The Routledge Handbook on Crime and International Migration 9780415823944, 9780203385562

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

Citation preview

‘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

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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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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

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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.

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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.

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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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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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2

3

4

5 6 7

8

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

21

22

‘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

35 36

37

38 39

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 8544/79, para. 53). Transcribed in El Dridi, para. 25. This aspect was left unanswered by the three decisions reviewed above. Although the Court in Kadzoev (CJEU, Case C-357/09, 30 November 2009) held that a stateless person cannot be detained indefinitely, it did not rule out the possibility of criminalizing people who are unremovable due to reasons beyond their control.

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Spencer, J & Pedain, A 2005, ‘Approaches to strict and constructive liability in continental criminal law’, in A Simester (ed.), Appraising strict liability, Oxford University Press, Oxford, pp. 237–83. Stumpf, J 2009, ‘Fitting punishment’, Washington & Lee Law Review, vol. 66, pp. 1683–741. Stuntz, W 1996, ‘Substance, process, and the civil-criminal line’, Journal of Contemporary Legal Issues, vol. 7, pp. 1–41. Tournier, P 1997, ‘Nationality, crime, and criminal justice in France’, in M Tonry (ed.), Ethnicity, crime, and immigration, University of Chicago Press, Chicago, pp. 523–51. UN Working Group on Arbitrary Detention 2010, Report of the Working Group on Arbitrary Detention to the UNGA Human Rights Council, thirteenth session, 18 January 2010, A/HRC/13/30, Human Rights Council, Geneva. Wacquant, L 2006, ‘Penalization, depoliticization, racialization: on the over-incarceration of immigrants in the European Union’, in S Armstrong & L McAra (eds), Perspectives on punishment, Oxford University Press, New York, pp. 83–100. Walters, W 2011, ‘Foucault and frontiers: notes on the birth of the humanitarian border’, in U Brockling, S Krasmann & T Lemke (eds), Governmentality: current issues and future challenges, Routledge, New York, pp. 138–64. Whitman, J 2003, Harsh justice: criminal punishment and the widening divide between America and Europe, Oxford University Press, New York.

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

Introduction This chapter reflects on the Supreme Court of Canada’s 2013 ruling in Ezokola v Canada.1 The case is important because it changed the law in Canada, and because it has the potential to lead to change elsewhere as well. But it is also important because of the fulcrum position that it occupies in the ongoing tug of war between refugee advocates and those who assert that migration, and migrants themselves, are often tainted with criminality. On the face of it, such a fulcrum ought not make any sense. Refugee law looks to be about protecting people from some types of human rights abuses, by allowing them to live elsewhere while they are in danger. Refugee law is not primarily about migration, and it is about victims rather than criminals. Part of the story of why Ezokola is important in this moment in time, therefore, is the story of why it can be recounted as a tale of migration and crime in the first place. The explanation for this comes from the way the political location of refugee law has shifted over the past two decades as Western states have reframed their migration regimes. During this time, it has become harder and harder for people without specialized economic skills or personal wealth to migrate, and thus the refugee regime has come under increasing pressure.This pressure is twofold: from states’ perspectives there is an incentive to try and pervert refugee law to immigration objectives; from individuals’ perspectives, there is an incentive to make asylum a migration avenue, because all others are foreclosed. With these pressures, refugee law becomes decreasingly appealing to states, and in response they have unleashed a panoply of measures to ‘crack down’ on asylum seeking.2 One of these measures has been to pay a great deal more attention to the ‘exclusion clauses’ of the 1951 UN Convention Relating to the Status of Refugees (referred to hereafter as the Refugee Convention).3 The exclusion clauses describe three categories of individuals who are barred from being refugees because they are ‘undeserving’ of the baseline human rights protection commitment by the international community that refugee status represents. This notion of ‘desert’ is more important now than at any other time in the history of refugee law. And this is why Ezokola is important. This short chapter explores the notion of ‘desert’ in refugee law by considering what happened in the case, and then reflecting on how the Canadian government reacted to this outcome. It

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concludes by considering how the moral core of refugee protection acts as a double-edged sword in contemporary debates about migration and crime.

Ezokola Mr. Ezokola is a citizen of the Democratic Republic of Congo (DRC). As a young man he joined the diplomatic corps, and at the time he decided to seek refugee protection in Canada, he was a representative to the DRC’s mission to the United Nations in New York. Mr. Ezokola was politically opposed to the regime of DRC President Laurent Kabila, and had voted against the government in the most recent election.The regime has a notorious record of egregious human rights abuses. In the words of the court, Mr. Ezokola considered the Kabila regime to be ‘corrupt, antidemocratic and violent’ (Ezokola v Canada [2013], para 14). Mr. Ezokola believed that his political views had become known to his superiors in New York, and that this would put his life in danger. He made the decision to travel to Canada with his partner and eight children. The family sought refugee protection in Canada in 2008. The Kabila regime’s record of harming political opponents was well documented, and there was little doubt that if he returned to the DRC, Mr. Ezokola and his family would face a risk of being persecuted. Accordingly, Mr. Ezokola’s partner and children were granted refugee protection as this risk is at the heart of the legal test for refugee status. Mr. Ezokola, however, was denied protection. The original decision-maker ruled that he was ‘excluded’ because of his complicity in the heinous actions of the government he served. This was the issue that eventually made its way to the Supreme Court of Canada. Article 1F of the Refugee Convention excludes (1) those who are involved in international crimes; (2) those who have committed serious non-political crimes prior to seeking protection; and (3) those who are guilty of acts contrary to the purposes of the United Nations.4 The Convention’s drafters developed these provisions to ensure the integrity of the Convention and to foster support for it among states. In other words, the exclusion clauses exist because it was clear that states would not make a commitment to international refugee law if doing so would require them to admit people whose actions they opposed (Hathaway and Foster 2014, forthcoming). Each part of Article 1F does something slightly different, but together they form a framework for ‘desert’. The first provision bars participants in internationally criminalized activities; the second addresses common criminals, and the third is an amorphous provision designed to capture situations that have not yet coalesced into the more clearly delineated first two categories, but which are so blameworthy in an international sense as to be contrary to the very purposes that are at the core of the foundation of the UN. All categories are directed at those who are involved in very serious criminal activity, and treaty interpretation principles require both that this exception to a human rights treaty must be read narrowly (i.e. must exclude as few people as possible) and that the crimes involved must be broadly understood as crimes throughout the international community (Hathaway and Foster 2014, forthcoming; Juss 2012).5 In order to understand what any of this has to do with Mr. Ezokola, we need to consider the purposes and trajectory of international criminal law. Mr. Ezokola was not accused of personally committing any crimes. The evidence before the tribunal suggested that he knew of the human rights record of his government, but that his knowledge did not extend beyond that of any citizen of the DRC who regularly reads national and international newspapers. Furthermore, Mr. Ezokola opposed the Kabila regime. But it is undeniably the case that he continued in the service of his government, representing it internationally, while the human rights abuses continued. He only resigned when he felt he was in danger. 266

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The story of international criminal law intersects importantly with these facts. International criminal law, like refugee law itself, was forged in the aftermath of World War II. There have been very few convictions under international criminal law, and it has been plagued by an inability to capture those who are actually giving the orders, but are remote from the sites of criminal activities. International criminal law has also spawned the problematic defense associated with ‘only following orders’. These issues have been addressed jurisprudentially over time, and an important step forward was marked by the Rome Statute and the opening of the International Criminal Court in 2003.6 The Rome Statute spends considerable time describing what have become known as ‘modes of liability’ for international crimes. The objective of this detailed effort is to ensure that those who are responsible, in all ways, for international crimes can truly be brought to justice. Someone like Mr. Ezokola would never face prosecution for international crimes. But this fact falls by the wayside in the contentious space of refugee exclusions. Refugee decision-making has none of the procedural protections of a criminal trial, and it is fanciful in the extreme to suggest that this might ever be appropriate. Article 1F itself states that a person may be excluded on the basis of ‘serious reasons for considering’ that he fits within one of the three provisions. As a standard of proof, this is a lower threshold than both the criminal standard of ‘proof beyond a reasonable doubt’ and the civil standard of ‘on a balance of probabilities’.7 This standard, in combination with the pressures on refugee law at present, means that exclusion under Article 1F(a) is presently one location for the most active deployment of international criminal law in recent years. Mr. Ezokola’s case was not, for example, one of those that was closest to the margins to which Article 1F(a) had been stretched. Individuals who have recently been excluded in Canadian refugee decision-making also include a desk clerk with diplomatic credentials whose job was to process visa applications, but who did not have the authority to make final decisions about visa applications, let alone any involvement with the human rights record of his government;8 a journalist who had worked for a newspaper that published propaganda for the Tamil Tigers (Kanapathy v Canada (MPSEP) [2012] CanLii FC 459); a typist who had worked for his country’s internal security organization before being arrested because he had leaked information about human rights abuses that he had discovered during this work (Mutumba v Canada (Minister of Citizenship and Immigration) [2009] FC 19). The issue before the Court in Ezokola was whether this breadth was appropriate. Ultimately the ruling was, as is always the case at the final appellate level, more about the law than about the man himself.The Supreme Court of Canada stated that a legal doctrine which stretched as far as ‘complicity by association’ was out of line with international standards for refugee law, and with basic principles of international treaty interpretation. In summing up its holdings, the Court stated: While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group – . . . In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. (Ezokola v Canada [2013], para 8) This new formulation ought to mean that typists, desk clerks and journalists are not excluded from refugee protection on the basis of those roles alone. Instead, people would be excluded if they knew about a crime and, of their own volition, contributed to it in some way that actually helped it along. 267

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On the important question of whether being a ‘mere member’ of an organization involved in bad acts (such as the government of the Democratic Republic of Congo), the Court was emphatic: to be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose. (Ezokola v Canada [2013], para. 89) In less legalistic terms – the person must actually have done something related to the crime. None of this would be surprising to anyone familiar with criminal law: quite the opposite. The emphasis on individual responsibility is central to criminal law analysis. It is a sad reflection on the relationship between refugee law and crime that questions of this nature are front and centre in the development of refugee jurisprudence. The outcome in Ezokola is good news for refugee law, both in Canada and internationally. The Court reaffirmed the important idea that exclusion is a very serious matter, and that a robust understanding of criminal law is required if states want to limit access to refugee protection. This amounts to a clear statement of the intersection between international criminal law and refugee law. Given the pressures and political shifts of the past two decades, this intersection is vital for the relationship between migration and crime. It is important internationally because until very recently Canadian refugee jurisprudence had been highly regarded by courts around the world. What Canada does to refugee law standards, therefore, has the potential to influence others. The Ezokola ruling also serves to bring Canada back in line with the approach to Article 1F(a) that is being followed in the United Kingdom, the United States, the European Union and New Zealand.9 This signals, first, that Canada had gotten badly out of line in terms of approach to the migration and crime intersection at this juncture. And, second, it means that Ezokola reflects a broadly shared standard for many Western industrialized states. As for Mr. Ezokola himself, there is much we do not know. Mr. Ezokola was not a typist or a desk clerk. It was never completely clear how senior a member of the DRC government he actually was. A new decision-maker is charged with reassessing his application for refugee protection and for asking the important questions of exactly what he knew, what he did, how and when. It seems unlikely that he could be excluded on the basis of the facts that are now in the public domain, but one consequence of a new refugee determination proceeding is a new kick at the facts.

Why it may never matter But beyond the story of the case, there is the story of how the Canadian government has reacted to the case, as well as how this ruling fits into the broader framework of Canada’s approach to the relationship between migration and crime in this anti-asylum era. Despite the Ezokola victory, there are two other things happening simultaneously that mean fewer and fewer people are able to claim refugee protection in Canada. In other words, fewer and fewer people in positions like that of Mr. Ezokola will have the opportunity to make refugee claims and thus to benefit from the important corrections introduced by the Supreme Court of Canada. The first set of changes is procedural. Over the past two years, roughly the time frame when Mr. Ezokola’s case was winding its way through the appellate courts, the Canadian government 268

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made the most significant changes in refugee determination procedures since 1989. The first big change was to create a new label of ‘designated foreign national’, which allows the government to label groups of people arriving in Canada at the same time with the objective of detaining them for longer than ‘normal’ refugee claimants, and reducing their procedural and substantive rights (Immigration and Refugee Protection Act, SC 2001, c 27, s. 20.1). A second significant change was to introduce a category of countries that are presumptively ‘safe’ for the purpose of according nationals of those states reduced rights in refugee claims (ibid. s. 109.1.). As of March 2014, 35 countries have been so designated (Government of Canada 2013). The most surprising entries on this list are Mexico and Hungary; both places from which a persistent flow of successful refugee claims in Canada has originated in the past five years.10 Other changes have included significant reductions in health care provisions for people claiming refugee status in Canada;11 and markedly shorter timelines for all aspects of refugee status determination (Government of Canada 2012). This first set of changes has a criminality theme.The assumption underlying all aspects of this reform agenda is that individuals are breaching the law, or at least abusing the ‘privilege’ of refugee status, by making refugee claims. Canadian law is being realigned to a more punitive posture, with particular punishments for those who arrive in groups (this is typically a boat arrival) or who arrive from a ‘safe’ place. The second set of changes involves introducing stricter criteria for what Canadian law calls ‘eligibility’ and ‘inadmissibility’.12 These two things are closely related but have distinct effects. Eligibility is a list of rules that determine whether someone is allowed to make a refugee claim. Inadmissibility is a set of criteria about who is barred from admittance to Canada in any immigration category. Some inadmissibility rules are woven into the eligibility net; other parts of this framework would apply only to refugees who seek to remain in Canada permanently (because a right to remain permanently is not automatically part of refugee protection in Canada). Stricter interpretations of both inadmissibility and eligibility mean that an increasing number of people are barred from ever having a refugee claim assessed. This is the clear intent of the government: the most recent set of rule changes were presented in legislation titled the Faster Removal of Foreign Criminals Act.13 Unlike the first set of changes, where one has to look a bit to see the criminality themes, here they are overt. There is an important intersection, or rather failed intersection, with the excellent Ezokola ruling. While Ezokola sought to rein in the overly broad analysis of complicity and ‘membership’, those lessons are unlikely to be carried over into the mirroring provisions in the eligibility and inadmissibility rules. The effect of this is to pull Canada out of compliance with international refugee law, just as the Court seeks to repair a previous breach. Eligibility screening is a dross on the law that is not permitted by the Refugee Convention. While the Convention is permissive about how states conduct refugee determinations, it is not permissive about exclusions. In international law, refugees who are not excluded are due protection. The strong Ezokola analysis is not, in Canadian law, applicable to those provisions that stop a refugee claim before it has started on the basis of a security threat or membership in a criminal organization. In tandem, these two steps backwards rob the Ezokola celebration of much of its oomph, because people most likely to benefit from the clearer and better standards of criminal responsibility are the very people likely to be found ineligible to make a refugee claim. What is worse is that Canadian courts are very unlikely to ever be able to fix this gap between the international standards that the Supreme Court of Canada is contributing to building, and the domestic failure to attain those standards. There are well-established 269

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legal doctrines that allow the Canadian government to breach many human rights, provided it does so with clear intent. The intent of the current government is nothing if not clear.

The vexing morality of refugee law One important conclusion to the story of Ezokola is about the strength and resilience of international refugee law. Ezokola, and cases like it around the world, show us that international refugee law is a meaningful constraint on state sovereignty – taken seriously, it requires states to admit, and to protect, people they would rather not.This case also demonstrates that international refugee law is one of the most important forums for the development of key jurisprudential concepts within both international criminal law and international human rights law. While international criminal trials are rare, refugee exclusion decisions are commonplace (certainly comparatively commonplace) – this builds up an extensive jurisprudence within refugee law, which will necessarily overflow to these important and adjacent areas. A second conclusion is that the more international refugee law is about human rights, the more states seek to resist it. This dance has been going on for some time now, since the human rights turn in refugee law that began to take hold truly in the mid-1990s.Turning to international human rights standards as the vehicle both for understanding the logic of the Refugee Convention (as surrogate protection when one’s home state fails in this regard) and for interpreting key provisions within it (such as persecution and state protection) has been the basis for considerable growth in the law. With this growth, refugee law’s power to constrain state sovereignty has also, of course, grown. Curiously, however, for all that Western states have clambered over one another to heighten their resistance to refugee law, states have not withdrawn from the Convention, nor even moved to enter more reservations to it. Perhaps they are simply over-confident in their ability to successfully resist? Maybe things are not yet at their absolute worst. These conclusions about the strength of refugee law and the choices states make in resisting it point to refugee law’s vexing morality. This morality is becoming increasingly important as refugee law is ever more deeply intertwined with the migration-crime nexus. There is no question that the major premises of refugee law are moralistic. International refugee law is a commitment among states to step in and protect the citizens of other states, if and when those other states fail to meet their duty to protect their people. A refugee determination, therefore, can always be read as a negative assessment of some other state’s practices, or capacities, or both. Indeed, the move over the past two decades to tie refugee law more closely to human rights standards has in part been about trying to distance refugee law from blatant Cold War politics. This much, at least, has very nearly been fully achieved. The rise over the past decade of refugee exclusions brings to the forefront a different kind of morality. From the outset it has been clear that refugee protection is a huge commitment on behalf of the international community and some individuals simply do not deserve it. This morality is vexing because it involves a decision that a person is at risk of being persecuted, harmed in some very serious way, and yet we as an international community are content to leave her to that fate because we think she’s a criminal. At one level, this morality hardly seems moral at all. It makes a stark contrast to the Convention Against Torture, under which states have agreed not to send people to a risk of torture, no matter how ‘undeserving’ we think those people are.14 The notion of ‘desert’ in refugee law occupies a troubling position – it marks the spot at which we say, as an international community, that we don’t care what happens to people once we have serious concerns about criminal activity. This idea is not new. It was the compromise crafted to 270

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ensure state support for the Refugee Convention way back in 1951 (Hathaway and Foster, 2014 forthcoming). In the current post-9/11 security climate, however, the categories of the ‘undeserving’ are expanding enormously. Not only has there been increased use worldwide of refugee law’s exclusion categories, there has also been jurisprudential expansion of those categories, ensuring that more people will fit into them (Kaushal and Dauvergne 2011; Juss 2012). Furthermore, Canada is not the only Western state that has taken the position that refugee law does not go far enough in defining ‘the undeserving,’ and thus added another layer of legal barrier against entry of suspected criminals. The result of this type of legal manoeuvre is that courts are then unable to use refugee law as it was intended. What is worse, this is happening alongside the overall changes in the migration regime that make refugee law increasingly attractive to the desperate and the destitute. This is, very much, the final take-away message of the Ezokola story. The Supreme Court of Canada has endeavoured to reflect in 2013 the balance between refugee law and criminal law that was enshrined in the Refugee Convention in 1951.The Canadian government was unwilling to accept that balance and has pursued its own. But the structure of refugee law contains that basic logic that is the germ of this disagreement: it contains the notion of ‘desert’. The idea that some people deserve the protection of their basic human rights, and others do not, is a slippery slope indeed. It cannot be a surprise that in these dark times when migration and criminality are intertwined, we are sliding down it.

Notes 1 I declare at the outset my role in the case as co-counsel for the intervener Canadian Council for Refugees, and I must also recognize my colleagues in that role: Angus Grant and Pia Zambelli. I am also grateful to Catherine Repel for her research and editorial assistance in preparing this note. 2 I have written about this in several earlier pieces, including Making People Illegal. 3 189 UNTS 137 (entered into force 22 April 1954). 4 Refugee Convention Article 1F: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. 5 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, (entered into force 27 January 1980) art 31; Al-Sirri Al-Sirri (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and DD (Afghanistan) (FC) (Appellant) v Secretary of State for the Home Department (Respondent), [2012] UKSC 54 at [16]; UNHCR Guidelines on International Protection: Application of Exclusion Clauses at para 2. 6 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 25.The first judges were appointed to the Court in 2003 and the first indictments were issued in 2005, see Article 25. 7 The serious reasons for considering phrasing also contributes to the substantive interpretation of Article 1F, a point beyond the scope of this comment, see Hathaway and Foster (2014: forthcoming, Chapter 7). 8 Re X, IRB File No. TB0–10297 (2012). 9 R (JS) v Secretary of State for the Home Department [2010] UKSC 15; Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107; Bundesrepublik Deutschland v B und D [2010] ECR I-000 C-57/09 and C-101/09; Gao v. Atty General 500 F.3d 93, (2nd Circuit 2007).

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10 For a list of refugee claimants present in Canada as of 1 December 2012 by top source country, see http://www.cic.gc.ca/english/resources/statistics/facts2012/temporary/26.asp. 11 In response to these cuts, an NGO calling itself Canadian Doctors for Refugee Care was formed. Their website is currently the best source of current information about the cuts and about the now wellestablished public opposition to them. See www.doctorsforrefugeecare.ca. 12 Eligibility is addressed in s.101 of the Immigration and Refugee Protection Act. Inadmissibility is addressed by ss 33–43. In each case, the provisions in the Act are accompanied by extensive regulatory text. 13 Faster Removal of Foreign Criminals Act, SC 2013, c 16. 14 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

References Dauvergne, C 2008, Making people illegal, Cambridge University Press, Cambridge. Government of Canada 2012, Backgrounder-summary of changes in Canada’s refugee system, 9 March 2014, viewed 9 March 2014, www.cic.gc.ca/english/department/media/backgrounders/2012/2012-06-29b. asp — 2013, Designated countries of origin, 9 March 2014, viewed 9 March 2014, http://www.cic.gc.ca/english/ refugees/reform-safe.asp Hathaway, JC & Foster, M 2014, forthcoming, The law of refugee status, 2nd edn, Cambridge University Press, Cambridge. Juss, S 2012, ‘Terrorism and the exclusion of refugee status in the UK’, Journal of Conflict and Security Law, vol. 17, no. 3, pp. 465–99. Kaushal, A & Dauvergne, C 2011,‘The growing culture of exclusion: trends in Canadian refugee exclusions’, International Journal of Refugee Law, vol. 23, no. 1, pp. 54–74.

Cases Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107 Bundesrepublik Deutschland v B und D [2010] ECR I-000 C-57/09 and C-101/09 Ezokola v Canada (Minister of Citizenship and Immigration) [2013] SCC 40, 361 DLR (4th) 1 [Ezokola] Gao v. Atty General 500 F.3d 93, (2nd Circuit 2007) Kanapathy v Canada (MPSEP) [2012] CanLii FC 459 Mutumba v Canada (Minister of Citizenship and Immigration) [2009] FC 19 R (JS) v Secretary of State for the Home Department [2010] UKSC 15

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Part V

Crimes of mobility

18 Human smuggling facilitators in the US Southwest Gabriella Sanchez

Introduction This chapter examines the social organization of human smuggling groups along the US-Mexico border. Relying on data contained in legal case files, along with field observations and face-toface interactions, this chapter explores how human smugglers (known along the US-Mexico border as ‘coyotes’) are ordinary citizens whose social capital alone provides them with the connections and resources needed for their participation in human smuggling operations, without the need for third-party or external interventions like large criminal organizations.The men and women of smuggling have diverse backgrounds, and work on an ad-hoc, temporary basis facilitating the extra-legal crossings of migrants across the US-Mexico border. The study revealed no indication of smuggling participants responding to any kind of centralized, hierarchical leadership. Furthermore, and contrary to popular belief, no evidence of collaboration was found between human smuggling groups and transnational organized crime was found. Instead, facilitators operate locally, recirculating the income generated by smuggling into the local economies, and in so doing supplementing the income they generate through their full-time employment in the legal economy in an attempt to reduce the socio-economic marginalization that workingclass communities along borders have experienced historically.

Smuggling in the era of security The presence of transnational criminal organizations (TCOs) along the US-Mexico border has been a constant source of tension for governments on both sides of the border. The events of 9/11 only increased the concerns over the likelihood of criminal and terrorist organizations penetrating what many considered an already compromised border. Multiple reports of terrorist activity along segments of the border emerged shortly after the attack (Farah 2011; Noriega 2011) but the evidence available is anecdotal at best. While some scholars have urged caution, human smuggling and drug trafficking activities have had a tendency to be described as correlated, a tendency fueled by concerns over the sporadic spikes of drug-related violence in some regions along the Mexican border. Reports on the topic are abundant – particularly following the war against drug trafficking organizations

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launched by the last two Mexican administrations – often relying on sensationalistic characterizations of drug and human smuggling groups, and not on empirical data. Human smuggling into the United States from Mexico has been the cause of much discussion in policy, academic, and law enforcement circles, particularly as it relates to the controversial issue of irregular migration. Yet the activity, as regards the US-Mexico border, has been subjected to limited scholarly inquiries despite the volume – even if fluctuating – of irregular crossings along it. As in other regions of the world, most reports of smuggling activity focus on the most tragic of incidents – the drownings of women and children, the suffocation of migrants in containers, or the graphic accounts of sexual violence. While law enforcement efforts against human smuggling along the US-Mexico border and the increase in border surveillance by federal and state US law enforcement agencies have impacted the ability of some human smuggling groups to operate, underground efforts to provide those unable to secure the protection of visas and passports due to being found ineligible or inadmissible continue to take place. This chapter, based on data contained in legal case files, along with field observations and face-to-face interactions, delves into the day-to-day activities of the men and women who participate in smuggling, their backgrounds and rationales for participating in the market. The chapter also explores the likelihood of a connection between human smuggling groups and other networks or organizations involved in other forms of criminal activity.

Current scholarship on human smuggling along the US-Mexico border At the outset, a brief definitional note is warranted. While in essence human smuggling involves the willing engagement of an individual in her extra-legal (without government approval) transportation into a country different than her own, smuggling has been consistently rhetoricized as involving the forceful transportation of undocumented immigrants, as inherently prone to violence and abuse, and as a precursor – when not a synonym of – human trafficking. Despite the tragic images smuggling evokes – capsized boats, decomposed bodies along coasts, tales of sex trafficking and prostitution – empirical knowledge on its nature and social organization is scarce. This shortage has in turn allowed for the prevalence of conjectural conceptions of smuggling markets. It is common to come across depictions of smuggling facilitators as violent and amoral males of color operating under a strict hierarchical rule and working for extremely powerful organizations involved in a wide range of activities (from prostitution, drug trafficking, and money laundering to the violation of property rights and illicit gambling). In the post-9/11 era the discourse expanded to include accounts of the potential of these groups to become involved in terrorist activity (Rollins and Wyler 2010). Scholarly inquiry on smuggling reveals a different picture. Smuggling is conducted by men and women known to each other through their immediate friends and families. Participants operate independently and can collaborate in multiple smuggling efforts concurrently. Furthermore, despite being characterized as otherwise, human smuggling is not inherently violent (Zhang 2007; 2008; Koser 2008; Khosravi 2010). In order to generate continued business, to develop contacts and resources, and to maintain the trust of established and potential customers (Bilger, Hoffman and Jandl 2006; Koser 2008), smuggling facilitators must provide relatively safe journeys, amid often precarious conditions, and therefore stay away from purposely engaging in violent acts. Furthermore, participants avoid engaging in other illicit activities that, while more profitable, could increase their risk of detection and/or prosecution.

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The majority of the studies on the dynamics of smuggling have been conducted in Europe among irregular migrants and refugees from Asia and Africa (see Içduygu and Toktas 2002; Van Hear 2004; Van Liempt 2007). Ironically, despite being one of the most crossed border regions in the world, scholarship on human smuggling along the USMexico border is scarce (Zhang 2008). When added to the current concerns about drug trafficking-related violence, data collection and the completion of objective analyses of the nature and the extent of human smuggling activity throughout this border region become a difficult task. Despite these challenges, scholars like Rodolfo Casillas and Pedro Izcara in Mexico and David Spener in the United States have conducted extensive fieldwork in the Texas region to understand the social workings of groups and/or individuals who facilitate border crossings. Their work has been important in mapping the diversity of smuggling operations along the border. In his study on Mexican human smugglers, Spener (2009) provided important data on smuggling’s social organization, finding no evidence of hierarchical structures among groups of smugglers or coyotes. He also confirmed the low incidence of violent acts against undocumented immigrants on the part of smugglers. Furthermore, Spener found no conclusive evidence of ties between transnational criminal organizations and local smuggling facilitators, though some of his informants reported isolated incidents involving interactions between individual members of drug trafficking and human smuggling groups, but no signs of collaboration. Casillas (2010) and Izcara Palacios (2012a, 2012b), respectively have conducted fieldwork in more troubled regions on the Mexican side of the border, specifically, the Tamaulipas region. Their work has primarily focused on unveiling the role organized crime plays in the violence against irregular migrants from Central America along the Gulf of Mexico, a region identified as under the control of one of the most complex criminal organizations in the country, the Los Zetas gang. Casillas has gathered testimonies from victims of violence and law enforcement officers that seem to confirm a unique case of diversification – that is, the involvement of a nonhuman smuggling organization in human smuggling activities. Izcara Palacios (2012b), however, by collecting testimonies among coyotes, has been able to delimit the extent of said involvement. It is the imposition of fees or taxes (known locally as ‘piso’) upon coyotes by Los Zetas that has actually undermined the already shrinking profits of human smuggling facilitators in the region, leading those with the most experience and skill to exit the market, reducing the ability of those who seek to cross the border irregularly to do it safely. These two studies illustrate some of the complexities of studying human smuggling along the US-Mexico border, particularly at a time when concerns over drug traffickingrelated violence continue to increase. Most importantly, they are fundamental in demonstrating the non-monolithic nature of smuggling activities along the border. While these works have provided important information on the dynamics of smuggling operations, most analyses have evolved around violence, and not on smuggling per se as the focus of their study. Furthermore, our understanding of human smuggling has historically lacked the perspectives of smugglers themselves.

Research methods This project involved the analysis of 66 human smuggling cases prosecuted in the jurisdiction of Maricopa County, Arizona, from 2009 through 2011. Maricopa County became, during the first decade of the twenty-first century, one of the US’s main hubs for human smuggling activity (Robbins 2006; US Immigration and Customs Enforcement 2011). In addition to the analysis of 277

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case files, face-to-face interviews with human smugglers who were known to have operated in Maricopa County Arizona within that same period were conducted. Extensive field observations within the vicinity were also completed. While estimates vary widely, federal law enforcement believed the majority of the irregular migrants who entered the US during the 2001–10 period did so by traveling at some point in their journey through Maricopa County (Martinez, interview 12 September 2009; Bustamante, interview 29 May 2010). Migrants in transit would arrive in Phoenix (Arizona’s state capital), from where they were transported to other parts of the country. Common destinations were cities along the West Coast (Los Angeles metropolitan area, Fresno, and Portland) or Southern states (Louisiana, Alabama). Many clients also reported being on their way to locations as far as Chicago or New York City, and at least one smuggler indicated Vancouver, Canada, to be a client’s final destination. In this study, a smuggling facilitator or coyote was defined as anyone who facilitated a specific segment of a person’s entry into the United States without authorization, for a fee. Legal case files, including interview data and police reports conducted with smugglers in custody, were selected at random from the Maricopa County online criminal case database. All other respondents were at the time of the interview contacted in Maricopa County, Arizona, but many lived in other states – especially in the case of men. Women often have long residence histories as well as established ties to local communities and resources. All participants were informed of the nature of the studies, and no deception of any form was used. Additional informal interviews with coyotes were conducted for validation.

Findings Smugglers and their backgrounds If one adjective could be used to characterize smuggling facilitators, it would be heterogeneous. There are in fact no particular characteristics or defining features among those who participate in smuggling. If anything, facilitators are rather ordinary citizens, from teenagers to elderly men and women. Most of those arrested during raids and traffic stops were men, although women were often arrested while performing financial transactions and/or acting as logistics coordinators. Most facilitators were employed in the legal economy, yet none enjoyed the luxury of holding stable jobs. Their ability to remain employed was frequently tied to the conditions of the local economy. Job uncertainty commonly implied precarious economic conditions for facilitators and their families. Their reported income placed them below the poverty level – salaries averaged US$250 per week per household. Most smugglers were employed in the service industries and other related jobs. Many held additional jobs to support their families, smuggling constituting in fact a supplementary cash-generating activity in most cases. The large majority of participants were irregular migrants from Mexico themselves. Among women, the incidence of mixed-status families – formed by US-born citizens and undocumented immigrants – was higher than among men, who mostly had a tendency to support families in their country of origin. With the exception of one respondent – a former federal government employee – the sample did not include any individuals in professional or skilled jobs. Among all respondents, the education level averaged ninth grade, which suggests smuggling requires no special skills or training, and rather is open to all individuals with access to proper social connections. Table 18.1 describes the demographic characteristics of the sample. 278

Human smuggling facilitators in the US Table 18.1 Demographics of smuggling subjects Frequency

%age

Gender Male Female Total

54 12 66

81.8 18.2 100.00

Marital status Married or in a relationship Single Total

37 29 66

56.06 43.93 100.00

Head of household Male Female Total

30 2 32 (out of 66)

Age (average)* Male Female

29 27

Employment Full time employment Unemployed Total

63 3 66

95.45 4.54 100.00

Citizenship/legal status US citizen Permanent resident Irregular migrant Total

5 2 59 66

7.57 3.03 89.39 100.00

Country of origin Mexico Cuba El Salvador Guatemala Total

61 3 1 1 66

92.42 4.54 1.51 1.51 100.00

45.45 3.03 48.48 N/A N/A

Source: author’s research data * Women enter smuggling at what appears to be a younger age than men. Men do not appear to work in smuggling for as long as women do.

Entry into smuggling Every single one of the respondents in this sample had been arrested and faced prosecution as a result of their involvement in human smuggling, and had allegedly exited the market at the time of contact. With counted exceptions, most smugglers reported being inactive facilitators. Given this condition, it was not feasible to establish with clarity the career path of smuggler facilitator and its duration – especially those who have been effective at avoiding detention. Yet participation ranged from a single event – as in the case of those facilitating their own migration – to a few days on an occasional basis (the case of safe-house staff) to several years (in the case of coordinators). Many also reported being irregular migrants themselves who were offered discounts on their smuggling fees in exchange for performing driving, cooking, or cleaning duties. Although this sample is by no means representative, it appears that human 279

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smuggling as a career has limited prospects, and that most of those involved participate on an ad-hoc basis only.This is also evident from the very small number of subjects who were involved in smuggling as a full-time occupation (two in a universe of 66 smugglers, or 3 percent). Most smuggling groups are constituted by members of the same family or social circle. In fact these connections were in the majority of cases the ones facilitating their involvement. The proximity among facilitators ensures the continuation of collaborations that lead to incomegenerating opportunities. However, sudden, unexpected staff shortages may lead smuggling facilitators to recruit emergency help among their own clients. Since most clients come from smugglers’ own social networks (friends and family are frequent customers) and given the financial and social commitments, smugglers face a low level of risk and/or exposure when hiring among other friends and families. Furthermore, collaboration among peers reduces the risk of operation disruption or betrayal. While most smugglers cite finances as the primary motive of their involvement in smuggling, it is important to note smuggling income was by no means significant. The amounts generated through participation in smuggling constituted for the large majority of subjects only a supplementary source of income. For others, compensation was merely symbolic, at times hardly amounting to the cost of the services provided. Several subjects, however, emphasized the social significance of their involvement – helping others migrate, assisting friends and families in their reunification efforts, even saving lives – over the financial benefits. This was particularly the case for women, who despite generating lower financial earnings than men, often mobilized substantial access to social capital instead.

Human smuggling as a business The accounts provided by most subjects do not suggest an individual’s participation in smuggling in Arizona involves the need for an initial investment of a financial nature. Instead, smuggling operators relied on their immediate friends and family to secure the necessary resources to participate in the business (working vehicles, border crossing cards, housing, valid driver licenses, to name a few). All smuggling operations, regardless of their size, seem to have originated and grown from groups operating on these community-based terms, largely dependent on trust and kin and friendship ties. No respondents reported having to make any kind of payment to enter a smuggling network. (The only reported exception involved gas payments, for which drivers were eventually reimbursed by traveling migrants.) Several reported, however, that as a smuggling group grew in size, payments for services provided often took longer to be processed, and delays become potential causes for disagreements or threats of no further collaboration. The income generated by an individual’s participation in smuggling depended on his or her role in the operation. As such, there was a certain degree of variation in the amounts of money participants could earn.1 There is no indication that any of the respondents in this sample experienced significant social mobility as a result of his or her participation in smuggling activities. If at all, smuggling-related income allowed them to cover their most immediate, urgent needs like rent, food, and medical expenses. Smuggling’s nature as a supplementary form of income was also evident in the fact that most subjects remained employed during the entire time of their involvement in smuggling. It also suggests smuggling earnings were not considered a reliable or sustainable form of income for most smugglers. Estimates of average smuggling prices – that is, the ongoing costs of entering US territory – have typically been used to estimate the profits of human smuggling organizations. This calculation method is behind the large amounts frequently quoted in government and media reports involving the profits of human smuggling organizations, which are estimated to be in the 280

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millions of dollars (Andreas and Greenhill 2010). However, none of these numbers takes into consideration the social organization of smuggling and the way in which profits – rather, fees – are split among participants. While the demand for services and competition does play a role in the market price of smuggling services, every smuggling operation is likely to be different and/ or to involve multiple services, which ultimately impacts the final payment. Furthermore, the smuggling services provided may require the involvement or participation of a varying number of smuggling facilitators, which means a smuggling fee – and hence the profits – are split among a varying number of individuals.When seen this way, net profits may not be as large as calculations suggest.2 In brief, human smuggling costs are in most cases unpredictable, and vary in terms of the needs of the client and the resources specific smuggling groups need to mobilize in order to provide a successful crossing. Factors like routes, modes of transportation, and weather do play a significant role in the eventual profits made. Simpler, faster, shorter crossings result in higher returns for the smuggling facilitators, as these will require the provision of much less substantial resources. It is also pertinent to mention that some customers reportedly disbursed higher fees for more specialized services like the transportation of children or pregnant women, or elderly migrants.These services were also provided by individuals collaborating with extended networks.

Organizational characteristics Human smuggling groups are typically described by the media and law enforcement as complex, large, highly centralized entities constituted by scores of followers operating clandestinely and violently across international borders. Studies on smuggling bring such characterizations into question. In this sample, smugglers were primarily individuals in charge of a very specific segment of a smuggling operation, but fell short of identifying themselves as part of a group or organization. Their actions were coordinated in the sense that they were provided as a response to a request for assistance from other independent providers. But there was never an indication that individual providers responded to a central command or power. Instead most smugglers’ statements described their actions as favors conducted in order to assist the smuggling efforts of a friend or acquaintance in a similar position (that is, someone who will benefit at the same level) and never in the context of a large organization. Most collaborations in this sample involved the work of two to six individuals, but several arrests involved the actions of individuals operating entirely on their own (drivers who volunteered to transport individuals for a fee, for example). In the legal case against a group known as Los Magana, 66 people were indicted as a result of a criminal investigation. And yet, aside from the two Magana brothers and their spouses, who were identified as the leadership, all other ‘members’ were independent service providers. Most smuggling facilitators make decisions involving the completion of their assigned tasks on their own – they may select routes, identify a specific vehicle to use, invite a friend or relative to serve as a co-pilot or driver, etc. In larger groups, coordinators (the men and women in charge of locating smuggling facilitators when in need, and of putting facilitators in contact with one another and with their clientele) may exert a certain level of supervision to ensure that facilitators comply with their assigned tasks and that the operation flows smoothly. But the operational, in-the-field decisions are ultimately left to the individuals. Zhang and Chin (2002) suggested in their study of Chinese human smugglers that the apparent lack of (hierarchical) power was not a result of deliberate organizational arrangements, but instead of the limited resources a single smuggler may have at his or her disposal. The evidence collected in this study supports those findings. Independent facilitators are in no 281

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position to make investments and so rely on the resources at their immediate disposal.There was little indication of the existence of a complex hierarchical structure in any of the groups identified in the legal case files. Instead, there is extensive evidence of a high degree of task differentiation (or, as Zhang describes it, specialization), which explains the wide variety of tasks smuggling facilitators reportedly performed.

Roles in smuggling There is a series of highly defined tasks identified in the sample. Smuggling operators perform one task, and in most cases, one task alone during the whole duration of their involvement. It appears that, once a smuggling operator takes over a role, there is little deviation from that one activity. The roles performed by the smuggling operators identified in this sample were: •

•

•

•

•

•

•

•

Recruiters.Typically, friends or family of potential migrants. Recruiters conduct their activities locally (within the migrant-generating communities) or from abroad (contacting would-be clients from within the US and offering smuggling services). Enganchadores. Another level of recruitment takes place along the border. Enganchadores seek potential customers (mostly unknown to them) at bus or train stations, airports, and other social gathering places like plazas and parks and offer smuggling services. Walkers. Known as caminadores, walkers guide migrants from and to specific points in their journeys.Walkers are knowledgeable about back roads and potential hiding places for waiting for transport or a second team of guides or to evade law enforcement and robbers. Walkers usually work in pairs, with one of them (typically the one with the most experience) taking the lead. Drivers. Drivers pick up customers from transit points where guides or other drivers have dropped them off.They can provide local services (that is, within the state) or travel to other states in the country where they typically reside. Safe-house staff. Individuals or small teams of providers in charge of feeding and housing customers until their smuggling fees are received, a new driver is ready to transport them, or their relatives stop by to pick them up. Guards. Increasingly common elements of larger smuggling groups, guards keep watch on safe-houses and protect both house staff and customers in the event of an incursion from groups of robbers (bajadores).3 Coordinators. Well-established community members with extensive social connections, living in predominantly immigrant communities, coordinators are contacted by customers seeking smuggling services, ensure payments are made and received, connect smuggling providers with others in need, and deal with day-to-day operations. There were several instances of women acting as coordinators. Cashers. Cashers are in charge of picking up wire transfer payments for a smuggling group. They are typically men or women with valid identification that allows them to cash wire transfers, or with active bank accounts into which smuggling fees are deposited.The majority of those performing financial services are women.

These roles are not exhaustive, and not every operation requires the involvement of each kind of smuggling facilitator. Some operations may be highly complex (for example, those involving the transportation of large groups of people) and require a larger array of resources, while easier, shorter crossings can be facilitated by a couple of providers who transport a single customer for 282

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a fee. However this simpler, streamlined kind of crossing is less and less common, mainly due to the increased enforcement along the US-Mexico border. Multiple checkpoints, computerassisted surveillance, and increased patrolling have all played a role in the growing complexity of smuggling operations, which now require larger numbers of participants to ultimately ensure successful crossings.

Connections to other criminal groups The connection between human smuggling and other criminal activities has been a matter of much speculation for decades. As recently as 2011, the killings of undocumented immigrants in transit throughout the US-Mexico border region were attributed to organized crime groups, primarily the organization known as Los Zetas. Given the main area of inquiry of this study, an exploration of the connection between human smuggling and other forms of trafficking was central to this investigation. In this sample, only two respondents made reports in regards to ties to other organized criminal groups.The most detailed statement came from a smuggling coordinator, who reportedly wired money transfers to a woman in Sonora, Mexico. The latter was married to a man who worked for a group only identified as ‘the mafia’. The statement could perhaps be interpreted as a potential connection to drug trafficking or money laundering organizations, but no information that would allow for a conclusion of this nature was found in the legal record or in the subject’s statements. The record never addressed the nature of the mentioned group’s activities. Despite the fact that the accused woman provided full names and addresses of people involved, there was no indication in the legal record that US law enforcement relied on this information to pursue additional routes of prosecution within the US or Mexico. This case led to a single conviction – that of a self employed, single mother of two US citizens.There is no evidence that the information collected was shared with any other law enforcement agency. This was a common trend in multiple cases, which also raises questions about interagency collaboration and information sharing. A second statement came directly from wiretap transcripts. It involved a call where an assistant to a coordinator (known as an ‘ayudantes’, or helper) called the coordinator to ask if he should report to work. The coordinator replied that ‘they’ – an unidentified third party – were in town to transport loads and that work (that is, human smuggling activities) was on hold until further notice. The helper thanked the coordinator, apparently acknowledging the message, and hung up. In brief, there is not enough evidence that would allow one to confirm the ties between human smuggling activity and other forms of criminal activity in this region (namely drug or weapons trafficking, money laundering, sex trafficking, etc.). Human smugglers were only involved in human smuggling-related activities. While these two examples clearly suggest that human smuggling groups are aware of the activities of other criminal organizations operating in the same area, and that they communicate among one another, neither statement provides conclusive evidence of any kind of stable collaboration between both groups, or of either market interfering in the activities of the other. If anything, the reports point to the existence of multiple markets operating alongside each other, and of resources and services (money wire services and roads, for example) being used by all organizations operating in the same geographic areas. The second example may suggest high profile groups (most likely, drug trafficking organizations) are given priority in the use of routes, but the evidence is limited. Despite the fact that the size of the sample could be cited as a limitation, if the alleged penetration and far reach of drug trafficking groups were as prevalent in human smuggling as reported by the media, statements 283

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accounting for such intertwining would be common elements of smugglers’ accounts, which was not the case. Furthermore, there were no reports of drugs being used, transported, trafficked, or commercialized as a means to generate profit of any kind during human smuggling operations.

Discussion Human smuggling is vastly different from other forms of criminalized activities. As other researchers have found, the market’s success depends on its flexibility (Zhang and Chin 2002) and ease of adaptation to sudden, sporadic demand. But it is also tied to the way in which individual providers – often migrant, working-class individuals – collaborate on a one-on-one basis to secure basic, low cost resources that allow for a successful venture. Contrary to other criminalized activities that may require considerable investments and involve high risk (including harsher penalties if convicted),4 human smuggling’s reliance on accessible, low cost resources (running vehicles, access to basic housing, etc.) and its relatively low likelihood for detection – particularly when executed by individuals and not by complex groups – facilitate individuals’ involvement. Smuggling’s benign social perception also appears to play a role in individuals’ decisions to participate. For many participants, their involvement in the market is not entirely profit-driven. Facilitators – particularly those with respectable reputations following years of successful crossings – enjoy high social status within diasporic communities, where, in addition to having access to potential clients, they play important roles in everyday social life. Given their role in allowing for families’ reunification processes and facilitating the economic well-being of families locally and abroad, smuggling facilitators have ample access to a socially – yet not necessarily financially – powerful network of resources and connections they can tap when in need, in order to secure services or assistance not just for clients but rather for their own families. This was particularly the case of women facilitators, who are systematically paid less than their male counterparts, instead mobilizing their social networks to generate benefits. Smugglers are frequently portrayed as ruthless and prone to engage in violent acts. While violence is indeed a fact – though under very specific circumstances – the majority of the smuggling operations documented in this sample were uneventful. Instead, smuggling coordinators were aware of the social implications of their actions and the need to protect their clients. Most smugglers worked hard at maintaining their reputation as reliable, trustworthy, fair, and honest providers, and were aware that failure to build on this reputation could carry grave social implications (inability to conduct additional business; isolation; being reported to police; potential acts of violent retaliation at the hands of dissatisfied clients and their families, etc.). Smugglers attribute the need for guards at safe houses to the increase in attacks by kidnappers or bajador groups and the need to protect the well-being of immigrants in transit – and to ensure a financially successful operation. The data collected suggests that even though smuggling tasks are highly differentiated, the practice lacks hierarchical organization. Facilitators perform very specific functions. Statements suggest that most long-term facilitators perform the same task during the entire duration of their involvement in smuggling, though others (as in the case of walkers) may change roles over time. Task definition may be the result of an individual’s calculation of risk – the realization that limited or occasional involvement will likely decrease the likelihood of detection – or a natural consequence of smuggling’s involvement and membership patterns, in which every facilitator executes the task he or she is best suited to perform in a time of need. While a very small number of cases suggested the existence of ties between human smuggling and other illicit markets, these statements should not be taken as evidence of full-blown 284

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involvement or collaboration with so-called criminal organizations. This asseveration does not seek to deny the potential involvement of organizations like drug trafficking groups in the smuggling of irregular migrants, as has been argued elsewhere. Instead it suggests more data in regards to the potential connection between diametrically opposed markets (in terms of cargo, logistics, and internal social dynamics) are needed before conclusions on the extent of such collaborations can be made. Furthermore, the size and the location of this study also constitute a limitation of this research.The conducting of similar case studies along the US-Mexico border could reveal the existence of markets where the incidence and likelihood of this collaboration may be greater due to on-the-ground conditions, degree of border security and enforcement, presence of other markets/groups, etc. Based on this study’s data, organized criminal groups seem to play no role in the provision of human smuggling services in Arizona.

Conclusion Findings from this study should be considered exploratory. Given the inherent limitations, the data should also be interpreted with caution. The selection of the participants was entirely limited to the available case files. Furthermore, validation contacts were those available through the researcher’s own network and were therefore systematically biased, as they included only smugglers who had managed to maintain a reputable record by not engaging in violent acts. Access to facilitators engaging in violent acts was limited to legal case files. This study does not involve a single group, and so the description of smuggling structure can be fragmented. While roles are quite distinctive, the legal case approach did not allow for an in-depth look at a single group to examine its various components. The lack of hierarchical relations and of evidence of well organized smuggling groups may also be reflective of groups in a different stage. This overview of the smuggling market describes its social organization and structure. While the state constantly refers to smuggling as being dominated by powerful criminal interests, the data shows the market consists of independent, working-class facilitators who assist other smuggling actors in need on a sporadic basis, without criminal intention.The organization of the smuggling market points to its community-based nature and to smuggling’s function in providing income-generating opportunities for the poor. Rather than constituting a conspiratorial effort to overthrow state controls, participation in smuggling is a concerted effort among families and friends to generate supplementary resources within a community unlikely to ascend socially or economically. The temporary profits that participation in the smuggling market generates are immediately recycled into the local economy and are unlikely to contribute to the creation of wealth among those who participate.

