Law is a suitable starting point for considering the emergence of a parallel system of control situated at the nexus of crime and migration (Dauvergne, Stumpf, and Zedner, Chapters 4, 3, and 2 respectively in this volume). Law defines physical boundaries between nation states and the boundaries between acceptable and unacceptable behaviour. It defines the character ofwrongs: separating civil, administrative, and criminal offences. Although modern immigration law is considered administrative, from the very earliest times states have attempted to control border crossing through criminal law. Such laws have designated certain forms of presence—such as vagrancy—as behaviour liable to criminal sanctions as well as administrative sanctions such as deportation (Weber and Bowling 2008). In recent years, the convergence of immigration and criminal law has led to what Juliet Stumpf (2006) has termed ‘crimmigration law’.
The convergence of immigration and criminal law has a number of distinctive features. First, border crossing infractions—such as unlawful entry or re-entry, overstaying, attempting to enter with false documents, failure to register, and unlawful employment—have become defined as specific criminal offences. Western politicians and government departments now refer almost universally to ‘immigration crime’ and emphasize arrest, prosecution, and removal at the forefront of the policy response (Aliverti 2012). People committing these transgressions, described as ‘illegal immigrants’ for many years, are now being re-cast as a new type of criminal: ‘immigration offenders’. Such people are liable not merely to removal or visa or entry restrictions, but also to criminal prosecution and punishment prior to being deported (Stumpf, Chapter 3 in this volume). Second, the criminal grounds for deportation of non-citizens have expanded and the relief available to suspected offenders has been reduced. Thus, relatively minor criminal offences such as shoplifting and drug-possession offences can become grounds for deportation or denial of re-entry and, in some jurisdictions, can be applied retroactively. Third, a range of new criminal offences has been created that criminalizes concealing, harbouring, shielding, aiding, abetting, employing, carrying, and associating with criminalized migrants. Institutional targets such as international airlines can be fined for carrying unlawful migrants, as can government departments or corporations who employ them. Private citizens are also targets. For example, someone who rents a home to a person who has overstayed his or her visa or who drives an illegal entrant to a doctor is liable to criminal penalty. The goal of these policies is to prevent undocumented migrants from accessing public facilities. In Alabama, what the New York Times has described as the country’s ‘cruellest immigration law’ is a ‘sweeping attempt to terrorize undocumented immigrants ... and to make potential criminals of anyone who may work or live with them or show them kindness’.
The convergence of immigration enforcement and criminal justice systems has been facilitated by fundamental shifts in governmental thinking that are common to both systems. Historically, both were essentially reactive. Criminal law and criminal justice were concerned with retribution and rehabilitation ‘after the fact’, and, while deterrence was integral to penology, it depended essentially on visible forms of punishment for detected offenders following due process of the law. The so-called ‘new penology’ draws on a pre-emptive approach drawing on notions of ‘risk management’ based on actuarial calculations (Feeley and Simon 1992). The logic is that through pre-emption, the disreputable, dangerous, and disorderly can be excluded or contained. The risk management approach also extends far beyond criminal justice to securitize other parts of the social system including health, education, housing, and employment, as well as border control. It requires that information is shared and techniques of control—including monitoring of entitlement, execution of warrants, enforcement, detention, removal actions, etc—are coordinated across the piece.
A second unifying trend is that variously described as ‘populist punitiveness’ or ‘authoritarian populism’. In both spheres, there is a clear tendency towards tough talk on both law and order and migration control in pursuit of electoral advantage. Taken together with the shifts towards pre-emption, there are sharp increases in levels of coercion, punishment, and control. The changes in the substantive law described above have been accompanied by shifts in the governmental discourses seeking to legitimate migration enforcement. Like the substantive law, the rhetorical justifications for migration control have become more punitive. The moral case for immigration control has become highly focused on migrants as deviants and rule-breakers, people who have cheated their way into a country, ‘cut in front of the line’, or are ‘bogus’ in some other way. They are also portrayed as a source of danger in the form of the drug trafficker, violent criminal, or terrorist. New folk devils have been added to the pantheon. Among these, there are few people portrayed as more evil than people-traffickers (Lee, Chapter7 in this volume). The border itself has also been re-cast as a protective membrane, a buffer against drugs, guns, and dangerous people. Deportation has also been re-cast specifically as a form of penalty and as criminal disposal rather than simply the consequence of an administrative process. This is particularly relevant for the long-term lawful permanent residents for whom deportation imposes by force a very significant deprivation of liberty (see Barker, Stumpf, Gibney, Chapters 13, 3, and 12 respectively in this volume).