court of Rovigo (Italy) and related to Mr Sagor, who was questioned by the police and, after further enquiries, was charged with illegal entry. Foreigners found guilty of this offence are liable to a fine which can be substituted by an expulsion order. The Court held that such sanction is compatible with EU law as long as any detention imposed to enforce the deportation order comes to an end ‘as soon as the physical transportation of the individual concerned out of that Member State is possible’.33 According to the CJEU, EU law only forbids certain types of sanctions and measures, such as imprisonment, house arrest and pre-trial detention. Further, such prohibition is grounded on pragmatic considerations – to ensure a fast and swift expulsion of unauthorized non-EU citizens from Europe – rather than on the protection of the rights of deportees. Arguably, the Court was bound to interpret an instrument whose main aim concerns establishing common procedures to facilitate the work of national authorities in handling return operations, while the respect of human rights standards was relegated to a second place, despite the fact that the exercise of immigration controls bears upon individual rights and interests (Baldaccini 2010).Yet, as Nicolas Hatzis (2013: 259) has suggested, while the Court could have made a broader ruling on the human rights of undocumented migrants in the EU, in interpreting the Directive it chose not to engage with the crucial question of whether fundamental rights in EU law apply to immigrants outside the law. The judgment in El Dridi was welcomed as a ‘victory for immigrants’ rights’ by human rights groups because it imposed limits on states’ ability to jail migrants as part of the sanction for breaching immigration rules.34 Important as this aspect of the CJEU jurisprudence is, there are a number of reasons to be cautious about embracing these decisions whole-heartedly . One of the most relevant aspects of the CJEU case law is the acknowledgement that criminal imprisonment imperils the administration of immigration controls, instead of facilitating it. If member states are seeking to return unauthorized migrants, extra sanctions which are not conducive to that end and jeopardize it should be avoided. Another important aspect of these decisions is the implicit recognition by the CJEU that criminal punishment in the form of imprisonment as a result of immigration wrongdoing is emptied of any censuring function, since the ultimate measure against the offender is ‘return’.35 In Achughbabian, the Court distinguished 257

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between deportation as a consequence of a conviction for an ordinary crime and for an immigration-related crime, stating that, in the former case, member states are permitted not to apply the proceedings prescribed by the Directive. Immigration offences are indeed different because they are in-between administrative and criminal regulations: deportation is not just triggered by the criminal conviction, but by the very irregularity of the status. It is the ostensible breach of immigration laws which makes immigration defendants deportable, rather than their criminal conviction.Yet, the distinction between immigration offences and other ‘ordinary’ offences related to illegal entry and stay, such as possession of forged documents, may prove tricky in practice. The potential of these rulings to halt the imposition of criminal imprisonment for immigration law-breaking should not be underestimated, though some states have already managed to circumvent it.36 Imprisonment is often imposed on non-citizens for immigration law-breaking because non-custodial sentences are deemed inappropriate to deal with ‘unincorporated outsiders’ and because holding people behind bars makes possible their re-documentation and subsequent removal (Aliverti 2012a; 2013). But even if the CJEU’s rulings accomplish such a goal, these decisions are questionable on several grounds. The Court adopted a narrow approach to the use of criminal law in immigration enforcement, forbidding imprisonment on purely instrumental grounds. By outlawing criminal punishment exclusively because it jeopardizes immigration objectives, the Court’s reasoning reinforced the view of the criminal law as an alternative means to achieve immigration policy goals – or to imperil them. Such a use of criminal law powers, characterized by David Sklansky (2012: 161) as ‘ad hoc instrumentalism’, risks turning legal rules into mere interchangeable tools to achieve certain policy objectives. Under this framework, the decision to make something a criminal offence hangs exclusively on whether criminalization and punishment will better achieve a policy goal. In the CJEU’s assessment, the compatibility of imprisonment with EU law rests primarily on whether it is effective to achieve removal. As a distinctive form of regulation which authorizes the most serious and intrusive form of state intervention, criminalization decisions require additional sets of reasons compared to other forms of regulation which result in less onerous sanctions.37 As effectiveness alone should never be a sufficient justification for criminalization (Ashworth and Zedner 2012: 552), the ineffectiveness of criminal law to achieve policy goals is equally an unsatisfactory objection to its use. Although the Italian appeal court requested an assessment from the CJEU about the ‘proportionality, appropriateness and reasonableness’ of criminal penalties imposed for a simple failure to cooperate with an administrative order,38 those matters were disturbingly silenced in the judgments. The absence of a discussion as to whether criminalization and punishment are a proportionate, appropriate and reasonable response to immigration law-breaking, and the excessive emphasis placed on the effectiveness of that response to achieve immigration policy goals make these rulings objectionable. They fall short in raising substantial questions about the use of criminal law powers in immigration enforcement from the perspective of those subject to these rules.They also fail to question the use of criminal law powers when the resulting sanction does not jeopardize the return procedure. Notwithstanding the CJEU decisions, foreigners whose expulsion is prevented by their own conduct or by reasons outside their control39 – for instance, because their country of origin refuses to re-document them – may still be punished with imprisonment (Raffaelli 2011: 483; 2012: 182). In short, the CJEU reached the right conclusion – to proscribe criminal confinement as a sanction for immigration wrongdoing against people due to be deported – but for the wrong reasons. As a consequence, these rulings leave unchallenged the use of criminalization in general against immigration wrongdoing, the imposition of a custodial sentence against unremovable migrants and the imposition of a non-custodial sentence. 258