Notes 1 Payments for smuggling services to facilitators are based on either the service provided or the number of persons successfully smuggled. A walker, as described in the section pertaining to tasking, can earn US$100 per individual who is successfully transported to his or her final destination; a woman who allows for the use of her bank account for the sending of smuggling fees can be paid between US$40 and US$50 per transaction. Drivers working independently were known to set up their own fees and could make between US$150 and US$200 per person transported, when operating alone. Two drivers reported sharing their profits with their co-pilots (usually friends asked to help with driving, particularly over long distances). 2 Smuggling costs are dependent on the kind of services provided – a crossing as part of a group was reportedly in the range of US$1300–US$1700 per adult, and involved only the transportation from a

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border town to the Phoenix metropolitan area at the time the data were collected. But more specialized services – the transportation of a pregnant woman, for example – are likely to be more expensive given the risk involved in transporting an immigrant with limited mobility and likely to experience distress during her transit. Children are also transported, often as part of their parents’ efforts to reunite their family. In 2010, fees for crossing children through a border crossing point reportedly reached US$2,500 per child. 3 Bajador gangs are the rip-off crews who often are behind the kidnappings of irregular migrants. Operating in small groups of 5–8 individuals, bajadores, in addition to other forms of criminal activity, are known to break into safe houses and kidnap clients in transit, demanding ransom from their families in exchange for their release. 4 Laws to increase smuggling criminalization have been promoted in several US states. In Arizona, the anti-human smuggling law, for example, imposes penalties not only upon smuggling facilitators, but also allows for the indictment of the clients they transport on charges of conspiracy to commit their own smuggling.

References Andreas, P & Greenhill, K (eds.) 2010, Sex, drugs and body counts: the politics of numbers in global crime and conflict, Cornell University Press, Ithaca, NY. Bilger, V, Hoffman, M & Jandl, M 2006, ‘Human smuggling as a transnational service industry: evidence from Austria’, International Migration, vol. 44, no. 4, pp. 59–93. Casillas, R 2010, ‘Masacre de transmigrantes: reflexiones e interrogantes sobre los significados del asesinato de 72 migrantes’, Foreign Affairs Latinoamerica, vol. 10, no. 4, pp. 1–8. Farah, D 2011, Hezbollah in Latin America: implications for US Security, 7 July, Testimony before the House Committee on National Security, Subcommittee on Counterterrorism and Intelligence, US Congress. Içduygu, A & Toktas, S 2002, ‘How do smuggling and trafficking operate via irregular border crossings in the Middle East? Evidence from fieldwork in Turkey’, International Migration, vol. 40, no. 6, pp. 25–54. Izcara Palacios, S 2012a, ‘Coyotaje y grupos delictivos en Tamaulipas’, Latin American Research Review, vol.47, no. 3, pp. 41–61. — 2012b,’Opinión de los polleros tamaulipecos sobre la política migratoria estadounidense’, Migraciones Internacionales, vol. 6, no. 3, pp. 173–204. Khosravi, S 2010, ‘Illegal’ traveller: an autoethnography of borders, Macmillan, London. Koser, K 2008, ‘Why migrant smuggling pays’, Journal of International Migration, vol. 46, no. 2, pp. 3–26. Noriega, R 2011, Hezbollah in Latin America: implications for US Homeland Security, 7 July, Hearing of the Subcommittee on Counterterrorism and Intelligence Committee on Homeland Security, US House of Representatives. Robbins, T 2006, A backlash in Phoenix over immigration from Mexico, radio program, NPR Morning Edition, 14 March, viewed 26 February 2014, http://www.npr.org/templates/story/story.php?storyId=5260526 Rollins, J & Wyler, L 2010, International terrorism and transnational crime: security threats, US policy and considerations for Congress, Congressional Research Service, Washington, DC. Spener, D 2009, Clandestine crossings: migrants and coyotes on the Texas/Mexico border, Cornell University Press, Ithaca, NY. US Immigration and Customs Enforcement (ICE) 2011, ICE arrests 108 at Phoenix human smuggling drop house, news release, 25 May, viewed 26 February 2014, https://www.ice.gov/news/ releases/1105/110525phoenix.htm Van Hear, N 2004, ‘“I went as far as my money would take me”: conflict, forced migration and class’, Working Paper No. 6, Centre on Migration, Policy and Society, University of Oxford. Van Liempt, I 2007, Navigating borders: inside perspectives on the process of human smuggling into the Netherlands, Amsterdam University Press, Amsterdam. Zhang, S 2007, Smuggling and trafficking in human beings: all roads lead to America, Praeger Publishers, Westport, CT. — 2008, Chinese human smuggling organizations: families, social networks, and cultural imperatives, Stanford University Press, Stanford, CA. Zhang, S & Chin, K 2002, The social organization of Chinese human smuggling: a cross national study, San Diego State University, San Diego, CA.

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

Introduction As a woman I have no country. As a woman I want no country. As a woman, my country is the whole world. (Virginia Woolf, Three Guineas, 1938)

From a work of fiction, these celebrated words of Virginia Woolf today sound more fictional than ever. As the world is getting smaller, people’s desire to move is growing (Aas 2007). Cross-border flows of goods and capital as key features of globalization are increasingly juxtaposed with crossborder flows of people. As Sassen (2010: 26) points out, advanced capitalism brings ‘immiseration and exclusion of growing numbers of people who cease being of value as workers and consumers’. Feminization of survival (Sassen 2000), in which households and whole communities are dependent on women for their existence, is an outcome of shrinking employment opportunities that both men and women in the Global South have been facing for the past four decades. In this context, one of the most noteworthy changes in global migration patterns is the feminization of migration (Castles and Miller 1998). In 2013, women comprised about 48 per cent of all international migrants (UNDESA and OECD 2013); in some countries, this number rises to 70 or even 80 per cent (UNFPA 2013). While historically women largely migrated as dependants of their male partners, contemporary migration patterns increasingly incorporate women migrating independently or as a part of ‘family migration’ (Freedman 2007). For the vast majority of women from the Global South, however, there are no legal migration options to the Global North (Morrison and Crosland 2000; Pickering 2011). Lack of options does not hinder women’s desire to pursue a better life or their longing for global mobility. Yet women are less likely to reach their destination, due to financial constraints they experience during the journey, violence and exploitation while on the road, and the fact that they often travel with children (Freedman 2007). In addition, as will be argued in this chapter, the roadblocks set up by nation states through conventional and ‘humanitarian’ crime control measures can considerably hinder women’s journeys.

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As Freedman (2010: 175–6) notes, the question of ‘how to deal with the “problem” of asylum seekers has become a major theme for political debate for most countries in the global North’. Within a growing population of asylum seekers across the globe, ‘the most vulnerable are often the least visible: women and children’ (APC/CZA 2013a). Women’s documented and undocumented cross-border journeys are increasingly linked to exploitation, violence and abuse, especially trafficking in people (UNFPA 2013).Women asylum seekers are vulnerable to violence prior and during border crossings, and are often portrayed as lacking agency and in need of protection and/or rescue. This chapter presents preliminary findings from a research project that looks at mobility and border control in the Western Balkans, in the context of European Union (EU) integration. The research was conducted in the period August–December 2013 and involved semi-structured interviews (n = 30) with various government agencies and non-governmental organizations that work on issues of asylum, migration and mobility in Serbia, Croatia, Hungary and France. Respondents were employed in a range of national and international agencies and nongovernmental organizations,1 as well as government agencies2 and academia. The research also encompassed over 50 hours of fieldwork observation in the centre for asylum seekers in Bogovadja (central Serbia) and in the city of Subotica near the Serbian-Hungarian border (Figure 19.1). Observations included monitoring of the daily routine of, and informal conversation with, asylum seekers in Bogovadja, and observing asylum seekers’ activities and locations near the Serbian-Hungarian border. Finally, semi-structured interviews with women asylum seekers (n = 4) in Bogovadja were also conducted. Interviewed women came from Afghanistan (n = 2), Iraq and Iran, aged between 22 and 60 years, all with dependent children. Interviews were conducted in English and simultaneously translated into Farsi and Arabic, thanks to Khandan,3 an asylum seeker from Iraq who contributed to this research both as an interviewee and interpreter. Drawing on primary research data, as well as media analysis in Serbian newspapers and digital news outlets in the period August–December 2013, this chapter sketches an exploratory picture of intersections of (im)mobility, asylum and anti-trafficking initiatives in Southeast Europe. Using a case study of the Republic of Serbia, the chapter takes a closer look at the process that is likely to position countries of the Western Balkans as future border custodians of the EU’s Southeast frontier, and reflects on the likely impact of these processes on the status of vulnerable categories of non-citizens,4 especially women asylum seekers.

Entangled: an evolving maze of gender, (im)mobility, asylum and trafficking Asylum policies, media representations of asylum seekers and academic analysis have for a long time exhibited gender-blindness, a lack of any reference to gender and the effect asylum policies have on women asylum seekers (Freedman 2007). Attention to the plight of women asylum seekers was first paid in relation to the vulnerability of women on boats in the early 1980s (ibid.); a decade later, the issue had started to generate increased attention in the international arena (Forbes-Martin 2004; Hunt 2008; Freedman 2010). Contemporary responsiveness to women asylum seekers has been explained by both the proliferation of women refugees in global statistics and an increased pressure by feminist activists and academics for a greater recognition of gender in the asylum debate and international instruments for refugee protection (Baines 2004). However, most recent attention to the issue has come from a different source. Contested by a competing agenda of security in border policing, asylum policy is currently an object of tough regulatory frameworks by the nation states of the Global North (Hunt 2008; Freedman 2010). 288

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HUNGARY

ROMANIA CROATIA

BELGRADE Bogovadja BOS NIA AND HERZEG OVINA

S E R B I A

MONTENEGRO B U L GA R IA

ALBANIA MACEDONIA

Figure 19.1 Map of Serbia showing Bogovadja Source: Courtesy of Shutterstock (http://www.shutterstock.com/).

In a post-Cold War and post-9/11 era, asylum seekers are no longer a symbol of the superiority of the West but a cause for asylum crisis (Castles 2003) and ‘system overload’ (Loescher 2001). Globalization generates a sense of anxiety encompassing the modern state; a condition Berman (2003) calls a crisis over boundaries. The process of separating kinetic elites from the kinetic underclass (Adey 2006) is formalized by a series of interventions in the area of border management. The Smuggling Protocol of the UN Convention against Transnational Organized Crime sets a legal obligation for nation states to criminalize all extra-legal border crossings (Pickering 2011). A global crackdown on illegal immigration (ibid.) carried out by the fortification of external borders of the EU, the US and Australia further limits legal options for mobile bodies from the Global South and additionally heightens the worldwide asylum crisis. Viewed as threat to national security, stigmatized and criminalized, asylum seekers and other undocumented migrants 289

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are who labelled as the ‘unwanted Other’ who must be stopped before they cross the border (Freedman 2007). They are increasingly denied the opportunity to leave their country of origin or country of transit, in a form of presumptive refoulement (Morrison and Crosland 2000) – a negation of non-refoulement as a key principle of asylum policy that prohibits states from returning refugees and asylum seekers to places where their lives or freedom would be threatened (UNHCR 2010). Border-hardening interventions shift asylum seekers’ migratory patterns towards more risky, less policed and less accessible places (Boswell 2003). In this context, as Pickering notes, ‘the experience of extra-legal crossing is significantly different for women’ (2011: 1) and is indeed more dangerous, even fatal (Weber and Pickering 2011; Pickering and Cochrane 2013).Although the number of women asylum seekers has been stable for the last decade, comprising 48 per cent of the overall number of asylum seekers in the world (UNCHR 2012), the number of women who reach the Global North is disproportionately small. In the EU, for example, almost threequarters of asylum applicants aged over 14 are male (EUROSTAT 2012).These statistics indicate that women asylum seekers face additional difficulties and obstacles that confine their mobility and interrupt their journeys. Financial difficulties, pregnancies and travelling with small children often aggravate already difficult border-crossing projects. In addition, women asylum seekers are more exposed to (sexual and other) violence during the journey (Pickering 2013). As Malkki (cited in Freedman 2010: 193) argues, women refugees and asylum seekers ‘tend to embody a particular kind of “powerlessness” in the Western imagination’. In the Western media women asylum seekers are often portrayed as helpless victims of their culture (Freedman 2010) and/or people smugglers (Sanchez 2013). Humanitarian policy responses to refugees and asylum seekers are, thus, based on the notion of agency-deprived victims in need of protection, and are founded and developed without women’s voices or participation (Freedman 2010). Importantly, the potential victimization women may face on their (mostly undocumented) journeys can become an important impediment that may further restrict women’s migratory process. The lack of legal options for entry to countries of the Global North means that more women and men use extra-legal, undocumented alternatives to undertake their migratory projects (Lee 2011). As Koser (2001) notes in the context of the EU, the restrictive measures put in place on the external borders of Fortress Europe directly increase the demand for people smugglers. A ‘helping hand’ from smugglers makes women and men more exposed to exploitation and abuse, including trafficking in people and sex trafficking (Koser 2000; 2001; Morrison and Crosland 2000; Boswell 2003; UNHCR 2006; Akee et al. 2010; Galonja and Jovanovic 2011; Koricanac, Petronijevic and Ciric 2013). Described as the dark side of globalization (Apap, Cullen and Medved 2002; Berman 2003), the trafficking issue resurrected in the 1990s was firmly located in debates on the (il)legitimacy of sex work and the dangers of illegal migration and transnational crime (Milivojevic and Pickering 2013). As I argue elsewhere, it is no coincidence that the renaissance of trafficking coincided with the end of the Cold War, which generated a heightened mobility of mobile bodies from the Global South (Milivojevic and Pickering 2013).This was the time, as Berman (2010) reminds us, when the West was in a state of duress from forces associated with globalization. While a ‘doomsday’ scenario (Cohen 1991) of migration floods followed by thousands of young, naïve women from Eastern Europe enslaved in brothels across the West never occurred, the trafficking hype continued. Contrary to extra-legal border crossings, trafficking has the criminal victim (Pickering 2011), and the one who needs to be ‘rescued’ (Segrave, Milivojevic and Pickering 2009; Lee 2011). While the Smuggling Protocol criminalizes extra-legal crossings, its twin protocol within the UN Convention Against Transnational Organized Crime, the Trafficking Protocol (nominally), sets to liberate (mostly female) victims of trafficking. Saving ‘trafficking Cinderellas’ (Doezema 290

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2000) – vulnerable mobile bodies from the Global South that need to be saved from sexual exploitation – is a key rationale for the reinforcement of external borders across the Global North and the introduction of restrictive migration and mobility policies (Apap, Cullen and Medved 2002; Freedman 2007; Segrave, Milivojevic and Pickering 2009; Lee 2011; Milivojevic and Pickering 2013). The Trafficking Protocol in Article 11 provides that nation states ‘shall strengthen, to the extent possible . . . border controls as may be necessary to prevent and detect trafficking in persons’ (UN 2000), without specifying what such border control should entail (Edwards 2007). At the same time, the concept of ‘evil’ traffickers serves as ‘a suitable enemy for the reinforcement of state power’ (Nelken 2010: 490, original emphasis). Merging global threats and local fears about migration (Aas 2007) and constructing trafficking as transnational organized crime, thus, further reinforces border-hardening processes (Milivojevic and Pickering 2013; cf. Lee 2011; Segrave, Milivojevic and Pickering 2009). The countries of Global North aim to restore the order at the border by criminalizing trafficking, prosecuting traffickers, prioritizing border policing and implementing prevention measures designed to immobilize potential migrants (Boswell 2003; Segrave, Milivojevic and Pickering 2009; Berman 2010). In order to reach this goal, however, they need a wider, more far-reaching frontline.

Expanding Fortress Europe: from villains to border custodians, Serbian style The process of European integration in the 1990s initiated the pursuit of a unified border management and asylum policy. A range of policies, including hi-tech security technology mechanisms (Neal 2009; Milivojevic forthcoming) has been developed to strengthen the EU flanks and prevent the arrival of migrants and asylum seekers in their country of destination.5 While the tightening of external borders in Europe is largely achieved by the Schengen Accords (1995), the process of EU enlargement extended the process of border securitization to the acceding countries of Central and Southeast Europe. The key aim of such policies is to ‘keep as many asylum seekers as possible away from European borders, and to reduce the numbers to whom refugee status is granted’ (Freedman 2007: 136).This process of offshoring, or as Pickering (2011) calls it ‘contracting out’, of border policing and asylum-preventing strategies to acceding states (also known as the ‘external dimension’ of EU cooperation in justice and home affairs) is developed to counterbalance the perceived vulnerability of the EU after the abolition of internal borders (Boswell 2003). Under the rubric of cooperation with non-EU and acceding countries, the EU ‘essentially externalize[s] traditional tools of domestic EU migration control’ (ibid.: 619). Serbia, a Former Yugoslav state riddled by two decades of war and economic crisis, has been in the process of accession to the EU since 2000. After removing key obstacles to the process of accession,6 the Serbian Government is under pressure to undertake a number of initiatives relating to border and migration management, and to harmonize its border policies with the EU framework (Renner and Trauner 2009). Serbia has been instructed to develop a mechanism for migration monitoring, including a methodology for inland detection of undocumented migration, to implement a National Returnee Reintegration Strategy and ensure effective expulsion of undocumented migrants found on its territory (European Commission 2008; Djordjevic 2009). Serbia implemented a series of legislative mechanisms and policies governing the movement of people across borders, asylum and migration management, as requested in the Roadmap Towards a Visa Free Regime with Serbia (European Commission 2008; cf. Milivojevic forthcoming). Government efforts in the area of migration and mobility were rewarded with a visa liberalization agreement with the EU (2009), full EU candidate status (2012) and the start of an official negotiation process with the administration in Brussels (2013; Serbian European 291

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Integration Office 2013). Originally a country of origin for refugees and asylum seekers, Serbia is currently a country of transit for migrants from Africa and Asia and a country of origin, mostly for Roma (IOM 2008). The Western Balkan route of extra-legal migration on which Serbia is located remains one of the most troublesome in Europe (FRONTEX 2013). Thus, one of the key tasks set for Serbia in the process of EU accession is preventing undocumented migrants from reaching the European Union. The 2013 report on Serbian progress in EU integration indicates that Serbia has made progress in the area of migration control. However, like to other countries in the region,7 the number of migrants transiting through Serbia in so-called ‘mixed-migration’ (a combined number of undocumented economic migrants and asylum seekers – APC/CZA 2013b) is escalating. In 2012, more than 13,900 migrants were registered in Serbia, a growth of 34 per cent compared to 2011. Given that not all migrants are registered, this number potentially represents ‘no more than 30 per cent of all migrants that transit through Serbia’ (respondent 9, INGO, Serbia; for more estimates, see APC/CZA 2013b). A Belgrade-based NGO working on issues of migration and asylum estimates that at least 20,000 people transited through Serbia in 2013 (respondent 2, NGO, Serbia); over 13,000 people who passed through Serbia in the first six months of 2013 sought asylum in Hungary (mostly from Kosovo, Pakistan, Afghanistan and Syria – respondent 10, NGO, Hungary). Although the migratory pressure on Croatia is not as strong yet, since the country is not a member of the Schengen Accords (respondent 21, GA, Croatia), the sharp rise in the number of migrants transiting through Serbia and heading towards Hungary has not been followed by the development of a functional asylum system. After the Law on Asylum was passed in 2008 there were around 77 requests for asylum in Serbia. In 2009 this number rose to 275, yet a sharp increase occurred in 2012 (2,723) and 2013 (3,200 in the period January–September) (respondent 9, INGO, Serbia; also in Beogradski centar za ljudska prava 2013; UNHCR 2013). In the overall period since the establishment of the asylum system in Serbia (from 1 April 2008 when the Law on Asylum was passed) until 1 November 2013 there were 10,048 asylum applications; 10 people were granted asylum or another form of protection (APC/CZA 2013b). The concept of a ‘safe third country’ including all neighbouring countries is applied in rejecting claims of asylum seekers on procedural grounds (Beogradski centar za ljudska prava 2013). Consequently, most asylum seekers do not seek asylum in Serbia or leave shortly8 after lodging an application, depending on their financial situation (respondent 20, NGO Serbia). They continue on towards Hungary and the EU, bringing the Serbian asylum system under close scrutiny by the administration in Brussels.

Immobilizing non-citizens: asylum, gender, vulnerability and ‘protection’ In autumn 2013 asylum seekers emerged as a top social and political topic in Serbia, with over 300 media reports and TV shows in the period August–November 2013. A humanitarian crisis in which approximately 200 asylum seekers slept in a forest outside an overcrowded Bogovadja asylum centre prompted the government to action. Under pressure from the EU, Serbian officials toughened their border-management rhetoric, publicly declaring that the state will ‘reinstate order’ on its borders (State Secretary in the Ministry of Internal Affairs, Sky Plus 2013), as well as ‘take repressive, restrictive measures to stop and . . . fiercely punish [abusers of the asylum system]’ (ibid.). This immobilizing process also captures women asylum seekers. Largely invisible in the media, women asylum seekers constitute around 14 per cent (and growing9) of the overall asylum population in Serbia (APC/CZA 2013c). While men asylum seekers are predominantly immobilized through conventional border control measures, interrupting women’s journeys is, 292

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as my research demonstrates, achieved through both border control interventions and narratives of potential victimization. Women asylum seekers in Serbia are commonly debated in the context of vulnerability and proneness to victimization and exploitation (Galonja and Jovanovic 2011), as ‘women as such are more vulnerable [than men]’ (respondent 3, NGO, Serbia). Sexual exploitation in country of origin and while in transit is common for women, especially those from Africa: A few women told us they know women forced into prostitution, their pimps saying ‘You have to work otherwise you are dead, you have no papers.’ They even tell us about women being killed in Greece. I think they were from Nigeria . . . Women also told us about rape and sexual violence that happens on border crossings between Greece and Macedonia. (respondent 6, NGO, Serbia) A shared concern among the service providers, NGO activists and government officials I talked to is that some women asylum seekers might be trafficked if they continue their journey. While the majority of women transiting through Serbia travel with family members or in groups, the number of women travelling alone is growing (respondent 3, NGO, Serbia; respondent 5, GA, Serbia; respondent 6, NGO, Serbia). This population is identified as especially at risk of exploitation, including trafficking (respondent 5, GA, Serbia; respondent 15, NGO, Croatia; respondent 19, NGO, Serbia): Women travelling alone are a group we follow closely. Firstly, because they travel alone, especially if they are young, so we immediately think forced prostitution, we are worried about that . . . We follow them more closely if they are without fathers, husbands. (respondent 19, NGO, Serbia) The lack of masculine protection as a risk for victimization can be traced back to the white slave trade in the late nineteenth century (Doezema 2000; Segrave, Milivojevic and Pickering 2009). Similarly, intersections of gender, age, education and exposure to sex work/extra-legal border crossings caused by women’s limited options are also key indicators of potential victimization and exploitation by traffickers: Young women are extremely vulnerable to trafficking. Some of them are probably already trafficked . . . They make compromises to keep moving forward. When you are alone, when you are a woman, in a place like Greece or Serbia where sexual services are requested in exchange for smuggling . . . they are forced to engage in prostitution . . . and that is a good opportunity for traffickers. (respondent 2, NGO, Serbia)

They are at risk as they cross borders illegally, they stay illegally, they travel with smugglers, with criminals . . . They are also not educated or have limited education . . . don’t speak English, don’t have many choices and rely on people who can trick them. (respondent 19, NGO, Serbia) Respondents also drew a parallel with the experiences of trafficked women from Serbia in the 1990s. The notion of vulnerable, naïve, young women is predominant in this narrative, as it is in 293

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the mainstream anti-trafficking discourse (Doezema 2000; Andrijasevic 2007; Segrave, Milivojevic and Pickering 2009; Lee 2011): Girls say, ‘I want to be a babysitter, I want to go to school’, similar to what women from Serbia talked about fifteen years ago . . . We see the same delusions again. When we work on prevention . . . we give them information about trafficking and how to recognize it . . . They have unrealistic goals. When we say to them ‘Things might not be like that’, they don’t want to hear it . . . They want to go to paradise, as they really think Europe is a paradise. (respondent 2, NGO, Serbia) Women often have unrealistic expectations, such as I will be a doctor once I get there.You can’t be a doctor if you are 23, have no education and you think you can be a doctor in Norway. A large number think they will be hairdressers, babysitters, work in supermarkets . . . They think it will be easy. (respondent 6, NGO Serbia) They know there is such thing as trafficking . . . but don’t think it can happen to them. So we try to explain to them they are potential victims too . . . We tell them how to recognize the signs whether they are trafficked already or might be trafficked in the future. (respondent 19, NGO, Serbia) Interestingly, a narrative of ‘westernization’ and its impact on the vulnerability of women to trafficking (Morawska 2007) is linked to women who transit through Greece. A ‘transformation’ that happens to some women while in transit is perceived as a risk factor that can make them more vulnerable to exploitation and trafficking: The transformation that happens in Greece is visible; some of them are more European than [Serbian] women. They all have hair like Rihanna; they embraced European culture in Greece. Girls really don’t understand what it means; this is all a popular culture level; they feel like a celebrity, like modern girls. But they don’t understand what it all means. And when you talk to them, do they understand where they are headed . . . this creates problems once they get there as they don’t understand the place they are going to. (respondent 6, NGO, Serbia) Similar to my previous research on trafficking (Segrave, Milivojevic and Pickering 2009; Milivojevic and Pickering 2008), women’s potential or actual engagement in the sex industry is a red flag for agencies and organizations that work with asylum seekers. Such suspicion is immediately reported to the authorities: There are women from Eritrea who travel alone and want to be hairdressers or babysitters. There are cases where we suspect that women have been or still are engaged in prostitution. You can tell when you look at them . . . We as a state agency watch and listen to this population and everything we see or hear we pass on [to the authorities] . . . The police and other agencies come to [asylum centres] from time to time to talk to certain people . . . All the info we get we pass on. (respondent 5, GA, Serbia)

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The way they behave, the way they dress . . . might spark a suspicion [about trafficking]. Then we report it to the authorities. (respondent 15, NGO, Croatia) Women assessed as vulnerable to trafficking are ‘educated’ about risks of victimization. The proliferation of information campaigns aiming to prevent undesirable migration and discourage potential migrants from leaving the Global South has been extensively documented in the literature (Boswell 2003; Andrijasevic 2007; Nieuwenhuys and Pécoud 2007). In Serbia, education campaigns and individual interventions by NGOs and law enforcement target women in transit, specifically women who travel alone. A key issue identified by service providers is that it is ‘hard to fight trafficking as [women] don’t stay here; they are simply in transit’ (respondent 2, NGO, Serbia). As one respondent pointed out, women asylum seekers come to Serbia to ‘rest, heal, feed, get some clothes, get money and then move on’ (respondent 5, GA, Serbia). This is problematic, as women asylum seekers need more time to ‘open up’ and acknowledge victimization. Thus, even when they reject psychological help, ‘we give her more time and leave a possibility for a meeting with psychologist open’ (respondent 3, NGO, Serbia). Women identified as being at risk of trafficking are approached by psychologists, social workers, police and the Serbian government’s anti-trafficking agency, advised about risks if they continue the journey and instructed to rethink their migratory processes: We try to demystify the destination for them. We don’t want to scare them, but want to tell them that trafficking in people exist everywhere. So this place where they are going, regardless of how advanced and rich it is, might also be a place where they will become victims . . . They all use smugglers . . . and we try to explain them that smugglers are often connected with traffickers, or maybe are traffickers themselves. (respondent 19, NGO, Serbia) Andrijasevic (2007) and Weitzer (2007) demonstrate that anti-trafficking campaigns tailored for women specifically target the risk of sex trafficking. My respondents confirm that women are warned about trafficking for the purpose of sexual exploitation, while men are (sporadically) educated about labour trafficking: You have to shake them up a bit, to sober them up a bit, that the fact they are young and pretty is a risk that someone will traffic them into sex industry . . . With guys, we talk about labour exploitation, that they can be drug trafficking mules, trafficking in body parts, as that is closer to them, more likely to happen. (respondent 19, NGO, Serbia) Counsellors also closely observe women who don’t want to participate in anti-trafficking sessions; they often talk to women’s legal advisors to make sure there is no danger of trafficking (respondent 19, NGO, Serbia). Finally, if identified as victims, women are offered a victim status in the country of transit (respondent 19, NGO, Serbia; respondent 15, NGO, Croatia). Juxtaposed with narratives of victimization and risk are stories of vulnerability, survival and perseverance narrated by women asylum seekers in the asylum centre in Bogovadja. Similar to previous recorded testimonies of women asylum seekers in Serbia (APC/CZA 2013a), women I talked to described journeys that are not linear, but delayed and intercepted (cf. Pickering 2011). Limited options prompt women to reach out to people smugglers; all the women I talked to use ‘agents’ (a jargon term for smugglers) to assist them with their journeys. Yet, stories of 295

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women I talked to confirm the work of Pickering, Weber, Cochrane and others that women’s journeys are more likely to be intercepted. Many women (temporarily) stumbled at the gates of Fortress Europe. As Zainab from Iraq testified, a young woman from Africa with a seven-monthold baby recently came back to the asylum centre in Bogovadja after police caught them at the Serbian-Hungarian border. Delaram left Afghanistan five years ago, contrary to her husband’s wish. She made him leave the country, but they spent five years in Turkey unable to cross the Turkey-Greece border. Delram’s husband is now in Switzerland and she is still in Serbia. As she explains, ‘The situation is always perfect for man, not woman.’ Women’s non-linear journeys incorporate more than just temporary setbacks. Although most women I talked to have the destination set before they leave their country of origin, some of them had to change their plans: I went to Turkey and stayed three months there to leave to Australia. But there was big problems, boats crashed, and my dad called and asked me to change, so I am going to England but that was no, so I just want to move anywhere. I’m thinking about Germany. (Khandan, Afghanistan) Women asylum seekers are often the first ones to show agency and initiative in negotiating challenges on the road, even when they are most vulnerable: I approached a group of women and men in the ‘jungle’.10 They were from Afghanistan. One woman was pregnant, and another wasn’t. When I came they all got really scared, and hid in the bush. I showed them that I am bringing them water, and the two women approached me while men stayed behind. That was odd, given they were women from Afghanistan. They didn’t say a word. All my questions were answered with ‘thank you’ . . . The following day they were gone. (respondent 20, NGO, Serbia) Khandan was on the road for a year and a half and still has bad dreams about border crossings. She went on a 14-hour walk through Greece and Macedonia, and recorded every step of her journey on her mobile. Khandan’s progress is not halted by pregnancy; she is now expecting her third child but is unlikely to stay in Serbia until the birth. A respondent who assists asylum seekers at the border city of Subotica also confirms that pregnant women regularly cross borders. Pregnancy, however, is not always a mitigating circumstance: A woman from Syria was four months pregnant . . . She travelled with her partner and another couple . . . They slept at the railway station, as there is some heating . . . A police officer told them if they stay one more day – as they were there for three days – he would beat them up with a baton. And a woman is pregnant! . . . But when police came back they let her to sleep there . . . I once saw a woman; she was from Afghanistan and eight months pregnant. (respondent 20, NGO, Serbia) Pickering and Cochrane’s (2013) ground-breaking work demonstrates that pregnant women are more likely to die at the border frontier. Yet, that does not stop women asylum seekers in their pursuit for a new life and a new beginning for their children. As Khandan confessed: I look into future. For my child, future be better . . . I wish better for my child. Because of that I always try . . . The door [leading to the future] is always better for me. 296

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Conclusion Freedom of movement is a fundamental human right embedded in Article 13 of the Universal Declaration of Human Rights and Articles 12 and 13 of the International Covenant on Civil and Political Rights. Given that globalization is ‘a composite of processes that generate patterns of exclusion, pockets of wealth, and sites of violence’ (Giles and Hyndman 2004: 302), this right ceased to be universal (Milivojevic and Segrave 2010). Framed as a security risk, the right to mobility and asylum is increasingly being removed from the mobile bodies of the Global South. Border-hardening policies across the Global North that incorporate various interventions at and beyond the borderline close the gate to a range of unwanted ‘Others’, including asylum seekers. It is not sufficient that rejection rates of asylum claims in some European Countries are over 90 per cent (Freedman 2007); the goal is to immobilize mobile bodies ‘at the very door of EU . . . and effectively disable their access to the asylum system’ (respondent 11, ACAD, Croatia). Thus, the process of offshoring border control mechanisms to countries of origin and countries of transit is of the utmost importance in creating ‘buffer zones’ or a ‘cordon sanitaire’ of the EU (Morrison and Crosland 2000: 47). As demonstrated in the case study of Serbia, through the implementation of requirements set by the EU, accession states need to demonstrate both the capacity and willingness to become the first line of defence in the EU’s external border management framework. Importantly, this transfer of mechanisms of border control to participating states effectively creates new factories of exclusion in contemporary Europe and erects a new wall that extends well beyond its external borders. As I have argued elsewhere (Milivojevic 2012), women and men from the Global South are trapped in ‘liquid immobility’ – immobility that can (albeit with great difficulty) be transformed into legal mobility. Border lockdown limits their legal options, shifting migratory patterns towards more risky, less accessible places, and human smugglers. For women, these already risky journeys are significantly harsher.Their migratory processes are more likely to be interrupted by personal and financial difficulties, as well as sexual and physical violence.Their reliance on people smugglers makes them more vulnerable to exploitation and abuse, including trafficking. Policy development that follows the EU extension in Southeast Europe further limits legal options for asylum seekers, at the same time promoting tough law and order responses to trafficking and smuggling. Trafficking as a ‘transgressive practice that calls into question the sovereign performance’ of nation states across the Global North, became ‘an ideal site at which [control over their borders] can be legitimized and practiced’ (Berman 2003: 52). The notion of agency-deprived asylum seekers, potential victims of trafficking and exploitation in need of protection calls for interventions and a rescue that further immobilizes women migrants. A robust scholarship in trafficking literature successfully demonstrates how damaging antitrafficking interventions are for the rights and mobility of trafficked women (or those perceived to be vulnerable to trafficking). Kempadoo and Doezema (1998), Sassen (2000), Berman (2003), Lee (2011), Segrave et. al. (2009) and others effectively demonstrate that the law and order responses and criminalization of trafficking do little to stop trafficking or protect women from exploitation.What they do manage, however, is to further restrict women’s legal migration options. The notion of turning popular strangers into unpopular foreigners was first seen in antitrafficking discourse (Berman 2003); today, we see it in debates on asylum seekers. As the Serbian case study demonstrates, by implementing harsher border control measures, nations at the new frontier of Fortress Europe fulfil their role of a sieve that impedes mobile bodies in transit. Women migrants, however, are additionally immobilized by humanitarian/rescue interventions. Narratives of potential victimization and trafficking are used not only to protect the state from extra-legal migrants and migrant sex workers (Segrave, Milivojevic and Pickering 2009; Lee

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2011), but also asylum seekers. If travelling alone and/or with children, women are assessed as vulnerable, stopped, questioned and warned about the dangers that await them if they proceed. Yet again, vulnerable, young, naïve women from the Global South are perceived as in a need of rescue, especially if they are believed to be sex workers. As the anti-trafficking interventions need time, women are encouraged to prolong their stay in asylum centres. Subsequently, women are ‘scared and immobilized’ (Koricanac, Petronijevic and Ciric 2013: 18), while current interventions ‘risk not so much solving the problem of trafficking but rather ending the right of asylum’ (Morrison and Crosland 2000: 5). Mobility is still an exclusive right for those who occupy the higher tiers of the ‘hierarchy of mobility’ (Bauman 1998); trafficked women, women asylum seekers and female mobile bodies from the Global South are not, and are unlikely to be, members of that elite club. Yet, as Nieuwenhuys and Pécoud (2007) argue, the success of these interventions is dubious as most women manage to cross borders and leave Serbia (respondent 3, NGO, Serbia). The case study of Serbia shows that the gates of Fortress Europe are porous. The numbers of undocumented migrants and asylum seekers who manage to transit to and through Serbia are rapidly growing. After a series of reprimands from Brussels, Serbia is taking on the role of custodian of the external border more seriously. Further changes to border control management and migration management more broadly are already on their way, making ‘borders harder to cross’ (respondent 6, NGO, Serbia). These measures include not only traditional border control mechanisms but also the anti-trafficking immobilization measures analysed in this chapter. Finally, as Lambert, Pickering and Alder (2003: 166) noted a decade ago: It is no longer acceptable (if it ever has been) to ponder questions of human rights apart from issues of experience or attempts at narration by and with those who are always talked about but never found within esteemed legal and political commentary. The voices of women migrating through Serbia tell us about courage, survival, vulnerability, resistance and hope. Women’s disjointed and troubled journeys confirm that women migrants are exposed to additional obstacles while on the road. The very fact they have reached Serbia ‘is a proof of their resilience and determination’ (APC/CZA 2013b, p. 11).They do not move as fast as men; they often change their migratory plans but do not give up, even when pregnant. They are exposed to victimization but manage to stay afloat. Women show agency and determination and continue with their journeys.What motivates them is a desire for a better life, for themselves and their children: I want to change everything. I want a normal life. I didn’t have it but I want a normal life for my children. I have to make it happen for them. (APC/CZA 2012a: 11) Mobility control measures, whether traditional or ‘humanitarian’ can perhaps succeed in temporarily restraining women from the Global South from their cross-border projects. An important question that critical criminologists and feminists alike need to keep asking is – at what cost?

Notes 1 Such as UNHCR, Helsinki Committee, MigrEurop, Serbian Asylum Protection Centre, Belgrade Centre for Human Rights and others.

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2 Ministry for Internal Affairs, Serbian Office for European Integration, Serbian Commissariat for Refugees and Migration, European integration offices, law enforcement and others. 3 All women participants were given pseudonyms to protect their identity. All other participants in the research are identifiable based on the country they come from and whether they are representatives of a governmental agency (GA), non-government organisation (NGO), international non-governmental organization or agency (INGO), or academia (ACAD). 4 Limited space in the chapter restricts the focus to non-citizens only, that is, to women asylum seekers who transit through Serbia. An article on strategies to immobilize Serbian citizens who seek asylum in the EU is in the final stages of preparation and will be published later this year. 5 Some of the measures include in-country processing for asylum seekers in countries of origin and transit, growing number of countries with visa regimes and carrier sanctions (Koser 2001). 6 Key obstacles were arrests of war criminals Ratko Mladic and Radovan Karadzic and the negotiation process with Kosovo. 7 Croatia recorded an increase of 400 per cent in undocumented border crossings for the period 2009–12 (respondent 11, ACAD, Croatia). 8 An average stopover for asylum seekers in Serbia is around three weeks (respondent 19, NGO, Serbia). 9 The majority of respondents confirmed an increase in the numbers of women in the population of asylum seekers who transit through Serbia. 10 Informal dwellings asylum seekers’ live in, usually next to borderlines or asylum centres.

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Pickering, S 2011, Women, borders and violence, Springer, New York. — 2013, ‘Deadly borders: women and children seeking asylum’, The Conversation, 3 April, viewed 24 January 2014, http://theconversation.com/deadly-borders-women-and-children-seeking-asylum-13099 Pickering, S & Cochrane, B 2013, ‘Irregular border-crossing deaths and gender: where, how and why women die crossing borders’, Theoretical Criminology, vol. 17, no. 1, pp. 27–48. Renner, S & Trauner, F 2009, ‘Creeping EU-membership in Southeast Europe: the dynamics of EU rule transfer to the Western Balkans’, Journal of European Integration vol. 31, no. 4, pp. 449–65. Sanchez, G 2013, ‘Four corners: human smuggling and the spectacle of suffering’, The Conversation, 19 November, viewed 22 January 2014, https://theconversation.com/four-corners-human-smugglingand-the-spectacle-of-suffering-20405 Sassen, S 2000, ‘Women’s burden: counter-geographies of globalization and the feminization of survival’, Journal of International Affairs, vol. 53, no. 2, pp. 503–24. — 2010, ‘A savage sorting of winners and losers: contemporary versions of primitive accumulation’, Globalizations, vol. 7, no. 1, pp. 23–50. Segrave, M, Milivojevic, S & Pickering, S 2009, Sex trafficking: international context and response, Willan Publishing, Devon. Serbian European Integration Office 2013, Serbia and EU: history, viewed 23 December 2013, http://www. seio.gov.rs/serbia-and-eu/history.60.html Sky Plus 2013, Srbija Realno, online video, viewed 22 December 2013, http://www.youtube.com/ watch?v=FGVwclHxtKw UN 2000, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime, viewed 22 January 2014, http:// www.osce.org/odihr/19223 UNDESA & OECD 2013, World migration in figures, viewed 23 December 2013, http://www.oecd.org/els/ mig/World-Migration-in-Figures.pdf UNFPA 2013, Linking population, poverty and development, viewed 23 December 2013, http://www.unfpa. org/pds/migration.html UNHCR 2006, Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, HCR/GIP/06/07, 7 April, UN Refugee Agency,UNHCR, New York. — 2010, Convention and Protocol Relating to the Status of Refugees, viewed 24 January 2014, http://www. unhcr.org/3b66c2aa10.html — 2012, UNHCR Statistical Yearbook 2012, 12th edn, viewed 22 January 2014, http://www.unhcr. org/52a7213b9.html — 2013, ‘Asylum seekers in Serbia in 2013’, internal report, UN Refugee Agency. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke. Weitzer, R 2007, ‘The social construction of sex trafficking: ideology and institutionalization of a moral crusade’, Politics & Society, vol. 35, no. 3, pp. 447–75.

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20 Labour trafficking and illegal markets Marie Segrave

Introduction Criminology has long held an interest in the connection between criminalization and markets; where the intention of the state is to stop or control access to goods or services through making it illegal (or making their unauthorized transport illegal).Yet the outcome is the creation of illicit markets which, as Andreas (2013) has recently argued, have formed the backbone of national economies. For example, the prohibition of alcohol and other drugs around the world historically and contemporaneously has not resulted in reduced consumption or a reduction in production but in the creation of significant illicit markets. Legislative frameworks serve not only to demarcate what is prohibited, but also to sustain, justify and provide the parameters for law enforcement, which provides an opportunity for the power of the state over its citizens to be performed in the practice of arresting, detaining and imprisoning those who break the law.There is a significant body of work examining the relationship between law enforcement and illegal markets (Dorn and South 1990; Hornsby and Hobbs 2007; Reuter 2013); of interest here is the connection between the state performance of authority and sovereignty via the border and border enforcement. Clandestine cross-border activities – including people smuggling and drug trafficking – are not new, nor are efforts to assert control via border regulation (Burke 2008). We have seen the border performance targeted to prevent the undesired threatening ‘Other’ in place since the birth of nations such as Australia (ibid.). But over the past decade borders have become an increasingly important location for the exertion of state power and the production of state identity through efforts to shore up and maintain control via the border crossing, through the targeting of illicit goods and the unauthorized movement of people across national borders (see Andreas 2000; Pickering and Weber 2006; Lee 2011). It is within this context that this chapter is located. The focus of the chapter is the interconnection between labour trafficking1 and exploitation, illegal markets and the regulation of mobility, within the context of processes associated with globalization. While human trafficking and illegal markets exist within the confines of national borders, this chapter is focused on the intersection of human trafficking and illegal markets that involve non-citizens and the application of the border regulation apparatus within the nation that seeks to target both victims of exploitation (trafficking) and illegal migrant workers.The chapter offers an analysis that is situated within an emerging field of criminological

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inquiry that looks beyond the traditional focus on the criminal justice institutions of police, courts and prisons (Garland and Sparks 2000: 191) towards a criminology ‘informed and transformed by a critical, global perspective’ (Pickering and Weber 2006: 2). This analysis begins by contextualizing human trafficking and migrant labour exploitation within the broader processes and practices accompanying globalization. Within this framework human trafficking may be identified as an exploitative practice arising (at least in part) out of patterns of globalization and migration. The analysis also identifies that the illicit international political economy (IPE) is closely connected to the licit international political economy, which offers insight into the importance of foregrounding labour as commodity in a globalized market when examining the intersection of criminalization and exploitation as experienced by unskilled or low-skilled migrant labourers. This can interrupt the focus on only the most extreme circumstances of exploitation and enable us to attend to the impacts of the myriad of regulatory regimes that oversee migration and labour. The chapter examines how responses to human trafficking and unlawful migrant labour enable a performance of state authority via the border regime while ensuring no examination of the state’s role in creating and sustaining the conditions within which both occur. It also challenges the variation in terminology applied to labour trafficking. The discussion then briefly focuses on the situation in Australia to identify the absence of any policy recognition of the overlap between illegal migrant labour and exploitation that includes human trafficking. The consequence, as this chapter will argue, is the maintenance of conditions of vulnerability and exploitation for non-citizens and a failure to consider how various parts of the state regulatory apparatus – from criminal justice to immigration to labour regulation – all contribute to maintaining conditions within which cheap labour is desirable and exploitable.

Background The impact of processes of globalization on practices of state power is a recent consideration within the criminological landscape, yet it is increasingly recognized that the analysis of state power and the regulation of mobility should be situated within this milieu (Weber and Pickering 2011).We must recognize the shifting and interconnected practices pertaining to the international political economy, state regulation and enforcement, and the connected developments within the illicit international political economy (Andreas 2011). This requires attending to the intensified focus on shoring up territorial security at the border (from the frontier to the internal border, see Weber and Pickering 2011) as one of few remaining domains for asserting sovereign control. Simultaneously we need to examine the patterns described as the underside of globalization – including shifts in migration and labour patterns that include a reliance on cheap labour in industrialized or high-income nations, the devaluation of certain forms of work such that citizens of these nations are unwilling to perform these tasks, and a labour market that can operate outside the boundaries of regulation with an assured supply of workers willing to work without the security of being regularized labour (see Berlinsci and Squicciarini 2011; Kagan et al. 2011; Shamir 2012). This foundation recognizes (most often low-skilled or unskilled) migrant labour as caught in the net of the criminalization-migration-security nexus; that is, the intersection of sovereign border enforcement (internal and external) and the identification of ‘undesired’ migrant populations to enable enforcement practices that are connected to the performance of security (Weber and Pickering 2011: 2; see also Wonders 2006; Aas 2007). These ideas are developed in more detail below, followed by a discussion of the consequences of these developments in relation to the international response to human trafficking and the lived realities of unskilled or low-skilled migrant workers seeking opportunities for survival. 303

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Globalization and illicit markets The complex set of processes and practices characteristic of globalization (Sassen 1998; Berman 2003; Dauvergne 2004) have been accompanied by two important and related developments: changes to the role, function and practice of ‘the state’, and changing patterns of (and responses to) international migration. Mobility is central to both of these developments. The expansion of the global economy has been heralded as creating a ‘new international order’ (Sassen 1998: xxix; see also Berman 2003) enabling the cross-border flow of information, goods, labour, people and finance, and the emergence of transnational legal regimes (Sassen 1998; Wonders and Michalowski 2001; Doty 2003). In this, processes of globalization have been recognized as disrupting ‘the parameters of state power’ (Wonders 2006: 73). It has also, however, created a new legal order defined by enabling and inhibiting forces; as Roxanne Doty has described, globalization is characterized by a ‘sense of perpetual movement and flow on the one hand and forces at work to temper or halt these movements on the other hand’ (2003: 6–7). The border has become a key site where we can identify the tension of the enabling and disabling practices accompanying globalization, where the state encourages some forms of transnational mobility (such as tourism and skilled labour migration) while actively discouraging and preventing others (such as permanent migration of unskilled labourers (Sassen 1998; Wonders and Michalowski 2001; Doty 2003)). In working towards achieving this ‘balance’ it is the policing apparatus of the state – involving both policing and immigration agencies and, increasingly, other state agencies – which is ‘expected and empowered to maintain the boundaries between insiders and outsiders, to enforce law and order, and to project at least the appearance of securing national borders’ (Andreas 2000: 152). The creation of extensive legislated border regulations and the associated powers and processes to enforce those regulations has given rise to a significant and diverse illicit economy. The breadth of this illicit economy extends to the illegal movement of legal commodities to evade tariffs, the illegal movement of banned commodities, the movement of people across borders illegally via smuggling or other clandestine border crossings and/or via the use of false passports or visas to enable travel (Andreas 2011).There are markets that are enabled by regulation including crimes that pertain to the smuggling (and trafficking) of goods (drugs, weapons, jewels such as diamonds, antiquities (Alder and Polk 2002)), animals and animal products (including endangered/native species (Schneider 2008), ivory, fur, fish (Tailby and Gant 2002)) and human organs (Ambagtsheer and Weimar 2012) as well as illicit activity related to the manufacture or obtaining of these goods/products. This broad range of practices, with their specific internal economies requires careful and specific analysis – of interest here is to simply note that while the practice of market liberalization may seem at odds with the practice of market criminalization and, indeed, far from the reality of border enforcement (Andreas 2011), they are in fact intimately connected. As the licit and illicit markets are interdependent, there is a need to attend carefully to the practices related to the criminalizing of specific markets (including the labour market, by regulating migrants’ ability to participate in the workforce) and the impact this has for creating and sustaining black market economies. Indeed it is through the creation of regulation and demarcating of the licit that the boundaries of illicit market activities are defined (Sassen 1998). Part of the expansion of the purview of criminological inquiry includes this examination of the connection between the shifting ground of state power and international political economy. The work of scholars such as Andreas has turned attention to the necessity of attending to the international political economy (‘the relationship between states and international markets’, Andreas 2011: 642) and the illicit international political economy: the ‘relationship between states and illegal international markets’ (ibid.: 642). As Andreas notes: ‘International political economy

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and illicit international political economy are not separate worlds empirically even though they have traditionally been separate worlds of study’ (ibid.: 644). The connection between legal and illegal economic activities is interdependent: global networks (communication, banking) facilitate licit and illicit activities and national economies benefit from illicit activities including unregulated labour (Berlinsci and Squicciarini 2011).While some questions are left to be pursued by IPE and international relations (IR) scholars, (for example, what is the role of the state in fostering (illicit) market competitiveness? What is new about (illicit) globalization? See Andreas 2011), the questions critical criminologists can ask pertain to the impact of criminalization. In the context of an increased international commitment to disrupt illegal cross-border mobility of people and goods, as evidenced by the United Nations Convention against Transnational Organized Crime, we have witnessed multiple discourses arising in relation to the importance of border policing within the nation and at the border crossing. These include concern about illicit mobility and vulnerability, particularly in relation to women’s and children’s irregular movement across borders and their potential to be victims of human trafficking; but there is also a discourse of criminalization that plays out within the national context in different ways (as I examine below in relation to Australia). The pawns in these processes are low-skilled migrant labourers seeking opportunities to travel and earn money, pointing to the interconnection between criminalization, mobility, labour and exploitation.

