Concluding Thoughts

This chapter has explored the contention that we cannot understand the borders of punishment, still less what is happening at the borders of states, unless we attend first to internal questions about the scope, authority, and territory of domestic criminal law. It has examined the centrality of the citizen as the subject to whom the criminal law speaks, and has examined the importance of law’s community in constituting the normative authority by whom the citizen is called to account. In so doing it has suggested that the non-citizen, as an outsider, poses particular problems for the criminal law and especially for policing of immigration. The chapter has identified important lapses in adherence to basic principles of criminalization in respect of immigration offences and has suggested that failure to observe these principles derives in no small part from the subordinate standing accorded to non-citizens.

All this leaves unanswered questions about the grounds upon which the protections of criminal justice might be extended to those who are not citizens. This chapter has raised some doubts about the ethics of hospitality and has probed the plausibility of the idea that non-citizens be treated as our guests. It has questioned the idea of basing our penal practices upon our capacity for empathy, our ability to embrace difference, or our acceptance of the stranger at our gate. As has been made clear, present practice suggests a worrying tendency to regard non-citizens as untrustworthy and unworthy, therefore, of the full protections ordinarily accorded by the criminal law to citizens. Whether working towards a cosmopolitan conception of community grounded in our common humanity would have any greater chance of changing attitudes in the medium term remains open to question.

The plight of the non-citizen is not a matter of easy resolution. What follows are no more than tentative avenues of enquiry that seek to address the problems identified in this chapter. One approach might be to question whether we should allow citizenship to do so much work in our thinking about responsible agency and the role of the criminal law. Given the evident hazards entailed in predicating our criminal law upon citizenship, might we do better to explore how far ideas of autonomy and of responsibility that underpin the ways in which we address and respond to citizens can be extended to non-citizens?[1] Another possible way of overcoming the citizen/non-citizen binary is the idea of ‘denizenship’ (Hammar 1990). Denizenship recognizes the hybrid status of those with long-standing or permanent residence who possess many legal and social rights but lack full political citizenship. Also important is the argument that citizenship should not be a predicate for basic rights and that in a liberal democracy the protections of the criminal law, criminal process and just punishment apply to all irrespective of citizenship. As Cole insists, ‘basic protections of liberty ... are not, and should not be, deemed privileges or rights of citizenship’ (Cole 2003; Cole 2007; see also discussion in Zedner 2010: 392-393). An important feature of human rights law is that it provides safeguards for persons by virtue of their status as humans and out of respect for humanity, regardless of whether or not they are citizens. Article 6 ECHR rights to a fair trial, for example, apply equally to the foreigner and to the stateless person and Article 3 shields immigrants from being deported to countries where they face torture, or inhuman or degrading treatment.

The dangers posed by the evident willingness of governments to resort to criminalization at the border raises further questions about how best to delimit the phenomenon of ‘crimmigration’. A first step might be to require that immigration offences satisfy basic principles of criminalization and, where they do not, to mark those offences as suitable candidates for decriminalization. Only by comprehensive review of existing offences and careful pre-legislative scrutiny of proposed offences might the over-readiness to criminalize breaches of immigration law be forestalled. So doing would serve to check the exercise of the police power over non-citizens by limiting immigration offences to those that are fairly labelled, clearly wrongful, and entail harms of a sufficient gravity to merit criminalization. A second step would be to scrutinize more closely the coercive and otherwise burdensome qualities of immigration measures and practices outside the criminal law. Proceedings in civil or hybrid civil-criminal channels are an increasingly common feature of contemporary crime control, attractive to the authorities because they sidestep the requirements of the criminal process (Zedner 2007; Stumpf, Chapter 3 in this volume). Yet, where civil procedures impose burdens akin to punishment, they are clearly detrimental precisely because they deny criminal process protections to those who are subject to them (Ashworth and Zedner 2010). Where proceedings and measures result in burdens of a severity comparable to punishment—immigration detention springs to mind as an obvious example—the process protections and standard of proof should surely be akin to those applied in criminal proceedings (Ashworth and Zedner 2010: 75).

This latter step may overcome the dilution of procedural protections inherent in many aspects of border policing and immigration, not least in the workings of the UK Special Immigration Appeals Commission (SIAC), an appeal court in which the controversial office of the special advocate was first introduced.[2] The use of the special advocate is much criticized because it flouts the right of the individual to know the case against him or her—a basic principle that applies in criminal but no longer, it would seem, in civil hearings.[3] In similar vein, Bosworth’s detailed empirical studies of immigration detention suggest that the bigger problem is not so much that detention centres look like prisons but that they do not. The absence of rights, adequate legal protections, and legal representation are all salient features of a dismal regime that leaves detainees in a legal limbo that can last for months or even years (Bosworth 2012). Looking beyond criminal or civil law labels to focus on the potential severity ofthe consequences ofproceedings is an established way of importing appropriate due process protections such as an adequate standard of proof.[4] It might be extended to ensure access to legal advice, guarantees of legal representation, and fair and open hearings in civil proceedings just as in criminal ones. In place of profiling, often on dubious religious and racial grounds, and the adoption of targeted and discriminatory practices by immigration officials, we might insist upon the uniform application of the law and on fair and equal treatment. In place of protracted detention in the no-man’s-land of the immigration detention or deportation centre, we might seek to ensure that detention is time-limited and that, as a minimum, conditions approximate to the standards laid down in international prison rules. Perhaps this importation of standards and protections relies upon an idealized account of the criminal law and process, but it does suggest some powerful reasons why we should be slow to conclude that the criminal law is only for citizens.

  • [1] See, forexample, the discussions in Lee 2011 and Aas 2011. An alternate account ofan ‘impartialliberalism’ might allow that responsible agency is grounded in the ‘autonomous agency of us all’ and sois equally applicable to non-citizens (Blake 2001: 259).
  • [2] See and . For critical commentary, see Kavanagh 2010; Tomkins 2011. Special advocates are lawyers withsecurity clearance to view secret or closed documents from the intelligence services but who are notpermitted to speak to suspects once they have seen this material.
  • [3] The proposal in the Justice and Security Bill (2013) to extend the role of special advocates towider civil proceedings is hugely controversial, which only highlights the fact that it was not seen to besimilarly problematic when introduced in respect of immigration appeals by non-citizens. See CabinetOffice 2011 at .
  • [4] Engel v Netherlands (1976) 1 EHRR 647; Clingham v Royal Borough of Kensington and Chelsea;R (on behalf of McCann) v Crown Court of Manchester [2003] 1 AC 787.
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