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Conclusion The foregoing discussion about the readiness of traditionally tolerant societies in Europe, to paraphrase Nicola Lacey (2008), to substantially displace the governance of social marginality produced by an unequal world onto the sharper ends of the criminal justice system, poses a number of challenges to the role of human rights and liberal principles envisaged as individual protections against state power. While these societies – particularly in Scandinavia – are usually singled out for their ability to guarantee high human rights standards for their citizenry, the treatment that these societies dispense to unwelcome foreigners prompts questions as to the promise of human rights norms to scrutinize states’ punitive powers when it comes to non-citizens. European states are not going about the dirty job of policing and blockading access to their poleis secretly. Instead, immigration policies are increasingly widely publicized and defended primarily based on discourses about protection and security, about ‘doing good’. Immigration controls are thus transformed from a necessary evil to a legitimate activity, a means to an end to safeguard citizens and non-citizens alike from the harms brought about by the ‘ungovernability’ of the powers unleashed by globalization (Brown 2010: 24). The protection promised hangs on a zero sum operation which results in optimum outcomes for everyone: members are protected because non-members are excluded, while non-members are protected by their own exclusion. Such co-optation of liberal values by immigration enforcement has a disturbing impact on uninvited foreigners whose segregation is condoned under the gaze of national and international monitoring bodies. There is a further, related tension in the interplay of immigration controls and human rights. While everyday practices of immigration controls meet with denunciation and opposition by human rights bodies, often these acts of resistance fall short of problematizing ‘border regimes’ in terms of their legitimacy and their consequences. Opposing voices usually condemn the conditions in which immigration enforcement is carried out (detention centres are overcrowded and resemble prisons, immigration officers are not properly trained, deportees are treated inhumanely during charter flights, etc.) and advocate for minimum standards of care in the treatment of migrants. By framing the exercise of state power and the opposition to it in terms of humanitarian intervention, the forces that are typically presumed to oppose one another – the state and the humanitarian sector – ‘enter into a tense but supportive relationship’ while leaving untouched the tensions between immigration enforcement and the professed universality of human rights (Walters 2011: 154). This is precisely what underscores the CJEU decisions on the Returns Directive. By adopting a formalistic and narrow interpretation of the EU law, the Court avoided engaging with con-stitutional matters concerning the rights of migrants outside the law, leaving member states considerably at ease with their immigration enforcement policies and failing to question the bearing of immigration status in states’ punitive practices.

Acknowledgements I am grateful to Lucia Zedner, Alessandro Spena, Mary Bosworth, Dallal Stevens and Sarah Turnbull for their helpful suggestions and critiques of a draft version of the chapter. All remaining mistakes are my responsibility.