Labour, the illicit market and exploitation The connection between the internal law and order regime and the border regulatory regime is critical to the opportunity for, and ability of, migrant labourers to cross borders to seek employment opportunities. The regulation of mobility has effectively created significant barriers for movement for low-skilled migrants from the Global South. At the nexus of the complex labour migration patterns lie opportunities to exploit those who seek mobility but who are denied it, and those who seek labour opportunities and are denied or restricted (Berman 2003). Limited opportunities to migrate legally do not disrupt the desire or need to move, but they do impact upon the journey. Where opportunities for people to migrate independently and legally are fewer, alternative means of migration thrive (for example, where visa options are limited or the required documentation for travel is unaffordable, people resort to people smugglers, or accessing false documents). This also impacts on their status upon arrival in a country of destination. For those who arrive without a visa, there are no work rights. For those who arrive on a visa who fit the ‘less desirable’ profile of migrants, work rights tend to be limited if available at all, and thus survival may require becoming ‘unlawful’ as a consequence of working (working illegally, working beyond the amount specified by the visa, etc.). As migrants seek out travel and work opportunities, many others – nations and individuals alike – seek to profit from their labour. In this way both movement across borders and labour are forms of interconnected ‘clandestine . . . cross-border economic activity’ (Andreas 2000: 5). The connection between regulation and exploitation is rarely acknowledged and these patterns are rarely analysed, by criminologists at least, in relation to broader economic developments. There are extensive practices in place connected to the internationalization of the neoliberal economic market that are impacting on migration law and law enforcement, labour and mobility trends. One example is labour deregulation (which has created complex processes of contracting and subcontracting), the impact of which includes increasing labour uncertainty in the search for ever-cheaper labour markets (Wills et al. 2010, Kagan et al. 2011: 10). Examining labour exploitation and national responses to exploitation and illegal migrant labour must be situated within an analysis that can recognize that specific forms of labour have been devalued ‘to the 305

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point at which they’re difficult to fill, which is where the migrant worker comes in; they are willing to accept low pay, poor working conditions’ (Kagan et al. 2011: 10) and seek opportunities to cross national borders regularly or irregularly to fill labour needs. This willingness to accept poor labour conditions, which may become exploitative, is the precarious location of labour as a commodity, where migrant workers without or with limited rights to work in a host country offer themselves as labourers with the knowledge that they are disposable and replaceable. As Berlinsci and Squicciarini (2011) have noted, illegal migrant labour plays an important role in host countries’ economies, but this is never (or rarely) acknowledged. Rather, nations, including Australia and the UK, make commitments both to protect national workers and to uphold the migration regime via raids to detain and deport illegal workers. Critical here is the interconnection between social order and spatial order (Neocleous 2003); that is, the identification of the connection between the domestic (national) criminal justice process and the technologies of control exercised to protect and uphold the border regime (spatial order), a regime that includes complex visa conditions for migrants pertaining to labour participation in the country of destination. Recognizing the contribution of unlawful migrant labour and the limits in effectively pursuing it, we can begin to identify that it is the performance of order that is at stake, more so than ensuring the entire workforce is regularized, paying tax and less likely to be subject to exploitation. Citizenship is a crucial component in these processes. Aas has identified citizenship as the point of differentiation between ‘the so-called crimmigrants and bona fide travellers’ (Aas 2011: 337) and hence a defining marker of exclusion. Not all noncitizens are subject to the same processes of regulation. We can see this in the rushed granting of asylum to promising cricketer, Fawad Ahmed, to enable him to play for the Australian national cricket team (Glenday 2014).There are exceptions to the application of the regulatory apparatus, which can be brought to light via the recognition of the selective emphasis on some forms of exploitation that enable the status of illegal non-citizen to be overridden by the status of victim. Through examining the overlap between trafficking, exploited migrant labour and exploited unlawful migrant labour, we can examine how citizenship determines the limits of responsibility for the state in responding to exploitation. It also demonstrates a response to ‘illegal work’ that separates illegal migrant work from the illegal work undertaken by thousands of Australian citizens a day – work which operates in the cash economy. Indeed, citizenship becomes critical because the status of unlawful may contribute to powerlessness and invisibility within regulatory systems. Ruhs and Anderson (2010) argue that focusing on the state’s role in creating illegality and the impact of this fails to acknowledge the migrant-actor and his/her agency in making decisions about his/her immigration status and decision to work with or without work rights. We return to this later, but it is necessary to examine how overarching frameworks of illegality or victimization can effectively erase aspects of the migrant experience and also silence any discussion of the conditions that give rise to and sustain illicit micro economies dependent on an irregular labour force.

Naming exploitation: human trafficking, labour trafficking, slavery, forced labour? Over the past decade the international community and some components of the criminological, international relations and international political economy scholarship (see Beare 2013, for an overview of key literature) have examined exploitative practices related to cross-border mobility within the frame of transnational organized crime (TOC): as evidenced by the UN Convention on Transnational Organized Crime (with three supplementary protocols that attend to human trafficking, people smuggling and firearms). However, transnational organized crime is a limited 306

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framework – it offers little in the way of progressing an understanding of these complex practices, and fails to consider the role of nation states in creating conditions that ensure exploiting people remains a profitable business. Finally, it presumes a model of organized illicit activity that research on human trafficking has revealed has little resonance with the complexity (and fluidity) of illegal and exploitative practices (Segrave, Milivojevic and Pickering 2009; Lee 2011). For the international community, however, the current TOC framework, within which the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol) sits as a supplementary protocol, has resulted in nations, researchers and advocates often distinguishing between sex trafficking and labour trafficking. Labour trafficking is utilized as a point of distinction from trafficking into the sex industry. In part, this reflects an awareness that the early implementation of anti-trafficking measures focused almost exclusively on trafficking into the sex industry. However it is a problematic distinction for many reasons not least because it separates sex work from other forms of labour and also implies that the exploitation that occurs in the sex industry is necessarily different from that in other labour spheres. This is not true – sexual exploitation can occur in any industry and most often, sex workers who experience exploitation are concerned about remuneration, work hours and work conditions and other factors that resonate with the experience of exploited workers in other industries (Maher, Pickering and Gerard 2013). There is a significant body of work identifying the problems of the Trafficking in Persons Protocol as a framework for national responses (Berman 2003; Hathaway 2008; Lee 2011). However, recognizing the limits of transnational organized crime is only part of the story. There is a burgeoning field of research, advocacy and policy that labels exploitation linked to mobility and labour in various ways. Some components of this focus on the border crossing (i.e. forced, willing; smuggled, trafficked, etc.), which is not the focus here, rather it is the messy and changing terminology around exploitation – partly determined by the understanding/framing of the cross-border process. Without going into too much detail, the frameworks of slavery and forced labour are two predominant fields of examination. The use and application of slavery terminology tend to be associated with journalistic and sensationalist outputs that rely heavily on case study narratives and extreme forms of exploitation to shock audiences about some of the worst kinds of exploitation that are occurring across the globe (see, for example, Bales 1999 for an academic foray into slavery). Slavery, however, has significant baggage from earlier uses, as Doezema (2000) has noted, and it is limited not least because it sets a significantly high legal bar in order to meet a definition, which requires, effectively, complete control or ownership of an individual (see Lee 2011). It is also limited because of its focus on the extreme of exploitation, so it is not useful to those subjected to poor working conditions, significant deductions from pay for accommodation and transport, and/or poor remuneration, significant fees for the contractor, etc. It is also limited because the migrant labourer and their agency are absent, the migrant becomes a victim and their agency is overridden as a consequence of being effectively ‘owned’. Finally, it fails to locate conditions under which employers may seek to exploit workers to increase their profits. Consequently, it remains a partial framework, at best. The forced labour framework is in some ways the opposite of the slavery framework in terms of breadth. The Internal Labour Organization (ILO) defines forced labour as ‘all work extracted from any person under the menace of a penalty for which the person has not offered himself voluntarily’ (ILO 2012), with six indicators specified in 2005: threats or actual physical harm, restriction of movement and confinement, debt bondage, withholding wages or excessive wage reductions, retention of passports and identity documents, and threat of denunciation to the authorities (and these indicators are used by researchers in studies) (ibid.). The forced labour framework is not differentiated from human trafficking. In 2012, the ILO published the Global 307

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Estimates of Forced Labour: Results and Methodology, in which it was stated that ‘human trafficking can also be regarded as forced labour, and so this estimate captures the full realm of human trafficking for labour and sexual purposes’ (ibid.: 13). Rather than being different or separate, forced labour offers a framework of exploitative labour conditions that operates on a continuum, and human trafficking practices may occur along that continuum. Some researchers have similarly utilized the forced labour framework. For example, Shamir states that ‘all forms of labour entail some degree of human commodification; forced labour and trafficking are perhaps its most extreme manifestations’ (2012: 110). However, forced labour has a number of important limitations. First, it recognizes labour, but stops short of recognizing agency in labour choices evident through the use of the term ‘forced’. As a consequence, a forced labour approach also precludes the recognition of the interconnection between the illicit international political economy of labour and migration and the impact of border regulation. In addition, the application of the forced labour framework, within which human trafficking is subsumed, does little to challenge the dominant counter-trafficking paradigm. As a consequence human trafficking remains distinct legally and politically from other (lesser) forms of migrant labour experiences of human trafficking. While slavery and forced labour offer alternatives to the predominant human trafficking framework, the Trafficking in Persons Protocol remains the guide for how nations should be responding to human trafficking and the distinction between sex trafficking and other forms of labour trafficking is predominant (USDOS 2013). To examine the concerns raised above, I now turn to examine the situation in Australia, comparing the scant data and response to illegal workers and human trafficking.

Examining the details: Australia One of the major challenges in writing, researching and examining the illicit markets and exploitation that occurs at the intersection of labour, mobility and criminalization is the absence of accurate reliable data (see Goodey 2008; Andreas and Greenhill 2010; Andreas 2011; Knepper 2012). As Andreas has observed, it is largely economists who have been given licence to apply their creative thinking in order to quantify the illicit economy (Andreas 2011: 646), and in the fields related to irregular mobility and exploitation, the numbers may best be described as ‘fuzzy’. The ILO (2014), for example, estimates ‘that at least 20.9 million persons worldwide are victims of forced labour, trapped in exploitative work which they are unable to leave, suffering at the hands of unscrupulous employers, labour contractors or agents’. However, these numbers do not distinguish between trafficking and forced labour as the ILO sees these practices as part of a continuum. The Trafficking in Persons (TIP) report used the estimate of 27 million persons trafficked globally in its 2013 publication (USDOS 2013). As many have noted, the use of such figures may be useful for giving some indication of the problem we are attempting to deal with, but they should be used with caution, as numbers can be used for a variety of ends, not always towards the protection of the most vulnerable (Segrave, Milivojevic and Pickering 2009; Goodey 2012). Data is critical, however, to tell us what we know and do not know, as well as giving us some insight into some potential issues surrounding enforcement that require examination. So we turn then to examine the data in Australia pertaining to human trafficking and illegal migrant work. Estimates of the numbers of people trafficked to Australia have generally been conservative, with quotes ranging from 300–1000 people annually (Segrave 2004). The Australian Institute of Criminology (AIC) reported in 2012 that between 2004 and 2011, 305 investigations and assessments of people trafficking-related offences were conducted by the Australian Federal 308

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Police’s Transnational Sexual Exploitation and Trafficking Teams (TSETT) and 13 people were convicted for people trafficking-related offences (nine of the 13 defendants were convicted of slavery offences, three of sexual servitude and one of people trafficking) (Joudo-Larsen et al. 2012). There is no publicly available data regarding the migration status of victims at the time they were identified. On a volume scale, the number of cases coming to the attention of the authorities is indicative of there being either very few cases or very few cases detected. The reasons for low detection have been well developed elsewhere (see Segrave, Milivojevic and Pickering 2009).What is important to consider is not so much the estimates of human trafficking but the data in relation to unlawful migrant labour and the enforcement data with regards to both issues. In Australia, it is estimated that there are between 50,000–100,000 unlawful migrant labourers (defined by working in breach of visa conditions or working while having an unlawful migration status, possible for a range of reasons including the expiration of their visa) (Howells 2010: 7). We know that the rate of detection of unlawful migrant workers is far lower than the estimated total population; for example, in 2012–13, 2,161 non-citizens were identified as working illegally in Australia (DIBP 2013a). Critically, while the majority of illegal workers are identified in the areas of work that are seasonal and/or require an on-demand, flexible workforce, between 2004 and 2011 the Australian Federal Police (AFP) focused on investigations related to trafficking for sexual exploitation (149 women in the sex industry, 19 men outside the sex industry) (APTIDC 2011). The most recent data for 2012 revealed that of 44 cases referred to the AFP, 29 were investigated, of which 38 per cent (approximately) ‘related to suspected transnational sex trafficking, with the remainder relating to labour trafficking’. However, ‘the majority of labour trafficking cases were addressed through civil mechanisms’ (USDOS 2013: 78). There was no data regarding the industries where labour trafficking occurred. However, it is noteworthy that ‘illegal workers’ were identified predominantly in three key industries: (1) agriculture, forestry, and fishing; (2) accommodation and food services; and (3) construction. The majority of suspected victims of trafficking to date have been located in the sex industry. While the 2012 data suggests the trafficking data may continue to shift towards more detection of trafficking outside the sex industry, overall there is a focus on the sex industry as a site for victimization and other industries as a site for illegality. Such a trend requires more detailed examination of the practices involved in detection but it also points to the need to consider the policy and regulatory frameworks that have been designed to target and respond to these issues. The federal government’s commitment is to address the ‘significant problem’ posed by ‘illegal work’ (Howells 2010: 7). Unlawful migrant labour has been described as ‘undermin[ing] the integrity of the Australian labour force’ (Bowen in Commonwealth of Australia 2012: 13) and a threat to ‘the integrity of our migration and visa program’ (Evans 2008). The federal policy response has been ‘zero tolerance’ detection and deportation policies (Evans 2008). This national policy framework defines and responds to unlawful migrant labour as a regulatory problem – to be actively pursued via migration, criminal justice and labour regulation. Yet there is emerging evidence that internationally and nationally unlawful migrant labourers are vulnerable to criminal victimization and workplace exploitation, including human trafficking, which is made possible by their unlawful migration status (Anderson and Andrijasevic 2008; Segrave 2009; Aas 2011). While there have been multiple inquiries into unlawful migrant labour (Howells 2010) and exploitation experienced by lawful migrant labourers (Deegan 2008), there has been no investigation into exploitation experienced by non-citizens without work rights. Little is known about their welfare or work conditions. In comparison, the response to human trafficking in Australia is focused on exploitation, victimization and criminal justice priorities (see Segrave, Milivojevic and Pickering 2009). 309

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Introduced in 2003, the legislation has undergone a number of iterations to amend the approach slightly, including recent shifts to acknowledge the importance of addressing labour trafficking as well as sex trafficking, but it mirrors the efforts outlined by the Trafficking Protocol, to which it is a signatory (Segrave, Milivojevic and Pickering 2009). In 2013, the Commonwealth legislation was further amended and now includes offences specific to human trafficking, slavery, and slavery-like practices including servitude, forced labour, deceptive recruiting for labour or services, debt bondage, and forced marriage (Attorney-General’s Department 2014). Despite the relatively low detection numbers and the very limited success rate in terms of convictions, the Commonwealth government has pointed to the success of this model (Segrave and Milivojevic 2010). If law enforcement data was relied upon to be indicative of the situation, it would suggest that human trafficking is a very minor issue in Australia.There is significant attrition through the criminal justice process: from referral to investigation, then from investigation to prosecution (see ANAO 2009; Segrave and Milivojevic 2010). In the seven-year period from 2004 to 2011, of 305 cases referred to the AFP, only 13 convictions were recorded for trafficking-related offences (Joudo-Larson et al. 2012). While attrition of cases is not necessarily a failure of the system, it suggests that in the first place relatively few cases are being detected, and for those that are, many do not have sufficient circumstances/evidence to warrant further investigation and/or do not meet the legal standard required to pursue a case under the existing trafficking legislation. On the one hand, this does give rise to the need to examine the legislative framework, though the Australian legislative framework was amended in 2013 and as such what is most of interest is what will follow in cases in 2014 and beyond. However, to date, what is clear is that very few cases of human trafficking are being identified and this cannot be assumed to be a reflection of the lack of exploitation occurring, but rather the lack of detection. For the purposes of this chapter, however, it is most important to note that enforcement practices may be having little if any positive impact on processes of illegality, vulnerability and exploitation. What is the international and national response within this space? In Australia, sanctions and enforcement efforts to target illegal work (aimed at employers and migrants) have been in place and have increased over the past decade, in the absence of any evidence that this has reduced the numbers of unlawful migrant labourers.2 It is important to note that the vulnerability of workers being employed illegally is listed as one of the drivers for increasing sanctions, with the assumption that criminalization and punishment of unlawful migrants will deter other migrants from working illegally. The 2013 TIP report, as effectively the most influential review process for response to human trafficking (Gallagher and Chuang 2012), recognized the Australian government’s ‘modest number’ of trafficking prosecutions, criticized the limited number of victims identified, and recommended that the appropriate response is ‘vigorous prosecution efforts’ but also called for increased training for frontline officers to recognize victimization and to attempt to identify victims ‘through methods other than immigration compliance actions’ (USDOS 2013: 79). These final two recommendations are suggestive of the recognition that human trafficking and illegal work are being targeted by the same authorities and that this approach to identifying victims of exploitation is inherently problematic. The overlap of exploitation and illegality is an area that is challenging to research and reveal, not least because the details of the performance – the decisions made by authorities most often in immigration compliance raids – are carried out in places far away from the border and from public scrutiny, while the ‘riches’ are the efforts reported to the public in terms of rescuing victims (see Weber 2012, for AFP statements regarding rescuing victims) or, more often, detaining and deporting illegal migrant workers (DIBP 2013b, 2013c). These ‘riches’ are, however, clearly thin on the ground with the detection of victims extremely limited and the detection of illegal migrants also limited. For this discussion, I now turn to consider the broader impact of these two distinct 310

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approaches to illegal migrant labour and human trafficking, which are not recognized as impacting a shared population of unskilled or low-skilled legal and unlawful migrant workers. We can recognize, first, that citizenship is critical. Both regular (legal) and irregular (unlawful) migrant workers (e.g. skilled migrant visa holders) experience exploitation (Howells 2010; Boese et al. 2013). This is true elsewhere, as Kagan et al.’s research on Chinese workers in the UK has revealed. When Senator Evans publicly declared the Government’s ‘zero tolerance’ approach to illegal labour in response to an immigration compliance raid, he noted that there were some suggestions of mistreatment of workers. However, he did not declare a zero tolerance approach to exploitative work conditions. No such approach has been declared since he departed the role of Immigration Minister and no such commitment has been made to date. The emphasis on illegality rather than exploitation is critical to how we respond (Shamir 2012). The focus on illegality of status matters because it serves to separate unlawful non-citizens from issues of exploitative work conditions and ensures that human trafficking remains a situation of exploitation that is most often determined in the context of immigration enforcement. When a zero tolerance approach to illegal workers, not to exploitative work conditions, is the focus, systems of protection and enforcement are generally problematic for a number of reasons including the following. First is that they are developed and enforced by those with a primary duty to uphold national security priorities and enforce national borders (i.e. upholding individual rights is not their priority, nor is providing support or protection, though it is part of their remit) – the violation of the border supersedes violations against workers, unless the conditions are such that exploitation is clearly detectable (as noted by many, this is rarely the case, cf. Segrave, Milivojevic and Pickering 2009). Criminal sanctions and prohibitions are insufficient at best and, at worst, fail to recognize that not only do they not end exploitation but they can contribute to ensuring that the options available to exploited workers remain few or are further limited (see also Shamir 2012: 132). Second, there is a stark separation from migrant workers’ intentions (e.g. intent to work, to get paid) and the rights violations perpetrated against migrant workers – their intentions are punished and the harms suffered are ignored. The current response is not focused primarily on addressing broader vulnerabilities but on seeking out and deporting unlawful noncitizens who are working illegally and threatening employers with significant fines for employing non-citizens without work rights. The focus is not on trying to regulate illegal work sectors – the cash economy, for example. Finding and deporting individuals who are working illegally does not address or reduce the number of people working without work rights. It does, however, create a context whereby individuals are increasingly vulnerable to a range of potentially exploitative practices. Third, these protection and enforcement systems construct definitive scenarios and litmus tests for determining levels of exploitation that have limited connection with the reality on the ground. For example, it has been argued that compliance officers will be able to identify exploited workers when they conduct raids – this is a problematic claim, as we’ve learned in relation to human trafficking (Segrave, Milivojevic and Pickering 2009). In the example of human trafficking, the legal definition of trafficking has meant very few cases are recognized as such, and situations where 457 visa holders essentially experience the same level of exploitation but are not recognized as victims of trafficking (Segrave and Milivojevic 2010). Protection is only afforded to those recognized as fitting into a narrow legal definition of victimization. These broad observations of patterns of regulation and enforcement in Australia highlight important implications for consideration in the study of the criminalization-migration-security nexus, in particular the importance of attending to the intersection here of labour, the illicit 311

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international political economy of labour (where labour is a critical commodity) and its regulation.

Conclusion The intersection of labour trafficking, illicit markets and illegal labour is an example of what Wonders has labelled the ‘choreography’ of the dance that constitutes the border performance, shaped by state policies and laws, but also by larger global forces (Wonders 2006: 64).We see that unlawful migrant labourers occupy a precarious position as both potential victims (of workplace exploitation and/or human trafficking) and potential offenders (of migration and labour laws). The demonization of illegal migrant workers, however, serves to ensure labour practices and the link between regulation and exploitation remain invisible, whilst ensuring a constant flow of workers to exploitative or precarious work contexts, as the need for and desire of migrants to find work, regardless of their visa restrictions or migration status, are a constant. Labour as a commodity is a critical element of this analysis and an area that requires further examination, as does its connection to citizenship and security. The security of migrant workers (lawful or unlawful) and the regulation of labour practices remain a secondary priority to regulating migrant status, from the perspective of the state. These concerns must also be within the global economy and the continued shifting power of the nation-state. It is clear that examining the intersection of illegal migrant work-exploitationcriminalization-labour trafficking requires analysis of the illicit international political economy of labour, where labour itself is a commodity that is part of the illicit market, and the negotiation of migrant lives and livelihood in the midst of numerous national and international tensions and priorities. Shamir (2012) has argued a labour approach to human trafficking enables disparity between workers and employers to be addressed, but this intervention also enables recognition of the role of the state and the importance of holding the state to account for exploitation that is occurring not just because of what it is failing to do but in fact as a result of what it is doing. The machinations of migration, labour and economics are intimately connected and, as a consequence, efforts in one area have implications and impacts for practices and patterns across all three. Internal border enforcement practices extend beyond the criminalization of asylum seekers and irregular migrants to include labour regulation. In so doing they ‘serve to reinforce the identity and perceived security of the nation-state and its legitimate members’ (Weber and Pickering 2011: 20) including the identity of legitimate labour, adding a further layer to contemporary practices described by Bosworth and Guild (2008) as ‘governing through migration control’. This governing also ensures not only that ‘illegal’ labourers are, drawing on Dauvergne, ‘erased from within’ (2004: 601) via the exclusionary demarcation of their nonbelonging, but that the broader context of labour markets and the connection between border policing, migration policy and labour markers are also erased. Shamir (2012: 109) argues for a recognition of the ‘pervasive and systemic economic, legal and social factors that commonly contribute to patterns of labour exploitation’ that calls in particular for recognition of the structure of labour markets and ‘the ways in which they maintain structural power imbalances’. The operation of labour markets and their regulation, the management of mobility and the intersection of exploitation and criminalization must be the focus of future examination.

Notes 1 Throughout the chapter the terms labour trafficking and human trafficking are used interchangeably. They are understood here to refer to the same phenomenon. The contemporary push to distinguish

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between sex trafficking and labour trafficking, as argued later in the chapter, is understood by this author to reflect a moral judgement surrounding the status of sex work as labour and/or to reinforce an assumption that either sex trafficking involves, necessarily, sexual exploitation and/or that sexual exploitation does not occur in industries outside the sex industry.The research conducted by this author and many others has refuted this assumption (Doezema 2000; Segrave, Milivojevic & Pickering 2009). 2 In 2012 the Migration Amendment (Reform of Employer Sanctions) Bill 2012 was introduced with the intention of increasing the provisions to both monitor and sanction those involved in employing (directly or indirectly) illegal workers (Commonwealth of Australia 2012: 14).

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

Introduction The former British colony of Hong Kong became a Special Administrative Region of the People’s Republic of China in 1997 under the binding principle of ‘one country, two systems’, whereby Hong Kong would become economically more integrated with the Pearl Delta Region in southern China while retaining its common law legal system and a degree of political autonomy guaranteed under the Basic Law for 50 years. As the local Business Council Report (Fung 2005: 17) explains: ‘The two economies should foster cooperation and compete together as one entity in world markets . . . [and] remove any barriers which may hinder or interrupt the efficient movement of people and goods.’ One of the manifestations of this political transition is the construction of distinct, multi-tiered border control processes between Hong Kong and mainland China. For Hong Kong citizens, unlimited travel across the border is relatively straightforward with a ‘Home Return Permit’. Mainland Chinese citizens, on the other hand, are subject to different layers of internal border control depending on their place of origin, and the purpose and the duration of their visit to Hong Kong. Paradoxically, under the gradual liberalization of internal border control and economic integration since 1997, the increasing flow of citizens across the border (in both directions) has led to the heightened visibility of border trading – a longstanding grey market – and in the process, heightened tensions of social political identities and exclusionary sentiments. This chapter seeks to examine the emergence and consequences of this internal border paradox through a case study of the criminalization and policing of cross-border parallel trading of infant milk formula in Hong Kong. In recent months, thousands of ordinary Hong Kong citizens and non-citizens cross the Hong Kong-mainland Chinese border on a daily basis smuggling large quantities of everyday items such as infant milk formula, nappies, beauty products, and various food products which have become highly sought after in the mainland largely because of public concerns over product safety, and secondarily brand prestige. This chapter considers the social tensions between parallel traders and local communities along the internal border, the representation of the illicit market of parallel trading not only as a crime problem but also as a threat to the existing way of life, and the current deployment of hybrid forms of border policing by a range of enforcement agencies. In doing so, we draw on a substantial

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body of sociological and criminological literature that regards the concept of borders as fluid and shifting, both extra- and intra-territorially, and as contested physical and discursive spaces (Pickering and Weber 2006; Aas and Bosworth 2013). Indeed, much has been written about borders as deeply rooted in assumptions of a common sense of belonging (Balibar 2010) and as key sites for the expression of state power and violent technologies of control (Donnan and Wilson 1999; Pickering 2006). Moreover in a deeply stratified global order, ‘border maintenance and thereby social exclusion’ are increasingly legitimized through a discourse of crime control, transforming ‘issues of global privilege and scarcity of resources’ into questions of illegality, security and morality (Aas 2013: 34). Through a case study of the policing of unwanted flows under China’s policy of ‘one country, two systems’, our aim is to provide critical insights into the paradoxical effects of political and economic integration policies on new forms of criminalization and the convergence between the criminal justice and immigration regimes in the policing of borders as markers of cultural otherness and non-belonging. This analysis draws on a number of secondary sources including government policy and statistical reports, legislative responses and hearings, and via Wisenews, a systematic review of newspaper reports in the local English and Chinese newspapers from 1 January 1998 to 31 December 2013. Search themes included ‘parallel traded goods’, infant milk formula, multi-entry permits for mainland visitors, the melamine scandal, enforcement operations against smuggling and illegal export, and ‘Liberate Sheung Shui’. Our discussion has been further informed through occasional and informal fieldwork at the border over the past 12 months.

‘One country, two systems’ The history of Chinese migration and border control in Hong Kong is a highly politicized and chequered one. There were no official border restrictions between the former British colony and China until the founding of the People’s Republic of China in 1949. ‘Mainlanders could come and go or even settle in Hong Kong freely without prior approval from the Hong Kong administration’ (Yep, Ngok and Baoshu 2004: 228). Since then, there have been periods of tightened migratory control where cross-border controls were stepped up, immigration law was strictly enforced, and the repatriation of illegal Chinese immigrants became routinized. Migration from the mainland peaked in the post-Second World War years and provided the much-needed capital and labour for the then manufacturing-based economy and the rapid industrialization of Hong Kong. In the contemporary context, Hong Kong’s economic fortunes are inextricably linked to China’s rise as a global economic powerhouse. China is the main source of investment in Hong Kong accounting for just under half of its total HK$751.8 billion inward direct investment in 2011 (Census and Statistics Department n.d.). A key aspect of Hong Kong’s economic agenda as ‘Asia’s World City’ has been to attract high-spending Chinese tourists from the mainland’s ‘hugely promising market’ and to encourage ‘short-duration consumption visits for shopping, dining and entertainment’, ‘weekend and independent travel’ and ‘cross-border travel by high-yield business visitors’ (Hong Kong Tourism Board Association 2006). The strategic importance of mainland tourism to the local economy cannot be over-emphasized.The total tourism expenditure associated with overall inbound tourism was worth HK$296.5 billion in 2012. Against this background, the number of mainland visitors accounted for 71.8 per cent of Hong Kong’s total arrivals in the same year (Tourism Commission, The Government of the Hong Kong Special Administrative Region n.d.). Despite growing political and economic integration, mainland Chinese have always occupied a position of difference in the imagined community of Hong Kong; their lifestyles, daily routines, 317

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aspirations and values are markers of cultural otherness and non-belonging and serve as a reminder of the contradictions and tensions in a deeply stratified global order. Mainland immigrants in Hong Kong were conspicuous in the way they looked, behaved, and spoke [while the] military presence, the heightened political sensitivity, the ubiquitous national symbols, the less modernized cities, and the deficient consumer market on the mainland were readily apparent to [Hong Kong] cross-border travellers in the 1980s and 1990s (Mathews, Ma and Lui 2008: 132) Many scholars have written about the persistent notion of mainland migrants as a social and economic burden and their supposedly inferior cultural identity as central to the Othering of mainland Chinese, while others have noted the more complex processes by which Hong Kong people are coming to ‘recomprehend’ the nation through their cross-border encounters at work and through consumption (Lui and Chiu 2009; Ma 2012). The growing cross-border flows of mainland citizens into Hong Kong seems to have exacerbated struggles over border maintenance and assumptions about collective identity. As Balibar (2010) puts it, borders are ‘deeply rooted in collective identifications and the assumption of a common sense of belonging’. In the Chinese context, there has been an intensification of public sentiments against the twin processes of what has been described as the ‘mainlandization of the Hong Kong polity’ (Lo 2007: 179) and the identification of mainlanders as a threat to Hong Kong’s collective identity and way of life. This is best illustrated by the full-page advertisement in local newspapers in 2012 which attacked mainland Chinese as ‘locusts’ ‘infesting’ the city and straining public resources such as health and education systems in Hong Kong (The Wall Street Journal China Realtime 2012). The public outcry against mainland ‘birth tourists’ and the subsequent government policy of ‘zero delivery quota’ for mainland women with non-local spouses1 have led to a tightening of immigration examination of pregnant mainland women at border control points and a spate of arrests, prosecutions and imprisonment of (expectant) mainland mothers for immigration violations.

From leisure goods to daily necessities: the baby milk formula story Border trading between Hong Kong and mainland China is not a new phenomenon. In fact, Hong Kong’s history of cross-border trading dates back to its colonial birth and the ‘exchange of opium’ (Gaylord 1999). As Vagg (1992) observed, Hong Kong, given its founding as a free port, had not witnessed any serious problems with cross-border smuggling. That is, until the late 1980s–early 1990s, when leisure goods, abundant and affordable in Hong Kong – televisions, video recorders, stolen luxury cars, and cigarettes – were being smuggled by lorry drivers over land (through customs checkpoints) and by speedboats by sea into the mainland.These particular goods were subject to considerable tax duties on the mainland side. In ‘trade’, Chinese herbs and medicines and antiques were smuggled into Hong Kong. Given the nature and volume of these goods, the distribution and sales from these early forms of cross-border trading involved some level of organization, planning, and criminal networks. This trading reached a problematic turning point for Hong Kong authorities when, in June 1990, a police officer died in a collision resulting from pursuing a smuggling speedboat. New regulations on speedboats and police antismuggling operations led to a reduction in the use of speedboats for trading, but very likely resulted in alternative routes and methods (Vagg 1992). This type of cross-border trading involving large-scale organization by land and by sea in the early 1990s commanded the attention of authorities but had little impact on the everyday life of 318

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Hong Kong citizens. It is only in recent times that cross-border trading has increasingly extended to a greater range of everyday products (not solely goods for leisure or status, but supermarket foods and consumables), involved a significant cross-section of ordinary citizens as traders on both sides of the border, and become a hotly contested public and political issue. Throughout the first decade of the millennium, the authorities made a number of seizures of smuggled cigarettes, drugs, mobile phones, counterfeit leather goods, fresh and cooked poultry and pork coming into Hong Kong, and in trade, electronic products, vehicle parts, computer and video discs en route to the mainland, according to various Hong Kong Government Press Releases, 2004–10. It was also during this period that a number of food safety scandals on the mainland drew the attention of Hong Kong citizens, with the Sing Pao, a Hong Kong-based Chinese language newspaper, featuring a headline of [the] eight most contaminated foods produced in factories with inadequate hygiene standards – adulterated rice, sauces made from human hair, tainted pork, contaminated soy bean milk, moon cakes with un-natural blackened centers, toxic melon seeds, tofu submerged in pig faeces, and various other contaminated food products. (Sing Pao 2001) This scandal heightened, gathering international concern as the list of contaminated and fake food products rose (Chaumet and Desevedavy 2009).2 The first signs of a baby milk scandal surfaced principally in Eastern Anhui province but later in other major cities across China in the spring of 2004, when over 350 children were taken to the hospital with fever and food poisoning symptoms and another 16 died from malnutrition due to substandard milk powder (Shanghai Daily 2004; South China Morning Post 2004). A Hong Kong-based newspaper reported that the Nan Shan Bywise brand of milk formula, considered to be one of China’s premium brands, is not subject to regular quality controls, and as a case in point, led to the lapse in sanitary standards as the milk powder was tainted with rat faeces (Oriental Daily News 2004). Soon after that, Hong Kong shopkeepers near the border railway line reported increased sales of milk powder to ‘fearful mainland parents’ who travelled across the border and to enterprising truck drivers reselling the product on their routine deliveries and pick-ups across the border. As one local shopkeeper stated: ‘There has always been a demand for infant formula from mainland travellers . . . but instead of buying two or three cans, they now buy ten cans at a time’ (South China Morning Post 2004). But it was not until September 2008 that a second and greater infant milk powder scandal drew national attention to the latest food safety scandal in China. Press reports initially indicated that an estimated 1,200 children had been hospitalized for kidney stones due to baby milk tainted with melamine; this number grew to 296,000, according to Ministry of Health figures, by December 2008 (Chaumet and Desevedavy 2009; Cheng 2012). Melamine – a nitrogen chemical used in the manufacture of plastic – was used to dilute the milk powder and to give the appearance of high protein content during inspection even though human ingestion of melamine can result in kidney failure. International concern followed soon after the melamine scandal broke, in part because the number of offending companies grew from one – Sanlu – to include three others, then 22 more companies, and hundreds of dairy products including eggs, cheese and chocolate. Global brands, including Cadbury, Mars and Kraft, issued recalls of products manufactured with Chinese milk (Chaumet and Desevedavy 2009). From 2009 onward, the milk powder scandal fuelled mainland Chinese parents’ fears about ‘made in China’ infant formula, which, as we will see below, had an immediate and direct impact on Hong Kong. Cheng (2012) argues that China’s cheap capitalism resulted not only in real 319

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health and safety problems with ‘made in China’ products but further instilled the value of ‘foreign is better’ and the desire for status through the consumption of foreign brands. Gong and Jackson (2012) suggest that parental fears of Chinese infant formula were intimately linked to health and safety concerns but also to the desire for foreign-made products. This desire, felt across social classes, was shaped in large part by the strategic marketing practices of ‘foreign products’ in hospitals, where overseas manufacturing is subjected to stricter regulations and higher safety standards, and the products are likely to offer better nutritional value. Given these conditions, it is not surprising that the price of foreign infant formula in China has been one of the highest in Asia, and led to a number of strategies to find and purchase affordable milk powder. Mainland authorities, only recently, were able to facilitate the downward pricing of foreign milk powder in China to comparable prices in Hong Kong, after imposing financial sanctions (South China Morning Post 2013c). But even with this, the fear and the frenzy for foreign baby milk powder have continued since the milk scandals and resulted in an increase in online shopping and relatives travelling as tourists taking the opportunity to buy milk powder when visiting other countries (Gong and Jackson 2012).3 And most central to our analysis, it resulted in the transformation of cross-border trading between Hong Kong and the mainland. So while cross-border trading was historically associated with the consumption and display of luxury brands, health and safety scares like the melamine scandal led to the movement and consumption of daily necessities, thereby altering the nature and visibility of the border’s grey market. From this point onward, cross-border trading became inextricably linked with a range of social, economic and political issues.

The paradox of liberalizing internal border controls and the ‘Liberate Sheung Shui’ campaign The current anxieties surrounding parallel trading in the border towns of Hong Kong reflect the wider tensions and contradictions under the ‘one country, two systems’ regime. As one local newspaper reported: Parallel trading is not new to the city; locals have been trafficking in parallel goods across the border to make quick money for decades. The difference is that their territory is now taken and occupied by mainland traders who ply their trade by abusing the loopholes in the individual visit scheme. (China Daily 2012) Since 1997, there has been a gradual liberalization of internal border controls aimed at attracting the nouveau rich Chinese tourists and other economically desirable visitors to Hong Kong. These include the abolition of daily quota limits on tour group travel, the relaxation of ‘Two Way Travel Permits’ for time-restricted travel with specific categories of exit endorsement such as business or family visit or sanctioned group tour, and the extension of the ‘Individual Visit Scheme’ from the initial four cities in Guangdong Province under the Closer Economic Partnership Arrangement in 2003 to 49 cities covering a population of 270 million mainland citizens. Since the introduction and extension of the Scheme, over 91 million visitors from the mainland have travelled to Hong Kong.To put this in perspective, Hong Kong’s total population in 2013 is 7.2 million (Census and Statistics Department n d.). Since 2009, a ‘Multiple Entries Visa’ of unlimited daily travel for a maximum of seven days has also been introduced for mainland residents in the Special Economic Zone of Shenzhen immediately north of the border 320

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of Hong Kong. As we shall see below, it was the proposed extension of the ‘Multiple Entries Visa’ for cross-border mainland visitors that magnified public fears about unwanted flows and provided the tipping point to the baby formula crisis especially in the border town of Sheung Shui in Hong Kong. By the late 2000s, the authorities had begun to identify a new modus operandi in smuggling activities whereby ‘courier passengers’ concealed items ‘in their clothes or luggage, or packed against their bodies [ . . . and used] their residential premises as a storage facility and sold the illicit cigarettes in their area nearby’ (Hong Kong Customs and Excise Department 2010). Organized parallel trading groups were said to have recruited large numbers of mainlanders as courier passengers to carry everyday products such as food, shampoo and nappies as well as electronic devices over the border to sell on the mainland and evade tax in the process. In particular, a large amount of baby milk formula was said to be diverted through parallel trading activities to satisfy the demand of mainland parents. Local feelings of anxiety and anger grew, as concerned parents and residents in border towns began to organize themselves to demand immediate government action to turn back the tide of mainland traders: Angry parents struggling to buy milk formula for their babies have joined calls for a departure tax to be imposed on people taking unused supplies of infant formula out of Hong Kong . . . Some mothers had to feed their children soy milk and bananas but some said that even soy milk has sold out . . . On popular online forum Baby Kingdom, one internet user suggested that buyers should have to show their child’s birth certificate in a shop before they could purchase formula. (South China Morning Post 2011) Our content analysis of media releases specifically from 2011–13 reveals the decidedly negative manner in which cross-border mainlanders are characterized. As the number of courier passengers carrying products over the border to sell on the mainland grew, and their activities became more visible in public areas, local hostility directed at the ‘invading’ mainlanders as deviant Others began to escalate. This coincided with fierce opposition to the official proposal to further extend the ‘Multiple Entries Visa’ policy to another four million non-residents in the nearby Special Economic Zone of Shenzhen. Commentators and local labour unions were worried that ‘the large flow of mainlanders into Hong Kong will increase chances of illegal employment’ and attract more migrant sex workers and parallel traders (Global Times 2012). In the process, parallel trading was redefined not only as a crime problem but also as a social order problem and as a putative threat to Hong Kong’s way of life. In September 2012, a group of netizens who were reportedly fed up with the baby formula shortage and the public nuisance caused by the influx of parallel traders in their border town organized the ‘Liberate Sheung Shui’ campaign against the large-scale parallel trading at Sheung Shui railway station and nearby residential estates. Local Chinese-language newspapers ran a number of stories of how parallel traders were hated by local residents for disrupting their lives and social stability, for example, by creating shortages of daily necessities, obstructing the roads and local shopping centres, creating noise and rubbish with their unpacking and repacking activities, and endangering the safety of local residents, especially children and the elderly, by recklessly pushing their heavy trolleys in the streets. Many residents say they are incensed by the daily horde of arrivals that stay only a few hours – just long enough to load up with everything from baby milk powder to probiotic drinks to iPhones. On Friday, a typical day at Sheung Shui station, the throngs 321

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heading back across the border included an elderly woman pulling a trolley stacked with two 22kg cartons of mooncakes, a delicacy traditionally eaten during the Chinese midautumn festival. (Financial Times 2012) Angry protestors joining the ‘Liberate Sheung Shui’ campaign were reported to have carried banners suggesting ‘Mainlanders go back to China!’ and shouted out slogans ‘Give me back my Yakult!’ and ‘Give me back my milk powder!’ (Apple Daily 2012a; Hong Kong Daily News 2012). Chaos ensued and fights broke out during the two-day protest at the station, with protestors shouting abuse at the parallel traders and attempting to confiscate their goods, and traders retaliating by throwing water bottles and cigarette butts at protestors (Oriental Daily 2012). Despite the huge publicity surrounding the campaign and the subsequent waves of local protest and high profile visits by local politicians, any signs of retreat by parallel traders proved to be short-lived (Hong Kong Economic Times 2013). Local newspapers suggested that traders retreated to the nearby railway station in Fanling to continue with their trading activities while traders ‘needed to work harder because many goods have been accumulated in the warehouses’ (Apple Daily 2012b; Sun Daily 2012; ‘Oriental Daily 2013). The Hong Kong government was now faced with rising tensions – local mothers angry at the lack of milk supplies and inflated prices of available milk powder, competing voices and interests at border towns, and what appeared to be increased traffic of day-trippers crossing the border. So what were the official responses to this perceived crisis of cross-border trading?

