The Criminalization of Immigration and the Limits of the Criminal Law
This leads to our final observations on the status of immigration offence within criminal law and some worrying aspects of those offences that transgress the legitimate limits of criminal liability. Much has been written on the trend toward criminalizing breaches of immigration law (eg Stumpf 2007; Chacon 2009). Less has been said about the ways in which that trend results in the creation of offences that breach fundamental principles of the criminal law (though see Stumpf, Chapter 3 in this volume). A full treatment of this question is beyond the scope of this chapter, yet it can be argued that core principles of the criminal law are imperilled by many immigration offences.
First, a basic requirement of the criminal law is fair warning. Although ignorance of the law is no defence and visitors to a country are bound by the laws of land, it could be said that the creation of immigration offences risks breaching the requirement of fair warning, that people should be given adequate notice of any legal requirement, so that they can reasonably adjust their conduct to accord with it. Notices now proliferate in the crowded arrivals halls of major airports which, in lengthy, minute script, enumerate just some of the many immigration offences. Whether this suffices to satisfy the requirements of fair warning merits further consideration, especially given the difficulty, to which any traveller will attest, of ensuring that one accords with the minutiae of local immigration requirements.
A second objection is that many immigration offences lack a sufficient culpability requirement or are offences of strict liability. Indeed, one of the classic cases of strict liability is the immigration case of Larsonneur (1933) in which a French woman was found guilty of no more than being ‘an alien’ illegally landed, through no fault of her own, on English soil. Many modern immigration offences render would-be immigrants or refugees liable for serious offences in respect of which liability is satisfied by limited knowledge requirements or by strict liability alone. For example, one of the most commonly prosecuted of immigration offences is section 2 of the Asylum and Immigration Act 2004, the strict liability offence of failure to produce a passport (Aliverti 2012a: 103).
The third and perhaps most important objection is that it is questionable whether immigration offences satisfy the basic requirements of JS Mill’s harm principle, namely that ‘that the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others’ (Mill 1859/1979: 68). A necessary condition of criminalization is that some non-trivial harm is risked or caused by the offender (Simester and von Hirsch 2011: Ch 3; Ashworth and Zedner 2012). Yet in respect of many immigration offences it is unclear what the harm, or putative harm, is. Given that most immigration offences are crimes of strict liability, neither can it be said that they impose a wrongfulness criterion. Taken together these lapses raise profound questions about the justifiability of criminalizing illegalities by immigrants where these do not meet the basic precepts of criminalization.
The question remains why we are so willing to depart from adherence to ordinary principles of criminalization in respect of immigration. Enough has been said about the centrality of citizenship to suggest that our understanding of the criminal law derives its authority from and addresses itself to citizens. This provides a licence for the standards applied to non-citizens to be reduced, compromised, or dispensed with altogether. In theory, if not always in practice, citizens in a democratic polity share the privileges of a fundamental right to be presumed free from harmful intentions; they enjoy common authorship, through an elected legislature, of the criminal law; and they benefit from the security of due process protections from unwarranted state interference in their lives. By contrast the noncitizen is more often a figure of mistrust and, in many respects, offered lesser protections. In so far as criminalization rests on the idea that citizens are responsible agents responsive to reasons and that those reasons are ones the individual can fairly be expected to understand by dint of his or her shared membership of law’s community, the very basis for criminal responsibility is attenuated in the case of the non-citizen. Perhaps we should not be surprised, therefore, by the apparent readiness to erode ordinary standards in respect of those to whom no such civic trust is owed and whose very membership of the polity is denied or in doubt.