Notes 1 By emphasizing the central role of the law in drawing the boundary of inclusion/exclusion, this term, coined by Hiroshi Motomura (2008), is preferable to others such as ‘illegal’, ‘irregular’ and 259

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3

4

5 6 7

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9 10 11 12 13 14 15 16 17 18 19 20

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‘undocumented’, which obscure the productive role of legal categories, and contributes to naturalizing the fiction of conceiving a human being as illegal. The composition of the prison population reflects this trend as immigration offenders are matching drug offenders in terms of their representation in the federal prison system (Human Rights Watch 2013: 73). Nowadays, 30 per cent of inmates in federal prisons are immigration offenders. Drug offenders and immigration offenders are, however, not entirely different populations but overlap considerably as the ‘war on drugs’ has disproportionately affected ethnic minority groups, among whom are non-US citizens (Bosworth and Kaufman 2011: 439; McLeod 2012: 168). Until February 2011, immigration prosecutions have been rising. Since then, there has been a 12 per cent decline which is largely correlated with a decline in apprehension of immigrants crossing the Southern border during the same period: see TRAC’s Immigration, ‘Decline in Federal Criminal Immigration Prosecutions’, available at: http://trac.syr.edu/immigration/reports/283/ (accessed 23 July 2013). Clearly, the use of criminal law for immigration enforcement is not limited to immigration-based offences – though it is the most explicit and symptomatic form in which prosecutions are geared by removal – but includes so-called ‘pretextual prosecutions’, namely the targeting of non-citizens for lowlevel offences in order to attain their removal (e.g. Chacón 2010: 1575, for a discussion of ‘pretextual prosecutions’ see Richman and Stuntz 2005). Prison statistics group ‘fraud and forgery’ offences together. This category includes, but is not limited to, immigration-based crimes. These figures should be considered with this caveat in mind. The Residence Law 2005 (Aufenthaltsgesetz), which consolidated immigration and asylum regulation, criminalizes illegal entry and residence (s 95 (1) and (2)); and smuggling of human beings (ss 96 and 97). Arts 621–1, 623–1 and 624–1, Code de l’Entrée et du Séjour des Etrangers et du Droit d’Asile.The délit of irregular residence was repealed by Law 2012–1560 of 31 December 2012 following the judgment of the CJEU in El Dridi and Achughbabian to which we will turn below. Assisting irregular entry and residence is criminalized under Art 622; family members helping others or people assisting others due to imminent risk are exempt from punishment. A regime of civil penalties applies to transportation companies and employers in breach of immigration rules (Arts 625 and 626). In French and German criminal law these are considered non-stigmatic crimes which are punished by way of fines. Contraventions do not even require proof of fault and, in this regard, are similar to the Anglo-American version of public welfare or regulatory offences (Spencer and Pedain 2005: 275). S 108, Act of 15 May 2008 on The Entry of Foreign Nationals into the Kingdom of Norway and their Stay in the Realm. Arts 10-bis(1) and 13(13), Law Decree of 25 July 1998, n. 286.Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero. Art 6(3). Art 14(5-ter). It was originally punished with imprisonment of one to four years but it was modified after the decision in El Dridi by Law 129/2011. Art 12(1)(5), respectively. The law also specifies that the act of humanitarian aid to foreigners is not a crime (12(2)). Art 22(12). Art 12(6). Arts 82.4, 83 and 87.7, respectively. Arts 87. 5 and 6, 84, 85, 86 and 88, respectively. Art 67, Aliens Act and Art 197, Dutch Criminal Code. Since 1997, there has been a rise in the number of people deemed as ‘undesirable aliens’ (Leerkes 2009: 172). There is no special border force in Germany. The police are responsible for immigration enforcement. Some 7,289 out of 177,575 foreigners were convicted for immigration crimes. Data available at Destatis. Statistisches Bundesamt, available at: https://www.destatis.de/EN/FactsFigures/SocietyState/Justice/ CriminalProsecution/Tables/ForeignersConvicted.html (accessed 3 June 2013). Of the total of 3,700 convicted for these crimes, 3,199 were foreigners. In 2010, 73,197 foreigners were convicted for délits. Délits are middle-range offences which carry a maximum of ten years imprisonment. Many of these are offences against the public order (Spencer and Pedain 2005: 256). These figures do not include cases of ‘forged identification papers and other administrative documents’, for which seven out of ten foreigners were convicted in 1991 (Tournier 1997: 534). See e.g. the Stockholm Programme recommending ‘the development of an internal security strategy for the EU, with a view to improving the protection of citizens and the fight against organised crime and