The policing response Much has been written about the criminalization of border crossing and the changing policing strategies in the Global North context. Scholars have noted an increasing convergence of crime control and immigration enforcement (or ‘crimmigration control’) (Stumpf 2006; Bosworth 2008; Aas 2011), a shift from the ‘post-crime orientation of criminal justice’ to a ‘pre-crime logic of security’ aimed at identifying and immobilizing risky populations (Zedner 2007; McCulloch and Pickering 2012), and the emergence of new forms of border policing that operate through new technologies of surveillance and ‘novel assemblages’ of state and non-state agencies (Guiraudon 2002; Bigo and Guild 2005; Lee 2013). The result has been new forms of criminalization, new manifestations of mobility control, and an expansive policing and detention regime that stretches the functions of border inwards into the city. The crackdown on parallel trading in Hong Kong illustrates these changing forms and deep paradoxes in border policing in particularly stark terms. First, there has been an increasing criminalization of goods and of behaviour that is considered disorderly, uncivil or threatening to the ‘quality of life’ in the city. In Hong Kong, a passenger carrying prohibited or controlled items is in breach of the local Import and Export Ordinance, but parallel trading activities per se are not an offence. Amidst the emotionally charged protests directed at the baby milk formula shortage crisis, the government amended the Import and Export Ordinance by imposing a limit on the quantity of milk formula (i.e. a ‘two-can’ limit) that can be taken out of Hong Kong for personal use in cross-border travelling (Figure 21.1). Although the ‘two-can’ limit has been criticized by some parent groups and commentators as unworkable or ineffective, it is billed as the legislative centrepiece of government actions against parallel trading and has led to a plethora of high

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Figure 21.1 Poster showing the amount of milk powder permitted to be exported from Hong Kong Source: Taken at㝿┤㏻㌴ Intercity Through Train, Hung Hom MTR Station, Hong Kong on the 4th of March 2013. Author: Viavameolbu. Available at: http://en.wikipedia.org/wiki/File:HK_Hung_Hom_MTR_Station_%E5%9F%8E%E9 %9A%9B%E7%9B%B4%E9%80%9A%E8%BB%8A_Intercity_Through_Train_sign_n_Milk_powder_new_rule_banner_ Mar-2013.JPG.

profile policing measures aimed at promoting particular forms of public reassurance and restoring the illusion of order in the city: Law enforcement agencies staged a high-profile arrest of more than 100 mainlanders in North District yesterday against a background of snowballing discontent among residents there over parallel-goods traders . . . Principal immigration officer Wong Yin-sang said 130 workers were arrested in the Advanced Technology Centre, a 10-minute walk from Sheung Shui station, packaging goods ranging from red wine to baby milk formula. ‘Instead of carrying out a large-scale stop-and-search operation at a crowded place like Sheung Shui railway station, we opted to crack down on the source,’ Wong said. (South China Morning Post 2013d) Since September 2012, a range of law enforcement authorities such as the police, Customs officials, the Fire Services Department, the Food and Environmental Hygiene Department, the Transport Bureau and railway security staff have been deployed to get parallel traders off

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the streets and reclaim the ‘invaded’ neighbourhoods. They were drafted into a series of high visibility raids and high-media-impact ‘zero tolerance’ targeting of public nuisance, illegal street vending, traffic and other municipal violations in dramatic ‘hot spot’ policing actions, for example, through stepping up ‘inspection of industrial and residential buildings which are suspected black spots of parallel trading activities’ for fire escape irregularities and breach of lease conditions, removing vehicles on illegal parking and obstruction charges, imposing fixed penalties against illegally loading and unloading of goods, littering and spitting on the street, warning and prosecuting railway passengers for carrying bulky luggage that exceeds luggage limits (Legislative Council Panel on Security 2012). Indeed, the disproportionate use of public order offences and other ‘quality of life’ policing tactics as a means to disrupt illicit activities at street level (for example, drug dealing) and to remove a variety of ‘suspect populations’ (for example, sex workers, the homeless) from public spaces is nothing new in urban policing (Lee 1996; McLaughlin 2007; Weber and Bowling 2008). As McLaughlin (2007: 117) has argued, the New York policing model in the 1990s ‘popularized not only Wilson and Kelly’s “broken windows” thesis internationally but also an urban policing philosophy of “zero tolerance”’. And while the power relations that drive ‘zero tolerance’ policing have brought about the shift to ‘a much wider and spectacular “shock and awe” range of means of disciplinary regulations and controls’ mandated to ‘re-establish control . . . in symbolic city centre sites’ and to ‘sweep ‘‘problem populations’’ . . . to carefully screened “vanishing point” parts of the city or its hinterland’, the underlying social problems and tensions remain unresolved or even exacerbated (ibid.: 141). Similarly in the Hong Kong context, the fight against parallel trading has enabled the deployment of aggressive ‘quality of life’ policing tactics to be normalized and routinized in symbolic public spaces such as the streets, stations and platforms in an extended borderland. In the process, a range of ‘historically distinct lawenforcement agencies’ has been drawn into an expansive policing regime in what Pickering and Weber (2013: 107–8) have described as a ‘hybrid’ space ‘that cuts across traditional conceptions of borders and produces a range of transversal practices’ which serve to reinforce the deeply political function of exclusion in bordering practices. Second, in line with what Stumpf (2006) has identified as the ‘crimmigration’ trend in many jurisdictions, there has been an accelerated convergence of the criminal justice and immigration systems in Hong Kong. Hundreds of officers from police and immigration authorities were deployed in a series of high-profile joint operations codenamed ‘Windsand’, ‘Champion’, ‘Powerplayer’ and ‘Twilight’ in border towns, targeting mainland Chinese who were suspected of contravening conditions of stay, i.e. ‘taking up any paid or unpaid employment’ or ‘establishing or joining in any business’ under the local Immigration Ordinance. In this context, any involvement in parallel trading constitutes employment or business activities, and penalties for these immigration violations are severe, as irregular migrants are liable to a heavy fine, imprisonment and repatriation. Within one month immediately following the ‘Liberate Sheung Shui’ campaign, a total of 372 non-citizens from the mainland were arrested in Operation Windsand. Of these, 41 were prosecuted, with 30 convicted and sentenced to two months’ imprisonment. Others who had not been prosecuted were placed on a blacklist and repatriated to the mainland and could be refused entry to Hong Kong in future (Legislative Council Panel on Security 2012). Since then, there have been a number of crackdowns by immigration authorities and other enforcement agencies, resulting in mass arrests of mainlanders mainly on suspicion of breaching their conditions of stay. The close connection between criminal and immigration law enforcement reinforces a general perception that immigration violations are on the same continuum as other traditional crimes, and fuels the use of punitive measures of crimmigration control. The 324

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criminalization of border crossings continued to gather pace despite evidence that paralleltrading syndicates have found ways to ‘beat the system’ – for example, by recruiting local housewives and students as runners in the cross-border trade – and official acknowledgement that ‘only 40 per cent of parallel traders were mainlanders’ (South China Morning Post 2013a). Furthermore, the convergence of policing and immigration functions has been extended to the use of pre-emptive border control measures. Local immigration authorities have mobilized ‘pre-crime-type frameworks’ (Pickering and Weber 2013: 107) to manage potentially risky travellers and set up watch lists of ‘suspected’ mainland parallel traders who will be ‘questioned every time they come to Hong Kong . . . denied entry and sent back immediately . . . if they are suspected to be visiting for parallel trading activities’ (The Standard 2013). Authorities on the mainland have also introduced a surveillance system at the border that ‘flashes a green light each time it detects a traveller crossing a checkpoint for the third time within a day’ (South China Morning Post 2013b). Through the use of technology and other information-led policing strategies, immigration and customs officials are increasingly drawn into migration management functions of deterring and immobilizing ‘suspect populations’ and the law and politics of border control. Although this pre-emptive turn of ‘intent management’ in border policing marks a significant extension of the criminalization of migration, the regulation of mainland migrants on immigration-related criminal grounds is not new in Hong Kong. Throughout the early 2000s, the numbers of mainland Chinese arrested for working or overstaying on a ‘Two-Way Permit’ or on a visitor’s visa and processed into the criminal justice system have increased dramatically. In particular, the number of women sentenced to prison for these immigration violations increased almost four-fold from 2,179 in 1995 to 8,099 in 2004 largely as a result of mass arrests of migrant sex workers in street-level policing operations and anti-vice raids amidst local community protests and campaigns about moral and social sanitation (Lee 2007). The criminalization of migration and the intertwining of the criminal justice and immigration systems have resulted in a gendered prison crisis, with Hong Kong detaining the highest proportion of female prisoners in the world, namely 22 per cent of the total local prison population compared with a global average of between 2 and 9 per cent (ibid.: 853). This crimmigration trend has impacted most significantly on Chinese non-citizens, as mainland immigration violators have consistently made up over half of the sentenced women population in local prisons in the past decade.

Conclusion Parallel trading at the border of Hong Kong and mainland China has a history, at least initially, associated with luxury brands and highly valued commodities and reflects the slow but steady growth of capitalism in the area. But its story has taken a rather sharp and distinctive turn, in part because of Hong Kong’s changing political relationship with China. What has emerged is a reshaping and redefinition of cross-border trading. On the one hand, parallel trading in daily products like infant milk powder and baby nappies provides much-sought-after (at affordable prices) daily necessities for mainland parents. At the same time, it provides new sources of income for a wide range of couriers – from the young to the middle-aged to the elderly, and from both sides of the border. As the products continue to flow, so too does consideration of ways to control the movement, and in the process, paradoxically, incorporate even more couriers into the grey market. And while the Hong Kong government is called upon to do something about product shortages, higher prices and invaded neighbourhoods, the resulting immobilization measures serve to further intensify and divide political and social identities. 325

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In Hong Kong, as elsewhere, the reliance on ‘zero tolerance’-style enforcement and criminal justice sanctions to tackle the problem of unwanted flows has led to a massive growth in arrests and detention and an extension of bordering practices into the metropolis. Yet, Hong Kong’s story is also unique: its current regime of migration control is focused on internal border crossing within the state and is borne most heavily, not by ethnic others, but by ethnic Chinese mainlanders. In this context, Chinese parallel traders are at the intersection of a host of public fears and anxieties about difference, criminality and urban disorder; they render visible broader social and economic changes under China’s policy of ‘one country, two systems’, and serve as a stark reminder of the further tensions yet to unfold throughout the migratory ‘fault lines’ in a stratified global order.

Notes 1 According to the Hong Kong Census and Statistics Department, in 2001 a total of 48,219 births in Hong Kong were to mainland women, of whom 620 had a non-local spouse; by 2011, the figure of births in Hong Kong to mainland women had almost doubled to 95,451, of whom 35,736 women had a non-local spouse. 2 Yan (2013) documents the history of food poisoning from the 1950s onwards, identifying four major types including food adulteration, food additives, pesticides used as food preservatives and fake foods. 3 See, for example, South China Morning Post (2013b).

References Aas, KF 2011,‘‘‘Crimmigrant” bodies and bona fide travelers: surveillance, citizenship and global governance’, Theoretical Criminology, vol. 15, no. 3, pp. 331–46. — 2013, ‘The ordered and the bordered society: migration control, citizenship, and the Northern penal state’, in KF Aas & M Bosworth (eds), The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 21–39. Aas, KF & Bosworth, M (eds) 2013, The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford. Apple Daily 2012a, ‘“Liberate Sheung Shui” turned into ugly fights’, 16 September. — 2012b, ‘Sheung Shui is occupied again after two days of liberation’, 18 September. Balibar, E 2010, ‘At the borders of citizenship: a democracy in translation’, European Journal of Social Theory, vol. 13, no. 3, pp. 315–22. Bigo, D & Guild, E 2005, ‘Policing in the name of freedom’, in D Bigo & E Guild, Controlling frontiers: free movement into and within Europe, Ashgate, Aldershot, pp. 1–13. Bosworth, M 2008, ‘Border control and the limits of the sovereign state’, Social & Legal Studies, vol. 17, no. 2, pp. 199–215. Census and Statistics Department, n.d. The Government of the Hong Kong Special Administrative Region, viewed 12 March 2014, www.censtatd.gov.hk Chaumet, JM & Desevedavy, F 2009, Food consumption and food safety in China, IFRI, Paris. Cheng, H 2012, ‘Cheap capitalism’, British Journal of Criminology, vol. 52, no. 2, pp. 254–73. China Daily 2012, ‘More measures against parallel traders’, 21 September. Donnan, H & Wilson, T 1999, Borders: frontiers of identity, nation and state, Berg Publishers, Oxford. Financial Times 2012, ‘Hong Kongers grow hostile to day-trippers’, 17 September. Fung,V 2005, Chairman’s statement, annual report, Business Council, Hong Kong, viewed 26 February 2014, http://www.info.gov.hk/info/gprd/pdf/F_GPRD_Chairman_report.pdf Gaylord, M 1999, ‘Cross border crime and legal jurisdiction in post colonial Hong Kong’, Crime, Law and Social Change, vol. 31, no. 1, pp. 31–48. Global Times 2012,‘Hong Kong citizens worry that new visa will attract illegal workers and parallel traders’, 31 August. Gong, Q & Jackson, P 2012, ‘Consuming anxiety?’, Food, Culture and Society, vol. 15, no. 4, pp. 557–78.

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Guiraudon, V 2002, ‘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 Law International, The Hague, pp. 191–241. Hong Kong Customs and Excise Department 2010, ‘Customs targets smuggling of illicit cigarettes by “courier” passengers’, press release, 1 April, viewed 12 March 2014, www.customs.gov.uk Hong Kong Daily News 2012, ‘Police intervened in conflicts during Liberate Sheung Shui anger’, 16 September. Hong Kong Economic Times 2013, ‘Parallel traders active again – toy models and instant noodles are new popular goods’, 13 July. Hong Kong Tourism Board Association 2006, Annual report, Hong Kong Tourism Board Association, Hong Kong. Lee, M 1996, ‘London: community damage limitation through policing?’ in N Dorn, J Jepsen & E Savona (eds), European drug policy and enforcement, Macmillan, Basingstoke, pp. 33–54. — 2007, ‘Women’s imprisonment as a mechanism of migration control in Hong Kong’, British Journal of Criminology, vol. 47, no. 6, pp. 847–60. — 2013, ‘Human trafficking and border control in the Global South’, in KF Aas & M Bosworth, The borders of punishment: migration, citizenship, and social exclusion, Oxford University Press, Oxford, pp. 128–45. Legislative Council Panel on Security 2012, ‘Measures to combat parallel trading activities’, LC Paper No. CB(2)138/12–13(03), Hong Kong Special Administrative Region. Lo, S 2007, ‘The mainlandization and recolonization of Hong Kong: a triumph of convergence over divergence with Mainland China’, in JYS Cheng, The Hong Kong Special Administrative Region in its first decade, City University of Hong Kong Press, Hong Kong, pp. 179–223. Lui, TL & Chiu, S 2009, Hong Kong: becoming a Chinese global city, Routledge, London. Ma, EKW 2012, Desiring Hong Kong, consuming South China: transborder cultural politics, 1970–2010, Hong Kong University Press, Hong Kong. Mathews, G, Ma, EKW & Lui, TL 2008, Hong Kong, China: learning to belong to a nation, Routledge, London. McCulloch, J & Pickering, S (eds) 2012, Borders and crime: pre-crime, mobility and serious harm in an age of globalization, Palgrave Macmillan, Basingstoke. McLaughlin, E 2007, The new policing, Sage, London. Oriental Daily 2012, ‘350 demonstrators present and fought with parallel traders in Sheung Shui’, 16 September. — 2013, ‘Liberating action upgraded and extended to Fanling’, 23 January. Oriental Daily News 2004,‘Xiang brand milk powder mixed with rat faeces’, 15 July. Pickering, S 2006, ‘Border narratives’, in S Pickering & L Weber (eds), Borders, mobility and technologies of control, Springer, Dordrecht, pp. 45–62. Pickering, S & Weber, L (eds) 2006, Borders, mobility and technologies of control, Springer, Dordrecht. — 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. Shanghai Daily 2004, ‘People doubt dairy goods’, 27 May. Sing Pao 2001,‘The eight most contaminated foods’, 18 December. South China Morning Post 2004, ‘Fearful mainland parents come to Hong Kong for milk’, 2 May. — 2011, ‘Parents back call for baby formula exit tax’, 30 January. — 2013a, ‘Over 90 arrested in parallel trading blitz near border’, 22 January. — 2013b, ‘New system detects 150 potential smugglers at border daily’, 1 August. — 2013c, ‘Infant formula prices still very hard to swallow’, 9 September. — 2013d, ‘131 held in swoop on parallel-goods trade in Sheung Shui’, 20 September. — 2013e, ‘Guns, drugs, and breast milk: China’s web shoppers exploit vacuum to buy illegal goods’, 16 December. Stumpf, J 2006, ‘The crimmigration crisis: immigrants, crime and sovereign power’, bepress Legal Series Working Paper 1635, bepress Legal Repository, viewed 26 February 2014, http://law.bepress.com/ expresso/eps/1635 Sun Daily 2012, ‘Parallel traders moved to Fanling Station’, 17 September. The Standard 2013, ‘Watch list to track traders’, 1 February. The Wall Street Journal China Realtime 2012, ‘About that Hong Kong “locust” ad . . .’, blog, 1 February, viewed 26 February 2014, http://blogs.wsj.com/chinarealtime/2012/02/01/about-that-hong-konglocust-ad/

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Tourism Commission, The Government of the Hong Kong Special Administrative Region, n.d., Tourism performance in 2012, viewed 26 February 2014, http://www.tourism.gov.hk/english/statistics/statistics_ perform.html Vagg, J 1992, ‘The borders of crime: Hong Kong-China cross border criminal activity’, British Journal of Criminology, vol. 27, no. 3, pp. 310–28. Weber, L & Bowling, B 2008, ‘Valiant beggars and global vagabonds: select, eject and immobilize’, Theoretical Criminology, vol. 12, no. 3, pp. 355–75. Yan, Y 2013, ‘Food safety and social risk in contemporary China’, in P Link, R Madsen & P Pickowicz, Restless in China, Rowman and Littlefield, Lanham, MD, pp. 249–73. Yep, R, Ngok, KL & Baoshu, Z 2004, ‘Migration and competitiveness’, in L Wong, L White & S Gui, Social policy reform in Hong Kong and Shanghai: a tale of two cities, M.E. Sharpe, London, pp. 217–38. Zedner, L 2007, ‘Pre-crime and post-criminology?’, Theoretical Criminology, vol. 11, no. 2, pp. 261–81.

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

Introduction In many parts of the developing world the processes of capital accumulation and neoliberal legal reform are driving land enclosure movements and coercive practices of land dispossession. Performed in the name of economic growth or national development, the exclusion of people from valuable land resources and their forced displacement to marginal spaces constitutes an unrecognized category of harm against poorer communities in developing societies. From Africa to Asia, Latin America and the Caribbean, rural and urban citizens alike are facing the ‘enclosure of the commons’, a process of elite-driven land privatization that strips them of customary use rights and traditional title. Displacement of rural and urban populations often follows, enacted through forced evictions behind which stands a range of illicit transactions and state violence. This chapter takes the position that development-based displacement, organized through forced eviction, constitutes a modality of state-corporate crime that is in need of empirical and theoretical examination from a criminological perspective. To that end, we argue that these criminogenic events commonly occur through illegal land transactions, corruption and illegitimate forms of violence, which are prompted by the opening-up of landed property to predatory capital flows. To help tease out the criminogenic dimensions of development-based displacement, we engage in a comparative analysis of forced eviction in two post-colonial countries, Papua New Guinea (PNG) and Burma.1 The PNG case is based on emerging patterns observed in a sample of five forced evictions researched by the authors. The Burmese case has been built using NGO and media accounts, in addition to interviews with civil society organizations, as part of a broader study research initiative funded by the Economic and Social Research Council (ESRC). Using this comparison we will consider the mechanics of eviction, the resistance it engenders, and how different configurations of state power shape the regimes of predatory capital accumulation that drive these criminal events. To begin, however, an overview of the contemporary challenges presented by development-based displacement will be provided, following which we will trace its lineage back to the enclosure movement that laid the foundations for European capital.

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Displacement through dispossession: development justifications for population relocation, resettlement and removal Development-induced displacement is an increasingly widespread phenomenon influenced by global ‘development’ ideologies and the political economy of land at both a domestic and global level. In contrast with other types of internal displacement – such as movement prompted by conflict, natural disasters, or environmental change – there is less recognition of the brutality, causes or consequences of the displacement caused directly or indirectly by neoliberal ‘development’ interventions (Muggah 2003: 16). Indeed, despite the fact that an estimated 15 million people each year are forced to relocate and resettle as a result of such interventions (Cernea 2006), the claims of communities to land resources, and the socio-economic harms created by land dispossession, are virtually neglected in today’s universe of human rights protections. Equally, as scholars of state crime we find development-induced displacement to be an especially significant and overlooked criminal phenomenon that is underpinned by state-corporate violence and corruption, ranging from the destruction of property to, in some cases, murder of those resisting relocation, resettlement and removal (evictions) (Davis 2006; Price 2009; Li 2011). And while a number of empirical studies have been conducted on the impoverishment effects of large-scale infrastructure projects, such as dams or transportation systems, that require mass displacement (McDowell 1996; Price 2009), a significant gap remains when it comes to the illicit processes driving land dispossession, forced relocation, resettlement or removal of people from their homes. In this respect, some of the more common displacement-generating circumstances include: the small and large-scale acquisition of land by national and global industries (linked to certain industry needs for land, such as the food or energy industries);2 coerced changes in agrarian land use driven by the commodification of agricultural land; urban renewal and planning projects to ‘modernize’ metropolises; and residential clearance initiatives designed to accommodate largescale sporting events (Davis 2006: 98–108; Price 2009: 268). Population relocation, resettlement and evictions that arise from these causes may be planned, or sudden, and exist on a continuum from voluntary relocation to violent displacement, with many falling nearer the latter end of the spectrum. Yet what is common to all the above examples is the state-facilitated opening-up of landed property to flows of capital, a process that stretches back to capitalism’s historic foundations.

Enclosure of the commons, dispossession and the political economy of development-induced displacement The recent changes in domestic land economies, both urban and rural, underpinning forced eviction and internal displacement are not new. Rather, borrowing from a long tradition of land and peasant studies scholarship, current land dynamics mirror historic patterns of capitalistagrarian transformation, and represent an extension of long-term processes of land commodification and enclosure of common land (Makki 2012). In other words, contemporary land enclosure and its criminogenic dynamics are a moment in a broader class-based struggle over resources. In previous influential work on land enclosure in Europe, particularly Britain, historians have explicitly drawn attention to the function of land enclosure within the processes of capital accumulation, linking land dispossession and population displacement to forms of agrarian change intrinsic to capitalist intrusion in the countryside. In E.P. Thompson’s seminal examination of the 1723 Black Act, he emphasizes how the enclosure process, enacted through the commodification of land, the extinguishment of customary use rights and the liberalization of the rural economy, prompted a redistribution of property rights to those powerful enough to

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cultivate the soil and use the legal system to defend exclusive landed property rights (Thompson 1975: 261). Thompson traces the political and legal forces that collude during land enclosure, concluding that these processes necessarily start with the supply of a defensible concept of exclusive property (by Locke), which are followed by legal reforms required to effectively protect elite-drawn private property rights, and to severely punish those daring to violate them (ibid.). As a result, the law, Thompson maintains, criminalizes those disputing exclusive property rights, with their diminished customary privileges, and thus claims to land usage are gradually eviscerated through the criminal justice system (ibid.: 188–91). Dissolving common usage rights to land, in accordance with demands for exclusive property in land, is presented by Thompson as a common and calculated feature of industrial capitalist development that has, historically, operated most reliably through cultural systems of authority and legitimacy, including the law. The same processes of enclosure, land confiscation and forced eviction, which accompanied the arrival of Britain’s industrial revolution, are now to be witnessed in countries such as Burma and Papua New Guinea, where predatory capital, reinforced and protected by state violence, is riding roughshod over customary land use rights. An historical analysis of landed property relations in Europe, therefore, delivers several important parallels for the study of land enclosure and socio-economic evolution in the developing world today. As a continuing pattern in history, the contemporary land enclosure process intersects with the politics of state formation, the evolution of social control of the poor and the decline of distributive and spatial justice through the consolidation of elite wealth and power in land. Within the post-colonial state, we can observe two key relationships emerging between land economies, population displacement and the consolidation of state-power. These include: (1) displacement of agrarian populations from land coveted by global extractive and agro industries; and (2) the (violent and non-violent) displacement of populations by state and nonstate elites, including armed groups, seeking to consolidate power and authority through land within newly forming states. It has been within these two areas that scholars have based some of their most recent empirical work on land enclosure processes and the factors determining development-induced population displacements (Vermeulen and Cotula 2010; Hall 2011; Visser and Spoor 2011; Fairhead, Leach and Scoones 2012; Makki 2012; Pye and Bhattacharya 2013). The push to acquire land to expand capitalist development, and the drive for authority and power through land accumulation by new elites, are both behind the push to privatize land, establish exclusive property rights and force displacement of those with rights, access or privileges to coveted land resources. In the transition from customary to capitalist rights, the centrality of the law and the development of a juridified capitalist system have played a key role in fortifying exclusive property rights and, equally importantly, exerting control over those who lose rights, privileges and access to land (Thompson 1975). In weak institutional contexts where governing elites and various social sectors are fighting over new, exclusive rights to land resources, crime and violence are common, as is the physical removal of people from valued territory (ibid.: 771–2). Dispossession and displacement, whether they occur through overt force or through more subtle practices of coercion, are contributing to a ‘partial transformation’ of the informal working class within agrarian societies, effectively pushing the landless and jobless into the cities (Davis 2006; Bush, Bujra and Littlejohn 2011; Li 2011; Harvey 2012). Forced migration to the city nevertheless does not imply that the lifecycle of dispossession and displacement ends. Rather, rural-urban migrants, who represent what David Harvey (2012: 5) describes as a ‘surplus population’ in the city, are subjected continually to the sensitivities of land, property and housing 331

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markets. In the journey from the countryside to the city, informal settlements, or ‘slums’, arise in cities as spaces of advanced marginality and territorial stigmatization, existing to warehouse the poor (Wacquant 2008). These qualities make them easy targets for repeated gang and statesanctioned violence and put in motion cycles of temporary settlement and displacement, influenced by the formal and informal land economy (Olds, Bunnell and Leckie 2002; Otiso 2002; Blomley 2003; Davis 2006; Harvey 2010: 66).

Resistance of the dispossessed and displaced International discourse on development-induced displacement has referenced the need for domestic governments to abide by the rule of law, based on international human rights principles, in order to protect the basic needs of individuals and address justice concerns that may arise from rights deprivation and land use changes. Despite some of the more recent advances to call attention to land dispossession and market-based inequalities in land economies (Borras and Franco 2010), global institutions have hardly discouraged the practices and processes that, undermine land rights, prevent equitable access, and supply the context for large- and small-scale displacements. Problematically, development practice and discourse have disregarded the unjust, distributive principles and legacies of colonial land ownership within newly democratizing states; in other words, few substantial moves have been taken to address the sources of inequality in the distribution of land and housing resources within developing economies that have only worsened over time (Langford and du Plessis 2006; Otiso 2002). Scholars of agrarian transformation and post-colonial studies generally agree that the law and top-down legal reform have not been a site of human rights protection, or a forum for resistance, where resources are concerned (Langford and du Plessis 2006; Hall 2011; Li 2011; Rajagopal 2011; Visser and Spoor 2011). Rather, they conclude the opposite: the law has in fact aided land enclosure processes and, coupled with powerful discursive agendas, has justified the transition from customary to capitalist land rights as a necessary part of economic development (Cole 2001). In rural areas, for example, the mainstream discursive agenda upheld by international development institutions argues that foreign investment in land (despite its forced migration consequences) is a necessary catalyst for economic development and that it is justified as long as it is governed by the rule of law, or a solid legal and regulatory framework (Borras and Franco 2010). The language of rights protection, regulation, good governance and social corporate responsibility is paired with persuasive narratives of the need to help ‘inefficient’ land users in the Third World make the ‘best use’ of the land, especially in a context of global poverty and emerging food and energy crises (Blomley 2003; Vermeulen and Cotula 2010; Li 2011). Essentially, mainstream discourse has meant that broader – and increasingly necessary – questions of power and equitable access to resources are ignored (Li 2011). The distributive justice deficits within the resource-rich developing world are beginning to ignite social movements and popular reactions to resist land enclosure, dispossession and displacement; it is not, however, an easy task to challenge the powerful political and economic forces behind enclosure processes. Resisting threats to land rights/access, and displacement, is a necessarily grassroots task involving mass mobilization and creative collaboration between different networks of power and influence (Capeheart and Milovanovic 2007). In the urban space, a number of scholars have alluded to the discursive undermining of the poor as one of the more effective ways that city authorities have justified the relocation, resettlement or eviction of ‘slum dwellers’ through conjuring up imagery of the poor as ‘illegal’ or ‘lawless’ (Huchzermeyer 2003; Goddard 2005; Padhi 2007; Wacquant 2008). Using imagery that presents informal settlements as places of fifth, backwardness and criminality, elites have 332

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more easily justified the removal of populations in the language of necessity, public interest, and national development (Olds, Bunnell and Leckie 2002; Blomley 2003; Goddard 2005; Langford and du Plessis 2006). That said, in several cities, people have captured or invaded marginal lands and fended off displacement threats through rapid, clandestine building and mass squatting (Huchzermeyer 2003: 94). More recent studies of land invasions – as practices of resistance – suggest that in these cases, the size and location of squatter settlements, and nature of social cohesion within these spaces, are determining factors in the ability of people to struggle against those with economic interests of the land in question (ibid.). It is in this context that criminology has an important scholarly and public role to play. Not only are criminologists well positioned to examine how the ostensibly lawful expropriation of rural and urban communities is regularly married to significant illegalities, it can also delve into the criminogenic networks of state and non-state actors who drive the process of land theft and forced displacement. Additionally, given our commitment to understanding censure and sanction from below, criminologists are also well positioned to examine how different configurations of civil society organize in order both to stigmatize land-grabs/forced eviction, and prohibit these illicit practices through different forms of resistance. On that note, we will now turn to the comparative study of Burma and PNG where these different issues are explored.

Forced eviction and development-induced displacement: a comparative study The political-economic context of forced evictions Reflecting broader global tendencies both in Burma and Papua New Guinea (PNG), ‘development’-based displacements have, over the last decade, become a growing problem as predatory forms of capital seek inexpensive and unregulated access to land in which rural communities and long-standing urban settlements have a legal or historical stake. While in both cases predatory capital’s access to land resources has been facilitated through forced eviction, the mechanics of this process have differed because of the distinct organization of state power and the resulting regimes of capital accumulation in the two countries. In the case of PNG, state power is diluted and decentralized with little coordination between government departments or senior political figures.3 One consequence has been the evolution of an anarchic sphere of corruption where small robber-bands within the state, made up of elected representatives and bureaucratic allies, exploit opportunities within the institutions they have assumed responsibility for – land governance, legal administration, logging, infrastructure, etc. – to engage in theft and fraudulent transactions, while also acting as intermediaries for predatory international capital. In contrast, Burma is distinguished by the coordinated, concentrated and centralized character of state power, rooted in the long years of military-led isolationism. As a result, the illegal appropriation of land resources by foreign interests occurs in a more bureaucratic manner, involving both the military, their cronies and military-controlled corporations. In this process they are assisted by local intermediaries (regional officials and local armed non-state actors) who facilitate resource projects and land-grabbing on a scale and scope that dwarf those currently driving forced evictions in PNG.With that overview in mind, we will now examine in more detail essential differences in the two political economies, beginning with PNG, before surveying the impact this has on the mechanics of forced eviction. Since obtaining independence from Australia in 1975, PNG has ostensibly operated under a Westminster system of democracy. That said, political parties tend to be informal coalitions 333

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whose members are elected through unstable cycles of patronage with electorates which are mediated by appeals to clan and ethnicity, in addition to gift giving (Ghai 1997; Regan 1997; Rynkiewich 2000). A precondition for these patrimonial transactions is the absence of rural or urban organizations that bridge PNG’s legendary ethnic diversity, in order to create a unified basis on which to champion peasant/working-class interests in provincial and national political forums. In this permissive atmosphere, largely unaccountable political representatives are able to use their power, secured through patronage, to populate government departments and public institutions with political clients (Ombudsman Commission of Papua New Guinea 1982; De Silva, Pera and Nanayakkara 2000; Public Accounts Committee 2006a; World Bank 2011). As a result, PNG has witnessed the emergence of small cliques made up of political representatives and client civil servants who use their position of power to steal land, syphon off public funds and illicitly obtain government contracts.These networks, and the illicit commercial environments they engender, have proven attractive for foreign investors seeking inexpensive and obligationfree access to PNG’s rich range of natural resources. Indeed, the permissive organizational cultures and client networks cultivated over the past three decades have created the opportunity structure for predatory capital to obtain illicit access to natural resources such as land, forests, fisheries and minerals with near impunity. For example, a recent commission of inquiry into the systemic abuse of Special Agricultural and Business Leases – a legal mechanism that, in effect, allows customary landowners to lease land to ‘developers’ for up to 99 years – found that wide-scale fraud had led to the alienation of 11 per cent of PNG’s land-mass (Filer 2011), with foreign logging companies being the principal beneficiaries (Numapo 2013).4 The commission observes: ‘With corrupt government officials from implementing agencies riding shotgun for them, opportunistic loggers masquerading as agro-forestry developers are prowling our countryside, scoping opportunities to take advantage of gullible landowners and desperate for cash clan leaders’ (ibid.: 242). Similar damning remarks were made by the Public Accounts Committee (PAC) following its investigation into the management of state land by the Land Boards and Lands Department. Indeed, the PAC investigation found that state leases over prime urban real estate, were being given away by corrupt Land Boards, with the connivance of the Lands Department, and then sold at considerable profit by largely foreign speculators. The committee reported that ‘state land is stolen from or given away by the Department for no return to the State’ (Public Accounts Committee 2006a: 113), and concluded ‘the Department of Lands and Physical Planning has, for many years, given priority to the interests of private enterprise and private speculators over the interests and lawful rights of the State’ (ibid.: 7). The state-facilitated flow of predatory capital, organized through fraud, corruption and clientalism, is not confined to land transactions. For instance, a commission of inquiry into the Department of Finance found that high profile members of PNG’s legal fraternity had colluded with senior ministerial and bureaucratic officials, to arrange largely vexatious law suits against the state, which were subsequently settled out of court to the sole benefit of the colluding parties (see Davini, Sheehan and Manoa 2009). To use another example, an Auditor General’s Office (AGO) (2001) investigation into the Department of Works revealed numerous inflated contracts issued in violation of tendering procedure to companies for the upgrade and maintenance of vital infrastructure, with no or poor oversight of the work and billing process. Indeed, both the AGO and PAC claim that contracts are systematically issued by departments and tender boards in violation of the Public Finances (Management) Act 1995, to companies that frequently have connections with senior state officials (Public Accounts Committee 2003, 2006b, 2006c; Auditor General’s Office 2005, 2006, 2007; see also Davini, Sheehan and Manoa 2009). Although the means in each situation cited above differ, the ultimate consequence is the transfer 334

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of public revenues and resources into parasitic capital flows, without compensatory payment or equivalent service. Perhaps unsurprisingly, PNG has proven to be an attractive investment site for foreign companies with chequered international records – such as World Bank black listings – and for international businesspeople who have, in certain notable cases, fled other jurisdictions where they faced outstanding legal actions or criminal prosecutions (International State Crime Initiative 2012a). However, it would be wrong to assume that these criminogenic conditions are a product of state failure. To the contrary, state power has been actively fashioned over a period of decades in order to allow parasitic forms of accumulation to occur, with political intermediaries being significant beneficiaries. Indeed, in the absence of any significant development in the nation’s industrial and rural economy, national capital has been increasingly drawn to the service sector, which has enabled PNG businessmen who enjoy public office to play this intermediary role. However, this has not prompted the emergence or consolidation of significant power blocs within the state; rather, the networks facilitating frauds tend to be small and temporary in character, with the patrimonial characteristics of PNG’s democracy making political office an often brief affair grounded in unpredictable alliances. When needed, the illicit deals obtained through these temporary criminogenic networks may be enforced by the Royal PNG Constabulary (RPNGC), which regularly contracts out its service for ad-hoc payments in cash or kind.5 The RPNGC’s paramilitary wing, in particular, has over the past three decades earned a reputation for using extreme tactics – known locally as destructions – to suppress opposition to resource extraction projects, with the units themselves often enjoying payments from resource operators and considerable logistical assistance (Lasslett 2014). However, like the robber-bands that operate within government departments, police units tend to contract out their services on an atomized and ad-hoc basis, and thus they have yet to form an enduring power base for any one political faction within the state. Burma’s history, by contrast, is marked by the consolidation and centralization of state power under a military junta who were largely hostile to foreign capital. Indeed, between 1962 and 2010, Burma was effectively closed to the outside world. Led by successive military and military-backed regimes Burma’s political economy for five decades was defined by state-led xenophobia. Foreign businesses and organizations were expelled from the country and the military, despite lacking commercial experience or acumen, took over the economic and commercial affairs of the country. Citizens were unable to legally leave Burma without state authorization and their ability to move freely inside Burma was strictly curtailed, and the regime actively sought to end relationships between internal and foreign-based organizations. The door to foreign direct investment was closed and the military and its corporate arm dominated the national economy. According to Turnell, Burma’s economy, tightly controlled by the military, has been determined by ‘arbitrary procedures for dispute settlement, nepotistic patron-client relationships between the military, state and business, extra-legal allocations of natural resource concessions . . . and a governing apparatus that is as unpredictable as it is predatory’ (2010: 3). From being the richest nation in Asia, it rapidly transformed into one of the poorest – once known as the ‘rice bowl’ of Asia, by 1982 it no longer produced enough to feed its own population and in 1987 it was named as a Least Developed Country (LDC) (Steinberg 1999; Rogers 2012). The media was wholly controlled by the regime and censorship defined access to domestic and international news – Burma had become in Martin Smith’s analysis ‘one of the most hermetically sealed and isolated countries in the world’ (Smith 1999: 1). Military incompetence, totalitarianism, extreme Buddhist nationalism, repression, corruption and isolationism left the country in ruins. 335

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The political and economic climate only began to change significantly in 2011 following the election to the presidency of General Thein Sein. With the relaxation of international sanctions, the ending of Burma’s self-imposed isolationism and the instigation of ceasefire agreements with border rebel armies, the country – with its abundant natural resources – now offered a treasure trove to its land-starved rapacious neighbours and predatory international capital. With his inauguration address Thein Sein, welcomed back foreign investment into one of the world’s final economic frontiers.6 But the legacy of Burma’s predatory economic past continues to inform its current policies. Where dispossession in PNG is an explicitly illegal process (albeit cloaked in the garb of legal title), in Burma, the concentration of power remains, for the moment, within the state. ‘Law’ and its violent adjuncts thus play a crucial facilitating role. New foreign investment, public order and land laws have provided a legal framework for the facilitation of land grabs and the suppression of protests against them. In addition, Special Economic Zones (SEZ) legislation, characterized by tax exemptions and relaxation of import and export regulations, has been introduced to attract large-scale foreign direct investment. The two largest SEZs, Dawei and Thilawa, have resulted in wide-scale land grabs, forced displacement, the non-payment of compensation and dramatic regional increases in property prices (Baulk 2013). According to Maung Zarni, however, the ‘Burmese way to capitalism’ ‘began around December 1988 when the military signed away $US120 million worth of logging and mining concessions, as well as fishing licenses, to Thai companies with close links to the Thai army’ (Zarni 2011). This too, was the moment when the state’s massacre of thousands of protestors in Rangoon resulted in the imposition of economic and political sanctions by Europe and the United States.The absence of western commercial interests in Burma allowed Thai, Singaporean, Indian and particularly Chinese capital to enthusiastically exploit the country’s natural gas, timber, hydropower potential and gemstones (Köhler 2012). One need only examine the Chinese-financed Shwe Gas project – Burma’s largest extractive commercial enterprise – to observe the accuracy of Zarni’s analysis and to recognize the role of deviant organizational cultures in facilitating state-corporate appropriation of the country’s natural resources. According to FORUM-ASIA (2013) the Shwe Gas project, whose pipeline runs through 20 townships between Rakhine state and Kunming in China, has relied on forced labour, land confiscation, environmental degradation, a range of labour abuses and arbitrary taxation. In addition, the route of the pipeline was altered in 2012 by the government to pass through Kachin Independence Army territory. The increased militarization which has thus accompanied the building of the pipeline has in turn exposed villagers to a host of human rights abuses perpetrated by the military, including extortion, forced labour and confiscation of livestock. As with PNG, foreign investors with criminogenic histories have been welcomed by the Burmese state, itself long-fashioned by criminal state violence and corruption. Following decades of military-instigated human rights violations, corruption and cronyism in the Burmese extractive industries, the door is now open to international parasitic/predatory capital. In 2013, the Luxembourg-registered Boulle Mining Group was approved by the local Rakhine state government to mine aluminium and titanium deposits on its northern beaches. Jean-Raymond Boulle, the Group’s owner, has been linked to murky practices in Angola and the Democratic Republic of Congo (DRC), where his company was cited by the United Nations for unethical business dealings with rebels in the DRC’s bloody civil war. According to Forbes, Boulle has ties with ‘what are believed to be military mercenaries’ and has long ‘profit[ed] from Africa’s misery’ (Morais 1998). The fact that the mining project sites will be situated in Rakhine (Arakan) towns where thousands of state-persecuted Rohingya have been forcibly displaced will, we can be sure, 336

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have little impact on Boulle’s resource extraction plans. It is clear that international capital, in its pursuit of profit, is brutally violating traditional land rights and, in its plunder of Burma’s natural resources, is impoverishing and dislocating the country’s ethnic and rural communities. Burma, in many respects, is now one of the most attractive global destinations for predatory capital. The years of economic and political isolation have fashioned a formidable state apparatus that can be used to redistribute large swathes of Burma’s natural resources. Indeed, as we will shortly see, the tightly controlled and coordinated military apparatus has been frequently employed to intimidate and cajole local communities into relinquishing their land, and suppress subsequent dissent. PNG, in contrast, involves less cohesive networks – there it is largely decentralized and temporary clientelistic factions that facilitate illegal land transactions. As a result, forced evictions tend to be more haphazard, leaving the door open to successful acts of community resistance, whereas in Burma, the centralized character of state corruption makes eviction more organized and resistance more precarious. On that note, we will now to turn our attention to certain characteristics of the communities vulnerable to forced evictions in PNG and Burma.

Vulnerable populations and ambivalent institutions One common denominator underpinning forced eviction in PNG and Burma is the existence of an economically marginalized population, without legally enforceable claims to the land. However, the explanation for this vulnerability is very different in both examples. We will begin by examining the case of PNG. Since independence, PNG has witnessed a steady growth in its urban population, particularly in the national capital, Port Moresby (Chand and Yala 2012: 145). On the other hand, the PNG state has failed thus far to implement an urbanization strategy, or stimulate the construction of low-cost housing that could potentially meet growing demand (Independent Consumer & Competition Commission 2010; UN HABITAT 2010). As a result, obtaining formal accommodation is extremely difficult for any but the wealthy, or for a lucky few with access to subsidized housing. The Independent Consumer & Competition Commission (ICCC) (2010: 69) observes: ‘While it may surprise some, a substantial proportion of Government employees, who as salary earners, could be expected to afford standard housing, are unable to do so.’ Indeed, housing shortages, high rents, poor access to finance, and elevated levels of inflation have meant that many urban residents are forced to live in informal settlements (ibid.). Informal settlements are, in effect, largely unplanned self-help housing developments which are constructed either on customary land – most commonly with the consent of traditional landowners – or on unused state land. Looking at data from Port Moresby, around 50 per cent of the population live in settlements (Jones 2012: 152), the majority of which are erected on state land (UN HABITAT 2010: 22). Communities tend to settle according to tribal and ethnic affiliation, a bond that gives residents an important sense of security (Chand and Yala 2008: 94). Additionally, though these communities do not have formal title to the land, they have often occupied areas either at the behest of local MPs, or with the tacit consent of the state (Chand and Yala 2012). As a result, some of Port Moresby’s settlements have been around for over 40 years, and have developed complex forms of local governance and thriving community economies (Chand and Yala 2012: 149). Nevertheless, there are no legal measures in place which allow these communities to obtain formal title to the land, or to protect long-standing settlements from displacement. Compounding these problems, there is a growing demand in Port Moresby for land to construct commercial and high-end residential premises as PNG’s resource boom takes effect. 337

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With intermediaries standing to make a significant profit, this has prompted a growing black economy in relation to state land in the nation’s capital.The Public Accounts Committee (2006a) has documented numerous examples of 99-year state-leases being given to speculators in contravention of the Land Act 1996.The Lands Department, which is responsible for administering the land, collecting revenues, and ensuring that improvement covenants are met, has been found wanting in all respects. As a result lease-holders are maintaining ownership over land despite unpaid rent and unfilled covenants, before selling the land at considerable profit, with sale prices ranging in the millions to the tens of millions of kina. As a result of this black trade, the threat of forced evictions is now an emerging reality for many of PNG’s urban communities informally built on state-land. However, it is not only those resident on state-land who are vulnerable to predation. Evidence is emerging of an illicit trade in the housing stock owned by the National Housing Corporation (NHC) – the government’s housing agency – which includes sizeable apartment blocks in Port Moresby. The Public Accounts Committee (2009: 9) observes: ‘It [the NHC] has failed to carry out almost any of its functions and is synonymous with corruption and incompetence.’ Critically, the committee notes cases of NHC properties being illegally sold at the behest of a ‘few officers of the Corporation for personal gain’ (ibid.: 42). Burma’s most vulnerable populations are, by comparison, agrarian. Around 67 per cent of Burma’s population live in rural areas, the majority in the ethnic minority border territories to the north, east and west of the country (World Bank 2013). While 26 per cent of Burma’s 60 million population live in poverty, rural Burma is defined by poverty where the rate is at least 1.8 times higher than in urban areas (Schmitt-Degenhardt 2013). The poorest of all Burma’s communities are those found in the conflict-beset ethnic regions, with poverty rates of 73 per cent, 44 per cent and 33 per cent respectively in Chin, Rakhine, and Shan states (BurmaNet News 2013). Poverty makes these communities exceptionally vulnerable to land predation and housing insecurity. 88-Generation’s Farmers’ Affairs Committee estimates that almost all those in farming communities face land disputes and other forms of land insecurity (Nan and Hnin 2013), and a study conducted by The Border Consortium (2012) reports that only 20 per cent of poor households in the south-east of the country have adequate shelter. Burma has experienced only low rural to urban migration, though it is now increasing (Woods 2013). Fifty years of oppressive military rule, wide-scale border conflicts, human rights violations and environmental degradation have left subsistence rural communities impoverished and extremely vulnerable to dispossession, particularly given that the country’s transition to liberal democracy is predicated on the abundance of land. Customary law and practice have historically determined agricultural use rights but the Burmese state has shown little respect for custom, and forced eviction has been a common practice when military or commercial needs demand it. During the early years of Burma’s military dictatorship, poor farmers officially lost any property rights they had previously held. The 1947 Constitution made the state the ultimate owner of all land, and from 1948 the state had control of the granting and oversight of all land-use rights on agricultural land (Leckie and Simperingham 2009). Farmers were, however, allowed to keep working and living on the land as long as they paid rent in the form of state taxes (Hudson-Rodd and Htay 2010). All agricultural lands were nationalized under the 1953 Land Nationalization Act. Private ownership was no longer recognized by law and instead different categories of land rights, contingent on the state defining productive capacity, were acknowledged (Leckie and Simperingham 2009). A multitude of property laws developed since 1850 has led to ‘a complex array of different land classifications’ (ibid.: 30). The vast majority of Burmese farmers now have no legal enforceable right to remain on their lands 338

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despite having farmed them for generations. Land use permits or documents demonstrating that farmers have paid their land tax do exist and while they are not title deeds demonstrating ownership, they do demonstrate land use rights and a form of customary relationship to the land but not in any legally enforceable sense.These permits are essential to the pursuit of compensation in land disputes. Burma’s neoliberal transformation and the opportunity structures created for inflows of predatory capital have guaranteed land as the country’s newest and most valuable commodity. Laws passed in 2012, the Vacant, Fallow and Virgin Lands Management Law and the Farmland Law, demonstrate the new regime’s commitment to facilitating national and international capital and to increasing the vulnerability of poor peasants. Both laws allow for the private purchase of land-use titles and make it possible to ‘grant titles to private entities for land recognized as “vacant”’ (Baulk 2013). Moreover, the laws codify the state’s right to expropriate land deemed ‘fallow’ if it is left vacant. This law rides roughshod over customary practices such as rotational agriculture, which involves leaving agricultural plots fallow for a few seasons in order to restore soil fertility and thus leaves peasant farmers, who cannot afford to purchase titles, highly vulnerable to land confiscation. As Woods (2013: 31) so astutely comments: It is no coincidence that the land use titles can be bought and sold by foreign investors and that those who passed these land laws (the military-private alliance) ‘own’ millions of acres of land in the country obtained over the last two decades through land confiscation using a mixture of police force and legal instruments. Our own research and data reported by NGOs such as the Karen Human Rights Group demonstrate that many peasant farmers have been coerced into signing compensation agreements. In this way villagers are seen as ‘voluntarily’ vacating land and in so doing create an opportunity structure for inflows of predatory capital. Those who refuse to sign are exposed to fines, arrest and imprisonment if they refuse to move from their land. Urban ‘re-generation’ schemes in Rangoon and other cities have also resulted in the forced displacement of hundreds of thousands of urban poor, often from squatter communities. According to Leckie and Simperingham (2009) many of those forcibly evicted held formal rights to their land and homes but lacked any real legal right to challenge the evictions, were paid derisory forms of compensation and in some cases were forced to pay for the land they were allocated in far-flung re-settlement projects. What we can see then is that in Burma’s case the most vulnerable population is the largely rural peasant communities, whose customary rights have been extinguished. In the process these communities have been effectively converted into tenants at will. In contrast, PNG’s most vulnerable communities from a forced eviction perspective are largely urban in character, and their vulnerability stems from the state’s failure to implement a housing policy and urban planning strategy that can facilitate the growing working population. As we will now see, both the social character of vulnerable communities and the specific form of predatory state-corporate relations in the two regions are acutely reflected in the precise mechanics of forced eviction.

