Abstract:

This thesis is an enquiry into the regulation of immigration through criminal law and its institutions. It looks at the range of immigration offences in British legislation, and whether and how they are being used in practice. The criminalisation of immigration status has historically served functions of exclusion and control against those who defy the state’s powers over its territory and population. In the last two decades, the prerogatives to exclude and punish have been enhanced by the expansion of the catalogue of immigration offences and the more systematic enforcement of these powers. The great reliance on the criminal law to regulate immigration is distinctive of a period in which crime and immigration have been increasingly politicised. As a consequence, more offences have been created and more individuals have been subject to the hybrid immigration and criminal justice system. While immigration offences largely remain under-enforced, some of them –particularly those penalising document fraud and identity stripping- are used against foreign nationals who cannot be removed from the country.

In this thesis I explain what I consider to be the most pernicious consequences of this expansion of formal and substantive criminalisation of immigration breaches. The existence of a parallel system of sanctions allows enforcement agencies wide margins of discretion. Therefore, similar cases may be dealt with in very different ways. When the criminal route is chosen, the use of criminal law in the vast majority of cases reaching the criminal courts is unnecessary, disproportionate and extremely harmful. Both the decision to prosecute and the sanction eventually imposed are justified by preventive and regulatory purposes. The actual practice of criminalisation reveals that the criminal procedural safeguards are weakened and those accused of immigration crimes are likely to be convicted and imprisoned for these offences.

I conclude that the formal and substantive criminalisation of immigration represents a departure from liberal criminal law principles and the purposes of criminal punishment. These conclusions cast doubts about the pragmatic, non-principled use of criminal law to regulate immigration flows, and call for the need to look at other, more humane alternatives in the treatment of ‘unwelcome’ migrants.