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23

24

25

26

27

28 29 30 31 32 33 34

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terrorism’ which includes ‘border management’. It also states that ‘Strong border controls are necessary to counter illegal immigration and cross-border crime. At the same time, access must be guaranteed to those in need of international protection and to vulnerable groups of people, such as unaccompanied minors.’ Available at: http://europa.eu/legislation_summaries/justice_freedom_security/free_ movement_of_persons_asylum_immigration/jl0034_en.htm (accessed 10 June 2013). It is telling that the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), itself a quite restrictive international treaty, to date has received the lowest number of ratifications among international treaties of this kind. Fewer than 50 countries have ratified it, and none of them are major receiving countries of immigration (Ruhs 2012). The International Convention on the Elimination of All Forms of Racial Discrimination explicitly excludes ‘nationality’ as a prohibited ground for discriminatory treatment (Art 1(2)). The European Convention subjects the prohibition of any form of discrimination to the exception that states may impose restrictions on the ‘political activities of aliens’ (Art 16). See, for instance, ECHR, Saadi v. UK, judgment of 29 January 2008, Application 13229/03, para. 64; Abdulaziz, Cabales and Balkandali v. UK, judgment of 28 May 1985, Application 9214/80 9473/81 9474/81, para. 67. In this regard, the ECHR jurisprudence is more akin to that of the US Supreme Court, which recognizes ‘undoubted and sweeping’ powers of the federal government to ‘exclude aliens from the country’ (e.g. Almeida-Sanchez v. United States 413 U.S. 266 (1973) 291), than to the Inter-American Human Right Court’s position, which subordinates the exercise of these states’ power to the respect of the human rights of migrants ‘without any discrimination owing to their regular or irregular residence’ (IACHR, Vélez Loor v. Panamá, judgment of 23 November 2010, para. 61). See e.g. (Crépeau 2012: par 58; Hammarberg 2010: 8; UN Working Group on Arbitrary Detention 2010: par 13). Although see IACHR, Velez Loor, cit., finding that the criminalization of the breach to a deportation order violated the applicant’s right to liberty (para. 172). Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Parties to it include all EU member states, except Ireland and the UK, and Switzerland, Norway, Iceland and Liechtenstein. CJEU, Hassen El Dridi. Case C-61/11, 28 April 2011, paras 41, 55. Ibid., para. 52. CJEU, Alexandre Achughbabian. Case C-329/11, 6 December 2011, para. 37. Ibid., para. 41. CJEU, Md Sagor. Case C-430/11, 6 December 2012. Ibid., para. 47. See, for example, the review of the decision in the Open Society Foundation website: http://www. opensocietyfoundations.org/voices/case-watch-european-victory-immigrants-rights (accessed 10 June 2013). Achughbabian, cit., para. 41. Although the Netherlands has recently passed a law criminalizing illegal residence punished with a fine which, if not paid, is replaced by imprisonment. The Dutch government insists that this sanction is consistent with EU law: http://www.government.nl/news/2012/12/21/the-illegal-residence-offoreign-nationals-is-now-a-criminal-offence.html (accessed 10 June 2013). That is why due process protections are stronger in criminal proceedings as opposed to civil or administrative ones. However, the ECHR has repeatedly stated that the label of a certain proceeding as ‘civil’ is not determinative of the procedural protections applicable to it. In application of the doctrine of ‘autonomous meaning’, the ECHR concluded that the classification of an offence as ‘regulatory’ – and not criminal – by itself is insufficient to determine the applicable procedural regime. Instead, ‘the general character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offence in question was, in terms of Article 6 . . . of the Convention, criminal in nature’ (Öztürk v. Germany, judgment of 23 October 1984, Application