Mechanics of forced eviction As criminologists, our primary empirical concerns are the particular social networks and mechanisms that facilitate forced eviction, and the way in which communities resist this process – indeed, the subsequent resistance is central, from our perspective, to defining and 339

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sanctioning state criminal practice (Green and Ward 2004; 2014). To that end, in PNG we witness relatively small corporate entities illicitly obtaining access to land and then operationalizing contested eviction orders through haphazard and mostly unsuccessful forced removals. In contrast, Burmese forced evictions are typified by large-scale resource developments, increasingly operated by foreign companies in conjunction with state-owned commercial enterprise, and the evictions are conducted with greater coordination and effectiveness. To begin, we will turn to the example of PNG, which is built on a sample of five cases – three involve urban communities based on state land in Port Moresby (in particular, Paga Hill, the Art Centre settlement, and the Air Transport Squadron (ATS) settlement), one involves residents at the NHC North Waigani hostel, while the final example features the customary owners of Mililat plantation, a tract of land which falls within an area earmarked for a proposed special economic zone in Madang province. In four of the five examined cases, the title holders had a documented history of illegal activities (ATS is the only exception). One striking example involves the Paga Hill Development Company (PHDC), whose Chairman and Secretary, Gudmundur Fridriksson, had been censured in two Auditor General reports and three Public Accounts Committee inquiries. In the most serious matter, Fridriksson’s company CCS Anvil was accused of having ‘withheld a significant amount of monies’ (K1,966,677), realized from deceased estates when conducting consultancy work for the Public Curator’s Office (Auditor General’s Office 2005: 55–6; see also Public Accounts Committee 2006b). Another notable instance involves the leaseholder of the Arts Centre settlement land, Macata Enterprises. The owner/manager of Macata Enterprises is the former parliamentarian Tom Amaiu, who was removed from office and sentenced to five years in prison, after he stole a K10,120 cheque belonging to Wagop Korowai (Lasslett 2013). Unsurprisingly, in light of the organizational actors involved, the land transactions underpinning forced eviction in all five cases featured at the most moderate end of the spectrum, illegalities, and at the more serious end, evidence of fraud and corruption. An example of the former is the ATS settlement, where the land was leased to a foreign-owned company, Dunlavin Limited. According to the Managing Director of the Investment Promotion Authority – the state agency responsible for regulating foreign investment – Dunlavin Limited did not have the requisite approvals to operate as a foreign enterprise in PNG (Pomaleu 2013). At the more serious end of the spectrum are the cases of Paga Hill, NHC North Waigani, and Mililat. In the latter instance, the 417-hectare plot of land was meant to be returned to its customary owners under the Plantation Redistribution Scheme after being alienated during the colonial period. Selon Limited, a private holding company owned by Madang businessman Sali Tagau,7 promised to acquire the plantation on behalf of the landowning communities.8 Instead Selon Limited acquired and then sold portions of Mililat to Aces Ventures, a Filipino company, for just over a million kina (Selon Limited 2004a; 2004b). In another of the more serious cases, Paga Hill, the land deal involving the Australian-PNG venture, PHDC, was formally scrutinized by the Public Accounts Committee. The committee declared that the lease had been acquired through ‘corrupt dealings’ by a ‘private, foreign speculator with no ability to even pay the Land Rental, much less build anything on the site’ (Public Accounts Committee 2006a: 70). Despite the illegal nature of the transactions underpinning the transfer of the land, in four out of the five cases the developer was able to acquire an eviction order sanctioned by the courts.9 In the case of the Arts Centre settlement, the eviction order declares: ‘The City Metropolitant [sic], Peter Guinnes is ordered to order his police officers to enter the property by force and remove the Defendant . . . breaking down and removing any illegal buildings.’10 That said, in all the cases, the eviction order, and the legal transactions behind the developer’s title, were the subject of legal proceedings when the evictions took place. 340

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The evictions were implemented using armed force. In three of the cases (ATS settlement, Paga Hill and the Arts Centre settlement), the RPNGC was employed by the developer to remove residents. For example, at Paga Hill around 100 heavily armed police entered the settlement, attacked residents with sticks and machetes, and ordered them to disassemble their homes and leave (International State Crime Initiative 2012a). Police also discharged their firearms at residents, who were unarmed and not posing any threat. By the time a court injunction stopping the eviction had been obtained by community leaders, a dozen homes along the harbour foreshore at Paga Hill had been demolished. Similarly, at the Arts Centre settlement, police discharged their firearms, this time in a bid to disperse a public protest organized by the community (Pitpit 2013). Police then proceeded to demolish homes (Yalbees 2013). Residents were also told, at gunpoint, to destroy their houses. In the instances of Mililat and NHC North Waigani, non-state armed actors were employed to evict residents. At Madang, the owner-manager of Selon Limited used his other company, Savalon Security Services, a private security contractor, to conduct the eviction. Traditional owners living on the contested land were attacked by Savalon’s security guards, and required hospital attention. On the other hand, at the North Waigani hostel, the NHC acquired K30,000 of state funding to conduct the eviction, part of which was used to recruit armed street gangs known in PNG as raskols (National Housing Corporation 2013). Employing firearms, knives, axes, iron bars, bricks, chains and rocks, the gangs succeeded in evicting all residents from the property using force (North Waigani Hostel Working Committee 2013). The common theme binding all five cases is the use of violence to prosecute contested evictions. Only in the case of Paga Hill and the Art Centre settlement, were homes actually destroyed. That said, residents in both communities used their numbers to reclaim the land, and in the eviction’s immediate aftermath resided under temporary shelters made from tarpaulins, or scraps leftover from the demolition. Only one of the five developers, PHDC, claimed to have secured alternative land for the displaced residents. According to a PHDC Director, households would ‘be provided with [their] own title over a 300m2 block of land’ at Six-Mile, with plans under way to construct ‘roads, a village square, market and garden areas’ (Post-Courier 11 October 2012, 8; see also International State Crime Initiative 2012b). However, further examination revealed that not only was the land customarily owned, and thus inalienable (though informal, legally unenforceable arrangements could be made),11 it was also in close proximity to a significant landfill that contained ‘domestic, commercial, institutional and industrial wastes’ (Merz 2004: 4). In Burma, forced evictions are most commonly mediated through the ‘law’. However, in a state where the ‘rule of law’ has been defined as ‘state crime’, violence and corruption define the legal process, while protections are minimal at best (Green and Ward 2014). In Burma, law and terror have ensured that those who form part of Burma’s elite ‘military–private’ alliance control enormous swathes of the country (Woods 2013). Particularly pertinent to forced evictions has been the Land Acquisition Act (1894), particularly since 1962.This Act, which empowers the state to acquire land deemed necessary for public purpose, also provides for the acquisition of land for corporate interests (Leckie and Simperingham 2009). While authorities are required to compensate original owners or land use ‘title’ holders, empirical evidence suggests that such compensation is rarely adequate and often not forthcoming. According to data amassed by Burma’s official Land Acquisition Investigative Commission,12 land has typically been stolen from farmers in order to expand and develop urban areas, build special industrial zones, expand or establish military sites, undertake state-sponsored projects or provide land for private companies for agribusiness (Htusan 2013; Soe Than Lynn 2013). 341

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The following example, reported to us by a land activist from the Myitsone Dam region of Kachin State in northern Burma, captures what seems to be a typical experience: [S] described how she and her family were forced to move to a resettlement village in April 2011. She and her fellow villagers were called together in December 2010 for a meeting in which they were told by local officials that they would be evicted from their homes. She reported that they were told, not consulted. Each family was promised a house (including a certificate of ownership to land), plus 100,000 Kyats, a TV, and free electricity initially. To date, the ownership certificates have not been issued . . . The same activist claimed that state officials employed intimidation and threats and those who have refused to leave are threatened with arrest. (ESRC field notes, Myitsone Dam Site, Kachin State, 19 December 2013) One of the mechanisms of forced eviction reported in the south-east relates to land already confiscated being offered directly back to villagers for traditional use in exchange for the signing over of land permits or ‘titles’. As the Karen Human Rights Group report asserts in relation to these instances, ‘legal claims to the land are being foreclosed before they can be raised’, exposing farmers to land insecurity (Karen Human Rights Group 2013: 29). Other patterns in the process of forced eviction can be identified from the testimony gathered by human rights organizations. It is clear that villagers are not included in pre-development consultations. They are generally forced to sign away land ‘titles’ under duress or fraudulent conditions and the transaction is managed through local official intermediaries. Villagers are denied the opportunity to raise concerns or demand compensation until after the implementation of the development projects. Only after the destruction of land and livelihoods are foreign and domestic corporate and state actors willing to discuss compensation for the affected villagers. Compensation, when it does come, is rarely adequate, often only partially paid and in many reported instances wholly unpaid (Karen Human Rights Group 2013: 30). Indeed, in its major study of land conflicts and collective action in Burma’s south-east, the Karen Human Rights Group documents case after case of villagers forced from their land in precisely this manner. Communities as a result become further impoverished and less self-reliant. Burma remains a highly militarized state so it is also unsurprising that an increased military presence has been identified in areas in which the planning, registration and survey stages of large-scale development projects are underway. In this militarized environment of intimidation, project-affected villagers will receive an order to vacate lands or re-locate through village heads or township meetings. The security environment and decades of military persecution are often seen as threat enough to force compliance. The extent to which the Burmese state has been prepared to defend the predatory activities of mining giants and military corporations through criminal violence and corruption was most keenly witnessed in 2012 at the Letpadaung Copper mine in Burma’s north-west. Letpadaung, a massive undertaking between the Chinese Wanbao Mining Company (part of weapons manufacturer China North Industries Corporation) and the military-owned Union of Myanmar Economic Holdings Ltd (UMEHL), stands accused of illegal confiscation, forced eviction, land contamination and the destruction of religious sites. When monks and villagers from Sagaing Division peacefully protested at the site of the mine in 2012, they faced an onslaught of criminal brutality: In the pre-dawn hours of 29 November 2012, contingents of Burmese police in full riot gear, acting under orders of the Union Ministry of Home Affairs, deployed water cannons, 342

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white phosphorus military munitions, and baton charges to disperse monks and farmers assembled in peaceful protest against a controversial copper mining project in Letpadaung hills. The police action set ablaze and destroyed six protest camps housing up to 500 monks and 50 farmers; demonstrators were exposed to a burning rain of phosphorous pentoxide and hit by flaming globs of phosphoric acid.Well over 100 protesters suffered deep chemical burns. (Lawyers Network and the Justice Trust 2013: 4) In its investigation of the attack on protestors, the Lawyers Network and the Justice Trust concluded that local state officials had employed fraud and duress in compelling villagers to sign land use contracts with the Wanbao/UMEHL mining venture, that local police had denied villagers and monks the right to peaceful and lawful protest and that paramilitarized riot police had used white phosphorous incendiary smoke grenades against demonstrators (ibid.: 4). When villagers refuse to accept offers of compensation in return for land confiscation, the Burmese military has an armoury of repressive legislation to ensure compliance. Under Section 144 provisions of the Curfew Law, for example, the authorities are afforded emergency powers to control public order, including the right to shoot protestors.When military interests are explicitly behind land confiscation, forced evictions tend to be more violent. In Khanaung Chaung Wa Village, in Dala township south of Rangoon, Section 144 was invoked to force 44 families from their lands in order to allow a military base to expand its storage capacity. All those who resisted the eviction witnessed their houses bulldozed and paddy fields poisoned as the following example illustrates: Just after dawn, plainclothes Myanmar naval officers entered a wooden shack and roused a young rice farmer from his sleep. They marched him to their nearby barracks and locked him up without explanation. By the time The Khaw Lu Maw was released, the shack that had been his lifelong home was gone, his belongings scattered amid the debris. One by one other homes in the riverside community of Dala were bulldozed. Residents had farmed the land for generations but the military took it to expand a base. (Htusan 2013) Forced evictions in Burma thus tend to be administratively organized, mediated through law and reinforced by military and para-military terror.

Resisting forced displacement In PNG there is, as yet, no social movement, civil society coalition or NGO set up specifically to defend residents from forced eviction (though Paga Hill residents were able to obtain some financial assistance from the UNHCR, as West Papuan refugees live in the community). Resistance tends to take place on an atomized, community-by-community basis. In four of the five cases communities set up their own civil society organizations (CSO) to challenge the forced eviction; in the other instance (Mililat), the defence was organized along traditional leadership lines. The preferred method of resistance employed by communities has been legal action; indeed the Public Accounts Committee (2006a: 44) has suggested that the courts ‘have increasingly become the guardians of last resort’ in a context defined by the state’s capture by parasitic forms of capital. In four of the five cases, communities sought private legal representation, while in the instance of the Arts Centre settlement, they relied on the Office of the Public Solicitor. None of 343

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the cases has been successfully resolved to date; indeed it is not uncommon for legal disputes to take place over a period of years before a definitive decision is delivered by the courts, during which time there are substantial costs involved, enduring insecurity, risks of community fragmentation, and the potential for leaders to be bribed by developers. More promisingly, communities facing forced eviction in PNG have begun to experiment with the use of civil disobedience, mass mobilization and, in one instance, art resistance. The most effective use of civil disobedience occurred at the ATS settlement, where community leaders used a sit-in to block entry into the community, thus preventing the forced eviction from being carried out (Kevin Abotoboni, personal communication, 2013). This afforded community leaders time to obtain an injunction staying the eviction order. Another innovative instance of resistance can be observed at Paga Hill, where community leaders have set up Paga-Hill Arts Resistance (PHAR), a CSO which uses theatre, dance and music to publicly document the community’s struggle against the developer (Ratoos Haoapa, personal communication, 2013). In addition to performing at the Moresby Arts Theatre, PHAR’s work has featured in the broadcast and print media. However, where resistance campaigns have succeeded in publicly censuring the forced eviction, companies have responded by stigmatizing the community and accusing them of blocking ‘development’. The most notable example in this respect is Paga Hill, where PHDC’s Chairman, a man with a considerable backlog of corruption allegations to his name (documented by the state’s accountability agencies), claimed: There are just squatters and settlers and criminals hanging out there [at Paga Hill] . . . there would not be more than three houses there that qualify as a house. It is just rocks on top of corrugated iron held down by nails. It’s like Rio de Janeiro or Manila. (Robinson 2012: 1) Over at the Arts Centre settlement, Macata Enterprises’ owner-manager, Tom Amaiu, alleged that the community were blocking a ‘major development . . . worth more than K230 million’, which will ‘directly employ scores of Papua New Guineans and boost the country’s economy’ (Muri 2013: 11). In a region of the world where the press is notoriously corrupt and known to print corporate media releases as news, and where a class of professional workers are squeezed by extortionate landlords, these attacks and claims can have provocative effects. On the other hand, organizations like PHAR are demonstrating the innovative ways in which communities can neutralize these attacks by using art and performance to build networks of solidarity within the city. In Burma, a number of civil society organizations have organized around challenging forced evictions (see especially the Karen Human Rights Group or KHRG, and 88 Generation) and have supported local communities in their struggles to resist the theft of land and forced displacement. Much of the work of these NGOs has been concerned with gathering data, reporting and dissemination in an effort to expose and censure state, corporate and military abuses, and they have played a significant role in emboldening farmers and villagers to resist forced displacement through education and training workshops organized by civil society organizations like 88 Generation. Burmese farmers have engaged in a range of protests against predatory land grabbing and forced evictions, from official complaints to on-site ‘illegal’ protests. Village committees have formed in many places to ensure a collective response to land confiscation and eviction. One strategy has been to report complaints to local and national authorities. These written complaints, essentially legal in character, catalogue the extent of land damage and confiscation as well as 344

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laying the foundations for compensation claims, but there is little evidence to suggest that they have been an effective form of protest. The Government introduced the Land Acquisition Investigative Commission in 2012 ostensibly to deal with complaints arising from land-grabbing. Despite receiving over 2,000 land-conflict cases in its first few months of existence, it has little power to arbitrate and has quickly disillusioned farmers who saw in the Commission an opportunity to address their grievances (Buchanan, Kramer and Woods 2013). Fearing harassment from the state authorities, many affected villagers have instead reported their concerns to the political wings of armed ethnic militias, many of which have also been implicated in the corruption associated with land grabbing (Rogers 2012; Woods 2013). Encouragingly, however, the threat of ‘development’-induced displacement has led to a ‘sharp’ increase in the formation of local civil society organizations in Burma and, as Woods (2013) notes, land-grabbing stories now dominate the Burmese media.Villagers have marched in protest against land expropriation, they have demonstrated on river banks against massive hydro-electric projects, they have engaged in civil disobedience and they have formed alliances with civil society organizations to strengthen their claims to justice. The ‘plough protests’ of 2012/13 – in which farmers plough or work their confiscated lands without a permit – mark a new development in resistance to state crime and demonstrate a new sense of empowerment within civil society in the country’s changing political climate. In August 2013, 500 ‘plough protest’ farmers met in Rangoon to demand that the government address the worsening land confiscation crisis and to return agricultural lands seized under the former military junta (Nyein 2013). Farmers from across the country are challenging not only recent land-grabs but the historical theft of their lands by the state, some dating back decades. Many have been arrested for trespass and related offences under Article 447 of the penal code and by June 2013 more than 100 farmers had been charged with offences relating to trespass and the damage of property (Naw 2013;Yuzana 2013). Direct action by farmers and the response these actions have elicited from the state have also resulted in a new form of Burmese political prisoner – the farmers and activists now imprisoned in increasing numbers for resisting land-grabs and forced displacement (Nan and Hnin 2013). While the Tatmadaw and paramilitarized police forces are readily at the service of state and corporate interests to brutally crush civil society protests and to facilitate forced evictions – particularly in the remote and marginalized border territories – the law has also been invoked to suppress those resisting land confiscations and forced evictions. Both the Peaceful Assembly and Peaceful Procession Law and the 1908 Unlawful Association Act have been used to arrest, detain and imprison those who challenge the deviant acquisition of land by corporate and military interests. One activist protesting the Letpadaung copper mine in central Burma, discussed above, was arrested, held incommunicado and sentenced to 11 and half years in prison.

Conclusion After the mining is finished, the land is destroyed, mercury pollutes the rivers, there are no trees – but then people are told they can return to their land . . . When you look at the policy from above, it looks like development. But when you look closely, you see that it equals land confiscation and displacement. (Burmese Kachin interviewee, cited in Rogers 2012: 97)

Forced evictions of entire communities, and the enclosure of common space, are an enduring and indeed growing problem that affects both rural and urban populations on a global scale. Although ostensibly clothed in legality, behind these forceful acts stand illegal land deals,

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fraudulent eviction orders, criminal state violence and corporate malfeasance. Nevertheless, modernist discourses of development (accompanying neoliberal commitments to the privatization and de-regulation of common resources), obscure social transactions steeped in state-corporate criminality. If scholarship is to aid effective resistance to these criminal transactions and the forced displacement they engender, we must understand both the mechanics of forced eviction and the particular political and economic characteristics of the regions in which they take place.We have observed in this respect that very different forms of state power attract contrasting predatory capital flows, and thus encourage forced evictions of distinct types. In the case of PNG, we would suggest communities are in a strong position to resist forced eviction through forms of direct action, including the occupation of disputed land, and the organization of political campaigns; while domestic and international CSOs can enter as adjuncts to help support community self-organization.The potential of small, well-coordinated campaigns of direct action stems not only from the criminal character of the organizations standing behind these land transactions – which, once exposed, de-legitimate their developmental claims – but also from the fact that the corrupt networks bulwarking the evictions are temporary, weak and built on alliances of convenience. In Burma, on the other hand, there is a much more formidable and organized criminal state apparatus that enjoys greater levels of impunity. Villagers resisting forced evictions as a result of economic and military ‘development’ thus face a potentially lethal counter-offensive from the state. As a result, forced evictions, particularly in the resource-rich hinterland, are widespread, backed by the permanent threat of violence and a government for whom the interests of crony, military, regional and international capital are to be defended at all costs.

Acknowledgements The authors would like to thank colleagues Thomas MacManus, Alicia de la Cour and Izzy Rhodes for their research assistance, which was generously funded by the Economic and Social Research Council (ESRC Ref ES/I030816/1), ‘Resisting State Crime: A Comparative Study of Civil Society’, based at the International State Crime Initiative (ISCI). We would also like to acknowledge the British Academy’s (Ref SG100483) generous support for an online data-sharing facility between ISCI and civil society organizations in PNG. Finally, the authors extend their appreciation to Philippe Schneider and Olivier Pollet for their assistance visually documenting forced eviction in PNG.We also warmly thank Rosa Koian and Nathan Matbob for helping us access communities facing eviction in PNG.

Notes 1 Burma is also known as Myanmar, the name applied by the oppressive military junta unilaterally in 1989. The vast majority of interviewees for this Economic and Social Research Council (ESRC) project referred to the country as Burma, and we have followed that practice. 2 In terms of rural land acquisition, recent Oxfam reports claim that land ‘an area four times the size of Portugal’ had shifted from smallholder and local use to commercial production over the past decade. 3 These insights are based on Lasslett’s fieldwork on corruption in PNG since 2010, which has consisted of interviews with anti-corruption agencies and detailed documentary research. 4 The Malaysian logging giant Rimbunan Hijau was specifically condemned by the inquiry. 5 A senior executive working at the PNG Liquefied Natural Gas project alleged the RPNGC could even be contracted to commit murders (personal communication, 2012). 346

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6 New Light of Myanmar, ‘President U Thein Sein delivers inaugural address to Pyidaungsu Hluttaw’, 31 March 2011. 7 Company Extract for Selon Limited, 19 March 2009. 8 Memorandum of Understanding Between Tropic Timbers Ltd, Savalon Security Services and the Bared, Nuo, Abo, Makal Clans, 7 June 2000. 9 The courts have little alternative but to sanction eviction orders when companies present legitimate title; it is the Lands Department’s responsibility to forfeit land illegally issued by the Land Board. Alternatively, aggrieved parties with legal standing may have the state lease judicially reviewed if there is evidence of constructive fraud. 10 Eviction Order, 23 October 2012. 11 In PNG, customarily, land can be converted to freehold, but the conversion process is extremely complex and rarely, as a result, employed. 12 Established in 2012 to deal with land conflicts but widely regarded as ineffectual and without enforcement powers.

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Part VI

Criminology and the border

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

Introduction National borders are places apart, dense with laws and procedures to control human entry, but also porous enough to encourage the free flow of goods. This is where the contradictions of late capitalism and human migration meet, and where the power of the nation state to affect human lives is daily revealed through a uniquely border-shaped system of crime and justice. Borders can separate communities, and even families, but the fact of separation also creates unique opportunities for crime, violence and impunity. Borders are less stable than their appearance on maps would suggest, as is evident from the frequency of conflict over their correct location. It is helpful also to think of borders, not simply as markers of the edges of national territory, but, more fundamentally, as a justification for removing people who are not considered members of the national body. From this perspective, the efforts of governments to detect and deport persons living within their national territory, that is, interior immigration enforcement, are within the domain of border justice. In the discussion that follows we take this broader perspective on the multiple and far-reaching meanings of borders. We consider first the nation state’s varied and shifting responses to the challenges of crime and justice in borderlands, and then turn our attention to the impact of those responses. We examine the effects of the way borders are conceptualized and efforts to enforce those borders on crime and public safety, civil society, and the economy. Throughout this discussion, we treat the state, not only as the source and arbiter of law, but also as a potential law violator and source of injustice. We suggest examples of useful lines of inquiry, but do not attempt a full-fledged literature review of this emerging field. Our goal is to create a context for further research on crime and justice in the borderlands, to suggest conceptual frameworks that may facilitate analysis in this unique environment, and to propose ways to assess the impact of the criminalization of border crossing on immigrants and communities.

Migratory fault lines The contemporary preoccupation with border control as an element of national security and the apparent fixity of national borders mask their emergent and even ephemeral quality 353

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(Melosi 2000; Ngai 2004; Johnson and Graybill 2010). Borders are only as important as a nation’s ability to police them. In the United States that capacity did not develop until the latter years of the nineteenth century, and even then, only at ports of entry, where federal controls sometimes displaced local taxes and rules on foreign entry (Kanstroom 2007). Land borders remained virtually unguarded until well into the twentieth century. When the federal government attempted to establish strict controls during World War I, out of fear of sabotage by foreign agents, it met resistance from Americans residing on the border with Mexico. Local residents effectively overwhelmed federal agents with their demands to continue their established crossborder social and economic routines (Kang 2010). As late as the 1980s, Mexicans had little difficulty entering the United States through the southern border (Nevins 2002). As Agnew (2008) suggests, borders are practical and utilitarian, but also equivocal and, increasingly, redundant. The struggle by nation states to define and defend borders, and the efforts by individuals and groups to defy these artificial constructions, are key to understanding crime and justice in borderlands. Here, more than in the interior, the legitimacy of state control is contested, and in ways that are less available inland. Borders also have geostrategic characteristics that are relevant to criminology. The most significant geopolitical divide, as Alain Badiou notes, is no longer between East and West, but rather separates ‘the rich capitalistic North from the poor and devastated South’. These boundaries between ‘the pleasures of wealth and the desires of the poor’ must be maintained by walls, bureaucratic controls and expulsion (Badiou 2008: 49, 38; and see Agnew 2008: 186). To these controls, states are increasingly adding criminalization of activities associated with unauthorized entry. Borders, in short, are a central phenomenon of modern nationhood and a significant locale for struggles over authority and justice in an increasingly transnational world, and thus offer a logical focus for criminology.

How borders create and facilitate crime The border policies that governments have adopted in the name of national security and sovereignty have a direct impact on the study of crime and justice. These policies are often criminogenic; that is, they themselves are the source of crime: •

•

•

•

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When nations attempt to control borders, they create incentives for illicit exchange and human smuggling that are difficult to disrupt because they work to the benefit of local economies as well as the individuals involved. To defend borders, governments typically invest law-enforcement agents with broad enforcement powers and virtually unreviewable discretion, powers that are even greater in the context of day-to-day interaction with travellers and migrant workers and their families, who are ill-positioned to complain of excesses and lapses. The demand for more secure borders has led to over-policing of local residents in border areas, creating serious hardships and discrimination as law-enforcement agents attempt to sort out who is legally present from who is not. The emphasis on controls has legitimated race and ethnicity as indicators of illegal presence, even where it is officially off-limits as a distinction among citizens. The patterns of racial discrimination present at borders reflect historical patterns of subordination of peoples and nations.

Borders, crime and justice

Investigating the criminogenic characteristics of borders The complicity of government in making criminals of unauthorized immigrants has been noted by many scholars. Zolberg, for example, describes the push–pull of a system that desires immigrants for labor, but at the same time deems them unsuitable for membership (1997: 143; see also Calavita 1995; 2005). Ngai characterizes settled but unauthorized immigrants as ‘impossible subjects’ in law and society and suggests that ‘shifts in the boundary between legal and illegal status might tell us a lot about how the nation has imagined and constructed itself over time’ (2004: 6). De Genova critiques ‘the legal production of Mexican/migrant “illegality”’ in the United States as a response to racist nativism (2004: 213). Van der Leun’s assessment of immigration law in the Netherlands is similar but more general when she notes that ‘the national regulatory framework of a country – and its enforcement – define who may become an illegal immigrant’ (2003: 20). Dauvergne is similar in emphasizing law’s role in defining insiders and outsiders: ‘Migration laws make national borders meaningful for people . . . Through this process such laws constitute the community of insiders, and also spell out degrees of belonging and entitlement through the hierarchical systems they establish’ (2008: 17). Federal bureaucracies also create categories between legality and illegality in processing immigrants. As Macías-Rojas (2013) demonstrates, definitions of who belongs and who is a threat in border communities are fluid, and may not align well with actual legal status. Menjívar (2006) studied this ‘liminal legality’ in the context of Salvadoran and Guatemalan immigrants’ lives in the United States. In Canada, similar conditions prevail as asylum seekers and visa overstayers attempt to regularize their status. These are persons with what scholars have dubbed ‘perilous status’ as they negotiate Canada’s system of legal ‘chutes and ladders’, with deportation as the penalty for failure to climb to the safety of legal residency (Goldring and Landolt 2013). In southern Europe, as well, rules and regulations affecting immigrants can change quickly, such that persons move in and out of legal status (Calavita 2005). The contemporary response to fears of illegal entry and settlement has led to saturation policing on national borders, which has made life much more difficult for residents and migrants alike (Danielson 2013; Heyman 2013). Border residents face difficulties with law enforcement not unlike those endured by minority citizens in poverty-stricken areas in major cities. Preemptive law enforcement, including suspicion-less stops, racial profiling, and over-charging for minor offenses, is a characteristic of both situations. In facing undue attention from law enforcement, residents suffer disproportionate rates of arrest and prosecution. In each case the priorities of law enforcement, prompted by public fear, sacrifice relationships with law-abiding members of the community, with minority populations bearing the brunt of these policies (see e.g. Epp et al. forthcoming). How race and ethnicity affect perceptions about crime in border areas, and how law enforcement officials, public officials and judges incorporate race into their everyday practices are important subjects for criminological study (Zatz and Rodriguez 2006). Again, the parallels with domestic law enforcement involving minority citizens are evocative. Peterson’s observations about the need for criminology to take better account of the structural aspects of race, particularly its association with poverty, are applicable in both situations: ‘Race itself is a core organizing construct that operates to generate the patterns, sources, and consequences of crime and criminal justice that we observe’ (2012: 309). In the case of immigration enforcement, racial discrimination has, to an extent, been legitimized by the prioritization of security demands and by the lack of citizenship of the persons who are the focus of enforcement. Immigration law has been, from the outset, imbued with racial prejudice (see e.g. Calavita 1984; Park 2004), and border enforcement rules still bear evidence of the belief that agents must be able to take race and ethnicity into account in assessing 355

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legal status (US v. Brignoni-Ponce [1975] ). Perhaps not surprisingly, Provine and Doty found evidence that Mexicans and Central Americans are targeted for immigration enforcement beyond their proportion in the US population (2011).

Conceptual tools for the study of crime and justice on borders The seemingly unstoppable movement of people to achieve opportunity, or simply to survive, has forced governments to innovate as they seek to maintain control over their borders. This development has multiple implications for criminology. In the Netherlands, for example, cameras and communication devices are being rolled out at border crossings with the goal of creating nation-wide alerts about potentially dangerous migrants. In Europe as a whole, high levels of unauthorized immigration have precipitated sharp debate about how to deflect unwanted immigrants from Africa and how to spread the growing burden of asylum seekers. Australia has experimented with various policies to deter unauthorized immigration and has recently decided to send at least some of these migrants to Papua New Guinea for possible settlement in undeveloped areas (Pickering and Weber 2011). Immigration enforcement within the interior of nation states is also evolving in ways specific to the needs and capacities of each nation (Varsanyi 2010). To study crime and justice in the context of migration and borders, one clearly needs flexible conceptual tools adaptable to rapid policy change. Borders, in their function of separating members from non-members of nation states, have begun to reach deep into the heartland, where domestic law enforcement and social service agencies are being asked to assist in detecting and deterring illegal immigration as part of their day-to-day work. This section offers two potentially useful frameworks with which to approach the study of crime, justice and borders in the context of rapid change: crimmigration and legal pluralism. Each of these terms arose outside of criminology, finding traction in socio-legal studies. Both, this section argues, are helpful in understanding the rapidly evolving problems of law and justice associated with the changing meaning of borders.

Crimmigration In the United States, the direction of change has been toward increasing reliance on the criminal justice system to supplement, and to a certain extent, replace, administrative immigration controls. This trend began in the 1980s and accelerated with the passage of two key pieces of legislation in 1996 and creation of the Department of Homeland Security in 2002. During this period Congress swept more and more immigration-related conduct into the criminal realm. Offenses that had previously been civil in nature became crimes, and, on the criminal side, the list of offenses deemed serious enough to merit virtually automatic deportation after conviction grew much more lengthy. At the same time the executive branch began to step up prosecutions. During this period, workplace raids that focused on workers, not employers, and long periods of detention became common. The scale of these operations required the mass deployment of well-armed officers, rapid processing of cases, and imprisonment to deter re-entry. Over-charging by prosecutors and scripted roles for judges and defense counsel were not infrequent (see e.g. Camayd-Freixas 2008). On the border, Operation Streamline essentially co-opted federal trial courts for the mass processing of migrants charged with illegal border crossing. Those entrusted with defending the rights of these immigrants have challenged this approach with some success in the courts (Cruz 2012). Many non-citizen residents of the United States have been caught up in these developments. Those working without legal authorization have been particularly vulnerable to raids and, 356

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because they usually cannot obtain valid driver’s licenses, to arrest for driving without a license on the way to and from work. Legal permanent residents, as well, have become eligible for deportation because of sometimes-minor criminal violations, regardless of the length of their residence in the United States or the number of years since the conviction. Persons convicted of immigration-related crimes now make up the largest single category of prisoners in federal penitentiaries, and, for the first time, large numbers of immigrants await their fate in detention centers scattered across the country. In consequence, the numbers of deportations climbed steadily, setting annual records during much of the past decade until they plateaued at approximately 400,000 per year. Legal scholar Juliet Stumpf has labeled the criminalization of immigration law ‘crimmigration’ to emphasize the blend that is occurring. The effects have been dramatic, not just in the numbers deported, but in the reconfiguration of immigrants that crimmigration provokes: ‘As criminal sanctions for immigration-related conduct and criminal grounds for removal from the United States continue to expand, aliens become synonymous with criminals’ (Stumpf 2006: 419). In both cases, she observes, the United States has abandoned a rehabilitative approach in favor of a strictly punitive stance toward violations (ibid.: 412). The blending of criminal law and immigration law extends to the procedures used to deport immigrants. Legomsky (2007) describes the ‘asymmetric incorporation’ of criminal justice norms and procedures into immigration law. Immigration proceedings, with their enormous implications for immigrants, have few of the protections traditionally associated with criminal justice, e.g. the right to bail, to legal counsel, to speedy arraignment and to trial by a jury of one’s peers (and see Noferi 2012). Even children can be deported without assistance from a lawyer. Immigrants accused of crimes do enjoy these protections, but there was, until recently, no requirement that they be informed of the potential deportation consequences of a plea or conviction (Cruz 2012). It is useful to consider crimmigration in still broader terms. A pernicious mixing of crime with immigration occurs when governments devolve responsibility for immigration enforcement to local police, whose traditional realm of activity is crime control. Promoted by national governments as a ‘force multiplier’, devolution of immigration enforcement creates the false impression that unauthorized residence is a crime. The large-scale prosecution of illegal entrants in border areas has a similarly misleading impact on public perceptions. Border crossing, which used to be dealt with by encouraging voluntary returns, now appears to be a serious crime worthy of a federal court’s time and attention. Detention of immigrants awaiting deportation proceedings is another element in the criminalization trend. In the United States detention facilities often are actual jails. Even facilities built specifically to house immigrants have many prison-like qualities.The expansion of detention has attracted the interest of the private prison industry, which now operates many of these centers.The situation is similar in the UK and Australia, where prison-like detention facilities are expanding, providing, these governments hope, a deterrent to immigration outside the law (Welch 2002). As a term to describe growing governmental reliance on criminal penalties, procedures and detention, ‘crimmigration’ has provoked the interest of international scholars. The concept has been applied to policy developments in Ireland, the Netherlands, Canada, Brazil, Portugal, Italy, Spain, Australia and the European Union (Guia, van der Leun and van der Woude 2013; Welch 2012). Governments in wealthy nations appear to be borrowing ideas from each other in their determination to control unauthorized immigration through deterrence and expulsion, with a modicum of deference to procedural guarantees.

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The ramping up of deportation and the policies associated with this trend have created a backlash of deep concern among individuals and non-governmental organizations. Evoking the civil rights struggle in the United States, a few organizations have resorted to acts of civil disobedience, blocking buses of immigrants bound for deportation and risking arrest for doing so. As one example, more than 200 protesters, including Members of Congress and religious leaders, were arrested October 8, 2013, in a protest that came on the heels of 160 rallies for immigration reform in cities and towns across the country (Foley 2013). Arguments for leniency toward unauthorized immigrants draw on norms more fundamental than immigration law, suggesting rights to respect and residence for long-term, law-abiding residents lacking legal status (Provine et al. 2012). The debate over how to respond to these immigrants tends to pit those who contextualize legal status as only one element in a broader analysis of belonging against those who see legal status as the sine qua non of membership in American society.Those who emphasize the importance of legal status reject analogies with civil rights as pertaining only to conflict among citizens.

Legal pluralism The debate over how to respond to unauthorized immigration and residence illustrates the capacity of advocates to entertain the possibility of more than one system of law operating at the same time, or legal pluralism. Multiple layers of law are common in federal nations, of course, where municipal, state and national law all have assigned roles, with occasional conflicts over those assignments. Legal pluralism, however, encompasses not just federalism, but also informal understandings that have the force of law in face-to-face communities. Anthropologist Sally Falk Moore offers an example in a classic article describing business norms in the garment district of New York operating independently of the formal law; she draws a parallel with the co-existence of colonial and indigenous law in Africa (1973). The concept of legal pluralism is also useful in the borderlands, where residents negotiate two national legal systems side by side and frequently develop their own rules for dealing with their unique situation (Andreas 2000; Nevins 2002; Meyers-Galemba 2008). Their isolation creates conditions for various kinds of extra-legal thinking and behavior, including arguments against harsh treatment of immigrants based on principles of human rights (Provine, Rojas-Wiesner and Velasco forthcoming). Legal pluralism is also on display in arguments about the border coming from some sub-national governments. Arizona politicians, for example, promote ‘dual sovereignty’ to challenge the federal government’s assertion of plenary power over immigration policy in Arizona. Partly as a result of Arizona’s example, the proper scope of local authority over immigration has become a hotly contested issue in the United States (see e.g. Singer, Hardwick and Brettell 2008; Chavez and Provine 2009; Lewis et al. 2012; Eagly 2011).

Criminology and the complex impacts of contemporary border policies The determination of nation states to control borders in the face of a globalizing world economy and unprecedented levels of human migration is creating far-reaching effects, not just on the borders, but on the overall functioning of government and society. We focus here on three spheres of concern: (1) economy and labor; (2) domestic systems of crime and justice; and (3) public confidence in government efficacy and fairness. In each case, restrictions on entry and stepped-up enforcement campaigns in the nation’s interior have had unanticipated, and sometimes perverse, consequences. 358

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Paradoxically, the very arguments that are raised against more flexible migration policies actually speak to their value. Thus, while it is often argued that generous immigration policies harm the economy, the empirical data suggests that immigration benefits economic growth (Dixon and Rimmer 2009; Hinojosa-Ojeda and Robinson 2013; Hinojosa-Ojeda 2010; Lynch and Oakford 2013). Similarly, fears that immigrants are responsible for a rise in crime have proven unfounded; immigration is actually correlated with decreased crime, and especially violent crime, in many nations (Zatz and Smith 2012). Immigrants are, however, vulnerable to victimization because they lack many of the rights of citizens. The same paradoxical relationship exists between concerns that immigrants will alter civil society for the worse, and the reality that most immigrants are eager to adapt to their new home. In short, fears of the consequences of the ‘invasion’ of immigrants are largely misplaced.

National economies and illegalized labor Ambivalence towards immigrant laborers has been a hallmark of immigration policy in many nations (Calavita 1984; 1992; 2005). In the United States, the 1986 Immigration Reform and Control Act seeks to balance a legalization program, which was particularly generous for farmworkers, with sanctions for employers hiring unauthorized workers. Under this law, which is still in effect, being an undocumented worker is not a crime. Unauthorized workers using false identification, however, are criminally liable, and thus vulnerable to exploitation and abuse by unscrupulous employers (Valenzuela et al. 2006; Cepeda et al. 2012; Gleeson 2012). The situation is complex because American labor law offers some protections to workers regardless of legal status. Gleeson (2012) considers the relationship between these labor standards and efforts at the federal and state level to detect and remove unauthorized immigrants, finding significant variation in how municipalities handle the tensions produced by sometimes contradictory policies. Unauthorized immigrant workers experience similar conflicts in Europe, and are similarly vulnerable to exploitation. Barbagli and Colombo (2009) find that Italy’s large informal economy attracts large numbers of unauthorized immigrants while also creating an environment in which criminal activity and victimization can thrive, and Calavita (2005) shows how immigrant workers in Spain and Italy are at risk of abuse as they move in and out of authorized status. More broadly, the European Union’s Agency for Fundamental Rights has documented violations of fair working conditions as well as incidents of discrimination and violence against unauthorized day laborers and domestic workers in ten member states (EU FRA 2011). Efforts to control the border are also expensive.The expanded bureaucracy created to enforce immigration law – what Meissner and her colleagues call ‘the rise of a formidable machinery’ – comes at a very high price. Meissner et al. (2012) report that the US Immigration and Naturalization Services budget in fiscal year 2002 was $6.2 billion. With the creation of the Department of Homeland Security, funding had more than doubled by 2006 for Customs and Border Patrol, Immigration and Customs Enforcement, and their associated biometric identity services (formerly known as US Visit). By 2012, funding had increased by another 43 percent, to reach almost $18 billion, more than all other federal law-enforcement agencies combined (ibid.: 17–18, 21). Yet half of the migrants removed from the US in fiscal year 2012 had no criminal record. Expanded border control efforts can also create economic harms for industry and local communities. Heyman (2012) and Nevins (2002; 2012) examine the contradictory relationships among immigration, the territorial state and transnational capitalism, noting in particular how boundaries facilitate capital accumulation along the border. As Heyman argues, there has been 359

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an underinvestment in ports of entry relative to enforcement efforts.Yet this border build-up has been beneficial for some American businesses. Most notably, the private prison industry, which benefited from the mass incarceration policies of the past 30 years, has kept its beds filled in recent years by shifting from incarceration of criminals to detention of immigrants. As this discussion suggests, the costs of enhanced border enforcement are not evenly distributed. Nor are beliefs about the costs and benefits of increased levels of immigration. Urban elites, for example, may view immigration as a key to a more cosmopolitan culture, while suburban and rural constituents may be less welcoming (see e.g. Provine 2010). In Arizona such conflicting perspectives helped precipitate a state law (SB 1070) requiring all cities in the state to aggressively enforce immigration law.

Crime and public safety The nexus of borders, migration and crime provides opportunities to study how crime is socially and politically constructed, and the implications of this construction for migrant populations. In most parts of the world, immigration without authorization is a civil violation, not a crime, and some of the activities associated with it, such as small-scale human smuggling, while often criminalized, do not in fact significantly endanger society. Yet the resources devoted to immigration enforcement reflect a heightened response more appropriate to major threats to public safety or national security.

Violence at the border: individualized and structural harms Borders are not crime-free, of course, and some forms of criminal activity are endemic to areas close to international borders, such as car theft, money laundering, and drug trafficking, because cross-border cooperation among law enforcement agencies is difficult (Andreas 2000). The massive expansion of border enforcement has also created a lucrative business for human traffickers who exploit the vulnerability of migrants to extortion and violence (Nevins 2002; Doty 2009; Weber and Pickering 2011). Yet Sanchez (2011) challenges criminologists not to take for granted the state-sponsored spin on some immigration-related crimes, particularly human smuggling, which lacks the exploitative element that is characteristic of human trafficking. Sanchez interviewed smugglers who were well respected in their communities for their efforts to protect migrants from environmental harms and criminal elements that prey on migrants. The deployment of resources to prevent easy entry raises the issue of structural violence in contemporary border control policies. Structural violence is ‘characterized primarily by the absence of visible actors’ and involves violent or lethal consequences that, while not actually intended, can be relatively easily foreseen (Weber and Pickering 2011: 93). An example is deaths resulting from attempts to cross fortified borders, a predictable outcome. Some scholars and political leaders are attempting to determine what government’s moral and legal obligations are in the face of severe risks of loss of life through drowning or exposure to the elements (see e.g. Dauvergne 2008; Doty 2009; Weber and Pickering 2011; Danielson 2013). Weber and Pickering (2011) document migrant deaths from exposure and dehydration in the Sonoran and Saharan deserts and from drowning when ships bearing migrants have sunk, sometimes after running aground in an effort to avoid detection. In Europe, this issue became a matter for widespread discussion when, in October 2013, two ships carrying migrants from Libya to Italy capsized and sank, killing at least 400 and as many as 550 migrants (Pantaleone 2013). 360

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Globalization of youth crime and other consequences of immigration policy Many immigrants leave their homelands to avoid violence there. Guatemalan, Salvadoran, and Honduran youth are crossing into the United States today in unprecedented numbers. The Office of Refugee Resettlement estimates that 23,000 unaccompanied minors from Central America will have entered the US in fiscal year 2013, triple the number just a few years ago. Like other migrants, these youth are seeking better economic opportunities in the US and to reunite with family members, but a growing number are seeking refuge from gang violence in their countries. Ironically, some of these gangs had their origins in the US. The increased numbers of deportations from the US in recent years has meant that both serious criminals and young persons with minor or no criminal offenses are being repatriated, leaving family, friends, and jobs behind to try to survive in a country where they may not have lived since they were small children.With few ties to their country of origin, and the inability to speak the language very well, they are at risk of victimization by gangs and others seeking to exploit their vulnerabilities (Brotherton and Barrios 2011; Dingeman-Cerda and Coutin 2012). The globalization of youth crime and its relation to immigration policies require further criminological investigation. Ideally, such research should take the form of extended ethnographic study in collaboration with local nongovernment organizations providing services to returnees.

Immigration, crime and disorder One of the primary rationales for intensified enforcement of the border is the assumption that immigrants are responsible for crime and disorder. Yet this assumption has been disproven in study after study, with a substantial body of research demonstrating that immigration in many cases decreases crime rates (Hagan, Levi and Dinovitzer 2008; Lee and Martínez 2009; Zatz and Smith 2012; cf. van der Leun and van der Woude 2013 and Leerkes et al. 2012). This finding is especially strong in cities that have traditionally served as receiving communities for migrants (Sampson 2008; Kubrin, Zatz and Martínez 2012). As Zatz and Smith (2012) argue, the false linkage of immigration and crime increases the vulnerability of immigrants to victimization by intimate partners and unscrupulous employers.Yet this moral panic has persisted in the popular media, fusing racialization and criminalization into an unfounded fear of crime by migrants (Calavita 2007; Chavez 2008; Provine and Doty 2011). This racialized anxiety is not unique to the United States. For example, Calavita (2005) reports that Spaniards’ suspicions about SubSaharan African immigrants stoke fears about the threats migrants pose to their public safety, Weber (2011) describes the racialized linking of crime and Southeast Asian immigration in Australia, and Palmar (2011) shows how fear of a terrorist threat has criminalized ethnic minority communities in London. One challenge for empirical studies of crime and migration is that migrants fear cooperating with police. In some communities, local law enforcement officers conduct stop and search operations largely for the purposes of immigration control (Bowling and Weber 2011). Racial profiling is often an integral part of these stops and searches, whether in the US, Australia, Great Britain, or other locales, and they frequently result in citizens and legal residents who ‘look’ or ‘sound’ like immigrants being stopped and questioned (Romero 2006; Provine and Sanchez 2011; Weber 2011). As Bowling and Weber (2011) argue, such practices undermine democratic processes and the legitimacy of the state’s social control apparatus. Where the police or sheriff ’s deputies actively enforce immigration law, members of the community become reluctant to report victimization they have experienced or witnessed. Even

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if a victim or witness is a citizen or legal resident, bringing the police into neighborhoods and homes is risky, as so doing may endanger other family members, neighbors, or friends who do not have authorization to reside in the country. In surveys and interviews with US police chiefs and sheriffs, Provine and her colleagues found that many of those in leadership positions in law enforcement recognize that involvement of local police in immigration enforcement compromises their ability to work with their communities (Varsanyi et al. 2012). The police leadership and their officers on the streets may hold different positions, however, based on their differing work experiences and the extent to which understandings of larger goals and strategies are shared. These differences in perspective are perhaps most visible within federal law enforcement agencies, where there may be a sharp disconnect between the views of administrators in Washington and those of personnel distributed across the country.This was evident, for example, when Immigration and Customs Enforcement (ICE) Director John Morton issued a set of guidelines outlining conditions under which ICE agents should exercise prosecutorial discretion in detention and deportation decisions. Middle management and street-level officers in many districts ignored the memos, and one of the two ICE unions rose up in arms, calling for Morton’s dismissal. A year later, the union filed suit against Department of Homeland Security Secretary Janet Napolitano, seeking to block the Deferred Action for Childhood Arrivals program, which provides a two-year reprieve for many young immigrants who were brought to the country as children. Opponents within ICE sought to block the program on the grounds that it violates immigration statutes and the constitutional separation of powers (Zatz and Rodriguez, forthcoming). The dispute is a reminder of the importance of examining immigration policy with an eye to the form legislative or executive action takes, and to the bureaucratic culture that prevails in the agency charged with enforcement. Administrative cultures can frustrate legislative or executive action that is hortatory rather than mandatory in ways that are important for criminologists to understand.

Civil society Worries that large-scale immigration would fundamentally transform society, resulting in changed community demographics, unsafe neighborhoods, and economic costs for government at the local, state and the federal levels, have had an impact on national and local politics in many nations. Europe has seen a rise of right-wing parties that oppose immigration and blame immigrants for crime and disorder. In the United States the ‘Latino threat’ has been a recurring theme in the southwest for decades (Chavez 2008; Gómez 2007), growing more ominous during times of economic depression. A wave of restrictive legislation targeting immigrants flooded state legislatures from 2006 through 2011, with 7,374 immigration laws and resolutions introduced by legislators during that period, and 1,565 laws and resolutions enacted (National Conference of State Legislatures 2013). Examples of such legislation abound. From Hazleton, Pennsylvania’s backlash against Latino immigrants when the economy soured (Fleury-Steiner and Longazel 2010; Longazel forthcoming) to Arizona’s infamous SB 1070 (Sinema 2012), local and state governments complained that the federal government was not doing enough to contain immigration, forcing them to take matters into their own hands. In large part, these laws are designed to make it so difficult for immigrants that they will, to use Presidential candidate Mitt Romney’s now famous term ‘self-deport’. Such actions raise a number of questions for criminologists and scholars of the border. What, for example, is the capacity of localities to resolve matters on their own when they feel disconnected from federal policies? This question was partially answered by the Supreme Court in Arizona v. United States [2012], when the Court nullified three of four provisions 362

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of the law before them, concluding that Arizona had overreached and interfered with federal enforcement policies.

Conclusion The most successful approaches to the study of crime, migration and borders are flexible, because of constantly changing government policies, and critical, because the state’s activities in this arena are problematical. Criminology confronts the dynamic of borders in a shrinking world in order to study emerging trends, such as crimmigration, and enduring conflicts between the desire of nations for cheap, pliable immigrant labor and reluctance to include them as full-fledged members of the body politic.There is much to do. Flows of people across borders wax and wane, but never cease, and nation states appear ready to attempt to maintain border controls regardless of the financial and human costs. Migration without control has been conceptualized as a threat to national security, and is likely to remain in that category even as citizenship becomes, in some ways, less significant. We are likely increasingly to see two classes of migrants, those for whom borders are a feared and significant obstacle to finding work and opportunity, and highly educated professionals who are sought after and valued. As immigration of both groups changes the demographic mix, criminology will have an important role to play in examining and critiquing policy options.

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Provine, DM, Rojas-Wiesner, ML & Velasco, GM (forthcoming), ‘Peripheral matters: the emergence of legalized politics in local struggles over unauthorized immigration’, Law & Social Inquiry. 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 & R Martínez (eds), Punishing immigrants: policy, politics and injustice, New York University Press, New York, pp. 42–61. Romero, M 2006, ‘Racial profiling and immigration law enforcement: rounding up of usual suspects in the Latino community’, Critical Sociology, vol. 32, no. 2–3, pp. 447–73. Sampson, R 2008, ‘Rethinking crime and immigration’, Contexts vol. 7, no. 1, pp. 28–33. Sanchez, G 2011, Social organization of human smuggling networks in the Southwest, START, University of Maryland, College Park, MD. Sinema, K 2012, ‘No surprises: the evolution of anti-immigrant legislation in Arizona’, in C Kubrin, MS Zatz & R Martínez (eds), Punishing immigrants: policy, politics, and injustice, New York University Press, New York, pp. 62–88. Singer, A, Hardwick, SW & Brettell, CB (eds) 2008, Twenty-first century gateways: immigrant incorporation in suburban America, Brookings, Washington, DC. Stumpf, J 2006, ‘The crimmigration crisis: immigrants, crime, and sovereign power’, American Law Review, vol. 56, no. 2, pp. 367–419. Valenzuela, A, Theodore, N, Meléndez, E & González, A 2006, On the corner: day labour in the U.S., University of California, Los Angeles Center for the Study of Urban Poverty, Los Angeles. 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, MAH 2013, ‘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, The Hague, pp. 41–60. Varsanyi, MW 2010, ‘Local and state politics of immigration’, in RA Denemark (ed.), The international studies encyclopedia, Wiley-Blackwell, New York, pp. 4956–77. Varsanyi, MW, Lewis, PG, Provine, DM & Decker, SH 2012, ‘A multilayered jurisdictional patchwork: immigration federalism in the United States’, Law & Policy, vol. 34, no. 2, pp. 138–58. Weber, L 2011, ‘“It sounds like they shouldn’t be here”: immigration checks on the streets of Sydney’, Policing & Society vol. 21, no. 4, pp. 456–67. Weber, L & Pickering, S 2011, Globalization and borders: death at the global frontier, Palgrave Macmillan, Basingstoke. Welch, M 2002, Detained: immigration laws and the expanding I.N.S. jail complex, Temple University Press, Philadelphia, PA. — 2012, ‘The sonics of crimmigration in Australia: wall of noise and quiet manoeuvring’, British Journal of Criminology, vol. 52, no. 2, pp. 324–44. Zatz, MS & Rodriguez, N 2006, ‘Conceptualizing race and ethnicity in studies of crime and criminal justice’, in D Peterson, LJ Krivo & J Hagan (eds), The many colors of crime, New York University Press, New York, pp. 39–53. — (forthcoming), ‘The limits of discretion: challenges and dilemmas of prosecutorial discretion in immigration enforcement’, Law & Social Inquiry. Zatz, MS & Smith, H 2012, ‘Immigration, crime and victimization: rhetoric and reality’, Annual Review of Law and Social Science, vol. 8, pp. 141–59. Zolberg, A 1997, ‘Modes of incorporation: toward a comparative framework’, in V Bader (ed.), Citizenship and exclusion, Macmillan, London, pp. 139–54.

Cases Arizona v United States [2012] 132 S. Ct 2492 United States v Brignoni-Ponce [1975] 422 U.S. 873

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

Introduction The process of globalization is transforming the relationship between states, non-state actors, and the nature and meaning of territorial and temporal borders. Intensified global flows of information, images, goods, people, finance and capital have led to what has been termed a ‘world in motion’ (Inda and Rosaldo 2002). The borders of states are increasingly porous in relation to licit flows and fortified against what are determined illicit flows, including irregular migrants, such as asylum seekers, refugees, ‘illegal’ workers and stateless people (Wonders 2007; McNevin 2011). Globalization is seen to produce new sources of insecurity and challenges to the security of states in particular. Under conditions of globalization, the distinction between domestic and international is increasingly blurred along with the line between internal and external threats (Loader and Percy 2012). Irregular migrants are emblematic of the hybrid threat, characterized as a threat both to national security and sovereignty and to safety and order inside the state. In the contemporary context, changes in the political economy of gender relations are also reshaping traditional borders and the distinctions between inside and outside, domestic and international realms, homefront and warfront, masculine ‘protectors’ and feminine ‘protected’. Irregular migrants are as likely to be women seeking socio-economic survival in their own right and for their families, as they are to be masculine, overtly political agents challenging state authority and the integrity of borders (Pickering and Barry forthcoming). Despite this reality, national security is increasingly oriented towards perceiving and preempting threats from nonstate actors, including individuals, particularly those linked to border breaches, such as irregular migrants (Zedner 2007; McCulloch and Pickering 2009). This chapter sets out to map the various ways in which contemporary shifts in the nature of territorial and temporal borders, the relations between states, state functions, the role of non-state actors and the political and economic contexts that shape these shifts have impacted on state (and international) responses to irregular migration. We argue that irregular migration and state responses can be better understood by combining the insights of criminology and international relations (IR). It is not possible in light of the growing overlap between internal and external security to fully comprehend or respond to the issue of irregular migration without drawing on the frameworks and concepts of both disciplines, a process which is already occurring on a

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number of levels. The overarching aim of the chapter is to increase dialogue and mutual understanding between the two disciplines in order to expand the analytical tools available to scholars interested in examining issues related to irregular migration and state responses. The chapter first sets out the changes in the configurations and meaning of territorial and temporal borders, and how these changes impact and complicate the traditional disciplinary boundaries between international relations and criminology. In particular, it sets out how irregular migration is linked to and impacted by these changes. As a crucial milestone in this shift, the impact of the September 11 2001 attacks on the United States and the subsequent ‘war on terror’ are given particular attention. The chapter then considers the ways that the disciplines have successfully traded in ideas and concepts, such as security, risk, policing, protection, sovereignty and state crime in order to better understand issues surrounding irregular migration. The disciplines’ different approaches to deterrence, prevention, preemption, all terms that link closely to state responses to irregular migration, are examined. It is argued that these terms have not successfully migrated across disciplinary borders and that, as a result of this, opportunities have been lost or misunderstandings have arisen in terms of extending understandings of irregular migration. Finally, the chapter considers an important policy area, the women, peace and security agenda, which states are implementing through global and national action plans, and the notable failure to include displacement from conflict, irregular migration and asylum seekers in these plans. We argue the lacunae in the agenda demonstrate the serious policy implications of gaps in understanding that arise when national and international security are considered as binary concepts and the potential bridge that greater interdisciplinary understanding can offer.

Criminology and international relations at the border The disciplines of criminology and international relations have traditionally occupied distinct spheres. Criminology has focused on matters primarily internal to the state and international relations on matters primarily external to or between states, though it is increasingly concerned also with global governance and the role of non-state actors. Criminology considered issues such as crime, order, safety, and justice. International relations, by way of contrast, concerned itself with war, power, and security. Criminology encompasses studies of criminal law, policing, courts, sentencing and prisons, along with the social conditions and trends that impact on the operations and attitudes towards each of these. International relations’ broad areas of study encompass international law, the military, foreign policy, trade and diplomacy. While criminology has concentrated on citizens and their relationship to the law, including the nature and construction of deviance, international relations has concentrated on foreigners or ‘non-citizens’ and their relationship to states, particularly in terms of their construction and treatment as enemies (Linklater 1982; Campbell 1998). Criminology, mapping the contours of criminal justice, has been interested in the nature of evidence and individual guilt, whereas international relations, consistent with its national security and international remit, has been more focused on national (secret) intelligence as a way of defining, quantifying, managing and dealing with threats. Criminology is primarily the study of crime and society and has close links with sociology (Akers 1992). International relations is largely a subfield of the discipline of political science, though it grew out of international law, history and philosophy after World War I (Burchill and Linklater 2013). The core concepts and concerns of international relations are closely entwined in government, both domestic and supranational bodies such as the United Nations, and politics. The military, foreign policy, trade and diplomacy are functions of national government. The criminal justice system – police, courts and corrections – by way of contrast, is operationally independent from government and formally above politics. 368

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There has always been greater overlap in the concerns of each of the disciplines than the brief sketch above indicates.As Loader and Percy point out, the idea ‘that there is an artificial distinction between the international and the domestic, or “inside” and “outside”, is hardly new’ (2012: 213). International relations examining the domestic sources of foreign policy and constructions of state identity and interests have been challenging the inside/outside binary constituting the discipline since the 1980s (Walker 1992; Doty 1996b; 2006; Linklater 1982). Criminology’s focus on domestic issues of crime and justice increasingly overlaps with international relations’ core focus on security (Aradau and van Munster 2009). It is also the case, however, that the overlap between the international and domestic has grown substantially over the past three decades and with it the overlap in the issues and concerns of each discipline. Law enforcement’s increasing focus on transnational crime and illicit flows and the growing use of the military in internal security and the police in international peacekeeping and peacebuilding missions represent further aspects of convergence between criminal justice and international relations (Kraska and Kappeler 1997; McCulloch 2001; Greener 2011, 2012; McCulloch and Pickering 2012). Issues that engage states’ coercive and surveillance capacities on the border, such as irregular migration and transnational crime, confound the clear distinction between internal and external issues of crime and security and demand that each discipline expand its horizons. As crime and counter-measures transcend borders and the latter are more attuned to anticipating threats, and as international and national events are ever more tightly interwoven, international relations and criminology have come to share a host of common interests, particularly in relation to dilemmas of how to provide security and uphold human rights. Irregular migration and particularly state responses to this phenomenon provide an emblematic example of this confluence of interests. It tests not only state boundaries but also the boundaries of our disciplinary understanding and analysis.

A world in motion Contemporary irregular migration can be understood in the broader context of globalization and the compression of time and space that it has brought about (Harvey 1990; Held et al. 1999). This transformation in the nature of states and the concomitant shift in the meaning of territorial and temporal borders necessarily change the relationship between criminology and international relations, challenging both disciplines to engage in greater dialogue and trade of ideas across disciplinary borders. Aas’s observation that criminology’s internal focus ‘is no longer sustainable’ because of the ‘interdependence between foreign policy and national and local security concerns and vice versa’ (2007: 104) applies equally to IR’s traditional state-centric external focus, though that focus has been significantly challenged since the end of the Cold War (Burchill and Linklater 2013).Yet few scholars of criminology or international relations have examined how globalization has affected borders and how trade and financial liberalization have changed the nature of threats to security over time (see Devetak and True 2006; De Goede 2012; cf. Ripsman and Paul 2010). In this chapter, we consider globalization to be constitutive of nation states rather than an external force constraining or undermining the state (Clark 1999: 52). Globalization denotes ‘the transformation of the state as it responds to pressures from domestic as well as international sources’ (Devetak and True 2006: 242). States actively produce boundaries and reinforce borders through their foreign and domestic policies (see Doty 1993; Elden 2009). Despite the multiple actors and agencies associated with ‘the state’, its gendered, masculine projection produces the effect of sovereignty and autonomy precisely through the marginalization of non-citizens, notably irregular migrants (Tickner 1992; True 2008, 2013; Sjoberg 2012). 369

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Transnational crime has flourished since the end of the Cold War with the opening of political borders and integration of economies (Beare 2003). The awareness of transnational crime as a problem and state responses to it illustrate the contemporary shifts in state power and the meaning of the border. Combating drug, arms and sex trafficking or people smuggling, for instance, has provided mechanisms and political opportunities for the extension of coercive state measures. States’ increasing focus on transnational crime countermeasures has complicated the formerly solid boundary between external international issues of security and internal national issues of crime control.There is an ongoing consolidating shift in the boundary between national security and criminal justice linked to state actions against transnational crime. State measures against border flows that are deemed a security threat have eroded the distinction between states’ internal and external coercive functions. Although irregular migration is not a transnational crime per se, states in the Global North have responded as if it is. As Pickering points out, irregular migrants, such as asylum seekers and refugees, are enveloped in a ‘fog of deviancy’; conflated with terrorists and tainted with criminality through their association with people smugglers and by the repeated use of inaccurate but stigmatizing labels such as ‘illegals’ (2004; Marr and Wilkinson 2003; see also McCulloch 2004; Winterdyk and Sundberg 2010). Transnational crime and irregular migration sit at the border of the key concerns of criminology and international relations. The concepts of transnational crime and irregular migration are social, political and economic; social in the concern with groups that are defined or constructed as ‘criminal’ or ‘deviant’; political in so far as they take place within an international environment structured by nation states and by politics; and economic because these illicit flows of goods and people constitute a large and growing proportion of world trade advancing the historical globalization process (Felsen and Kalaitzidis, 2005: 5; Held et al. 1999; Andreas 2013). Irregular migration, like transnational crime, is inextricably tied to foreign policy and the inside/outside construction of states and national identities increasingly under challenge by globalization (True 2006).We know ‘who we are’ precisely by who we exclude and how we draw boundaries between ‘us’ and ‘them’ (Doty 1996b; Campbell 1998). Irregular migration is also a foreign policy issue in the conventional definition because it implicates more than one state – the country of departure and the country of arrival – and often multiple states – including transit countries, and countries that act as locations of detention on behalf of prospective or actual arrival countries. Such migration is frequently constructed and responded to as crime, so much so that Stumpf (2006) coined the term ‘crimmigration’ to capture the rapid conflation of immigration and criminal justice practice. Simultaneously, irregular migration is seen as a threat to national security and state sovereignty (Doty 1993, 2006; Bigo 2002) despite the complicity of states in the very construction of the demand and supply for irregular migration. For instance, states cooperate in international trade regimes to facilitate cross-border elite labour migration while at the same time strictly regulating – and indeed limiting – unskilled or temporary labour migration. State and global transformations are inextricably related and have relevance for both international relations and criminology. These transformations mean that both disciplines are more and more working on the same terrain, albeit often with different concepts or with the same concepts that have different meanings due to the distinct evolution of each field, as discussed in the next section with respect to the crimefare state, ‘securitization’, the metaphors of ‘war on’, pre-crime and transversal politics.

The crimefare state State responses to transnational crime and irregular migration have been a significant aspect of a growing convergence between crime and war/conflict. In the previous three decades, crime and 370

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war have merged in unprecedented ways, bridging the divide between some of the key concerns of criminology and international relations. International relations scholars note the narrowing gap in terms of contemporary civil wars and insurgencies that some describe as ‘new wars’ (Kaldor 2012; Kaplan 2003). Criminologists and international relations scholars point to the rhetorical and real synergies between war and crime manifest in the lexicons and measures deployed in the various ‘wars on’ for example, drugs, organized crime, people smuggling, people/ sex trafficking and terror (Mutimer 1997; McCulloch 2007). These ‘wars’ are carried out on terms set by and favouring the Global North, particularly the United States (Woodiwiss and Bewley-Taylor 2005; Desyllas 2007). The ‘wars on’ combine elements of criminal justice, police, international law, national laws, domestic politics and the military which are engaged or mobilized inside and outside of borders. Andreas and Price, writing in 2001 (and prior to 9/11) comment on the ‘long arm’ of US criminal justice policy and how it operated, particularly the ‘war on drugs’, as a Trojan horse for foreign policy goals, including military intervention. The growing convergence of war and crime narrows the distinction between law enforcement and national security as well as police and the military (Pickering, McCulloch and Wright-Neville 2008). In Anglo-American countries the military were traditionally used against external enemies in times of war while the police, ideally conceived, were used to keep the peace domestically (Hocking 1993; McCulloch 2001). Recent decades have seen the militarization of police, who are more frequently deployed overseas as part of international peace support operations, giving rise to ‘international police peacekeeping’ and sometimes clashes in local and international norms of policing (Greener-Barcham 2007; Greener 2012). At the same time, the military is now more often than in the past used in domestic contexts to keep law and order (Jefferson 1990; Bowling and Sheptycki 2012). As Findlay puts it: ‘[c]onventional resolutions of global conflict such as war state-against state have been replaced . . . by crime as warfare, and warfare as crime control’ (2003: 234). International relations scholars Andreas and Price (2001) coined the term the ‘crimefare state’ to capture the convergence.

From the ‘war on terror’ to the war on irregular migrants The ‘war on terror’, declared by George W Bush in the aftermath of the 2001 attacks on the United States, is important as it captures and reveals more starkly a shift that was already well under way and also provided the foundation for many new measures which impact on irregular migrants. The ‘war on terror’ advanced the crime/war hybridization in ways that bled freely into the states’ responses to irregular migration (Cole 2003). Setting out the US national security strategy in 2002, President George Bush argued that ‘[t]oday, the distinction between domestic and foreign affairs is diminishing’ (2002). Beare, commenting on the response to transnational crime post-9/11, observed that ‘[w]hat we are experiencing is a hijacking of criminal justice . . . to meet political and strategic ends’ (2003: xii; see also McSherry 2004). The comment alludes to a major shift from the ‘low politics’ of managing internal relations of class, race, and gender towards the ‘high politics’ of managing global power politics (see Andreas 2003: 79 on low to high politics). The ‘war on terror’ was also a major catalyst for a temporal shift to a pre-crime or pre-emptive framework where threats are targeted before they emerge (Ericson 2008; McCulloch and Pickering 2009). The ‘war on terror’ intensified fear of the ‘other’ as a threat to national security (Kapur 2005). In addition, the security measures at the border, which intensified dramatically after 2001, contributed to the ‘securitization of migration’ (Huysmans 2000; 2006): ‘contemporary problems of insecurity are often attributed to the spontaneous incursions of suspect populations into zones of relevant affluence and order’ (Weber 2013: xi). Irregular migrants are constructed as threats to 371

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national security in ways that engage the military apparatus and approaches (Carpenter 2006; Michalowski 2007; Grewcock 2009; Squire 2009). Security looks to the future so that ‘securitization’ has led to attempts to preempt the arrival of such migrants through a range of proactive measures that impact before the border (see Zedner 2009: 29, on security and the future). Dealing with threats before they emerge fits with a risk-averse security paradigm that engages with the political task of discerning ally from enemy in contrast to the criminal justice task of weighing evidence and establishing guilt through the courts. Such future-oriented preemptive measures include visa regimes, naval blockades, technologies such as biometrics and computerized alert systems (Weber 2013: 1). Some nations and regions in the Global North are now attempting to pre-empt irregular migration, not only before it occurs, but before it is decided upon, in some cases establishing units to ‘manage the intent’ of those deemed at risk of future irregular migration (Pickering and Weber 2013). The ‘war on terror’ significantly intensified the blurring of a number of key binaries that have traditionally underpinned states’ coercive capacities.This impacted on state responses to irregular migrants. In terms of place, the key binaries are here/there, inside/outside, periphery/center and foreign/domestic, high/low politics, homefront/warfront, and flowing from these, binaries tied to identity, most fundamentally ‘us’ and ‘them’, citizen and non-citizen overlaid by gendered connotations of rational/manly state agency versus irrational/feminine and weak non-state actors. In the temporal realm the key binaries are crime/countermeasure, law/law enforcement, trial/verdict and crime/punishment. These binaries have been eroded and even reversed as countermeasures are pursued that seek to anticipate certain threats before they emerge.The shifts in relation to space, time and identity have created new frontiers in transdisciplinary scholarship, the contours of which are being mapped and extended by criminologists and international relations scholars.

Disciplinary borderlands The trade in ideas across disciplinary borders is already well under way. Some of the scholarship on irregular migration has moved into a borderland between criminology and international relations. This is not surprising given the traditional divide between the disciplines is marked most clearly at territorial borders and irregular migration involves a breach of that border. Security, risk, policing and state sovereignty are key concepts in researching and analysing state responses to irregular migration in each discipline (see, for example,Wæver 1993; Devetak 1995; Grewcock and Green 2002; Bigo and Guild 2005; Huysmans 2006). Criminology drew on IR to develop an understanding of security, as risk became a major tenet of crime management (see Beck 1992 on risk; see Goold and Zedner 2006; Zedner 2009 on crime and security). International relations in turn has looked to criminological frameworks on risk and policing to inform understanding of coercive state actions targeting illicit cross-border flows (Nadelmann 1993; Andreas and Nadelmann 2006). Criminology has drawn on IR’s concepts of sovereignty and statecraft to capture changes in the nature of territorial borders. The idea of ‘transversal policing’ as an aspect of statecraft involving sovereignty production, for example, represents a concept born out of the merging of the strengths of IR and criminology applied to understandings of irregular migration (Pickering 2004; Pickering and Weber 2013). Criminology and IR also meet in the space of state crime. The study of what criminologists today refer to as ‘state crime’ originally developed within international relations. It wasn’t until the mid-1990s that state crime studies began to establish itself within criminology (Cohen 1993; Grewcock 2009: 14). Criminology extended the notion of state crime as understood by IR by applying it beyond breaches of international law and by studying the activities of the more 372

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affluent states. State crime, like the study of human (in)security in international relations, brings human rights more clearly into the frame of criminology as well as moving criminology more deeply into the field of politics (Green and Ward 2004). State responses to irregular migrants have used the state crime framework. Grewcock, for example, argues that the Australian state, through the systematic alienation, criminalization and abuse of unauthorized migrants has engaged in state crime (2009: 6; see also Pickering 2005). The above examples represent a brief and non-exhaustive sketch of the successful trade in ideas between the disciplines around the issue of irregular migration. There has been less success in drawing on the mutual strengths of each of the disciplines in some other areas. ‘Deterrence’, a concept highly relevant to policy responses to irregular migration, for example, means something different in criminal justice and criminology than it does in international relations. In criminal justice, deterrence is linked fairly plainly and one-dimensionally to punishment (Nagin 1998). In contrast within IR, deterrence theory has developed in a layered way over decades according to major shifts in international power relations (see, for example, Knopf 2012). By contrast, criminologists have approached ‘deterrence’ in the study of irregular migration solely through the prism of punishment and recently some international relations scholars have even adopted this approach to explain the internalization of human rights norms in Latin America and Asia (see, for example, Gerard and Pickering 2014: 596–98; Kim and Sikkink 2010). Applying the more sophisticated framework of deterrence developed in the field of international relations is likely to advance understandings, critiques and evaluation of government policies aimed at deterring irregular migrants. The challenges to studying migration across disciplines typically arise when terminology is shared but meaning is not. The scholarship around temporal shifts in state responses to illicit border flows that uses terms such as ‘pre-emption’ and ‘prevention’ to describe state responses is fractured and confused. This is largely because these terms have different histories and meanings in criminology and international relations (Tulich 2012: 211–19). Prevention in relation to war means something entirely different than prevention used in the context of crime. Similarly, the term preemption has a specific meaning in the context of war studies. There are no precedents for its use in criminology (Zedner 2009: 85). Criminologists have started to use the term ‘preemption’ but the parameters and meaning of its use are not settled and discussions typically have not drawn on the international relations literature (Wilson and Weber 2008; McCulloch and Pickering 2010). Translation between the disciplines around the temporal shifts in state responses to irregular migration has been imprecise because of lack of clarity about what the various relevant conceptual terms mean in each discipline, and lack of knowledge about the assumptions and debates that underpin the terms across the disciplines.

Gender and irregular migration Both criminology and international relations scholars have brought gender into the framework for an understanding of irregular migration and state/international responses (True 2012; McNevin 2011; Pickering 2011; Segrave, Milivojevic and Pickering 2009). Gender is a feature of the changing nature of migration with increasingly more women among the numbers of irregular migrants. In the context of global processes of conflict, competition and societal upheaval as well as gender-based violence and oppression ‘at home’ (in private and published spheres), irregular migration may be one of the few options for women and their dependants’ survival. But more than this, as discussed in the introduction to this chapter, for many critical scholars, gender is constitutive of the binary conceptualization of states and borders, and by extension, irregular migration. Criminology and IR mainstream approaches to irregular 373

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migration are overlaid by taken-for-granted gender dichotomies such as inside/outside, domestic order/international anarchy, soft and hard politics, men and citizens. However, scholars from both disciplines focusing on threats to human security, human rights and justice typically reject the dominant frames of securitization and crimmigration.These conventional frames neglect the structural-economic and political push factors for gendered irregular migration, such as violent conflict, gender inequality, hierarchical social relations, and global economic competition. Treating irregular migrants as criminals constructs individuals as problems or risks while categorizing this migration as a state security issue (‘securitization’) prompts a territorial defence response marginalizing other approaches, such as a human rights response, and forecloses public debate. ‘Securitizing’ migration and immigration policies legitimizes emergency powers and most fundamentally ‘depoliticize[s] questions of social and political power’ (Goold and Zedner 2006: xiii).

Women, peace and the security agenda In order to deal with the social and political issue of irregular migration, some scholars have taken up interdisciplinary approaches that strengthen analysis and insights. The dangers of policy approaches which treat irregular migration as outside the frame of both international or domestic concerns is that it becomes invisible in its political, social and economic dimensions, engaging neither the protections of citizenship and due process or international laws designed to protect human rights. This danger is reflected in the United Nations Women, Peace and Security (WPS) agenda. That agenda was established in October 2000 at the United Nations Security Council with the adoption of Resolution 1325. At that time, civil society organizations and activist states lobbied successfully for Resolution 1325, which addressed the differential gendered impacts of conflict and the need for gender-equal peace and security governance (Hill, Aboitiz and Poehlman-Doumbouya 2003; Cohn 2008; Pratt and Richter-Devroe 2013). The Security Council is the United Nations body consisting of permanent and non-permanent members charged with maintaining international peace and security under international law. Its resolutions are universally binding upon all member states of the UN. Thus, the recognition of sexual and gender-based violence in conflict, typically considered ‘domestic issues’, as matters of international security, and the salience given to including women and women’s organizations, typically not considered to be major actors in peace negotiations, peacebuilding and conflict-prevention were hugely pathbreaking. There are now six WPS resolutions.1 They address three main pillars: (1) preventing conflict, violence and the derogation of the rights of women; (2) protecting women and girls from violence before, during and after conflict; and (3) promoting the participation of women in these peace and security institutions to achieve lasting peace. As well as in UN Security Council decisions and operations, the WPS resolutions have obligations that extend across borders in local, national and regional settings. Irregular migration largely falls outside of the implementation of the WPS agenda as it has been adopted by many states, including the 43 UN member states that have National Action Plans (NAPs), however, see Shepherd and True 2014. Developed (typically donor) countries that have adopted NAPs have interpreted their state responsibility to prevent violence and protect against gender-specific crimes primarily in relation to military, diplomatic, peacebuilding and aid presence ‘outside’ their borders in conflict-affected and post-conflict states (for example, the UK and the USA) rather than to their responsibilities to non-citizens inside their own national borders who have fled conflict zones and gendered oppression. Australia is an exception to this with an NAP that includes addressing gender-related inequalities, measures and targets in national security policies and institutions as well as in international operations. Yet there is no 374

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mention in Australia’s NAP of the need to protect women and their dependants fleeing conflict zones or gender oppression and crossing Australian borders as irregular migrants, including asylum-seekers. In August 2013, the Rudd Government introduced a new policy to send all asylum seekers arriving in Australia by boat to Papua New Guinea (PNG) for processing and resettlement. Yet Australia has committed $507 million Australian aid to PNG in 2013–14 to reduce violence against women and girls by improving policing and judicial responses to sexual and gender-based crimes and promoting women’s political and economic empowerment; and some Papua New Guinean women have successfully applied for and received asylum in Australia on the basis of the gender-based crimes committed against them in their home country (George and True 2013). It is highly likely therefore that this new immigration and border policy may undermine Australia’s international commitments to protecting civilians, particularly women and girls, from conflict-affected countries, as well as the credibility of the Australian NAP to implement the UN Women, Peace and Security agenda. The first WPS awareness-raising resource produced by Australia for the international community after its NAP adoption in March 2012 was a short film and educational toolkit entitled Side by Side: Women, Peace and Security. The film highlights women’s experiences of conflict prior to migrating or seeking protection in Australia. While not explicitly emphasizing the domestic and international faces of conflict and insecurity, the film shows there is an opportunity to engage with civil society, especially diaspora, migrant and refugee communities, in order to provide both relevant evidence and advocacy for implementing the WPS agenda within Australia and internationally. To date, however, this is an opportunity that has not been fully exploited. The strong findings of the Report Card on the Australian NAP, drafted in consultation with many civil society organizations, are that accountability measures are weak, the transparency of government departments implementation plans is poor and the engagement with civil society has been limited, to the detriment of action on the Security Council Women, Peace and Security resolutions (Australian Council for International Development et al. 2013). There is a lack of attention to irregular migration as a conflict-related, gendered security issue and to migrant, refugee and asylum-seeker women and girls’ security particularly in Women, Peace and Security national action plans. The lack of recognition in their implementation for women and girls’ material situations reinforces the boundary between domestic and international politics and its negative, unequal gendered consequences. Even an ostensibly ‘feminist’ or gendersensitive international agenda to address crimes and injustices previously not considered outside domestic jurisdictions has ended up reifying state borders. In so doing, it has unintentionally silenced some of the most vulnerable human beings. The Australian case well illustrates this paradox.To the extent that immigration, citizenship and indigenous affairs remain outside of the WPS national and international implementation processes, women’s and girls’ security cannot be advanced. Feminist criminologists and international relations scholars may come at this problem from different starting points but their analysis and conclusions are the same: gender security is not possible within the binaries of the nation-state system.

Conclusion The best critical scholarship on irregular migration deconstructs or complicates the key binaries that separate the disciplines of international relations and criminology, and works to build shared understandings which draw on the strengths of each of the disciplines. The primary aim of this chapter was to promote greater interdisciplinary dialogue, particularly in relation to irregular migration. This chapter considered the increasing integration of domestic criminal justice issues and external issues of security under conditions of globalization and the growing overlap in the 375

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terrain of international relations and criminology that flows from this. It also noted that changes in the political economy of gender relations are reshaping traditional borders and distinctions between the inside and outside of states and the traditional boundaries between the international and domestic realms. Irregular migration, which is dealt with by states and internationally as a hybrid threat that impacts both inside and outside states, provides an emblematic example of the type of global issue that demands the utilization of concepts and knowledge of both international relations and criminology. The chapter mapped the ways in which shifts in the nature of borders related to globalization have impacted on irregular migration and state responses to irregular migration. It set out the histories of international relations and criminology, and the traditional content and focus of the discipline, and described how the assumptions that underpin these foci no longer hold in a globalizing world as national security and criminal justice, war and crime, law enforcement and the military become increasingly indistinct. Criminology and international relations share a growing number of issues so that each needs to expand its horizons beyond the limits of the usual frameworks and concepts. Again irregular migration and all the issues that flow with it in terms of security and human rights provide an emblematic example of an issue that captures the convergence of international relations and criminology and thus demands greater dialogue between the disciplines. The chapter considers the nature of the relationship between globalization and states, arguing that states have responded to globalization in ways that extend its coercive capacities. State responses to transnational crime have been a prime driver in the selective hardening of borders against unwanted and marginalized groups. Although irregular migration is not a crime, and states have been complicit in the construction of demand and supply for irregular migration, states have nevertheless responded to as if it is, so much so that Stumpf (2006) uses the term ‘crimmigration’ to describe the state framing of this human cross-border flow. The coercive targeting of irregular migration is part of the shift to what Andreas and Price term the ‘crimefare’ state, where various ‘wars on’ drugs, trafficking, and crimes are the drivers of the more punitive side of globalization. In this context, states increasingly govern through security. The ‘war on terror’ is a milestone in this process, accelerating this process of securitization of irregular migration.The generalization of the security paradigm has also seen coercive measures, including those directed at irregular migrants, become increasingly pre-emptive as what are constructed as threats are ‘dealt with’ before they emerge. Criminologists and international relations scholars have already begun to borrow and trade ideas across disciplinary boundaries to advance understandings of irregular migration and critiques of state and global activities in relation to this phenomenon. Criminology looked to IR to understand security, as risk became a preoccupation of crime control. Criminologists also drew on IR to develop the concept of ‘transversal policing’. Criminology also took the idea of ‘state crime’ as originally developed in international relations and extended it beyond breaches of international law, generally by less affluent states, to include affluent state activities such as responses to irregular migration. International relations turned to criminology to develop an understanding of policing transnational crime as policing more often extended beyond national borders and became increasingly implicated in foreign policy. These are all examples of the successful trade in ideas between the disciplines that have advanced understandings of irregular migration and state responses. There are other examples where terms have not translated readily between the disciplines. The terms pre-emption, prevention and deterrence, all relevant to the irregular migration field, have different histories and meanings in criminology and international relations. There is room to develop greater mutual understanding of these terms in both disciplines and create greater coherence in the way they are deployed in discussion of irregular migration. 376

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Both IR scholars and criminologists have brought gender into the frame of understanding irregular migration. Feminist scholars in both disciplines have noted the gendered nature of irregular migration and the gendered nature and impacts of state responses, rejecting the mainstream framing of irregular migration as a crime and security threat, focusing instead on the structural drivers of irregular migration such as violent conflict, gender inequality, hierarchical social relations and global competition. These approaches reject not only the binaries, such as external and internal, that hamper informed discussions of global issues, such as irregular migration, but also taken-for-granted gender dichotomies that include soft and hard politics, domestic order and international anarchy. While there are examples of IR and criminology bringing the strengths of both international and domestic crime and security insights to bear on irregular migration, some policy approaches fail to engage either so that irregular migration is placed outside the frame of rights agendas altogether, with the consequence that states and the global community remain free to respond to women in desperate need of support and resources as crime and security threats. The dangers of policy approaches that fail to place irregular migration within domestic and international frames are exemplified in the 2000 United Nations Women, Peace and Security agenda. This agenda is designed to address the gendered impact of conflict and the need for gender equality in peace and security governance. Though irregular migration is an issue that increasingly and profoundly involves women as border crossers, the issue has been largely ignored by the United Nations Women, Peace and Security agenda. Feminist IR and criminology scholars’ analysis of irregular immigration has the potential to expand the international and domestic security agenda that seeks to address gendered issues to be more inclusive of women’s irregular migration. This is particularly important as women involved in irregular migration are frequently marginalized and impoverished and have been impacted by the gendered nature of domestic conflict and rights abuse and contemporary state responses to irregular migration. The case for expanding the dialogue and trade in ideas and frameworks between criminology and international relations is underpinned by the changing nature and meaning of borders under conditions of globalization. Irregular migration represents a prime opportunity for such interdisciplinary engagement.There are many examples of successful interdisciplinary scholarship and convergence between international relations and criminology that have already taken place and some examples of where the migration of concepts and vocabulary across the disciplinary borders has been less than successful. It is clear, however, that irregular migration, along with other cross-border activity, requires the insights of both criminology and international relations in order to understand and intervene in an area where state-centered definitions of crime and security have eclipsed more inclusive justice based notions of equality, human security and human rights.

Note 1 The six resolutions are Security Council Resolutions SCR 1325 (2000); 1820 (2008); 1888 (2009); 1889 (2009); 1960 (2010); 2016 (2013); and 2122 (2013). Taken together, they comprise the Women, Peace and Security thematic agenda of the Security Council, and the international security policy framework.

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

Introduction The aim of this chapter is to consider how criminological interest in migration and crime has been taken up by critical scholars within an emerging part of the discipline known as ‘the criminology of mobility’. Drawing together theoretical and empirical accounts, authors in this subfield focus on the non-citizen and the global governance of and through migration control. The control of mobility, in this view, has become not just an adjunct to crime control, but intertwined with it.

Overview Criminological theories address some of the most central issues concerning the constitution of societies and their moral beliefs. How we deal with law-breakers and victims, as well as those who respond to them, tells us a lot about the places in which we live, its membership, limits, goals and ideas. The ways in which societies think about punishment and deviance illuminate questions of social order and solidarity. How they respond to victims, and what they define as crime, reveal ideas about vulnerability, desert, and safety. The relationship between immigration and crime is also arguably a foundational aspect of criminology, particularly for scholars influenced by the Chicago School and attentive to the US context. Yet, while other settler societies like Australia and Canada, and the former colonial powers of Europe, have been shaped by migration, until recently little criminological attention has been given to such matters. Instead, much of post-war criminological scholarship was defined by, and confined to, the boundaries of the nation state and its citizenry. Recently, however, a growing number of scholars have argued that our understanding of society needs to change, as under conditions of globalization and mass mobility boundaries of the social have become blurred and unstable. In this light, the new subfield known as the criminology of mobility has been established for scholars interested in citizenship, race, gender, ethnicity, and immigration control (Aas and Bosworth 2013). The criminology of mobility is interested in the processes of inclusion and exclusion at the borders of and within states which draw from and extend arsenals usually reserved for the criminal justice system, law enforcement

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and the military without their usual protections. Lines of enquiry have traced existing inequalities (gender, race and class) and their acceleration in new alignments of power and belonging. As Bowling (2013: 291) has noted, these processes are a portent of global racial segregation in a worldwide system of ‘pass-laws, stronger and longer walls and fences, databases of suspected and unwanted persons, and prisons filled with “foreign nationals” who have transgressed criminal or immigration law.’ This chapter will first consider where has the criminology of mobility come from? In answering the question, it identifies three interdependent lines of scholarly enquiry: (1) criminological concern with identity; (2) scholarship on mobility and the border; and (3) research on the global migration control industry. It will trace mobility in criminology over the past decades, considering how this early work approached the study of migration and the shifting categories of migrant, citizen and non-citizen in order to understand the recent turn to mobility. It will then examine how the border has come to be central in criminological work concerned with mobility. The border is both symbolically and instrumentally powerful in shaping and responding to global mobility. It is the site at which significant and far-reaching institutional change in law enforcement and incarceration practices has taken place. It is also a site for increasing harms. At the end of this section, we will identify how the criminology of mobility has concentrated on the migration control industry and its role in global governance and social control. This chapter will then ask where is the criminology of mobility heading? To answer this question the chapter needs to identify silences in the criminology of mobility literature as well as some of its challenges. It will note the points at which mainstream literature has effectively responded to the terrain and insights of criminology of mobility as well as where they remain politely disengaged. A discussion of the theoretical, empirical and disciplinary resources required to redress these silences will draw the chapter to a close.

Traces of mobility Generating a geneaology of a field is challenging. While, for the most part, the criminology of mobility has a relatively short history, earlier vestiges of it can be found in a number of corners of criminological enquiry seemingly unrelated to one another. From the earliest days of the Chicago School to contemporary feminist and postcolonial accounts, scholars have been interested in matters of exclusion, integration, and identity, all factors in which we can find traces of mobility. The starting point for any consideration of mobility in criminology can be found in George Simmel’s essay ‘the Stranger’, parts of which were translated into English and included in Robert Park and Ernst Burgess’s textbook, Introduction to the Science of Society (Park and Burgess 1921).1 For Simmel and the Chicago School, the foreigner was inherently an illusive figure, who brought with him (and their attention was squarely on men) (Deegan 1990) certain cultural practices and expectations, which the host society either had to deflect or integrate. He was difficult to understand, potentially a threat. Whereas Simmel’s interest was largely a philosophical one, Park and Burgess (1921) adapted his ideas to empirical study. How did migrants assimilate, they wanted to know. Where did they live? Were foreigners more criminal than citizens? Drawing on ethnographic and later statistical models, these early US criminologists spent considerable time debating such matters, mapping the various shifts within and between new migrant groups and their concomitant effect on the burgeoning urban centres, a tradition which has in recent years been taken up by Robert Sampson and others (Graif and Sampson 2009). 383

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Seemingly removed from such accounts, there are evident connections between contemporary studies of mobility and earlier accounts of race and ethnicity. The two scholarly traditions share an interest in, and a concern with, questions of membership and belonging. The diverse nature of contemporary social membership has been historically shaped both by international migration and various imperial and colonial projects. Given the relationship between contemporary migration and the history of colonialism, there are therefore important connections to be made with postcolonial criminology. Criminology has a long-standing yet limited relationship with postcolonialism and critical race theory (Agozino 2003). In the 1970s, it was, briefly, part of the vanguard of studies in this area when Stuart Hall and his colleagues at the Birmingham Centre for Contemporary Cultural Studies published Policing the Crisis, a damning critique of the racialized nature of ‘moral panics’ and policing in Britain. Building on Stanley Cohen’s notion of ‘moral panic’, Hall et al. (1978) explored the ties between social disorder, immigration, and urban life in postcolonial Britain. According to them, the agents of state power and young people were acting out and drawing on decades-long assumptions about belonging, rights and race. Policing the Crisis forcefully brought attention to the racial and ethnic stereotyping, stigmatization and prejudice within the police and criminal justice – topics which have been of central concern to contemporary scholars of borders and migration control. In other disciplines, postcolonial theory flourished, offering an historically grounded critique of state power, and a new conceptual framework of understanding that championed the voices and experiences of those in the Global South in a radical challenge to the orthodox politics and scholarship on the Left. In feminist and literary theory, scholars such as Gayatri Spivak (1984) and Edward Said (1979) coined new terminology, the ‘subaltern’ and ‘Orientalism’, to capture the distinct experience of those from former European colonies, while pointing to the constitutive nature of such individuals for the West itself. In their work postcolonialism is presented as both an historical period and a relationship; any institution can be considered through this lens. Feminist criminology offers, in its attention to gender, and in its concern with methodological issues and the study of vulnerable groups, a key part of contemporary analyses of mobility, a topic to which we shall return at the end of this chapter. Responding to many of the same pressures that underpinned postcolonial studies, scholars in gender theory have been debating questions of membership, identity and belonging for some decades. In the 1990s, for instance, arguments disputed the constitution of the subject ‘woman’, a figure whose membership and utility came under question as lesbians and women of colour challenged the white, heterosexual and middleclass control of the women’s movement (Schor and Weed 1994). In legal studies, Kimberlé Crenshaw (1989) championed the notion of ‘intersectionality’ to capture the multi-layered experience of identity, while feminist philosopher Judith Butler (1990; 1993) first articulated the idea of ‘performativity’ in which ‘gender’ is a part played out and made real in the contours of daily life. Identity norms, in this view, are performed and attached to power within a social system. Though partly conceptual, and, in Butler’s view, subject to challenge and transformation, identity is made real through actual bodies. While Butler was primarily influenced by the work of Michael Foucault and psychoanalysis, other theorists like Seyla Benhabib, Iris Marion Young and Nancy Fraser mined different traditions to develop more explicitly normative and political accounts of gender and identity (see, for example, Young 1990; 1997; Benhabib et al. 1996). For these scholars, it was not a huge jump to examining citizenship and social exclusion. Benhabib (2004) has thus developed a cosmopolitan ethics, while Fraser (1997) seeks to balance recognition and redistribution, retaining some of her roots in the Frankfurt School of critical theory.Young (1997) deliberated on the constitution of citizenship under conditions of multiculturalism. 384

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Such theoretical work, within and outside criminology, in its attention to the links between identity and power, laid the foundations for the criminology of mobility. Identity, this scholarship attests, is an important conduit for power, both its product and its effect; its subject and its object. While the figure of the migrant or foreigner fades in and out of view in this work, its attention to the intersecting aspects of subjectivity recognized the existence of various axes of belonging, among which citizenship is placed.

Border sightings A systematic review of criminological scholarship reveals three distinct domains of borderrelated concern. The first can be found in attention to the border as a passing referent to the location of offending – spatially demarcating offending. In the late 1960s, for example, articles on the cross-border importation of drugs began appearing (Chappell 1967). The opportunity was missed, however, to concentrate on the physical site. Rather, in the decades to follow most work remained concerned with domestic responses to offending and harms (often addiction) or domestic informal economies and illicit markets (Ruggiero and Vass 1992; Vaughn, Huang and Ramirez 1995; Odergard 1995; Farrell, Mansur and Tullis 1996; Paoli 2002). The second domain of criminological scholarship that we can identify considers the border as a framing device for crime and of state and suprastate responses. Quietly the border became increasingly important for studies of various forms of transnational crime and crime control, such as drug trafficking, cybercrime and counter-terrorism – offending that seemingly paid little respect to national boundaries. However, it is important to note that as borders came in for increased, albeit still limited, attention, the criminological focus arguably contributed to a sense of the border as an exceptional topic of concern. Studies in the 1990s, for example, depicted borders as a matter of the exotic (which tended to focus on Northern Ireland, Africa, Asia and the Middle East) (e.g. Pearson 1990; Mapstone 1992), postcolonial arrangements in the Global South (e.g. Vagg 1992; van zyl Smit 1999; Korn 2000) or the end of the Cold War (Arnold 1995; Dunkel 1995). In the rare cases where the border in question was closer to home, it was considered an exceptional criminological topic (most notably in relation to terrorism) rather than routine (Hills 1995). An early example is Geoffrey Pearson’s account in the British Journal of Criminology of an academic study tour to Israel (1990) and his reflection on crime and politics during the first Intifada. Borders were not the focus of this account, but they loomed large in a criminological attempt to consider the geopolitical context of the Israeli-Palestinian conflict. Importantly, this article raised the irreconcilable intersections of geography, vocabulary, migration and politics and highlighted the need to criminologically question the high rate of foreign national imprisonment, the relationship of delinquency and political participation in the Intifada, security force harassment, the difficulty of defining deviance in the absence/compromise of the rule of law, as well as the need/desire to advance more detailed ethnographic work. Although these kinds of questions did not immediately disturb standard criminological fare in Europe or North America or sharpen the discipline’s focus on borders themselves, this era confirmed the border as a topic of analysis for scholars of transnational crimes, where it was often identified as an impediment in the policing and prosecution of supply as offenders moved cargo from one state to another. Following crime across borders did not always necessitate a sustained interest in the border either – in as much as the border was becoming central in these studies, it did not present new or different normative concerns for scholars. It was not until transnational policing scholars came to identify its role in producing a broader range of criminal activities and their challenges for national and transnational policing (e.g. Sheptycki, 1995, 1998) that the border came to feature more regularly in criminological concerns and accelerate the 385

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foregrounding of current work. It was really taking its cue from this concern with transnational policing that the border moved from being a secondary consideration to a primary concern for criminological enquiry and a discernible third line of scholarship that we refer to as the criminology of mobility. The first article in the British Journal of Criminology to directly and substantively identify borders in relation to crime and social control was Ben Bowling’s (1990) article concerning race and migration in Europe. He argued that ‘[T]he relationship between black people and crime will be an undercurrent in debates concerning policies to control migration in Europe and between European countries’(1990: 483). He accurately forecast that ‘internal border controls’ would come to feature, which indeed they have, though the bulk of the article was dedicated to challenging the methodological weaknesses in research on race and crime. The first study to focus specifically on the border in the same journal was Vagg’s (1992) analysis of the Hong Kong–China boundary and the ways the frontier shaped the definition and production of crime. From this time, criminological study of the border, its enforcement and its unauthorized crossing (or even its authorized crossing for reasons other than those given and accepted in processes of authorization) have generated sustained interest around the experiences of harms (Munro 2006) and the expansion of control and enforcement agencies and powers (Sheptycki 1995). Even so, it was not until criminology began to draw on the resources of cognate fields that authors asked normative questions about the border or considered it in terms of criminological concepts. The border has long been a central concern of political scientists and international relations scholars, particularly critical international relations theorists (see McCulloch and True, Chapter 24 in this volume; Anderson 1996; Andreas 2000; Andreas and Snyder 2000; Torpey 2000), geographers (Rajaram and Grundy-Warr 2007), surveillance scholars (Zureik and Salter 2005; Lyon 2009) and anthropologists (Donnan and Wilson 1999; de Genova and Peutz 2010), so it is not surprising that early criminological work drew on ideas developed and shared among these disciplines (see Pickering and Weber 2006). In drawing on insights from cognate fields, we can see how the shift in criminological concern for borders has fundamentally changed. For example, concern for drug trafficking across borders has closely followed the literature on organized crime. Unsurprisingly early concern for human trafficking across national borders followed suit (see Weitzer 2009, for a critique of these). By contrast, more critical work on trafficking that drew on gender studies and international relations identified the centrality of the border in preventing authorized mobility for those considered undesirable (Segrave, Milivojevic and Pickering 2009; Lee 2007). Studies of human smuggling that draw on anthropology, international relations and sociology (see, for example, Sanchez in Chapter 18 and Grewcock in Chapter 8 in this volume) have followed a similar trajectory, focusing on smuggling not as another/new ‘high policing’ issue for the mainstream criminological list but as an outcome of border control. Such accounts argue that criminologists need to engage in broader interdisciplinary debates around sovereignty, identity and power. While criminologists studying the border were indebted to scholars in other disciplines, they brought key criminological concepts to bear on border issues that enabled sharp interventions in both domestic and international realms. In particular, they were adept at identifying and responding to the performative and symbolic border (Wonders 2007) in criminalization processes and expansionist criminal justice programmes (Aliverti 2013). Most importantly they were important contributors to upsetting the narrow focus on victimization which failed to engage in broader structural and agentic features of irregular mobility and harm, which brought into sharp relief the ways borders were physically and legally negotiated. Arguably the most important contribution to the criminological study of borders has been to identify the mobile character of 386

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borders and the changing forms of criminalization which occur at a range of border ‘sites’ that may or may not neatly map onto the territorial nation state (Weber 2006). The symbolic and instrumental power of the border (as fixed and as ever changing) has been central to populist debate around illegal migration, heightened levels of fear of outsiders (which always has a racial inflection), and seen the ready and often unquestioned application of labels of illegality to the unauthorized crossing of a border. Criminological work concerned with border crossing has highlighted the dangers inherent in applying familiar and convincing language of domestic crime control to non-citizens without authorized migration status. It has identified the ways the language and labels of criminality mobilized in the name of border control have been central to destabilizing international norms capable of protecting non-citizens, especially in states with weak human rights cultures and mechanisms. The border has been reconceived in some criminological study as a frontier, a borderland (see Pickering and Weber 2013), and/or a no-man’s land (Barker 2013). It has also been identified as transformative of key criminal justice institutions relied upon for its symbolic and instrumental performance (Pratt and Thompson 2008). Scholars have identified an expansion/ extension of existing agencies and exercise of powers (see Aas and Bosworth 2013), while others have shown the symbiotic relationship between border enforcement, illegal cross-border activity and the generation of harms (Gerard and Pickering 2013). Work in this field has included studies of border-related deaths (Weber and Pickering 2013; Pickering and Cochrane 2013), widespread use of incarceration in the form of immigration detention and imprisonment of foreign nationals (Lee 2007; van Kalmthout, Hofstee-van der Meulen and Dünkel 2007; Bosworth 2011, 2012; Ugelvik and Ugelvik 2013) and the use of summary-type powers including ‘turn-arounds’ at border sites (Aas 2011a). The criminology of mobility literature has, in particular, paid attention to the ways the policing of borders has drawn in a multitude of agencies and techniques, especially in shared border policing arrangements such as those in the European Union (Aas 2011b).The relationship between borders and changing European identities (Green and Grewcock 2002) and the political and material resources amassed by border policing agencies have been highlighted by criminologists working in a range of contexts. Equally and rather cheekily, a significant proportion of what may be regarded as criminological work on the border does not selfidentify as criminology at all (see, for example, Andreas 2000; Nevins 2002). Regardless, it points to a rich inter-disciplinary milieu from which a study of borders in an age of mass mobility not only can study what is happening, but also can increasingly contribute to the conversation around what needs to happen in ‘a world in motion’ (Aas 2011b). It has been in this space that the criminology of mobility has identified the development of the migration control industry and its centrality in the global governance of social control.

The migration control industry The lively recent attention paid to borders within criminology reflects the increased focus on border security by state agencies and private entities. As witnessed by several contributions to this volume, borders, and migration more generally, have become in the post-9/11 climate hotly contested political issues and intrinsically connected to notions of security and fear. A series of rhetorical and political moves have established a clear nexus between migration and insecurity or what has been termed the securitization of migration (Huysmans 2006; Guild 2009). The trend has spurred a series of governmental and private security initiatives, which aim to secure the potentially risky flows of people and to distinguish between ‘good’ and ‘bad’ mobility, trustworthy and untrustworthy travellers. The development of what might be termed 387

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(paraphrasing Christie 2000) a migration control industry has been extensively documented, particularly within the surveillance scholarship (Adey 2004; Zureik and Salter 2005; Amoore 2006; Pickering and Weber 2006; Aas 2011b). The industry produces vast technological paraphernalia, which includes soft-end solutions, such as large-scale IT systems, biometric identification and airport surveillance, as well as more militarized approaches at the maritime and territorial borders, including unmanned aerial vehicles (UAVs), military and police vessels, airplanes, helicopters, surveillance cameras, etc. As pointed out above, this political and technological framing places migrants as a source of insecurity (and as potential criminals), rather than people who are exposed to considerable dangers on their migratory journeys, and therefore deserving of protection and assistance. The notions of threat are intrinsically connected to the fear of waning state sovereignty under conditions of globalization and to the contestations over shrinking welfare resources for citizens. Criminology of mobility has sought to destabilize the migration-security nexus, and to problematize its political, practical and ethical implications. In particular, it has pointed out how the shift of focus has affected the patterns of legal regulation of migration. In the past decades, irregular migratory activities were progressively subjected to stricter penalties and criminalization. While previously unauthorized movement of people across state borders mainly fell under the auspices of administrative law, in recent years criminal law has (as outlined by several contributions to this volume) become a prominent tool used by states in the Global North for the purpose of immigration control. These processes of ‘making people illegal’ (Dauvergne 2008) have been charted in several seminal contributions, among others, in Ana Aliverti’s (2013) study of ‘crimes of mobility’ in the UK. While there are great jurisdictional differences, and much comparative work which remains to be done, the criminalization of immigration offences has had a considerable impact, both in terms of symbolic politics and actual enforcement. In the US, 54 per cent of all federal prosecutions are for immigration crimes (Vázquez 2012). The sheer size of the development has drawn a new generation of scholars to examine the criminological and socio-legal implications of immigration law and enforcement. Consequently, a growing body of scholarship is addressing the progressive intertwining of the two, previously distinct, fields of asylum/immigration law and criminal law. In the US context, the development has been termed ‘crimmigration law’ (Stumpf 2006; see Chapter 15 in this volume; Vázquez 2012); the term which has lately also found resonance within Europe and Australia, where attention is being paid not only to the legal but also to the criminological aspects of the phenomenon (Aas 2011b; Guia, van de Woude and van der Leun 2012). The criminology of mobility has needed to overcome large silences in criminology, and has drawn eclectically from other disciplines, such as law, as it moves from theoretical concern to empirical endeavour.What are the key concepts and ideas of criminology that have been applied successfully or have proved insufficient in this new landscape? One of the traits of the field is that as it qualitatively and quantitatively maps the forms of penality applied to non-citizens, and what distinguishes them from the more traditional forms of crime control, it is also transforming our understanding of social control and punishment. For example, how is policing different when directed at the populations of non-citizens? As shown by Weber (2013) and others (van der Leun 2003; Weber and Bowling 2008, 2012; Pickering and Weber 2013), policing of migrant populations involves novel forms and rationalities of policing, which are openly focused on the task of border control (identifying aliens, denial of entry, deportation, etc.). It also requires unprecedented levels of international cooperation and data exchange, thus destabilizing the traditional connections between the police, citizens, the nation-state and its territory. One of the strengths of criminology of mobility is that it offers an informed and nuanced understanding of law and criminalization and their impact on the lives of migrants, particularly 388

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the most vulnerable ones. The field has outlined a complex set of conditions of precariousness to which migrants, living in the shadow of law, are exposed in their everyday realities. The precariousness includes not only the physical dangers of the journey, but also social marginality upon arrival, economic hardship and exploitation, as well as intrusive policing, surveillance and the threats of deportation and detention. Kitty Calavita’s study Immigrants at the Margins (2005) gives, among others, an account of conditions of severe economic exploitability which are a result of the contingent legal status of many immigrants in southern Europe. The condition of the immigrant as a source of cheap labour has also inspired some neo-Marxist accounts of immigration control (De Giorgi 2010; Melossi 2013). Economic exploitability is intrinsically connected to the condition of deportability – the threat of forced removal – which accompanies and stalks irregularity. An extensive body of work has documented the emotional and social hardship of deportees and their families, as well as the extensive state apparatus dedicated to the creation of deportable subjects and their actual expulsion (Kamstroom 2007; de Genova and Peutz 2010; Brotherton and Barrios 2011). Particularly criminologically relevant is the fact that criminal convictions have become in several countries the fastest path to deportation. In the US, deportation became, after several legislative changes, ‘the consequence of almost any criminal conviction of a non-citizen’ (Stumpf 2006: 371). According to the data provided by US Immigration and Customs Enforcement, the numbers of so-called criminal aliens removed from the country have risen dramatically in the past decade. Over 400,000 individuals were removed from the United States in 2012, twice as many as housed in the Federal Bureau of Prisons. Not only rhetorically, but also practically, the blurred categories of a ‘criminal alien’ and an ‘illegal alien’ are serving as an aggressive justification for reaffirmation of state sovereignty. The non-citizen has been designated not only as a deportable, but also as a detainable subject, inhabiting the spaces of immigration detention as well as a growing proportion of the more traditional spaces of imprisonment (Ugelvik and Ugelvik 2013; Bosworth 2014). While deportation and immigration detention are not forms of penal power which have been so far a frequent topic of criminological study, there is a deepening acknowledgement that they represent an expression of the state’s will to control, to inflict pain upon and, often, to punish its non-members. By doing so, penal power is no longer a domain of internal domestic relations, but also enters inter-state relations and becomes one of the mechanisms of global social control and governance.The labels ‘illegal’ and ‘illegal alien’ are, therefore, as Dauvergne (2008: 18) points out, not only applied nationally, but have become a ‘globally meaningful identity label’ which distinguishes the insiders in the prosperous Global North from the intrusive outsiders from the Global South.

Where is the criminology of mobility heading? The criminology of mobility directs its critical gaze at the heart of unequal global social relations. By producing categories of ‘legal’ and ‘illegal aliens’ – worthy and unworthy migrants – Northern states are using the power of criminal law, and the sovereign prerogatives of policing and detention, for the purpose of protection of their territorial integrity. By doing so they are setting in motion complex processes of daily re-entrenchment of global inequalities through criminal justice. In the US context, Latinos are disproportionately affected by the intertwined relationship of criminal law and immigration control. They represent over 90 per cent of those in immigration detention; 94 per cent of those removed; and 94 per cent of those removed for criminal violations (Vázquez 2012). In these trends, the racial inequalities, which have historically shaped the US imprisonment surge, become reframed as global inequalities structured along citizenship lines. 389

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With some exceptions, most of the scholarship in the field has been produced by scholars in the Global North, and thus pertains to Northern empirical realities. This is an imbalance which marks most social science scholarship (Aas 2012). However, just as the criminology of mobility thematically addresses the unequal subject positions of citizen and non-citizen, so it also – through its focus on gender, race and ethnicity – aims to address the inequalities of academic knowledge production within the field. The marginalized position of the non-citizen within Northern societies is to some extent replicated by the peripheral status that scholarly knowledge about non-citizens occupies within the existing hierarchies of knowledge production. There are considerable empirical challenges in studying global phenomena and cross-border flows, as most official data sets relate to phenomena within nation states. Official statistics therefore often do not collect data on people with unclear and irregular immigration status, or data related to immigration status. In the United Kingdom, for instance, the government rarely publishes details about those held in prison under Immigration Act powers (Aas and Bosworth 2013).The lack of data, and its unavailability, are often also a result of the politically charged nature of the phenomena at hand, the most blatant example of which is the lack of systematic knowledge about borderrelated deaths (Weber and Pickering 2011). Under such circumstances, providing quantitative and qualitative accounts of the hidden and invisible populations, and hidden forms of victimization, becomes an important function of academic research. As with the invisibility within official knowledge production, the non-citizen has been also suspiciously absent in the prevailing criminological theoretical conceptions, which by and large do not address citizenship issues. The established notions of domestic penality address predominantly forms of penal power exercised over citizens and seldom, for example, examine deportation as a punitive measure, or immigration detention centres as penal institutions. These forms of penal power differ from the ones usually discussed in criminological and penological texts and textbooks, in which punishment tends to be inextricably linked to the idea of imprisonment and which take prison figures as the main indicator of societal punitiveness. In such texts, Western European countries tend to be described as penal moderates, while if we look at the levels of incarceration of foreigners, Western Europe is in fact a penal outlier. These are not only empirical and conceptual gaps, but importantly often also result in gaps in regulation and rights. For example, in crimmigration law, non-citizens do not enjoy the same rule of law protections as citizens, such as the privilege against self-incrimination and eligibility for legal aid in deportation cases (Stumpf 2006), and basic human rights standards are often out of the reach of socially marginalized migrant populations (Dembour and Kelly 2011). However, while the emerging fields of criminology of mobility and border studies may be producing a growing body of knowledge which addresses the above-mentioned omissions, there are still important gaps which need to be filled.We know very little about what happens to those who are removed or deported. Moreover, contemporary strategies of mobility control have substantial extraterritorial dimensions (Ryan and Mitsilegas 2010) and an active reach into the countries in the Global South. These developments demand research on the emerging global interconnectedness that is more ‘democratically distributed’ in epistemological terms (Aas 2012). As such, the criminology of mobility has the potential to shed light on vital aspects of global inequality and on the nature of contemporary power relations, post-colonial struggles and social exclusion, and thereby also on theoretical innovation. Notwithstanding the traces of feminist, critical race, and postcolonial literature that can be found in the criminology of mobility, race and gender continue to be marginalized or undertheorized in the figure of the ‘non-citizen’ or migrant. So, too, questions remain unasked and unanswered about the methodological and ethical difficulties of studying ‘a world in motion’ (Aas 2012). For the most part, much of the existing criminological literature on mobility, as it 390

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is elsewhere, is largely theoretical, perhaps drawing on policy documents and the law. Only sometimes does it draw on first-hand accounts and fieldwork (see, for example, Weber 2013; Bosworth 2014; Pickering 2014; Pickering and Ham 2014). While these three matters – methods, ethics and the integration of race and gender – may seem unrelated, they are, in fact, deeply intertwined. Methodologically, both gender and postcolonial theory direct our attention to the actions and deliberations of those subject to power and, for the purposes of this project, to the affective nature of mobility and border control itself. In terms of intersectionality and performativity, what are the connections and disjunctions between the citizen and the prisoner or between the asylum seeker and the criminal? Thinking about embodiment, how should we understand punishment under the deportation regime, where foreign bodies are no longer reformed but banished? What of those making asylum claims for whom their body is the evidence? What of cosmopolitan justice? How effective are universal human rights in pursuing concrete gendered claims for redress and protection? Focusing on the interplay between subjectivity and power relations emphasizes both the affective nature of penal power and the attempts people make to resist it. The point is not to substitute first-hand or micro accounts with structural or macro ones, but to bring the two into dialogue in order to develop broader understandings of penal power and its effects. In so doing, the criminology of mobility reveals that the empirical focus of enquiry must shift to include those sites, historical and contemporary, where penal power intersects with other forms of state governance. It also calls for methodological innovation. How might we study those whose languages we do not share? Who are without legal immigration status? Who have been deported? How can we come to an understanding across cultural, religious, and economic divides? Is it possible to work with and for those on the move, involving them in the production of knowledge? Or is the criminology of mobility always a view from above? In many respects criminology is ideally placed to be innovative methodologically, since its disciplinary borders are weakly drawn (Bosworth et al. 2011). Characterized some time ago by David Downes as a ‘rendezvous discipline’, criminology (or at least parts of it) has long been open to new ideas and approaches. To that end, the criminology of mobility builds on existing disciplinary strengths, adding to work in comparative criminology (Nelken 2010), as well as race, gender and postcolonialism. Unlike many existing accounts, however, the criminology of mobility also seeks to provide a grounded approach to theorizing, making room for the affective nature of power relations, rather than superimposing a grand narrative. In so doing it aspires to transcend the boundary between macro and micro accounts of the state, placing empirical material in dialogue with a theoretical framework. It is interdisciplinary, drawing on gender and postcolonial theory as well as human rights, sociology of punishment, history, migration studies and criminology.

Conclusion As this chapter has argued, the criminology of mobility is a vibrant, interdisciplinary form of criminological enquiry. It has experienced considerable growth over the past decade, and we have seen a shift in focus from the study of immigrant involvement in crime to the exploration of the mechanism of penal and legal control and exclusion, with a growing awareness of the border as a symbolic and physical site of social control. Despite its apparent newness, the criminology of mobility has its roots in a number of enduring criminological debates about identity, exclusion and social justice, and combines sophisticated theoretical analysis with empirical evidence, situated in an historical context. 391

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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. Is it at all possible to understand imprisonment in Europe today without understanding the patterns and the role of the remarkable imprisonment of foreign nationals? Can we fully grasp the meaning of penal punitiveness without taking into account the urge to expel and deport unwanted non-citizens? Moreover, can we properly grasp the nature of criminal law in Western societies without seeing it in a global context, in conjunction with immigration law? The extensive body of work on the criminology of mobility is united by a key underlying concern with rights, law, and state power under conditions of globalization. By drawing on related disciplines, such as law, anthropology, border and surveillance studies, it is generating new conceptual and theoretical frameworks to address the legal, organizational and normative responses to the challenges that migration and globalization present to contemporary criminal justice systems.

Note 1 Originally published in German in 1908, Simmel’s essay was later translated and reproduced in full in an edited collection of Simmel’s scholarship published by Karl Wolf in 1950.

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Index Note: Page numbers in bold are for figures, those in italics are for tables. Aas, KF 58, 65, 68, 70, 75, 76, 98, 108, 123, 148, 179, 228, 231, 242, 287, 291, 306, 309, 317, 322, 369, 382, 387, 388, 390 Abdulaziz, Cabales and Balkandali v UK (1985) 247n25 Aboitiz, M 374 accountability, of migration policing systems 70, 72 Aces Ventures 340 Achughbabian case 243–4, 246n7 Adams, G 126 Adelman, M 34 Adey, P 289, 388 administrative detention see immigration detention Aebi, M 240 Afghan asylum seekers 44, 168 African Americans 19, 34 Agamben, G 86 Ager, A 183 Agnew, J 354 Agnew, R 180, 181, 185, 189 Agozino, B 384 Agustin, L 206, 213 Ahlberg, J 45, 46, 47, 48 Ahmad, AN 93 Ahmed, F 306 Ahmed, S 81 aiding of immigration offenders 68–9, 240 Akee, R 290 Akers, R 368 Akins, S 12, 17 Alabama, immigration law 69, 223 Alaniz, M 12, 16, 17 Albanians 167 Alberti, G 93 Albrecht, H 13, 108, 116 Alder, C 304, C 298 algorithmic war 144, 148, 149 Aliverti, A 68, 76, 123, 181, 227, 228, 230, 231, 232, 237, 239, 241, 244, 251, 386, 388 Almeida-Sanchez v United States (1973) 247n25

Amaiu, T 340, 344 Ambagtsheer, F 304 ambivalence in migrants 5, 193, 197–9, 201, 203 Ambrosini, M 181 Amelina, A 199 Amnesty International 80, 165 Amoore, L 388, L 143, 144, 148, 149 Anderson, M 386 Anderson, B 155, 216, 242, 252, 253, 256, 306, 309 Andersson, R 150, 151 Andrae, CG 43 Andreas, P 86, 144, 145, 146, 151, 281, 302, 303, 304–5, 308, 358, 360, 370, 371, 372, 376, 386, 387 Andrijasevic, R 294, 295, 309 anti-discrimination laws, Sweden 44 anti-immigrant sentiment 11, 70; Canada 216; Europe 98, 362; Sweden 45, 51; UK 59–60; US 26, 31–2, 33, 35–6, 223 anti-trafficking 85–6, 206, 207, 215, 216, 288, 297 Aoki, Y 17 Apap, J 290, 291 Appadurai, A 195 Aradau, C 369, C 143 Arai, M 45 Arbel, E 82 Arizona, immigration law 69, 223, 227, 358, 360, 362–3 Arizona v United States [2012] 362–3 Arnold, F 165 Arnold, J 385 Ashworth, A 244 Asia 20 Asian immigrants, US 27, 31 assimilation 28, 30 Association of Caribbean Commissioners of Police (ACCP) 64 Association of South East Asian Nations Police Chiefs (ASEANPOL) 64 Astor, A. 12, 13, 14

Index

asylum seekers 5, 6, 44, 155, 288–90; Australia 68, 134, 197, 228; and bilateral return agreements 167–8; deportation of see deportation; entrapment of 180–2; Europe 67, 98, 356; France 175; Germany 167; Greece 165, 167, 169; Israel 228; Italy 167; Netherlands 167; survival strategies 181, 185–8; Sweden 44, 167; UK 60, 181; and welfare assistance/policy 181–2, 184, 185, 188–9, 190; see also Canada, asylum seeker/refugee policy; Hong Kong, asylum seekers entrapment; women asylum seekers Athwal, H 101 Austin, P 100, 101 Australia 5, 11, 15, 19, 64, 67, 75, 357, 361; asylum seekers 68, 134, 197, 228, 375; Australia in the Asian Century White Paper 196; bilateral return agreements 168; border policing/controls 124, 134, 223; deportation 4, 121–37, 159, 160, 161, 162, 163, 164, 170, 171 (and Administrative Appeals Tribunal (AAT) 127, 130–1, 132, 134; challenges to 130–1; and character test 124–7, 134; Ministerial intervention 131–2; to New Zealand 129; to Papua New Guinea 356, 375; and risk reduction 133; and 10–year rule 125, 126, 127, 134; to Vietnam 129–30; and visa regime 124, 125–8, 129, 131–2, 133); foreign–born and irregular population 164, 174; human trafficking to 308–11; ideology of `the stain’ in 121–3; illegal migrant workers 309, 310–11; immigration–crime association 13, 18; immigration detention 91, 92, 96–7, 99, 100, 101, 126, 165, 228; immigration diversity 21; immigration law (Immigration Restriction Act (1901) 96; Migration Act (1958) 124–5, 126, 127, 128–9, 134, 135–6n6–8, 18, 19, 26, 40, 42); Pacific Islanders Act (1901) 96; ‘Pacific Solution’ migration policing 68, 100; state crime 373; temporary migrants 198–203 (visas 196); transportation of offenders to 4, 121–2; visa regime 124, 125–8, 129, 131–2, 133, 196; White Australia policy 96, 124, 128; and women, peace and security (WPS) agenda 374–5 Australian Council of Trade Unions (ACTU) 196 Australian Deportation Project 127, 130, 131–2, 156 Australian Federal Police (AFP) 309; Transnational Sexual Exploitation and Trafficking Teams (TSETT) 308–9 Australian Institute of Criminology (AIC) 308 Austria, foreign national prisoners 111 Avitabile, N 35 Bacon, C 95 Badiou, A 354

398

Baines, E 288 Balarajan, M 11 Baldaccini, A 149, 243 Bales, K 307 Balibar, E 317, 318 Banks, J 108, 109, 114 banopticon 155 Baoshu, Z 317 Barbagli, M 359 Barchiesi, F 195 Barker, V 155, 165, 239, 387 Barranco, RE 29, 30, 34 Barrios, L 70, 361, 389 Barry, J 367 Bashford, A 92, 93, 94 Batalova, J 26, 27 battlespace 143 Bauder, H 252 Bauer, M 34 Baulk, D 339 Bauman, Z 57, 148, 298 Beare, M 306, 370, 371 Béchard, J 97 Beck, U 372 Becker, A 158 Beckett, K 180, 190 Beckley, AL 50 Beier, AL 59 Bejarano, C 34 Belgium: foreign national prisoners 111, 112; immigration concentration 17–18 Bell, B 12, 17, 21, 42 Bell, E 109 Bell, S 83 belonging 4, 133, 155, 199, 201, 317, 318, 383, 384 Benhabib, S 199, 384 Benkharbouche v Embassy of the Republic of Sudan [2013] 262n18 Bennett, D 207 Benson, M 35 Bentham, J 122 Benz, M 255 Berg, L 165 Berlinsci, R 303, 305, 306 Berman, G 239 Berman, J 290, 291, 297, 304, 305, 307 Bersani, B 13, 14, 15, 28, 30 Bewley-Taylor, D 371 Bhandar, D 86 Bhattacharya, J 331 Bhui, HS 107, 109–10, 114, 116 Bigo, D 84, 141, 147, 149, 155, 156, 195, 199, 322, 370, 372 bilateral return agreements 167–8 Bilger, V 276 biometrics 67, 148, 149, 151, 359, 372, 388

Index

Bircan, T 18, 20 Black immigrants: imprisonment experiences 109; US 31 Bloch, A 156, 252 Block, A 181, 189 Blomley, N 332, 333 Boese, M 311 Böheim, R 255 Boltanski, L 195 border militarization 66–7, 71, 141–54, 388; budget and personnel expansion 146; hardware 144–6; limits, trends and consequences 149–51; private actors 141, 142; technologies 142–3, 144, 146, 148–51 border policing/control 7, 64, 65–6, 69–70, 75, 180, 302, 304, 305, 312, 353–4, 355, 387, 388; Australia 124, 134, 223; Canada 3–4, 75, 78–90; costs of 359, 360; creation and facilitation of crime 354; de-territorialization of 66, 67–8, 230; and economy 359–60; EU 144, 145–7, 150, 226, 291, see also FRONTEX; Hong Kong-mainland China border 316–17, 320–1, 322–5; militarization of see border militarization; Netherlands 356; security assemblages 141–2, 143; Serbia 291, 298; structural violence in 360; transversal 69–70, 230, 324, 372, 376; US see under United States (US)-Mexico border border trading see Hong Kong-mainland China border, cross-border parallel trading border(s) 65–6, 353–4, 383; as containment zones 67; creation and facilitation of crime 354; criminogenic characteristics of 7–8, 355–8; criminological study of 385–7; death toll at 71, 360, 387, 390; diffuse 66; geostrategic characteristics 354; smart 65–6; temporal 367, 368, 369; ubiquitous 148; virtual 144, 148, 149; walls and fences 66–7, 144–5 Borill, J 115 Borras, SM 332 Bostock, C 130 Boswell, C 290, 291, 295 Bosworth, M 58, 65, 70, 75, 76, 82, 86, 91, 92, 93, 96, 100, 101, 109, 114, 117, 123, 155, 156, 161, 180, 229, 231, 237, 238, 246n2, 312, 317, 322, 382, 387, 389, 390, 391 Bouclin, S 208 Boulle, JR 336 Boulle Mining Group 336–7 Bourdieu, P 141 Bourne, J 101 Bowden, H 94 Bowling, B 57, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, 149, 179, 181, 231, 324, 361, 371, 383, 386, 388 Brå (Swedish National Council for Crime Prevention) 45, 46, 47, 48, 49, 50

Brenner, A 3, 82 Breton, R 16 Brettell, CB 358 Briscoe, G 255 Briskman, L 100 Britain see England; United Kingdom (UK) British Journal of Criminology 385, 386 Britz, E 26, 27 Brock, D 207 Broeders, D 91, 92, 93, 99, 101, 156, 160, 237 Bronitt, S 181 Brotherton, DC 70, 361, 389 Brown, W 144–5, 245 Browning, J 92 Buchanan, J 345 Bugajewitz v Adams (1913) 225 Bujra, J 331 Bulgaria, foreign national prisoners 111 Bulgarian migrants 254, 256, 259 Bull, M 101 Bungay, V 208 Bunnell, T 332, 333 Burchill, S 368, 369 Burgess, E 383 Burke, A 302 Burma: corruption 335, 336, 341, 342, 345; economy 335; Farmland Law (2012) 339; forced eviction and development-based displacement 7, 329, 333, 336–7, 339, 340, 341–3, 344–5, 346; Land Acquisition Act (1894) 341; Land Acquisition Investigative Commission 341, 345; Land Nationalization Act (1953) 338; land rights 338–9; Letpadaung Copper mine 342–3, 345; Peaceful Assembly and Peaceful Procession Law 345; poverty 338; Shwe Gas project 336; Special Economic Zones (SEZ) 336; state power 333, 335, 336; Unlawful Association Act (1908) 345; Vacant, Fallow and Virgin Lands Management Law (2012) 339 Burnett, J 99 Burns, RB 182 Burnside, J 93 Bursell, M 45 Bursik, R 15, 28, 30–1 Buschoff, KS 255 Bush, GW 371 Bush, R 331 Busza, J 207 Butcher, K 12, 13, 17, 27 Butler, J 384 Bygren, M 45 Calavita, K 26, 190, 252, 355, 361, 389 Caloz-Tschopp, MC 92 Calvert, G 93 Camayd-Freixas, E 356 Cameron, G 11

399

Index

Campbell, D 368, 370 Campbell, E 11 Campbell, R 207 Campisi, E 95 Canada 15, 19, 64, 67, 357; anti-trafficking efforts 85–6, 215, 216; asylum seeker/refugee policy 6, 78–85, 97, 265–72, 355 (cessation of refugee status 84, 85; and ‘cheaters’ and ‘fraudsters’ rhetoric 79–81; and denationalization 84–5; and Ezokola decision 265, 266–71; and national security 81–2, 82–3); border policing 3–4, 75, 78–90; citizenship 77, 82, 85, 206, 212–15, 216; criminalization (of migration 3, 75–90; of sex workers 207–8); deportation 79, 82, 86, 156, 159, 167, 355; immigration-crime association 78; immigration detention 78, 82, 83, 86, 92, 97; immigration law (Faster Removal of Foreign Criminals Act (2013) 84, 269; Immigration and Refugee Protection Act (IRPA) 78, 82, 84–5, 97, 269, 272n12; Protecting Canada’s Immigration System Act (Bill C–31) 79–80, 83, 85, 97; Strengthening Canadian Citizenship Act (2014) 85); immigration policy 79, 80; Immigration and Refugee Board 78, 81, 82; migrant numbers 77; multiculturalism 77; MV Sun Sea episode 82–3, 97; sentencing practices 84; sex work/sex workers 5, 206–19 (and citizenship 206, 212–15, 216; criminalization of 207–8; and ethnicity 206, 207, 212–13, 215; and human trafficking 206, 207, 213, 216; illegality/legality in 5, 206, 208–12; language issues 211–12; and motherhood 213–14); terrorism concerns 81, 82–3; visa policy 80 Canada Border Services Agency (CBSA) 78, 79, 80, 81, 82, 83, 97; Project SARA 80; Wanted by the CBSA program 83–4 Canada-US Safe Third Country Agreement 81, 82, 168 Canada-US Smart Border Declaration (2001) 81 Canadian Council for Refugees 85 Canadian Security Intelligence Services 84 Canary Islands 145, 151 Cancino, J 27, 28 Caparini, M 80 Capeheart, L 332 capital flows 60, 61, 148 car theft 48 Carens, J 196 Carney, J 189 Carpenter, J 372 Carr, M 144 Carr-Hill, RA 108, 116 Cartmill, R 16 Casillas, R 277 Cassarino, JP 167 Castles, S 20, 43, 44, 194, 195, 287, 289 causes of immigrant criminality 3, 41, 48–50, 51

400

Cepeda, A 34, 359 Cernea, M 330 Ceuta enclave 67, 144 Chacón, J 33, 226, 227, 230, 231, 237, 239, 246n4 Chan, W 86 Chand, S 337 Chang, G 34 Chappell, D 385 Chaumet, JM 319 Chavez, J 11, 12, 17, 17, 33 Chavez, L 358, 361 Chebe, F 99 Cheng, H 319–20 Chez Stella 207 Chiapello, E 195 Chicago 13, 15–16, 21, 27–8, 30 Chicago School of sociology 1, 2, 26–7, 78, 382, 383 children 288, 305, 357; of immigrants, criminality among 12, 14, 42, 50; immigration detention of 83, 93, 95, 100; of sex workers 213–14 Chile 43 Chin, GJ 231, 232 Chin, K 281–2, 284 China 64; and Hong Kong economic integration 317; see also Hong Kong-mainland China border China North Industries Corporation 342 Chiu, S 318 Chuang, J 310 Ciric, D 290, 298 citizenship 76, 92, 133, 134, 195, 196, 223, 363, 384, 389, 390; Canada 77, 82, 85 (sex workers 206, 212–15, 216); and exploitation of migrant workers 306, 311, 312; and multiculturalism 384; Norway 110; Sweden 44, 45; UK 60 Citizenship and Immigration Canada (CIC) 78, 97 Citrin, J 11 civic participation, Sweden 43–4 civil rights 113, 358 civil society 362–3 Clandestino project 163 Clark, I 369 Clarke, R 33 class 3, 58, 59, 60 Cleveland, J 86 Cloward, RA 49 CN v UK 261n3 Cochrane, B 290, 296, 387 Coffey, GJ 101 Cohen, AK 49 Cohen, J 101 Cohen, R 290 Cohen, S 79, 372, 384 Cohn, C 374, D 29 Cole, D 371

Index

Collins, J 129 Colombo, A 359 colonialism 91, 93, 94, 149, 384 Columbian refugees, Canada 82 Commonwealth Secretariat 61 communications technology 60, 61–2 community detention 99 comparative research 19–20 Comunidad de Poli´cias América (AMERIPOL) 64 Constable, N 188 context, importance of 15–19, 20, 28 Convention on Actions against Trafficking in Human Beings 254 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 182, 270 Cornelisse, G 238, 242 corruption 208, 329, 330; Burma 335, 336, 341, 342, 345; Papua New Guinea 333, 334, 337, 340 Costello, C 99 Côte-Boucher, K 66, 76, 77, 82, 86 Cotula, L 331, 332 Council of Europe 61, 113; Convention on Actions against Trafficking in Human Beings 254; European Prison Rules 114, 115, 116, 117 country of origin factors 30–1, 32, 49, 51 Court of Justice of the European Community (CJEU) 238, 242–4, 245 Coutin, SB 76, 155, 181 Crenshaw, K 384 crime control 3–4, 22, 146, 317, 357, 370, 371, 376, 385, 387, 388; see also crimmigration control; deportation; immigration detention; incarceration; policing crime rates 2; and ethnicity 17; immigration and decrease in 3, 26, 27–8, 32, 35, 359, 361 crimefare state 370–1, 376 criminal justice system 3–4, 368, 369, 376, 382; discrimination in, Sweden 50, 51; racial and ethnic stereotyping/stigmatization in 384 criminal law 5–6, 224; and immigration law, convergence of 237–8; individual responsibility as central to 268; international 266–7, 268, 270; see also crimmigration law criminalization of migration 1, 2, 68–9, 71, 108, 110, 117, 149, 232, 305, 312, 322, 323, 325, 361, 388–9, 392; Australia 121, 123, 134, 308, 310; Canada 3, 75–90; Europe 6, 239–41 (and human rights discourse 6, 238, 241–4); and immigration detention 91–102; Netherlands 165; US 27, 227, 238–9 criminalization-migration–security nexus 303, 311 criminalization of sex work 207–8

criminology 1, 8, 101, 367–77; border-related concerns 358–63, 385–7; core concepts and concerns of 368; and deportation 123–4, 156–8, 169; and forced displacement 333; and international relations, interdisciplinary engagement between 8, 367–77; of mobility 8, 75, 382–95 crimmigration 5–6, 7–8, 85, 123, 223–36, 370, 374, 376; and ethnicity 230, 231–2; and gender 231; and perceptions/approaches to migration 231; and traditional aims of criminal law 232 crimmigration control systems 58, 65, 68–9, 70–1, 322, 324 crimmigration law 68, 69, 223–4, 390; and deportation 227, 229, 230; and detention 228–9, 230; European Union (EU) 226, 227; as medium of innovation in law-creation 230; origins of 224–6; and police powers 228; and principle of proportionality 232; and scholarship and advocacy 231; US 224–6, 227, 228–9, 356–7, 388 critical race theory 384 Croatia, foreign national prisoners 111 Crock, M 165 Crofts, T 208 Crosland, B 287, 290, 297, 298 Cruz, E 356, 357 Cuba/Cubans 18, 30, 31, 95, 100, 168 Cullen, P 290, 291 cultural background 50 cultural conflict theories 49 cultural processes, and immigration-crime association 21–2 Cyprus, foreign national prisoners 111 Czech Republic 80; foreign national prisoners 111, 116 Czechoslovakia 43 Dahlbäck, O 50 Dahlström, C 43 Dainty, A 255 Dal Lago, A 108 Danielson, MS 355, 360 data collection technology 149, 228, 233 Dauvergne, C 77, 5, 79, 108, 180, 194, 237, 271, 312, 355, 360, 388, 389 Davies, G 28, 31 Davini, C 334 Davis, M 195, 330, 331, 332 Davis, R 35 de Genova, N 75, 155, 156, 181, 190, 252, 259–60, 355, 386 De Giorgi, A 117, 238, 240, 252, 389 De Goede, M 143, 369 De Jong, G 13 De Silva, C 334

401

Index

deaths: border-related 71, 360, 387, 390; during deportation 165; foreign national prisoners 115–16, 304 Décarpes, P 112, 117 Deegan, B 309 Deegan, MJ 383 Delgrande, N 240 Dembour, MB 238, 242, 390 Demker, M 45 Demleitner, NV 231, 239 denationalization, Canada 84–5 Denmark 44; foreign national prisoners 111 deportation 4, 11, 63, 68, 71, 107, 113–14, 155–78, 223, 225, 232, 238, 243–4, 389, 390; as administrative exercise 134; and bilateral return agreements 167–8; border refusals 166–7; charter flight 166, 168; and crimmigration law 227, 229, 230; deaths during 165; and deportability 162; drug-related, US 225; forced 166; geo-political context 166–7; and globalization 156; migrant workers 252, 253; Nordic exceptionalism thesis 164–6; normalization of 134; official statistics 157–8; as population control strategy 4–5, 155; trends 158–61; voluntariness 166; see also under individual countries Der Derian, J 149 desert, notion of, in refugee law 6, 265, 266, 270–1 Desevedavy, F 319 Desmond, S 12, 16, 17, 28, 30 Desyllas, MC 371 detention see immigration detention deterrence 368, 373, 376 developing countries 19–20 development-based displacement see forced evictions Devetak, R 369, 372 Dewhurst, E 258 difference 58 Dillon, M 146 Dimasi, M 100 Dinan, S 158 Dinovitzer, R 28, 78, 361 Dionne-Boivin, V 86 DiPietro, SM 28, 30–1 discrimination 18, 45, 196; racial 68, 258, 354, 355–6; see also anti–discrimination displacement, development-based see forced evictions Ditmore, M 207 Dixon, D 129 Dixon, PB 359 Djordjevic, B 291 document fraud see false documentation Doezema, J 213, 290, 293, 294, 297, 307 Dollinger, B 108 domestic violence 34–5

402

domestic workers 196; in diplomatic households 261–2n18; employment contracts 257; employment portability 257; employment rights 256–7; Hong Kong 188; live–in requirement 256–7; UK 252, 256–8, 261–2n18 Donnan, H 317, 386 Donovan, B 208 Dorn, N 302 Doty, RL 27, 33, 82, 151, 304, 356, 360, 361, 369, 370 Downes, D 391 DREAM Act activists 233 drones 150 Dronkers, J 16 Drucker, P 147 drug-related crime 16, 17, 18, 225, 227 drug trafficking 108, 302, 370, 385, 386; Mexican border region 275, 277 du Plessis, J 332, 333 Dublin Convention (2012) 159, 165, 167, 168, 169 Dudley, M 93 Duffield, M 195 Dünkel, F 107, 109, 110, 385, 387 Dunlavin Limited 340 Dunn, T 145 Durisin, EM 208 Eagly, IV 227, 230, 231, 237, 239 Eastern Europe 7, 67, 80; foreign national prisoners 111; see also individual countries Eco, U 188 economic globalization 3, 60, 61, 194 economy: Burma 335; and immigration 359–60 education 42, 214 Edwards, A 194, 291 Egger, S 208 88 Generation 344 El Dridi case 238, 242–3, 246n7 Elden, S 369 Elgersma, S 97 elite labour migration 253, 370 Ellermann, A 156, 167 Elliot, J 255 embodiment 391 employers, sanctions against exploitation of workers 251–2 employment 28, 31, 42, 68; Hong Kong asylum seekers 186–7; portability 253, 254, 256, 257; Swedish immigrant households 45 employment rights 259; domestic workers 256–7; self–employed 255; work permit holders 253 enemy penology 4 Engbersen, G 185 England 19; Aliens Act (1905) 59, 94; Egyptians Act (1530) 59; immigration concentration 17; immigration diversity 21; migration control,

Index

historical context of 58–9; Vagrancy Act (1572) 59; vagrancy concept 58–9 Epp, CR 355 equality 260; gender 377; Sweden 43; see also inequality Erez, E 34, 35 Ericson, R 141, 142, 143, 371 Eriksson, A 157, 164–5 Ervin, L 126 Escobar, M 252, M 96 Estonia 44; foreign national prisoners 111–12 ethnic diversity 15, 16 ethnic enclaves 16–17, 21, 32 ethnic profiling 231, 232 ethnicity 1, 3, 21, 30–1, 42, 58, 59, 223, 384; and border enforcement rules 354, 355–6; and crime rates 17; and crimmigration 230, 231–2; and immigrant experience 31; and immigration-crime relationship 32; and sex work 206, 207, 212–13, 215 EURODAC 226 Europe 41–2; anti–immigration sentiment 98, 362; asylum seekers 67, 356; criminalization of migration 6, 239–41 (and human rights 6, 238, 241–4); immigration-crime association 42; immigration policy 241; incarceration of foreigners 4, 107–20, 240 (statistics 110–12); land enclosure 330–1; see also European Union (EU); and individual countries European Agency for the Management of External Border Controls see FRONTEX European Border Surveillance System (EUROSUR) 144, 146–7, 150, 226 European Committee for the Prevention of Torture (CPT) 165 European Convention on Human Rights 98, 260 European Court of Human Rights 165, 169, 242, 260 European Prison Rules 114, 115, 116, 117 European Social Survey 11 European Union (EU) 6, 7, 42, 61, 64, 268, 357; Agency for Fundamental Rights 359; bilateral return agreements 168, 226; border/policing controls 144, 145–7, 150, 291, 297, 387, see also FRONTEX; crimmigation law 226, 227; Declaration on Combatting Terrorism 149; Dublin II Regulation 98; external borders of 7, 67, 297; immigration detention 91, 98; Race Directive 260; Reception Conditions Directive 98; Returns Directive 93, 98, 168, 242–3, 245; securitization of 226; Stockholm Programme 149, 246–7n22 Europol 64, 67, 226 Eurostat 157, 158, 167, 169 EUROSUR see European Border Surveillance System

Evans, C 93, 309 eviction see forced evictions Ewing, W 27 exploitation of migrant workers 6, 7, 34, 196, 303, 305–6, 308–11, 312, 359, 389; UK response to 251–64 (domestic workers 252, 256–8; employer sanctions 251–2; and immigration status 252–9; irregularly resident workers 252, 258–9; and Morecambe Bay tragedy 251; self-employed (freedom of establishment) migrants 252, 254–6, 259; work permit holders (Tier 2 migrants) 252, 253–4); see also human trafficking extradition 63 Ezokola v Canada 265, 266–71 Fagan, J 28, 31 Fairhead, J 331 Falck, S 46, 47 Falk Moore, S 358 false documentation 68, 227, 239, 240, 304, 305, 359 family reunification, Canada 83 Fan, M 33 Farah, D 275 Farrell, G 385 Fassin, D 94, 95 fear of crime 2, 27 Federal Bureau of Investigation (FBI) 63–4 Feeley, M 143 Fekete, L 93, 113, 155 Feldman, D 59 Feldmeyer, B 12, 16, 17, 28, 29, 30, 31 Felsen, D 370 feminist scholarship 213, 375, 377, 384, 390 Ferstman, C 194 Field, O 86 Fili, A 100 Filipino immigrants, Canada 19 Fine, S 207 fingerprint records 67–8 Finland 44; foreign national prisoners 111 Finstad, L 108 first-generation immigrants 21, 28, 30, 31; Sweden 13, 14–15, 47, 48 Fischer, N 101 Five Country Conference (FCC) 67–8 Fleury-Steiner, B 362 Foley, E 358 Fong Yue Ting v United States (1893) 224 Foote, M 99 Forbes-Martin, S 288 forced evictions 329–47; Burma 7, 329, 333, 336–7, 339, 340, 341–3, 344–5, 346; Papua New Guinea 7, 329, 337–8, 339, 340–1, 343–4, 346 forced labour 251, 260, 261n3, 307–8, 310

403

Index

foreign national prisoners 107–20, 238, 240, 246n2, 387; defined 109–10; deportability of 113–14; language issues 114–15; medical care issues 115–16; prison visits and family contact issues 117; rehabilitation/reintegration issues 116–17; and the state 112–13; statistics 110–12; suicides 115–16; see also under individual countries foreign policy 368, 370 Foster, M 126, 266 Foucault, M 148 Fowler, S 64 France 15, 17; asylum seekers 175; bilateral return agreements 168; deportation 156, 157–8, 162, 163, 167, 170, 171, 172; foreign-born and irregular population 164, 174; foreign national prisoners 111, 112, 117, 241; immigration detention 93, 100, 109; immigration law 240, 241; readmission agreements 167; Roma expulsions 158, 167 Francis, R 18 Franco, J 332 Fraser, N 384 fraud-based offences 67, 239, 246n5 Freedman, J 287, 288, 290, 291, 297 freedom of choice, Sweden 43, 44 freedom of establishment, UK 252, 254–6, 259 Frenzen, N 145 Frey, BS 255 Fridriksson, G 340 Frisso, G 123 FRONTEX 64, 67, 70, 98, 142, 144, 147, 150, 166; HERA II operation 151; mass deportations by charter flights 168; RABITs (Rapid Intervention Teams) 147; risk analysis 147; Situation Centre (FSC) 147 Fryer, P 58 Fu, M 213 Fudge, J 252, 256, 259 Funk, J 32 Fussell, E 34 future thinking 143, 147, 148 Gabbidon, S 45 Gallagher, A 310 Galonja, A 290, 293 Gammeltoft-Hansen, T 151 gangmasters 251, 252 Gant, F 304 Garcia, M 144 Gardner, M 26 Garland, D 132, 161, 190, 241, 303 Gates, K 149 gateway cities 18, 29, 30, 35 Gaylord, M 318 Geiger, M 86

404

Geissler, PW 197 gender 2, 59, 101, 367, 373–5, 377, 384, 390, 391; and asylum debate 288; and crimmigration 231; equality/inequality 374, 377; and immigration detention 93, 101; security 375 generational status 12–13, 14–15, 28, 30, 31, 32; Sweden 47, 48 Geneva Convention (1951) 44, 151 Genova, NPD 108, 113 George, N 375 Gerard, A 100, 180, 307, 373, 387 Germany 15; asylum seekers 167; bilateral return agreements 168; criminalization of immigrants 239–40; deportation 156, 159, 160, 161, 162, 163, 166, 168, 170, 171, 172; foreign-born and irregular population 164, 174; foreign national prisoners 111, 241; immigration-crime association 13, 108; immigration detention 160; immigration law 239–40, 246n6 Ghai, Y 334 Gibney, M 155, 156, 158–9, 216 Giles, W 297 Gillis, J 34 Gilroy, P 94 Ginn, E 165 Gleeson, S 359 Glenday, J 306 Glick Schiller, N 196, 199, 203 global governance 72, 368, 383, 389 global social control 383, 387, 389 globalization 1, 57, 71, 107, 180, 194, 237, 290, 297, 302, 367, 369, 370, 375–6, 382; and deportation 156; economic 3, 60, 61, 194; and illegal/illicit markets 304–5; of policing 3, 57, 63–5; and state power 101, 303; of youth crime 361 Globokar, J 34, 35 Goddard, M 332, 333 Golash-Boza, T 123 Goldin, I 11, 20 Goldring, L 355 Gómez, L 27 Gong, Q 320 Gonnella, P 108, 110 Gonzalez-Barrera, A 159 Goodey, J 308 Goold, B 372, 374 Gottschall, K 254 governance: global 72, 368, 383, 389; nodal 141; supranational systems of 60, 61, 71, 72; transnational platforms of 61 Graham, M 43 Graham, S 142, 143, 146 Graif, C 17, 21, 383 Grant, H 155 Granville-Chapman, C 165 Grasmick, H 15

Index

Graybill, AR 354 Greece 110, 165, 166; asylum seekers 165, 167, 169; bilateral return agreements 168; criminalization of immigration 240; deportation 158, 159, 161, 162, 163, 167, 170, 171, 172; foreign-born and irregular population 164, 174; foreign national prisoners 111;immigration detention 165; immigration law 240; Operation Xenios Zeus 159 Green, P 190, 340, 341, 372, 373, 387 Greener, BK 369, 371 Greener-Barcham, BK 371 Greenhill, K 281, 308 Gregory, C 34 Gregory, D. 145, 146 Grewcock, M 91, 93, 121, 123, 124, 128, 132, 145, 372, 373, 387 Griffiths, E 11, 12, 17 Griffiths, M 100, 101 Grundy-Warr, C 386, C 75 Grzymala-Kazlowska, A 185 Guantanamo Bay 95, 100 Guerette, R 33, 34 Guia, MJ 91, 357, 388 Guild, E 98, 179, 322, 372, 387 Guild, M 155, 180, 237, 312 Guiraudon, V 79, 148, 322 Günther, K 241–2 gypsies 59; see also Roma Hachey, I 216 Haddal, C 144 Hagan, J 12, 13, 27, 28, 78, 361 Hagendoorn, L 11 Haggerty, K 141, 142, 143 Hall, A 92, 93, 100 Hall, R 331, 332 Hall, S 384 Haller, M 11 Hällgren, C 45 Hällsten, M 49, 51 Ham, J 216, 391 Hansen, P 43 Hansen, R 94 Harcourt, C 208 Harding, J 151 Hardt, M 180 Hardwick, SW 358 Harris, CT 28, 29, 30, 31 Harris, E 228 Harris-Rimer, S 126 Hartry, AS 231 Harvey, D 62, 331, 332, 369 Harvey, M 255 Hassan, R 101 hate crime, Sweden 45 Hathaway, J 266, 307

Hatzis, N 93, 243 Haugen, HØ 181, 187 Hawes, D 59 Hayes, B 142, 146, 147, 150 Hebert, S 180, 190 Heeren, G 96, 101 Held, D 62, 72, 369, 370 Herman, JMcC 252 Hernandez, DM 91, 93, 95, 96 Hewstone, M 16 Heyman, JMcC 181, 355, 359–60 Hill, F 374 Hills, A 385 Hinojosa, R 359 Hipp, J 22 HKSAR v Usman Butt and others (2010) 190n2 Hnin, P 338, 345 Hobbs, D 302 Hocking, J 371 Hoffman, M 276 Hofstee-van der Meulen, FBAM 387 Holmberg, L 108 Holmes, C 59 homicide 16, 17, 21; drug-related 16, 17, 18 Hondagneu-Sotelo, P 34 Hong Kong 5; asylum seekers entrapment 179, 180, 182–90 (co-ethnic networks of 185–6; and employment 186–7; gendered entrapment, and foreign domestic helpers 188; socio-spatial and economic catalysts of 183–5; survival strategies 181, 185–8); and China economic integration 317; female prisoners 325; Import and Export Ordinance 322; International Social Service (ISS) 182, 184, 185, 186; sex workers 325; tourism 317 Hong Kong–mainland China border 386; cross-border parallel trading 7, 316–28 (baby milk formula story 318–20, 321, 322; and border policing/control 316–17, 320–1, 322–5; Liberate Sheung Shui campaign 321–2); Individual Visit Scheme 320; Multiple Entries Visa 320–1; Two Way Travel Permits 320, 325 Honig, B 77 Hooghe, M 18, 20 Hornsby, R 302 Hounga v Allen [2012] 258–9 housing: asylum seekers, Hong Kong 184, 185; segregation, Sweden 45, 49–50, 51 Howe, B 196 Howells, M 309, 311 Htay, S 338 Htusan, E 341, 343 Huang, FFY 385 Huchzermeyer, M 332, 333 Hudson-Rodd, N 338 Hughes, R 121, 122 Hugo, G 194

405

Index

human capital 14, 195 human (in)security 155, 194, 373, 374, 377 human rights 2, 5, 61, 72, 113, 245, 260, 369, 373, 374, 376, 377, 390, 391; and criminalization of migration 6, 238, 241–4; and refugee law 270 Human Rights Watch 155, 165, 238, 246n2 human smuggling 6, 33, 226, 290, 295, 297, 302, 305, 360, 370, 386; see also under United States (US)-Mexico border human trafficking 7, 33, 62, 108, 226, 254, 260, 276, 288, 290–1, 302–3, 360, 386; Australia 308–11; as forced labour 307–8; women asylum seekers 293–5, 297–8; see also anti-trafficking; sex trafficking humanitarian migrants 20; Sweden 20, 43; see also asylum seekers; refugees Hungarians, in Canada 80, 269 Hungary 43, 81, 292; bilateral return agreements 168; deportation 160, 161, 162, 163, 166–8, 168, 170, 171, 172; foreign-born and irregular population 164, 174; foreign national prisoners 111; irregular population estimate 164 Hunt, L 288 Huysmans, J 75, 141, 371, 372, 387 Hyndman, J 297 hyper-mobility 195 Içduygu, A 277 identity 383, 384, 385; and deportation 134; fraud 67; and immigration detention 101; theft 227 illegal entry 68, 224, 226, 227, 232, 239, 240, 241, 243, 246n6 illegal re-entry 68, 226, 232, 238 illegal residence 240, 241, 243, 246n6; UK migrant workers 252, 258–9 illegal/illicit markets 7, 302, 312, 385; and globalization 304–5; and licit markets, interdependence of 304–5; see also Hong Kong-mainland China border, cross–border parallel trading illegality 7, 68, 76, 81, 93, 110, 163, 167, 306, 310, 311, 355, 387; doctrine of 258, 259, 260; politics of 5, 179–90; in sex work 5, 206, 208–12, 213 illicit international political economy 303, 305, 308, 311–12 immigrant workers see migrant workers immigration concentration 2, 17–18, 20, 27–8, 29–30 immigration-crime association 2–3, 11–25, 108; Australia 13, 18; Canada 78; comparative approach to 19–20; and context 15–19, 20 (receptive contexts 18–19, 20; social context 15–18); within country/region differences 15; Europe 42; and generational disparities in

406

offending rates 12–13, 14–15; Germany 13, 108; immigration concentration effects 17–18, 20; immigration diversity effects 20–1; social and cultural properties of 21–2; Sweden 13, 14–15, 45–50; Switzerland 13; UK 13; US 2–3, 12, 13, 14, 15–16, 18–19, 26–40 immigration crime/criminals 68–9 immigration detention 91–106, 109, 123, 155, 223, 229, 237, 238, 387, 389, 390; as administrative process 92; alternatives to 99; Australia 91, 92, 96–7, 99, 100, 101, 126, 165, 228; camps 99; Canada 78, 82, 83, 86, 92, 97; centres 58, 66, 98–9; of children 83, 93, 95, 100; closed facilities 98; and criminology 101; and crimmigration law 228–9, 230; European Union (EU) 91, 98; as exclusionary process 93; experiences of 100–1; facilities and amenities 99; France 93, 100, 109; gendered nature of 93, 101; Germany 160; Greece 165; island and extraterritorial centres 99–100; Israel 228; location of centres for 98; medical provision 101; migrant workers 252; Netherlands 99, 160, 165; Norway 166; open facilities 98; in prisons 98–9; privatization of 99; racialization of 93, 101; rationale and purpose 93; Sweden 166; temporality of 93; UK 91, 92, 94–5, 98–9, 100, 101, 109, 165, 239; US 82, 91, 92, 93, 95–6, 99, 100, 101, 228–9, 357, 389 immigration diversity 2, 20–1 immigration law 355; and criminal law, convergence of 68–9, 237–9; and racial prejudice 355; see also crimmigration law; and under individual countries immigration officers 69 immigration policy 11, 15, 18, 359; Canada 79, 80; criminal law and goals of 244; Europe 241; and globalization of youth crime 361; US 233, 358, 361; see also immigration law immigration revitalization thesis 16–18, 19, 20, 21, 28 immigration status (UK) 252–9; domestic workers 252, 256–8; freedom of establishment 252, 254–6; irregularly resident 252, 258–9; Tier 2 migrants 252, 253–4 imperialism 91, 93 incarceration 12, 13, 229, 230, 237, 238, 242–3, 244, 357, 383, 387, 390; female, Hong Kong 325; see also foreign national prisoners; immigration detention incidence of crime, Sweden 48 Inda, J 367 Indian immigrants, England 19, 59 Indonesia 5 inequality 390; gender 374, 377 INEX 150 Infantino, F 86 Institute of Race Relations 155, 165

Index

institutional racism 70 integration 18–19, 20, 383 integration policies, Sweden 43–4, 45 International Centre for Prison Studies 110 International Convention on the Elimination of All Forms of Racial Discrimination 247n24 International Convention on the Protection of the Rights of All Migrant Workers (ICRMW) 195, 247n23 International Covenant on Civil and Political Rights 126, 297 International Criminal Court 267; Investigation Division 64 international criminal law 266–7, 268, 270 International Labour Organization (ILO) 195–6, 307; Global Estimates of Forced Labour 307–8 International Monetary Fund (IMF) 61 International Organisation for Migration (IOM) 61, 166, 168, 169 international political economy (IPE) 303, 304–5, 306; illicit 303, 305, 308, 311–12 international relations 306, 386; core concepts and concerns of 368; and criminology, interdisciplinary engagement between 8, 367–77 Interpol 57, 64; Integrated Border Management Task Force 64 intersectionality 384, 391 intimate partner violence 34–5 Iraq 44 Ireland 357; foreign national prisoners 111 irregular migration 1–2, 3, 4, 8, 101, 110, 145–6; criminology and IR approaches to 8, 367–77; and gender 373–5, 377 irregular population figures 163–4 Irving, D 126 Ishizawa, H 12, 27, 28, 30 Israel, detention of asylum seekers 228 Italy 166, 357; asylum seekers 167; bilateral return agreements 167, 168; criminalization of immigration 240; deportation 156, 158, 160, 162, 163, 170, 171, 172; foreign–born and irregular population 164, 174; foreign national prisoners 110, 111, 241; Guardia di Finanza 145–6; immigration law 240; migrant workers 359 Izcara, P 277 Izcara Palacios, S 277 Jackson, P 320 Jandl, M 276 Japan 15 Japanese Ukrainians 97 Jeandesboz, J 149 Jefferson, T 371 Jeffery, LA 206, 213 Jeffreys, E 207, 213

Jews 59, 60 Jimenez, E 85, 155, 165 Johansen, NB 116 Johnson, BJ 354 Johnson, M 11 Johnston, A 32 Jones, C 151 Jones, P 337 Jones, R 144, 146 Joppke, C 79 Joudo-Larsen, J 309, 310 Jovanovic, S 290, 293 Jowell, R 11 Jureidini, J 93 Kagan, C 303, 305, 311 Kalaitzidis, A 370 Kalayaan 257 Kaldor, M 371 Kallerud, KH 108 Kalmthout, AM 107, 109, 110, 113, 114, 116, 117, 387 Kamstroom, D 389 Kanapathy v Canada (MPSEP) [2012] 267 Kang, SD 354 Kanstroom, D 231 Kanstroom, SD 354 Kaplan, A 371 Kappeler, V 369 Kapur, R 371 Kardell, J 14, 42, 46, 47, 48, 50 Karen Human Rights Group 339, 342, 344 Karydis, V 108 Katona, C 101 Kaufman, E 76, 82, 91, 93, 96, 109, 112, 113, 116, 123, 229, 231, 237, 246n2 Kaushal, A 271 Kawogo v UK 261n3 Kaytaz, E 99 Keller, AS 99 Kellezi, B 100, 101 Kelly, T 390 Kempadoo, K 213, 297 Kenney, J 79–80 Kenrick, D 59 Kenya 60 Khosravi, S 92, 156, 166, 276 Kil, S 33 Killias, M 13 Kim, HJ 373 Kim, JK 213 King, M 67 Kirk, DS 35 Kittrie, O 32, 155 Knepper, P 308 Knopf, J 373 knowledge 197; see also unknowing

407

Index

Kochel, TR 108 Kofman, E 188 Köhler, G 336 Kordan, B 97 Koricanac, I 290, 298 Korn, A 385 Kornhauser, R 15 Koser, K 276, 290 Koskenniemi, M 61 Kosovan asylum seekers 44 Koulouris, NK 108 Kovacheva, V 163 Kramer, T 345 Kraska, P 369 Krasmann, S 155 Kretschmann, A 108 Kroos, D 254 Krüsi, A 207 Kubrin, C 12, 15, 16, 17, 27, 28, 30, 361 Kurds 44 Kyvsgaard, B 108 labour markets 62–3, 312; competition in 31, 226; deregulation of 305; segregation, Sweden 45 labour migration 20; rights-based approach to 195–6; see also migrant workers labour trafficking see human trafficking Lacey, N 238, 239, 245 Ladegaard, HJ 188 Lalani, M 257 Lalonde, M 216 Lambert, C 101, 298 Lampedusa 98, 100 Lancee, B. 16 land enclosure/dispossession see forced evictions Landau, L 195 Landolt, P 355 Langford, M 332, 333 language issues: foreign national prisoners 114–15; in sex work 211–12 Larsen, M 81 Lasslett, K 335, 340 Latino immigrants, US 19, 27, 28, 31, 34, 95, 167, 362, 389 Latvia, foreign national prisoners 111, 112 law enforcement 7, 17, 58, 69, 230, 233, 355, 361–2, 369, 371, 376, 382, 383; and sex work 207, 208, 209, 210–11, 213, 215, 216; and technology 62, 142, 228; transnationalization of 63–4, 226 Lawston, JM 96 Leach, M 331 Leckie, S 332, 333, 338, 339 Lee, J 127 Lee, M 12, 15, 16, 17, 21, 27, 28, 231, 290, 291, 294, 297, 302, 307, 322, 324, 325, 361, 387 Leerkes, A 91, 93, 99, 237, 246n18, 361

408

legal pluralism 358 Legomsky, SH 231, 237, 239, 357 Levi, R 28, 78, 361 Lewis, J 207, 208 Lewis, PG 358 Li, TM 330, 332 Lind, W 143 Linklater, A 368, 369 Lithuania, foreign national prisoners 111, 112, 116 Littlejohn, G 331 Loader, I 367, 369 Loescher, G 289 Loftus, B 86, 181 Longazel, JG 31, 362 longitudinal studies 13, 14, 17, 21–2, 27, 30 Lööw, H 45, 47 Lopez, M 159 Lorek, A 93 Los Angeles 30 Loughlin, M 60 Loughran, TA 28, 30 Low Intensity Conflict (LIC) doctrine 145 Lui, TL 318 Lutterbeck, D 145, 146 Luxembourg, foreign national prisoners 111 Lynch, J 15 Lynch, R 359 Lyon, D 148 Lyons, C 27, 28, 29–30 Ma, EKW 318 MacDonald, J 12, 27, 30 Machin, S 12, 17, 21, 42 Macías-Rojas, P 355 Macintyre, C 96 Macklin, A 82, 208 Madamba, A. 13 Madden, R 183 Maguire, M 149 Maher, J 307 Maher, L 129 Mai, N 206, 213 Mainwaring, C 93 Majcher, I 98 Makaremi, C 100 Makki, F 330, 331 Malisauskaite-Simanaitiene, S 116 Malkki, L 75, 203 Malloch, MS 101 Malta 99, 100; foreign national prisoners 111 Manger, T 116 Mann, M 63, 64 Manoa, D 334 Mansur, K 385 Mapstone, R 385 Markowitz, F 22 Marr, D 370

Index

Martens, P 14, 46, 47, 48 Martin, LL 91, 92, 93 Martinez, D 181, 187 Martinez, R 12, 15, 16, 18, 21, 27, 28, 361 Massey, D 29 Massey, DS 185 Mastrofski, SD 108 Mathews, G 187, 318 Maticka-Tyndale, E 208 Mattes, R 11 May, T 182, 183, 251, 260 Mayda, A 11 Mazerolle, L 21 McBroom, J 21 McCulloch, J 75, 82, 91, 123, 143, 147, 322, 367, 369, 370, 371, 373, 386 McDowell, C 330 McDowell, M 199 McGregor, J 101 McGrew, A 62 McKay, H 15, 26, 45, 49 McLaren, L 11 McLaughlin, E 324 McLeod, AM 233, 237, 246n2 McMillan, J 161 McMillan, W 96 McNevin, A 367, 373 McSherry, B 371 Mears, D 11, 12, 27 medical care issues: foreign national prisoners 115–16; immigration detention 101 Medved, F 290, 291 Meissner, D 33, 359 Melilla enclave 67, 144 Melossi, D 78, 180, 252, 354, 389 membership 85, 269, 384 membership theory 231 Menjívar, C 33, 34, 355 Merton, RK 49 Merz, SK 341 Mexican immigrants: Canada 269; US 16, 19, 27, 167, 260, 355, 356 Mexico border see United States (US)-Mexico border Mezzadra, S 77 Miami 18 Michalowski, R 304, 372 Migeurop 168 migrant workers 5, 61; deportation 252, 253; detention 252; discrimination against 196; elite 253, 370; employment portability 253, 254, 256, 257; illegal 302, 303, 305, 306, 309, 310–11, 312; rights of 195–6, 197, 253, 255, 256–7, 259, 260; Sweden 42–3, 44; union membership 253; see also domestic workers; exploitation of migrant workers; self– employment; sex work; temporary migrants

migration control 65, 75; in historical context 58–60; industry 383, 387–9; see also border policing/control; crimmigration control; deportation; immigration detention; migration policing migration flows, types of 20 migration policing 3, 57–8, 62; accountability/ legitimacy of 70, 72; facilitating aspect of 57–8, 70; militarization of 66–7, 71; and neoliberal policies 62–3; racism/racial discrimination and 68; social sorting process of 58, 63, 66, 71; transnationalization of 3, 65–72 militarization of borders see border militarization military 368, 371, 376, 383 Milivojevic, S 206, 213, 290, 291, 293, 294, 297, 307, 308, 309, 310, 311, 373, 386 Miller, MJ 43, 44, 287 Miller, TA 231 Miller, WB 49 Millett, S 255 Milovanovic, D 332 minimum wage 255, 261n15 Mirandé, A 27 Mitchell, G 91, 99 Mitchelson, ML 91 Mitsilegas, V 226, 228, 390 mobility 75, 194–6; criminology of 8, 382–95; hyper- 195; regimes of 196, 199–203, 203; stratification of 76–8 Moloney, N 165 Monahan, T 149, 150 Monar, J 226 Monbiot, G 72 Mongia, R 76 Moore, A 133 Moore, M 117 Mopas, M 151 Morais, RC 336 moral panic 3, 31, 33, 35, 58, 65, 75, 79, 108, 193, 197, 361, 384 Morash, M 34 Morenoff, J 12, 13, 14, 21, 27 Morrison, J 287, 290, 297, 298 Morse, A 32 Morton, J 362 Moss, J 257 motherhood, and sex work 213–14 Motomura, H 229, 245n1 Mountz, A 83, 93, 97, 99–100, 179 SS v Belgium and Greece [2011] 165, 169 Muehlberger, U 255 Muggah, R 330 Mukherjee, S 13 multiculturalism: Canada 77; and citizenship 384 Munro, VE 386 Muri, D 344 Mutimer, D 371

409

Index

Mutumba v Canada (Minister of Citizenship and Immigration) [2009] 267 Nadelmann, E 372 Nagels, C 252 Nagin, DS 373 Nakache, D 78, 97 Nan, L 338, 345 Nanayakkara, S 334 Napolitano, J 362 nation state 60, 61, 62, 71, 72, 76, 199, 369, 370 national security 1, 7, 11, 63, 181, 233, 353, 360, 363, 367, 370, 371, 372, 376; Canada 81–2, 82–3 nationality, UK 59, 60 NATO (North Atlantic Treaty Organization) 145 naval immigration control operations 145 Naw, N 345 Neal, A 291 Negi, NJ 34 Negri, A 180 neighbourhood effects, immigration–crime association 17, 22, 27 Neilson, B 77 Nekby, L 45 Nelken, D 291, 391 Neocleous, M 306 neoliberalism 3, 57, 60, 61, 62–3, 65, 71, 76 Ness, I 196, I 195 Netherlands 22, 357; asylum seekers 167; bilateral return agreements 168; border policing/control 356; criminalization of immigration 240; deportation 156, 159, 160, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172; foreign–born and irregular population 164, 174; foreign national prisoners 111; immigration detention 99, 160, 165; immigration law 240, 247n36, 355; Linking Act 169 Nevins, J 33, 145, 146, 354, 359, 360, 387 new destination sites 3, 18–19, 28, 29–30, 35, 36 New Scientist 149–50 New York City 31 New Zealand/New Zealanders 67, 129, 268 Newstead, C 123 Newton, L 27, 31 Ngai, M 26, 354, 355 Ngok, KL 317 Nicholls, G 124, 126, 156 Nicholls, W 233 Nielsen, A 16 Nieuwenhuys, C 295, 298 Nilsson, A 47 Nipp, D 207 Noferi, M 357 Nohl, AM 199 non–arrival of unwanted people 67, 70

410

non–governmental organizations 60, 61, 62, 155, 181–2, 190 non–refoulement 43, 130, 151, 290 Noriega, R 275 North Atlantic Treaty Organization (NATO) 145 Norway 44; bilateral return agreements 168; citizenship 110; criminalization of immigration 240; deportation 158, 161, 162, 163, 165, 166, 167, 170, 171, 172 ; foreign–born and irregular population 164, 174; foreign national prisoners 108, 112, 116, 117; immigration detention 166; immigration law 240 Noxolo, P 190 Numapo, J 334 Núñez, GG 181 Nyers, P 76, 199 Nystrom, S 126, 130, 133 Oakford, P 359 Ochoa, KC 99 Odergard, E 385 O’Doherty, T 207, 208 official statistics 390; deportation 157–8 Ohlin, LE 49 Olds, K 332, 333 Olson, C 12 Olsson, M 50 Omatsu, M 97 O’Neil, M 181 O’Nions, H 100 Operation Active Endeavour (2002) 145 Operation Ulysses (2003) 145 Operation Xenios Zeus 159 Organisation for Economic Co-operation and Development (OECD) 61 organized crime 61, 64, 226, 386 Orientalism 384 others/otherness 58, 60, 108, 197, 228, 317, 371 Otiso, KM 332 Ousey, G 16, 17, 27, 28, 30 overstaying 68, 162, 325 Öztürk v Germany (1984) 247n37 Padhi, R 332 Padilla v Kentucky (2010) 225, 227, 230, 233 Paga Hill Development Company (PHDC) 340, 341, 344 Pakes, F 156, 157 Palidda, S 252 Palloni, A 12, 13, 27, 28 Palmar, A 361 Palme, O 44 Palmer, MJ 161 Panopticon 122, 155 Pantaleone, W 360 Paoletti, E 155, 216

Index

Paoli, L 385 Papadopoulos, G 12, 13, 15 Papastergiadis, N 199 Papua New Guinea 356, 375; corruption 333, 334, 337, 340; forced eviction and development–based displacement 7, 329, 337–8, 339, 340–1, 343–4, 346; Land Act (1996) 338; National Housing Corporation (NHC) 338; Paga-Hill Arts Resistance (PHAR) 344; patrimonialism 333–4; Public Accounts Committee 334, 338, 340, 343; Public Finances (Management) Act (1995 334; Royal PNG Constabulary (RPNGC) 335, 341; Special Agricultural and Business Leases 334; state power 333, 335 parallel trading see Hong Kong–mainland China border, cross–border parallel trading paramilitary organizations: and border policing 145–6; and local/global governance 61 Park, JSW 355 Park, R 383 Parker, R 16 Parkin, J 223, 224, 226, 227 Parr, A 93, 101 Passell, J 29 patrimonialism, Papua New Guinea 333–4 Paul, K 94 Paul, TV 369 Payan, T 145 Payton, L 208 Pearce, SC 34, 35 Pearson, G 385 Pécoud, A 86, 295, 298 Pedain, A 246n8 and 21 Pedersson, A. 46, 47 Pemberton, A 130–1 Pera, G 334 Percy, S 367, 369 Pereira, N 155 Perera, S 96 Perez, B 59 performativity 384, 391 Perulli, A 255 Peterson, R 355 Petroff, L 207 Petronijevic, V 298, 290 Pettersson, T 46, 47, 50 Peutz, N 75, 156, 386, 389 Phillips, C 58, 60, 109 Piché, J 81 Pickering, S 33, 66, 67, 69, 71, 75, 76, 82, 91, 100, 101, 123, 143, 147, 151, 161, 180, 194, 195, 206, 213, 216, 223, 230, 237, 287, 289, 290, 291, 293, 294, 295, 296, 297, 298, 302, 303, 307, 308, 309, 310, 311, 312, 317, 322, 324, 325, 356, 360, 367, 369, 370, 371, 372, 373, 386, 387, 388, 390, 391

Piehl, A 12, 13, 17, 27 Piquero, AR 28, 30 Pitpit, F 341 Pochi, L 125 Pochi and MacPhee and Another (1982) 135n10 Poehlman–Doumbouya, S 374 Poland 43; foreign national prisoners 111, 116, 117 police powers 228 policing 8, 61, 62, 233, 361–2, 368, 372, 389; collaboration and coordination 62, 63, 64, 388; global 3, 57, 63–5; international level 64; local level 63; ‘low’ and ‘high’ 63; militarization of 371; multilateral 57; national level 63–4; public and private 63; racial and ethnic stereotyping/ stigmatization in 384; stop and search operations 361; transnational level 64–5, 385–6; transversal 69–70, 230, 324, 372, 376; see also border policing/control; migration policing Polk, C 304 Pomaleu, I 340 Portes, A 14, 18, 42 Portugal 357; foreign national prisoners 111 postcolonialism 101, 384, 385, 391 poverty 15, 34, 181, 194, 355; Burma 338; controlled 181, 190; global 332 Powell, E 59–60 Pratt, A 80, 84, 91, 93, 97, 156, 157, 164–5, 167, 237, 241, 387 Pratt, N 374 Pre-crime 322, 325, 370, 371 Pre-emption 143–4, 147, 148, 149, 151, 325, 355, 368, 371, 373, 376 predatory capital, and forced evictions 329, 331, 333, 336–7, 339 Prescott, H 163 presumptive refoulement 290 prevalence of crime, Sweden 48 prevention 368, 373, 376 Price, R 371, 376 Price, S 330 Prior, M 11 Prison Reform Trust 107, 117 prisons 58, 66; immigration detention in 98–9; private 357, 360; see also foreign national prisoners Pritchett, L 20 private actors, and border security 141, 142 private corporations 60, 62 private prisons 357, 360 Project of Human Development in Chicago Neighborhoods 14 property crime 17–18, 30, 32 property rights 330–1 proportionality, principle of 232 prosecutions, immigration-related 232, 238–9, 246n3, 357, 388

411

Index

prostitution 108, 293; see also sex work protective effect of immigration 28, 29, 30 Provine, DM 27, 31, 35, 69, 156, 169, 356, 358, 360, 361, 362 public safety 360 Pugliese, J 149 Putnam, R 11, 16 Puxon, G 59 Pye, O 331 race 1, 2, 3, 17, 21, 30–1, 32, 58, 60, 101, 354, 355–6, 384, 386, 390, 391 racial discrimination 68, 258, 354, 355–6 racial profiling 361 racialization 361; of immigration detention 93, 101 racism 68, 149; institutional 70 Raffaelli, R 244 Raghuram, P 188 Rajagopal, B 332 Rajaram, PK 75, 386 Rajkumar, D 85 Ramey, D 18–19, 21 Ramirez, CR 385 Ramírez, H 34 Rantsev v Cyprus and Russia 260 Rasmussen, M 143 Raudenbush, S 12, 15, 21, 27 re-entry 356; permanent refusal of 68; unlawful 68, 226, 232, 238 Rea, A 252 readmission agreements 167–8 receptive contexts 18–19, 20 red notices 64 Rees, W 226 Refugee Concern Network 183 refugee law 265–6; eligibility and inadmissibility in 269, 272n13; and human rights 270; notion of desert in 265, 266, 270–1; and state sovereignty 270; vexing morality of 270–1 refugees 20, 44, 290; Canada see under Canada; Sweden 43 Regan, AJ 334 regimes of mobility 196, 199–203, 203 rehabilitation/reintegration 134; of foreign national prisoners 116–17 Reid, L 16, 17 religious background 50 Renner, S 291 residence: patterns of 14; see also illegal residence Reuter, P 302 Revolution in Military Affairs (RMA) 143, 144, 146, 149 Richards, M 109, 114 Richman, D 246n4 Richmond, AH 71

412

Richter–Devrow, S 374 rights 199, 253, 256–7, 259, 260, 384; civil 113, 358; of self–employed persons 255; social 255; of temporary workers 195–6, 197; see also human rights Rimmer, MT 359 Ripsman, NM 369 risk 8, 133, 148, 368, 372, 376; analysis 147, 149; future 143, 147; knowledge 151; profiling 148, 149 Ritchie, A 253 robbery 48 Robbins, T 277 Robinson, S 359 Robjant, K 101 robots 150 Rodriguez, N 355, 362 Rogers, B 335, 345 Rojas–Wiesner, ML 358 Rolfe, H 254 Rollins, J 276 Roma 60, 80–1, 158, 292 Romania, foreign national prisoners 111 Romanian migrants 254, 256, 259 Rome Statute 267, 271n6 Romero, M 361 Romney, M 32, 362 Ronson, S 196 Rosaldo, R 367 Rose, N 151 Rosenberg, G 43, 51 Rosenfeld, R 17 Ross, MW 208 Rousseau, C 86 Royal Canadian Mounted Police (RCMP) 84, 216 Rubio-Marin, R 196, 200 Ruggiero, V 385 Ruhs, M 306 rule of law 2, 5, 86, 332, 341, 385, 390 Rumbaut, R. 12, 13, 17, 18, 20, 27 Russia 44 Ryan, B 390 Rygiel, K 76, 92, 99 Rynkiewich, M 334 Saadi v UK (2008) 247n25 Safe Third Country Agreement, Canada-US 81, 82, 168 Said, E 384 Salazar, N 196, 203 Salcido, O 34 Salter, MB 86, 386, 388 Sampson, R 2, 11, 12, 13, 15, 16, 17, 21, 22, 27–8, 91, 99, 361, 383 San Diego 18 Sanchez, G 69, 290, 360, 361

Index

Sanders, T 207 Sangatte refugee camp 67 Santoro, WA 29–30 Sapp, LM 93, 96 Sarnecki, J 46, 47, 48, 49, 50, 51 Sassen, S 6, 76, 142, 194, 287, 297, 304 Saunders, J 27 Savvidis, K 46 Schengen Accords (1995) 291 Schengen Area 226 Schengen Information System (I and II) 226 Schierup, CU 43 Schinkel, W 101 Schmidt, C 255 Schmitt-Degenhardt, S 338 Schneider, J 304 Schnepf, S 13 Schor, N 384 Schuster, L 79, 93, 98, 101, 155, 156, 162, 179, 181, 189 Scoones, I 331 Scott, J 151 Scott, JC 113 second-generation immigrants 12–13, 14–15, 28, 30, 31; Sweden 13, 14, 44, 47, 48 securitization 142, 226, 370, 371, 374, 387 security 8, 146, 194, 230, 368, 369, 370, 372, 375, 376; gender 375; human 155, 194, 373, 374, 377; see also national security security assemblages 141–2, 143 security continuum 141 security-industrial complex 142 segmented assimilation theory 14 Segrave, M 206, 213, 290, 291, 293, 294, 297, 307, 308, 309, 310, 311, 373, 386 self-employment, UK 252, 254–6; bogus 255–6, 259; and employment portability 256; employment rights 255; social rights 255 self-smuggling 227 Sellin, T 49, 50 Selon Limited 340 Sennett, R 113 sentencing practices: Canada 84; Sweden 50 September 11 terrorist attacks 368 Serbia: border and migration management 291, 298; EU accession process 291–2; Law on Asylum (2008) 292; migrant numbers 292; women asylum seekers 6–7, 288, 292–6 sex trafficking 5, 206, 207, 213, 216, 290, 295, 307, 308, 309, 310, 370 sex work/sex workers 108, 294, 297, 298; imprisonment, Hong Kong 325; see also Canada, sex work/sex workers Shah, P 59 Shamir, H 303, 308, 311, 312 Shannon, K 208 Sharma, N 252

Shaver, F 208 Shaw, C 15, 26, 45, 49 Shearing, C 141 Sheehan, M 334 Sheikh, M 96 Shepherd, L 374 Sheptycki, J 57, 58, 61, 62, 63, 64, 65, 69, 70, 72, 148, 371, 385, 386 Shihadeh, ES 29, 30, 34 Sides, J 11 SIJORI triangle 67 Sikkink, K 373 Silidain v France 261n3 Silove, D 100, 101 Simanski, J 93, 96 Simmel, G 383 Simon, J 91, 95, 96, 132, 143, 161, 241 Simon, R 15 Simperingham, E 338, 339 Sinema, K 31, 362 Singer, A 18, 20, 358 Singer, P 143 Sinning, M 11, 18 Sitkin, L 240 Sjoberg, L 369 Sklansky, D 123–4, 223, 239, 244 Skogan, W 35 Skvain, P 116 Slack, J 181, 187 Slade, G 92, 100 slavery 251, 260, 261n3, 307, 308, 310 Slovakia, foreign national prisoners 111 Slovenia, foreign national prisoners 111 Smart Border Declaration (2001), Canada–US 81 Smelser, N 197 Smit, DvZ 116 Smith, B 121, 122 Smith, E 165 Smith, H 78, 361 Smith, M 335 Smith, T 11 smuggling 304; see also, Hong Kong–mainland China border, cross–border parallel trading; human smuggling Snacken, S 116, 241 Sniderman, P 11 Snyder, T 386 social capital 6, 14, 16, 28 social cohesion 16, 22 social context, and immigration–crime association 15–18 social control 34, 58–72, 101, 121, 181, 190, 331, 361, 386, 388, 391; formal/informal 17, 18, 21, 27, 28, 30; global 383, 387, 389 social disorganization theory 15, 16, 26–7, 28, 30, 33 social exclusion/inclusion 4, 18, 382–3, 384

413

Index

social processes, and immigration–crime association 21–2 social rights, self–employed persons 255 social sorting 58, 63, 66, 71, 148 social support networks 29, 32 socio–economic conditions and crime, Sweden 49–50, 51 Soe Than Lynn 341 Soininen, M 43, 44 Sokoloff, NJ 34, 35 Sollund, R 108 Solvetti, LM 108 Somali asylum seekers 44 Soskice, D 238 South, N 302 Southeast Europe Police Chiefs Association (SEPCA) 64 Southern African Regional Police Organisation (SARPOL) 64 sovereignty, state 1, 6, 8, 60, 61, 270, 367, 369, 370, 372, 388 Søvig, KH 116 space-time compression 62, 369 Spain 357; bilateral return agreements 167, 168; deportation 160, 161, 162, 163, 166, 168, 170, 171, 172; foreign–born and irregular population 164, 174; foreign national prisoners 111; Guardia Civil 146; migrant workers 359; SIVE (Sistema Integrado de Vigilancia del Estrecho) 146 Sparks, R 303 Special Economic Zones (SEZ), Burma 336 Spencer, J 246n8 and 21 Spener, D 277 Spivak, G 77, 384 Spoor, M 331, 332 Squicciarini, M 303, 305, 306 Squire, V 75 Standing, G 196, 199 Stando-Kawecka, B 116, 117 Stanley, E 101 Stansfield, R 17, 30 Stasiulis, D 77 state power 61, 304, 370, 384; Burma 333, 335, 336; and globalization 101, 303; Papua New Guinea 333, 335 state(s) 367, 368, 369, 373; crime 8, 368, 372–3; crimefare 370–1, 376; security 374; sovereignty 1, 6, 8, 60, 61, 270, 367, 369, 370, 372, 388; see also nation state Steel, Z 100, 101 Steenbeek, W 22 Stefanelli, JN 93 Steffensmeier, D 12, 16, 17 Steinberg, D 335 Stevenson, R 155 Stewart, J 31

414

stop and search operations 361 Storgaard, A 115 Stowell, J 12, 16, 17, 27, 28 strain theory 13, 49, 180 Strang, A 183 Strange, C 92, 93, 94 Strauss, K 252, 256, 259 structural violence 360 Stumpf, J 11, 58, 65, 68, 69, 76, 85, 108, 123, 155, 223, 228, 231, 232, 239, 322, 324, 357, 370, 376, 388, 389, 390 Stuntz, W 242, 246n4 subaltern experience 384 subcultural theories 49 Summerfield, T 208 Sundberg, K 370 supranational systems of governance 60, 61, 71, 72 surveillance 3, 57, 62, 63, 64–5, 66, 69, 148, 150, 226, 228, 233, 386, 388, 389; see also European Border Surveillance System (EUROSUR) Suthibhasilp, N 207 Svensson, R 48 Sveri, B 45, 46, 47 Sweden 3, 41–54; anti–discrimination laws 44; anti–immigrant sentiment 45, 51; asylum seekers 44, 167; bilateral return agreements 168; citizenship 44, 45; deportation 156, 158, 161, 162, 163, 165, 166, 167, 170, 171, 172; foreign born and irregular population 164, 174; foreign national prisoners 111; housing segregation 45, 49–50, 51; humanitarian migrants 20, 43, 44; immigrant crime 13, 14–15, 45–51 (country of origin factors and 49, 51; housing segregation and 49–50, 51; justice system discrimination and 50, 51; religious/ cultural background and 50; reporting of 50; sentencing practices and 50; socio-economic conditions and 49–50, 51; war trauma and 50); immigration detention 166; integration policies 43–4, 45; labour market segregation 45; labour migration 42–3, 44; unemployment 45; welfare rights 44–5 Swedish National Council for Crime Prevention see Brå Switzerland, immigration-crime association 13 Szulkin, R 45, 49, 51 Tagau, S 340 Tailby, R 304 Tamas, G 46 Tamil refugees, Canada 82–3 Taussig, M 197 Taylor, C 76 Taylor, DA 115 Tazreiter, C 194, 195 technology: border militarization 142–3, 144, 146, 148–51; communications 60, 61–2

Index

temporary migrants 5, 20, 193–205; ambivalence as coping strategy among 5, 193, 197–9, 201, 203; permanent residency applications 195; rights of 195–6, 197; (un)knowing and experience of 5, 193, 197–200, 203 Terrazas, A 31 territoriality 1, 242 terrorism 1–2, 65, 81, 82–3, 141, 149, 226, 275, 276, 361 Tham, H 46, 47, 48 Thomas, P 12 Thomas, WI 26 Thompson, EP 330–1 Thompson, SK 387 Thorsson, U 47 Thoursie, PS 45 Tickner, A 369 Ticktin, M 183 Tier 2 migrants (UK) 252, 253–4 Todo, T 17 Toktas, S 277 Tonry, M 14, 21, 42, 47 Torpey, J 76, 386 tourists/tourism 57, 61; Hong Kong 317 Tournier, P 241, 246n21 trade 60, 61, 368, 369; illicit 61; see also Hong Kong–mainland China border, cross-border parallel trading Trades Union Congress, UK 253 traditional destination sites 3, 28, 29–30 trafficking 304; see also drug trafficking; human trafficking transnational criminal organizations (TCOs), US–Mexico border 275, 277 transnational (organized) crime 306–7, 369, 370, 371, 376, 385; see also United Nations (UN) Convention against Transnational Organized Crime transnational policing 64–5, 385–6 transnational state system 60–3 Transportable Autonomous patrol for Land border surveillance (TALOS) project 150 transportation of offenders 4, 121–2 transversal policing 69–70, 230, 324, 372, 376 Trauner, F 291 travel, international 60, 61, 62 Travis, A 166 True, J 369, 370, 373, 374, 375, 386 Tulich, T 373 Tullis, M 385 Turnell, S 335 Uganda 43, 60 Ugelvik, S 387, 389 Ugelvik, T 108, 116, 165, 166, 167, 387, 389 Ukrainian Canadians 97

undesirable aliens 59 unemployment 17; Sweden 45 unemployment compensation: Sweden 44; UK self–employed 255 Union of Construction, Allied Trades and Technicians (UCATT) 253, 256, 261n15 union membership 253 Union of Myanmar Economic Holdings Ltd (UMEHL) 342, 343 United Kingdom (UK) 15, 58–60, 64, 67, 123, 268; anti–immigrant feeling 59–60; asylum seekers 60, 181; bilateral return agreements 168; British Nationality Acts (1948 and 1981) 59, 60; citizenship 60; Commonwealth immigrants 94–5; Coroners and Justice Act (2009) 261n3; criminalization of immigrants 239; deportation 156, 162, 163, 166, 170, 171, 172; foreignborn and irregular population 164, 174; foreign national prisoners 108, 109, 110, 111, 112–13, 117, 239; Gangmasters Licensing Act (2006) 251; Government Communications Headquarters (GCHQ) 64; immigration–crime association 13; immigration detention 91, 92, 93, 94–5, 98–9, 100, 101, 109, 165, 239; immigration law 59, 60, 69, 239 (Asylum and Immigration (Treatment of Claimants) Act 251, 261n2; Commonwealth Immigrants Acts (1962 and 1968) 59, 60, 94; Immigrant Appeals Act (1969) 94, 95; Immigration Act (1971) 94; Immigration, Asylum and Nationality Act (2006) 251); immigration statistics 390; migrant workers 251–64 (domestic workers 252, 256–8, 261–2n18; freedom of establishment (self-employed) 252, 254–6, 259; irregularly resident workers 252, 258–9; work permit holders (Tier 2 migrants) 252, 253–4); National Crime Agency (NCA) 69; nationality issues 59, 60; prosecutions, immigration-related 239 United Kingdom Border Agency (UKBA) 148 United Nations (UN) 57, 61; Convention against Transnational Organized Crime 305; Smuggling Protocol 289, 290; Trafficking Protocol 290, 291, 306, 307, 308 Convention Relating to the Status of Refugees (1951) 43, 130, 265, 266, 267, 268, 269, 270, 271 and 271n4; Convention on the Rights of the Child 93; High Commissioner for Refugees (UNHCR) 182, 290; Human Development Reports 194; Human Rights Committee 126, 165; Police Division (UNPOL) 64; Trafficking protocol 85; UN Women, Peace and Security (WPS) agenda 368, 374–5, 377 United States (US) 3, 5–6, 12, 15, 42, 67, 75, 123, 169, 223, 268; Anti–Drug Abuse Act (1988) 234n10; anti-immigrant sentiment 26, 31–2, 33, 35–6, 223; Antiterrorism and Effective Death

415

Index

Penalty Act (1996) (AEDPA) 102n3, 234n11; Asian immigrants 27, 31; bilateral return agreements 168; Black immigrants 31; and Canada Safe Third Country Agreement 81, 82, 168; and Canada Smart Border Declaration (2001) 81; Children of Immigrants Longitudinal Study 30; Chinese Exclusion Act (1882) 26; criminalization of immigrants 27, 227, 238–9; crimmigration law 224–6, 227, 228–9, 356–7, 388; Customs and Border Protection (CBP) agency 69, 150; Deferred Action for Childhood Arrivals program 362; Department of Homeland Security 356, 359; deportation 156, 158, 159, 161, 162, 163, 165, 167, 170, 171, 225–6, 229, 357, 358, 361, 389; (Dillingham) Immigration Commission (1911) 27; DREAM Act activists 233; ethnic enclaves 16; Federal Bureau of Investigation (FBI) 63–4; foreignborn and irregular population 164, 174; funding of immigration control 359; immigration-crime association 2–3, 12, 13, 14, 15–16, 18–19, 26–40 (and generational status 30, 31; and national origin, race and ethnicity 30–1; and traditional versus new destination sites 29–30); Immigration and Customs Enforcement (ICE) 96, 362, 389; immigration detention 82, 91, 92, 93, 95, 99, 100, 101, 228–9, 357, 389; immigration law 31–2, 33, 35–6, 69, 95–6, 223, 224, 239, 358, 360, 362–3 (Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (1996) 96, 102n3, 234n11; Immigration and Nationality Act (1952) 95; Immigration Reform and Control Act (IRCA) (1986) 95, 227, 359); Immigration and Naturalization Service (INS) 95, 359; immigration policy 233, 358, 361; incarceration of immigrants 13, 357; Latino immigrants 16, 19, 27, 28, 31, 34, 95, 167, 362, 389; Mexican immigrants 16, 19, 27, 167, 260, 355, 356; and Mexico border see United States(US)-Mexico border; National Longitudinal Survey of Youth 13, 14; National Neighborhood Crime Study 29; National Security Agency (NSA) 64; new destination sites in 3, 28, 29–30, 31–2, 35, 36; Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) 102n3; private prison industry 357, 360; prosecutions, immigration-related 232, 238–9, 357, 388; Quotas Laws (1921 and 1924) 26; Secure Border Initiative (SBI-net) 150; September 11 attacks on 368; T and U visas 33, 35; traditional destination sites in 3, 28, 29–30; Trafficking Victims Protection Act (2000) 33; victimization of immigrants 3, 32–5, 36; Violence Against Women Act (2000) 35; war on drugs 225, 371; (Wickersham) National Commission on Law Observance and Enforcement (1931) 27

416

United States (US)-Mexico border 16, 33, 67, 145, 354; human smuggling 6, 275–86; as a business 280–1; as a career 279–80; connections to other criminal groups 283–4, 284–5; costs 280–1, 285–6n1 and 2; current scholarship on 276–7; demographic characteristics of facilitators 278, 279; militarization of 144, 145, 150; organizational characteristics 281–2, 284; roles of smuggling operators 282–3, 284; terrorist activity 275; transnational criminal organizations (TCOs) 275, 277; wall construction 66, 144 United States v Brignoni-Ponce [1975] 356 Universal Declaration of Human Rights 297 unknowing and migrant experience 5, 193, 197–200, 203 unlawful presence 227, 228, 232 Unmanned Aerial Vehicles (UAVs) 142, 150, 388 Vagg, J 318, 385, 386 vagrancy 58–9 V v Addey & Stanhope School & Others 259 Valdez, A 34 Valenzuela, A 28, 34, 359 Valiante, G 216 Valverde, M 151, M 80 van der Leun, J 156, 167, 169, 185, 231, 232, 355, 357, 361, 388 van der Meulen, FH 107, 109, 110, 208 van der Ploeg, I 148 van der Woude, M 167, 231, 232, 357, 361, 388 Van Hear, N 277 Van Liempt, I 277 Van Munster, R 143, 369 van zyl Smit, D 385 Varsanyi, M 29, 31, 356, 362 Vass, AA 385 Vaughan-Williams, N 148 Vaughn, MS 385 Vázquez, Y 388, 389 Vecchio, F 187, 190 Velasco, GM 358 Vélez, M 12, 16, 27, 29–30 Vélez Loor v Panama (2010) 247n25 and 26 Venters, H 99 Vermeulen, M 146, 147, 150, 331, 332 victimization 359, 386; of US immigrants 3, 32–5, 36; of women asylum seekers 294, 295, 297–8 Vidales, G 34 Vienna Convention on Diplomatic Relations (1961) 261–2n18 Vietnamese 129–30, 168 violence: domestic 34–5; structural 360; workplace 34 violent crime 17, 18, 28, 29–30, 32, 45 virtuous war 149 Visa Information System 226

Index

visa policy: Australia 124, 125–8, 129, 131–2, 133, 196; Canada 80 Visser, O 331, 332 Vives, L 151 Vogel, D 163 von Hofer, H 46, 47, 48, 49 Vorell, M 11, 18 Wacquant, L 45, 108, 109, 117, 132, 240, 252, 332 Wadsworth, T 17 wages: minimum 255, 261n15; theft 34 Walia, H 253 Walker, P 16 Walker, R 369 Wall, T 149, 150 Wallerstein, I 180 Walters, W 86, 142, 156, 167, 242, 245 Wanbao Mining Company 342, 343 Wang, X 31 war crimes, and asylum 266–8 war on drugs, US 225, 371 ‘war on’, metaphors of 370 war on terror 146, 147, 148, 368, 371–2, 376 war trauma, and crime 50 war/crime hybridization 370–1, 376 Ward, T 190, 340, 341, 373 Waren, W 34 warfare: algorithmic 144, 148, 149; fourth generation 143, 146; informatization of 143; network–centric 146; virtuous 149 Warls, F 21 Washington Consensus 61 Wæver, O 372 Webber, F 58, 166, 169, 181 Weber, L 33, 37, 57, 58, 59, 60, 65, 66, 67, 68, 69, 71, 76, 84, 123, 129, 148, 149, 151, 161, 179, 180, 181, 194, 223, 228, 230, 237, 290, 296, 302, 303, 310, 312, 317, 324, 325, 356, 360, 361, 371, 386, 387, 388, 390, 391 Weed, E 384 Weimar, W 304 Weiss, A 199 Weitzer, R 15, 206, 213, 295, 386 Welch, M 91, 31, 79, 93, 101, 155, 357 welfare assistance/policy: asylum seekers 181–2, 184, 185, 188–9, 190; Sweden 44–5 Wessler, S 35 West, S 125 Westin, C 43, 45 Westrheim, K 116 Wheatley, ES 82 Whitaker, R 81 Whitlam, G 96 Whitman, J 238, 241 Wickes, R 16, 21 Wikstrom, P 15, 21, 48 Wilkinson, M 370

Wilsher, D 92, 94, 95, 102n1 Wilson, D 143, 143, 148, 149, 373 Wilson, DB 108 Wilson, S 133 Wilson, T 317 Wilson, TM 386 Wimmer, A 199 Winterdyk, J 370 Wisniewski Otero, V 183 Wistrich, AH 165 Wittenburg, V 256 women asylum seekers 182, 288, 290, 292–8; Serbia 6–7, 288, 292–6; trafficking of 293–5, 297–8; victimization of 294, 295, 297–8 women migrants 287, 305 367, 373, 377; domestic helpers, Hong Kong 188; exploitation of 34; violence against 34–5; see also sex work/sex workers; women asylum seekers Women, Peace and Security (WPS) agenda 368, 374–5, 377 Wonders, N 199, 303, 304, 312, 367, 386 Wong Wing v United States (1896) 225 Wood, J 141 Woodiwiss, M 371 Woods, K 338, 341, 345 Woolf, V 287 work permit holders: exotic dancers, Canada 208; Sweden 44; UK 253–4, 257 World Bank 20, 61, 162 Wright, E 35, 231 Wright-Neville, D 371 Wyler, L 276 Yala, C 337 Yalbees, T 341 Yep, R 317 Young, IM 384 Young, K 188 youth crime 361 Yule, K 144 Yuval-Davis, N 77 Yuzana, Ko Ko 345 Zahnow, R 22 Zarni, M 336 Zatz, M 27, 78, 355, 359, 361, 362 Zedner, L 86, 227, 228, 231, 232, 244, 367, 372, 373, 374 zero tolerance policies 309, 311, 324, 326 Zetter, R 179, 180, 181, 186 Zhang, S 276, 277, 281–2, 284 Zhou, M 14, 42 Zion, D 96 Znaniecki, F 26 Zolberg, A 355 Zureik, E 386, 388

417